On August 23, 2013 the Occupational Safety and Health Administration (OSHA) published a proposed new rule on silica exposure. Public comments on the proposed rule are due no later than 90 days from publication in the Federal Register, which has yet to occur, as of Tuesday, August 27. Anyone may comment on the proposed rule on the rulemaking docket at regulations.gov.
The proposed rule comes after years of delay at the White House’s Office of Management and Budget (OMB), renowned for demanding comprehensive cost-benefit analyses of proposed regulations. Environmental and organized labor groups, however, were growing agitated at the unexplained delay. The release of the proposed silica exposure rule coming less than one month after Thomas Perez’s confirmation as Secretary of Labor suggests that the OSHA rulemaking train may finally be allowed to leave the station, whether or not OMB is fully on board.
The proposed rule creates new standards for silica exposure and a new uniform permissible exposure limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air (μg/m3) in all affected industries, calculated as an eight-hour time-weighted average. For maritime and general industry, the rule lowers the PEL from the current PEL of 100 μg/m3 to 50 μg/m3, and for construction, from 250 μg/m3 to 50 μg/m3. OSHA is not proposing a rule for agricultural workers, due to limited data on exposures in that industry. OSHA intends to create new standards at 29 C.F.R. § 1910.1053 for general industry and 29 C.F.R. § 1926.1053 for construction, and revise parts of 29 C.F.R. §§ 1910.1000, 1915.1000, and 1926.1000 for corresponding change.
The proposed rule also creates an action level of 25 μg/m3. Sampling at or above the action level triggers the requirements for periodic exposure assessments and would require employers to conduct additional assessments at least every six months until they fall under the action level for two consecutive monitoring assessments taken at least seven days apart. OSHA has specifically requested comment, however, on whether an action level is appropriate for inclusion in the final rule.
OSHA believes that the current PELs pose a significant risk to workers of developing lung cancer and other silica-related diseases. OSHA also believes that a uniform 50 μg/m3 standard is easier to understand and will increase compliance.
OSHA claims that the current PELs for silica, adopted in 1971, are antiquated and based on research from the 1960s and do not reflect more recent scientific evidence. The proposed rules would affect over 2.1 million workers and 534,000 businesses, according to OSHA, and cost $640 million annually for compliance, averaging $1,242 in annual costs per business. The industry most affected by this proposed rule would be hydraulic fracturing, affecting 25,000 employees in 200 companies.
OSHA proposes to have the new rule cover all three forms of crystalline silica, quartz, cristobalite, and tridymite. The rule includes new requirements for exposure assessment, exposure-controlling methods, respiratory protection, medical surveillance, hazard communication, and record-keeping, including:
- generally requiring employers to conduct initial and periodic exposure assessments for respirable crystalline silica, as often as every three months;
- requiring air sampling for each shift, job classification, and work area;
- requiring employers to retain accredited laboratories to analyze samples;
- mandating the use of engineering and work practice controls to reduce respirable crystalline silica below PEL, unless the employer can demonstrate such methods are infeasible;
- prohibiting frequent rotation of employees to prevent exposure above PEL;
- requiring creation of Regulated Areas and an accompanying written access control plan and limiting access to Regulated Areas to essential personnel;
- requiring use of approved respirators;
- requiring no-cost medical surveillance for any employee exposed to silica above the PEL for 30 or more days per year and providing medical opinions to employees no later than 45 days after any examination;
- requiring silica-specific training in an employer’s hazard communication program; and
- mandating record-keeping and retention of nearly all documents and materials (samples, reports, medical surveillance).
Informal public hearings will be held in March 2014 at the U.S. Department of Labor in Washington, D.C. Those who wish to present testimony or question witnesses in the hearings must submit a notice of intent with OSHA by 60 days after publication of the proposed rule in the Federal Register. Anyone who wishes to present documentary evidence or more than 10 minutes of testimony must submit all of his or her documentary evidence or the full text of his or her testimony within 90 days after publication in the Federal Register.
How a typical employer implements this new program—with exposure assessment, samplings, lab results, medical exams—at or under OSHA’s estimated cost of $1,242 per year is difficult to envision. Certain components of the proposed rule may be perhaps economically infeasible, especially for small companies. Many stakeholders have already noted that there is a scarcity of accredited laboratories, raising concerns over technological feasibility.
Could simply handing out respirators to affected employees quickly solve the problem? In a word: no. Respirator use is required, but an employer cannot just hand out respirators to achieve compliance. An employer must implement engineering and work practice controls to get exposure levels below the PEL, unless it can demonstrate such controls are not feasible. Feasibility can be difficult to establish. OSHA takes a dim view of such claims, unless an employer can establish that the proposed rule will drive it out of business.
The proposed rule also contains ambiguities, especially on what kinds of engineering and work place controls will achieve compliance. OSHA may try to implement specific controls after publication of the final rule, under the guise of future memorandums or letters of interpretation (and argue that, under Chevron deference, their word is final). The burden would then shift to the employer to prove infeasibility.
OSHA has not given any timetable for when it expects to publish a final rule on silica exposure. Any final rule would go into effect 180 days after its effective date, but would allow employers one year to implement required engineering controls, and allow two years for labs to meet OSHA’s accreditation requirements.
John F. Martin is a shareholder in the Washington, D.C. office of Ogletree Deakins.
Harold P. Coxson is a principal with Ogletree Governmental Affairs, Inc. and a shareholder in the Washington, D.C. office of Ogletree Deakins.
Stephen C. Yohay is a shareholder in the Las Vegas office of Ogletree Deakins.