In 2013, the agency published a proposed silica rule that promised significant change to the current regulation, including a large reduction in the silica exposure limit. Highly publicized and criticized extensively by the industry, this proposal sparked national attention. After a lengthy public comment period and weeks of public hearings, on March 25, OSHA issued its final rule on the matter. This regulation is comprised of two separate standards: one for the construction industry and another for general industry and maritime. Although evidence from both OSHA and the Center for Disease Control and Prevention (CDC) indicated that silica-related mortality was virtually vanishing prior to the publication of the final rule, OSHA estimates that this rule will save more than 600 lives and prevent more than 900 new cases of silicosis each year.
Of great importance to you, in particular, is the fact that the Mine Safety and Health Administration (MSHA) is predicted to issue a proposed silica rule sometime this calendar year. If MSHA were to follow in OSHA’s footsteps and mirror this final rule, it could mean major changes for the mining industry as well. MSHA currently reduces permissible exposure limits (PELs) based on a silica-content driven formula and applies a silica-only based PEL to non-coal mining operations. Lowering the silica PEL to mimic OSHA’s would naturally result in a lower exposure limit, but would also mean a plethora of new requirements for operators. This raises a host of concerns such as cost and feasibility of implementation. As the agency’s focus on silica continues, operators should be on alert to see whether these anticipated effects of OSHA’s final rule materialize in the near future.
So what would a final MSHA silica rule look like if it were based on OSHA’s final silica rule? First and foremost, the final rule reduces the PEL for silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift, and implements a new action level of 25 micrograms per cubic meter. This is a drastic change from the previous respirable silica PEL. Prior to the final rule, OSHA’s general industry PEL for Silica was 100 micrograms per cubic meter of air and 250 micrograms per cubic meter of air for construction and shipyards. A reduction of this magnitude raises serious questions regarding the future accuracy of sampling and analysis using the existing methods to calculate the PEL. With such a significant decrease in the exposure limit, it stands to reason that results will likely vary between devices and laboratories. It also logically follows that if MSHA were to adopt OSHA’s practice for lowering the silica PEL, operators could likely experience a spike in the amount of sampling conducted in general.
The final rule also requires that employers use engineering controls such as water or ventilation to limit employee exposure to the PEL, providing respirators when engineering controls cannot adequately limit that exposure. OSHA recognizes that maintaining the significantly lower PEL will be technologically challenging for some operations, making the use of respirators mandatory in those instances. A similar adoption by MSHA could mean that mining operators are subject to the same requirements for engineering and work practice controls. A chief concern here is whether implementing these required controls can effectively reduce exposure levels at such a large degree. And if so, at what cost to operators?
The agency maintains that it sees these added measures as both technologically and economically feasible for the industries covered by the final rule, but the same conclusion may not be so easily reached when applied to the mining industry. Not only are there explicit requirements that are imposed by lowering the silica PEL, but there are also those additional requirements that kick in when the action level is triggered (e.g., exposure assessment and medical surveillance). When factoring in the cost of compliance alone for many operators, the tab for some could be hefty. Yet, this could be a reality in the event that MSHA follows suit.
If the potential effects of simply lowering the silica PEL were not enough to grab your attention, consider the fact that this won’t be the only change operators will see as a result of the agency’s rulemaking. OSHA’s final rule also requires that employers limit worker access to any areas identified as high exposure and develop a written exposure control plan that is implemented by a competent person (i.e., a designated person who is capable of identifying silica hazards and has the authority to take corrective measures to address these hazards). Additionally, highly exposed workers must be offered medical exams based upon their level of exposure, and workers are required to be properly trained on the risks of silica and how to limit exposure. Still, these are just a few examples of the newly imposed requirements for which operators will need to begin adjusting their current programs and policies immediately. The new standards contained in the final rule will take effect on June 23. Following this date, employers covered by the rule will have somewhere between one to five years to comply with most requirements based on the industry schedule provided in the regulation.
In the interim, stay tuned operators, as the OSHA final rule is currently being challenged by multiple associations. With this challenge, it remains to be seen whether MSHA will want to try to push a similar rule.
Breyana A. Penn is an associate in the Atlanta office of Jackson Lewis P.C.