Crystalline Silica: OSHA s Proposed Rulemaking Tina M. Stanczewski, Esq., MSP Law Office of Adele L. Abrams P.C. www.safety-law.com 301-595-3520
Topics Regulatory Overview Proposed Rule Related Measures Consequences and Action Questions
Regulatory Overview
Crystalline Silica Regulated by OSHA to prevent over-exposure in occupations such as hydraulic fracturing, frac sand mining, construction, sandblasting, demolition, etc. Inhalation of respirable particles can cause health problems Workers or other individuals with high rates of crystalline silica exposure may develop acute, accelerated, or chronic silicosis and/or lung cancer. Crystalline silica rated Group One human carcinogen by IARC. Considered carcinogenic by NTP and ACGIH. Latency periods for silica-exposed workers can reach as long as 35 to 40 years, and symptoms often do not appear until after retirement (ticking time bomb for worker s comp and tort claim purposes).
Current Regulation of Silica OSHA regulates silica exposure in general industry, construction, maritime and agricultural employment sectors. Hydraulic fracturing falls under general industry Current OSHA general industry PEL equates to 0.10 mg/m 3 (100 ug/m3). MSHA regulates silica exposure at all mines (includes frac sand plants). Current MSHA rules adopt ACGIH TLV (1973- metal/nonmetal). 30 CFR 56/57.5001 Current MSHA PEL equates to 0.10 mg/m 3. (100 ug/m3).
OSHA Enforcement OSHA lists the following standards as relevant to crystalline silica regulation: Section 5(a)(1) (General Duty Clause) 1910.94 (General Industry Ventilation) 1910.1000 (Air Contaminants Table Z-1 for air contaminants and Table Z-3 for mineral dusts) 1915.34 (Shipyard mechanical paint removers) 1915.1000 (Shipyard air contaminants) 1926.55 (Construction gases, vapors, fumes, dusts and mists) 1926.57 (Construction ventilation)
Industries Impacted Two Proposed Rules (Slightly Different) General Industry & Maritime Hydraulic Fracturing is under General Industry Construction (See 29 CFR Part 1926) Proposed rule covers: three forms of crystaline silica, quartz, cristobalite, and tridymite
OSHA s Justification Health Consequences Incurable or fatal lung disease Exposure is High 2.2 million workers exposed to silica dust each year (1.85 million from construction) Expected Results 700 lives may be saved under new PEL (560 for construction) 1600 new silicosis cases prevented under new PEL (1,080 for construction) 12 avoided fatalities, 2.9 avoided lung cancers for fracking industry
PROPOSED RULE
Proposed Changes Decreases Permissible Exposure Limit (PEL) Proposed: 50 micrograms per cubic meter on 8-hour time weighted average for ALL industries Existing: General Industry & Maritime 100 micrograms per cubic meter Construction 250 micrograms per cubic meter Result: decreases exposure limit for general industry & maritime industry by 50% and 80% for construction industry Decreases Action Level Proposed: 25 micrograms per cubic meter Requires Additional Procedures Conduct medical surveillance Train workers Maintain records
Compliance Requirements Testing Measure exposure if at or above action level of 25 (µg/m3) Protect workers from exposure above PEL of 50 (µg/m3) over 8 hour average Conduct initial and periodic assessments as often as every 3 months Conduct air sampling for each shift, job type, and work area Logistics Limit access to areas of exposure above PEL Use dust controls to protect workers Train workers to limit exposure in hazard communication program Use accredited laboratory to analyze sample Prohibit frequent rotation of employees as reduction measure
Compliance Requirements Medical Examinations Provide no cost medical tests (chest X-ray, lung function) When worker exposed for 30 or more days per year Provide medical opinion to employee within 45 days of exam Policy Mandate use of engineering and work practice controls to reduce PEL Create regulated areas with written access control plans for limiting personnel Record Keeping Maintain records of exposure and medical exams
Post-Exposure Assessment If sampling at or above action level occurs: Perform additional assessments every six months Two consecutive monitoring assessments (7 days apart) must show limit below action level
Economics & Schedule Small Company (20 or fewer employees) $550.00 per year General Industry $2,600.00 per year Construction $1,000.00 per year Net Benefit of $2.8 to 4.7 billion annually over 60 years Timeline if Rule Adopted 240 days after rule published, companies required to comply One year to install engineering controls
Related Measures
Role of ASTM E1132 Under Technology Transfer Act of 1995, and OMB Circular A-119, agencies must consider any relevant voluntary consensus standards before embarking on development of a new rule. Therefore, OSHA and MSHA must consider the viability of ASTM E1132-99a, Standard Practice for Health Requirements Relating to Occupational Exposure to Respirable Crystalline Silica, before promulgating a new silica standard. ASTM s silica standard is mentioned in the proposed rule and could end up being incorporated by reference ASTM also has a committee on hydraulic fracturing (D18.26), which will work in tandem with the E34 H&S standards in the event that a separate fracking silica standard is deemed warranted.
ASTM E1132 ASTM E1132 does not set exposure limits, nor specify any particular sampling and analytical method. It recognizes both the current OSHA and MSHA PELs, and the NIOSH REL of 0.05 mg/m 3 for respirable silica. ASTM E1132 also establishes a hierarchy of engineering controls, administrative controls, respiratory protection, and work practices. It sets forth provisions for: hygiene facilities, medical surveillance, exposure monitoring, medical protection, worker training and education, and warning signs and labels. It recognizes the following analytical methods: NIOSH Method 7500 (XRD), NIOSH Method 7601 (Visible Absorption Spectrophotometry), NIOSH Method 7602 (crystalline silica), and NIOSH Method 7603 (coal mine dust). ASTM E1132 encourages employers to sample and maintain records of occupational exposures, to use supplied air respirators or ventilated enclosures, and to establish Exposure Control Plans.
Consequences & Action
OSHA and MSHA Sampling Federal regulations promulgated by OSHA and MSHA require monitoring the presence of silica in the workplace atmospheres and marketed products. OSHA samples relatively few worksites so in order to evaluate potential worker exposures, employer must conduct own sampling. MSHA inspects each mine at least twice/yr. and performs health sampling at least annually. Can issue citation based on a single sample during a single shift. MSHA has an enforcement initiative on dust sampling underway may demand to see operator s own sampling results All govt. sampling results and citations for overexposure are posted on DOL website and available to public through FOIA. This creates historical record of overexposures that can be used in tort litigation as well as by those opposing fracking (and can be used to infer public health issues).
Summary New OSHA/MSHA standards lowering PEL and documenting overexposures based on findings of possible carcinogenicity will establish liability. Plaintiffs will increasingly access OSHA/MSHA public data on sampling results and citations to support litigation or to block permitting of industries they oppose. Consensus standards such as ASTM E1132 will be used by OSHA as well as by plaintiff attorneys to show violation of industry standards of care.
Summary Employers must sample for silica and implement preventative measures NOW (not wait for OSHA/MSHA) to protect workers and third parties from adverse effects of possible overexposures. Awareness of national consensus standards and application of these best practices, where appropriate, may help provide defense to citations and tort litigation A proactive approach to silica risk reduction is key to fending off OSHA/MSHA citations, toxic tort lawsuits, and worker s compensation claims.
Take Action Docket ID# OSHA-2010-003 Submit Written Comments Once published in Federal Register, you have 90 days to submit comments Check: https://www.federalregister.gov/ for publication Submit comments electronically, by fax, or mail Attend Public Hearings Scheduled to begin March 4, 2014 Testify or Question Witnesses At 2014 Hearing File written notice within 60 days of publication
QUESTIONS? Tina Stanczewski, Esq., MSP Law Office of Adele L. Abrams P.C. 301-595-3520 tina.stanczewski@comcast.net www.safety-law.com