OSHA’s New Crystalline Silica Rule Prepared for West Michigan Industrial Hygiene Society Silica PDC November 1, 2016 Gary L. Visscher, Esq.| Law Office of Adele L. Abrams gvisscher@aabramslaw.com | (301) 595-3520

Overview Final rule published March 25, 2016 Federal Register. Rule and preamble 606 pages. Constr. standard compliance date – 6/23/2017 General Industry/maritime – 6/23/2018. Oil and gas hydraulic fracturing has until 6/23/2021 to adopt engineering controls. Medical surveillance for exposure over PEL on effective dates of standards. Exposure over action level begins 6/23/2020. Specified lab analysis methods for both GI/Maritime and Construction effective 6/23/2018. OSHA estimates stds. cover 2 million construction workers and 300,000 in general industry and maritime.

Enforcement and Regulation History 1971 – OSHA promulgated “Z tables” with 425 PELs, including crystalline silica 1972 – Directive on crystalline silica 1996 – Silica Special Emphasis Program 1997 – Silica listed on Regulatory Agenda for “Long-term action.” Following year moved to “pre-rule.” 2001 – Appellate Court decision 2002 – Silica National Emphasis Program 2003 – Initiated SBREFA panel on silica rule 2008 – Silica NEP updated 2013 – Notice of Proposed Rulemaking. Hearings in 2014. 2016 – Final rules: 1910.1053; 1926.1153.

Silica Standards Comparison Scope ( General Industry/Maritime) Definitions Permissible exposure limit(PEL) Exposure assessment Regulated areas Methods of compliance Engineering and work practice controls Written exposure control plan Respiratory protection Housekeeping Medical Surveillance Communication of silica hazards Recordkeeping Dates Scope ( Construction) Definitions Specified exposure control methods -or- Alternative exposure control methods Permissible exposure limit (PEL) Exposure assessment Methods of compliance Written exposure control plan Respiratory protection Housekeeping Medical surveillance Communication of silica hazards Recordkeeping Dates

Litigation Multiple challenges were filed in six different courts of appeals. By lottery cases were consolidated in DC Cir. DC Cir recognized as lead court on administrative law. About 1/3 of all agency appeals go to DC Cir. Initial briefs are to be filed Nov. 18. Oral argument likely late spring or summer 2017. Likely grounds for legal challenge include scientific basis for rule, feasibility for certain industries, availability and capability of labs and exposure measurement, absence of medical removal provisions.

OSHA Compliance Directive “Many more questions than answers at this point.” Some examples: Exposure assessment Availability of laboratories Methods of compliance Table I procedures, and when does it apply. How to monitor for workers who do multiple tasks Multi-employer sites How to measure 30 days when work is irregular or involves multiple tasks.

Related issues MSHA: Expected to adopt standard close to OSHA’s. May wait for outcome of litigation before proposing standard. Silica litigation. Impact of standard is difficult to predict. Long latency period means that exposures at issue in most current cases long pre-dates standard. On other hand, reduced PEL and other provisions in the standard may help to establish liability (standards of care).

Issues in working with association(s) in compliance with standard Contacted by an association looking to help members anticipate new standards. Put together team of engineers, IH, attorneys. Operate in both general industry and construction environments. “Fluidity” of operations that produce or may produce respirable silica exposures makes measuring and assessing a challenge. Used video to illustrate effect of different control measures in reducing dust.

Summary of Exposure Assessment Step 1 – Determine which tasks are likely to be overexposed Step 2 – Determine what engineering controls and work practices are likely to be effective Step 3 – Implement engineering controls and work practices Step 4 – Resample to determine effectiveness of controls Step 5 – Ensure controls remain in place Step 6 – Update WECP on an annual basis

Summary of Monitoring Results at Member Plants and Worksites ≥ 50 ug/m3 Supervisors/Crew Leader and Quality Control who moved throughout the plant and plant yard areas and construction work sites were affected by multiple sources  Dry finishers were 2 to 7 times higher than the PEL Surface dust was directly attributable to multiple over exposures at both plants and construction sites affecting loader operators, mule yard operator, shipper, fork lift operator, supervisors Riding floor sweeping task was in excess of the PEL by a factor of 3 Abrasive blasters at all three plant sites were in excess of the PEL using silica, amorphous glass, and black beauty. Duration of blasting had a significant impact on exposure level.  

Summary of Monitoring Results at Member Plants and Worksites Between 25 and 50 ug/m3   Form Cleaning and Setup tasks (were between the AL and the PEL) General inside labor working multiple tasks during the shift

Summary of Monitoring Results at Member Plants and Worksites < 25 ug/m3 Batch plant operators observed worked in control rooms with dust figures <15 ug/m3   Hollow core being cut at the plant using the wet method < 10 ug/m3 Patchers and grouters and Riggers were in the teens Crane operators at the erection sites were in the teens even though they operated with the door open the entire shift

Written Exposure Control Plan Contents of a WECP: Identify and describe the tasks that involve employee exposure to silica Describe the engineering controls, work practices controls and respiratory protection used to limit employee exposure to silica Describe the housekeeping measures to limit employee exposure to silica

Other issues Competent person (construction) – Duties, Training Responsibilities on multi-employer sites. Regulated Areas (general industry) – Factors to consider Signage Administrative Controls – job rotation

Gary L. Visscher, Esq. (301) 595-3520 gvisscher@aabramslaw.com Questions? Gary L. Visscher, Esq. (301) 595-3520 gvisscher@aabramslaw.com