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OSHA Proposed Crystalline Silica Rule
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On September 12, 2013, the Occupational Safety and Health Administration (OSHA) released its long-awaited proposed standard on respirable crystalline silica.  The proposed rule would lower to the Permissible Exposure Limit (PEL) to 50 micrograms per cubic meter of air  (µg/m3), which is 50% of the current PEL and consistent with the NIOSH REL. The agency also proposed an action level of 25 µg/m3. The proposed rule will cover the three forms of crystalline silica: quartz, cristobalite, and tridymite, and applies to general industry, maritime, and construction. According to the OSHA proposed rule, the final rule would affect over 2 million workers, and the agency’s risk assessment links overexposure to respirable crystalline silica to health conditions including lung cancer, silicosis, chronic obstructive pulmonary disease, and autoimmune disorders.

The proposed rule not only aims to enforce significantly lowered action and permissible exposure levels (PEL), but also places on operators increased requirement for administrative and engineering controls as well as exposure monitoring, medical surveillance, and implementation of "best practices.” A key issue surrounds currently utilized sampling methods, which do not have precision down to the 25  µg/m3  action level –  the level that triggers many of the rule’s requirements - but OSHA indicated that the standard is intended to be "technology forcing.” 

Under the new standard for general industry, employers must perform initial monitoring of employees "who are, or may reasonably be expected to be” exposed to crystalline silica at or above the action level of 25 µg/m3. For those general industry operators already testing for crystalline silica exposure, the previous testing may suffice for the proposed initial monitoring proposed above. the requirement for initial monitoring is satisfied if the employer has monitored employee exposures in the 12 months prior to the standard’s effective date, or has "objective data”  that demonstrates that respirable silica "is not capable of being released at or above the action level under any expected conditions of processing, use or handling.” "Objective data” is defined as "monitoring data from industry-wide surveys or calculations based on the composition or chemical or physical properties of a substance.”

However, where the initial monitoring shows that exposure is above the action level but below the PEL, the monitoring must be repeated every six months.  If the initial monitoring shows exposures above the PEL, repeat monitoring must be done every 3 months, until two consecutive tests show exposure below the action level.  However, additional assessments are required "whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level.”

The proposal for construction provides for similar assessment of employee exposure, but provides an alternative approach: "task based control strategies,” for certain operations.  For those operations, the employer may, instead of assessing employee exposure, implement specified equipment safeguards and work practices.  If the equipment and work practices are implemented, the employer is not required to assess employee exposure. 

In the proposal, OSHA proposes a hierarchy of mandating engineering and workplace controls over simply providing personal protective equipment (PPE) such as respirators, and it specifically bars job rotation as a method of attaining compliance. The proposed rule states that "the employer shall use engineering and work practice controls to reduce and maintain employee exposure … to or below the PEL unless the employer can demonstrate that such controls are not feasible.”  The employer is responsible for implementing the controls to reduce exposure to the "lowest feasible level” and supplementing with use of respiratory protection.  In addition, both the general industry and construction standards require that whenever an employee’s exposure "is, or can reasonably be expected to be in excess of the PEL,” the employer must establish either a "regulated area” or have a "written access control plan” to limit persons who may enter, and require certain protections (e.g. respirators, protective clothing or removal of dust from contaminated clothing) for any persons who do enter the restricted area.

OSHA has included in the proposed rule medical monitoring requirements for any worker exposed to heightened levels of crystalline silica. The proposed rule states that medical surveillance shall be provided (at no cost to the employee) for each employee who will be exposed above the PEL for 30 days or more per year.  Such surveillance program includes an initial baseline exam within 30 days of initial assignment and repeat exams every 3 years or more frequently if recommended by a health care provider. 

Finally, the proposed rule stipulates requirements and provisions regarding laboratory testing and record keeping of exposure data. The proposed rule requires operators to retain accredited laboratories to analyze samples. Additionally, operators will also be required to maintain complete records and materials, such as samples, reports, and medical surveillance records related to respirable crystalline silica exposure.  The rule’s preamble makes quite frequent reference to the American Society for Testing and Materials (ASTM) standards for general industry (E1132) and construction (E2625), which dictate best practices but do not include an occupational exposure level. It is possible that one or both of these consensus standards could be incorporated by reference into a final OSHA standard.

The current significant dates are:

-December 12, 2013: Deadline to submit a request to testify at the public hearings
-January 27, 2014: Deadline for written comments
-March 18, 2014: Start date for public hearings in Washington, DC.

This regulatory summary is provided by IMA-NA Associate Member: Adele Abrams, Esq., CMSP, Law Office of Adele L. Abrams.

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