Seeking clarity on crystalline silica

By |  August 10, 2018
Photo: iStock.com/gobalink

Now that OSHA produced a new standard for respirable crystalline silica exposure, producers will wait to see what regulation, if any, comes down from MSHA. Photo: iStock.com/gobalink

The Occupational Safety & Health Administration’s (OSHA) new rule on respirable crystalline silica went into effect for general industry and maritime on June 23.

The OSHA standard establishes an eight-hour time-weighted average permissible exposure limit (PEL) of 50 micrograms of silica per cu. meter of air (µg/m3) and an action level of 25 µg/m3. The current Mine Safety & Health Administration (MSHA) PEL is 100 µg/m3.

Respirable crystalline silica particles are at least 100 times smaller than ordinary sand you might find on a beach, and they’re created when cutting, sawing, grinding, drilling and crushing stone, rock, concrete, brick, block and mortar. Activities such as cutting or crushing stone result in employee exposure to respirable crystalline silica dust.

Now that OSHA produced a new standard, aggregate producers face questions and uncertainty regarding what regulation, if any, will come down from MSHA. Should producers expect a carbon copy of the OSHA standard? Will MSHA adapt the OSHA standard? Will MSHA even develop a new standard?

Whether or not a new MSHA standard comes to be, some industry companies are balancing two health and safety regulations as OSHA and MSHA have different standards.

Be proactive

Mine operators are already required to provide training on potential silica hazards as part of MSHA’s mandated hazard communication training. But those who operate a pit or quarry would be wise to familiarize themselves with OSHA’s standard so they are best prepared when an applicable rule arrives, says Adele Abrams, an attorney whose practice is focused on occupational and mine safety and health.

“The mining operators are going to need to get on the ball here,” Abrams says.

Photo: ISTOCK.COM/Nikola Nastasic

Stacker dust photo caption: Based on MSHA’s updated Spring 2018 unified agenda, respirable crystalline silica is considered a long-term action for rulemaking, creating uncertainty for what’s ahead. Photo: iStock.com/Nikola Nastasic

As Abrams points out, the lungs of employees at ready-mix concrete plants, which are covered by OSHA under general industry, have the same makeup as those who work at MSHA-regulated aggregate operations.

Consider the vertically integrated operation with a ready-mix plant and a quarry, Abrams says. She argues that it is unethical to provide the safety training and benefits in relation to silica to ready-mix employees because they are regulated under OSHA and yet continue to expose employees at aggregate operations to certain silica thresholds because the MSHA standard allows it.

Under the OSHA standard, construction employers are required to establish and implement a written exposure control plan that identifies tasks involving exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur. These employers are also expected to designate a specific employee to implement the written exposure control plan.

In addition, employers are required to offer medical exams. These are mandated every three years for workers who are required by the standard to wear a respirator for 30 or more days per year in construction, or for workers foreseeably exposed above the action level for 30 or more days annually.

“There are way too many operators in the aggregate industry that look to MSHA as being their industrial hygiene department and they count on the fact MSHA samples can be attacked because they are not certified industrial hygienists,” Abrams says. “A lot of times they are doing it wrong.”
Abrams suggests aggregate producers start to sample and keep track of silica data.

“If you don’t have your own data and you don’t have some kind of exposure control approach similar to OSHA’s or if you have workers not trained in using respirator protection, you are going to have a problem,” Abrams says.

Abrams advises producers to comply with OSHA standards immediately.

“Document your efforts, get some sampling, find out where your exposures are and work to control those exposures,” she says.

Still, Bill Doran, an attorney with the national labor, employment and safety law firm Ogletree Deakins, argues that industry professionals are already keeping up with stringent standards.

“It is my sense from the people I have talked to and worked with that there is a great deal of confidence [the industry] is maintaining health and safety for their people with respect to silica,” Doran says. “I don’t know if there is a groundswell to change the process because there is a consensus [they] are already doing a good job with it.”

On the MSHA front

Photo courtesy of NSSGA

MSHA Assistant Secretary David Zatezalo touched on respirable crystalline silica in an address at the National Stone, Sand & Gravel Association’s Annual Convention earlier this year. Photo courtesy of NSSGA

At the 2018 National Stone, Sand & Gravel Association Annual Convention in Houston, David Zatezalo, assistant secretary of MSHA, offered insights on the agency’s ongoing rulemaking efforts, including a look at what’s to come in regard to crystalline silica.

Although MSHA previously tabled implementation of a silica rule, Zatezalo indicated his intention is to increase enforcement. Based on MSHA’s Spring 2018 agenda, respirable crystalline silica is considered a long-term action for rulemaking.

“Everybody has been watching and listening to the new assistant secretary from MSHA to get perspective of what is to come from MSHA,” Doran says. “I have not seen any indication that there is any rulemaking plan at this point, but that’s me on the outside looking in. My impression is that there is no rulemaking anticipated at this point, but that obviously can change very quickly.”

Abrams believes a legislative ruling can be made much quicker if there is some pressure from the mining industry as a whole.

“I think [MSHA] is going to be forced to put this silica rule on the front burner again,” Abrams says. “Despite the anti-regulatory thrust in the current administration, I would be really surprised if we don’t see a petition for an emergency rulemaking motion come out of the United Mine Workers at some point. MSHA is going to have to respond to that, and that may force the issue.”


Respirable Crystalline Silica standards

According to the updated Spring 2018 Unified Agenda from the Mine Safety & Health Administration (MSHA), the rule on respirable crystalline silica currently has no legal deadline and is labeled as a long-term action for the agency.

According to MSHA, overexposure to crystalline silica can result in some miners developing respiratory diseases that can be fatal. MSHA’s metal/nonmetal mining industry standard is based on the 1973 American Conference of Governmental Industrial Hygienists’ threshold limit values formula: 10 milligrams per cu. meter (mg/m3) divided by the percentage of quartz plus two. The formula is designed to limit exposures to 0.1 mg/m3. The National Institute for Occupational Safety and Health recommends a 50 micrograms of silica per cu. meter of air exposure limit for respirable crystalline silica.


Information courtesy of the Office of Information & Regulatory Affairs.

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