OSHA proposed silica ruling could cost industry $5.45bn/year

By Emma Hughes
Published: Thursday, 26 September 2013

Regulatory body considers reducing silica permitted exposure level; industry associations say change ‘not justified’

Recently published proposals for new crystalline silica safety standards have been met with stiff opposition from several industry bodies, which claim they are not justified.

The US Occupational Safety and Health Administration (OSHA) published in late August proposals for two new crystalline silica safety standards aimed at reducing the risks of working in an environment where silica particles are present.

In a move that could potentially affect several industrial minerals markets, the OSHA has proposed a new permitted exposure level (PEL) for respirable crystalline silica, together with new provisions for measuring how much silica workers are exposed to.

“Exposure to silica can be deadly, and limiting that exposure is essential,” Dr David Michaels, assistant secretary for labour at the OSHA, said.

“This proposal is expected to prevent thousands of deaths from silicosis - an incurable and progressive disease - as well as lung cancer, other respiratory diseases and kidney disease. We’re looking forward to public comment on the proposal,” he added.

PELs

At present, the OSHA enforces PELs for crystalline silica that were originally adopted in 1971.

For industrial minerals markets, such as construction and general sand industries, the current PEL is 100 micrograms respirable crystalline silica per cubic metre of air during an eight-hour period (0.1mg/m3).

The administration maintains that this level of exposure “does not adequately protect workers” and that the existing boundaries are “outdated, inconsistent and hard to understand” as different levels apply to different industries.

OSHA recommends that the PEL should be reduced to 50 micrograms respirable crystalline silica per cubic metre of air (0.05mg/m3 air) during an eight-hour period and should apply to all industries - general, maritime and construction.

It is this area of the proposed ruling that has been met with contention from industry bodies, which argue that it is not justified.

The National Industrial Sand Association (NISA) reacted to the announcement by saying that it opposes the suggestion to lower the PEL “because [the current PEL] has been proven protective”.

“NISA companies have demonstrated that silicosis can be prevented when exposures are maintained consistently below the 0.1mg/m3 PEL. Lowering the PEL is not justified,” the association said.

“Further complicating this issue is the fact that crystalline silica cannot be measured accurately at levels significantly below the current PEL, given existing analytical techniques,” NISA added.

Industrial Minerals Association - North America (IMA-NA) told IM that its position on the PEL is consistent with NISA’s standpoint.

“A lower PEL will not contribute to safer workplaces, and will have catastrophic economic impacts across a broad spectrum of industries,” a statement from IMA-NA said.

“In fact, an analysis by the American Chemistry Council Crystalline Silica Panel indicates that the total economic impact of halving the current PEL would amount to $5.45bn/year,” it added.

In the construction industry, the National Stone, Sand and Gravel Association (NSSGA) also suggests that reducing the PEL is not the way forward.

“We believe that silica-related diseases are preventable by maintaining workplace exposures below the current OSHA and Mine Safety & Health Administration PELs,” the association outlined.

“Better compliance with, and more effective enforcement of, the current PELs should be achieved before consideration is given to reducing PELs,” it added.

Dust control

The secondary element of OSHA’s proposed rule includes provisions for measuring how much silica workers are exposed to, as well as limiting workers’ access to areas where silica exposures are high.

This element of the rule will be managed in different ways for the construction industry, and general industry and maritime, in order to allow employers to tailor solutions according to their workplace.

In general, the rule will be managed by adopting new safety standards, providing medical exams and training workers about silica-related hazards.

NISA, IMA-NA and NSSGA all agree with this ruling.

“We continue to support reasonable and appropriate monitoring or other exposure assessments and medical surveillance of employees who are potentially exposed to significant levels of crystalline silica,” the NSSGA said.

“IMA-NA believes that the OSHA comprehensive silica standard should mandate that general industry employers, whose workers are exposed to respirable crystalline silica above the AL, must conduct dust monitoring of the air their workers breathe, and must retain records of that monitoring,” IMA-NA suggests.

“In addition, the new standard should require that when workers are exposed above the AL, employers must provide periodic medical surveillance that includes a chest X-ray, and must keep records of that surveillance,” the association added.

Feedback

OSHA legislation relies heavily on input from the public and the agency will conduct extensive engagement to gather feedback from the public through both written and oral comments for 90 days following publication in the Federal Register. This will be followed by public hearings.

Once public hearings conclude, members of the public, who filed a notice of intention to appear, can then submit additional post-hearing comments.



Industrial minerals impact

To discover more about how this ruling might affect the industrial minerals industries specifically, IM spoke to Joey Chbeir, general counsel and director of operations at Industrial Project Solutions, which provides design-build services to the US frac sand industry.

What do you think about the proposal to reduce the PEL from 0.10mg/m3 to 0.05mg/m3?

First and foremost, it is important to mention that OSHA’s proposed limits would apply across the board (industry, construction, and shipyards). Thus, uniformity is somehow welcomed. Moreover, the proposed rule is expressed as a gravimetric measurement of respirable crystalline silica, which is easier to understand (when compared with the existing formula that is based on accounting for crystalline silica content of the dust sampled).

However, we do not believe that halving the PELs is needed. Silicosis could be prevented as long as employers are complying with the current 100μg/m3 PEL. OSHA should focus on ancillary measures when exposures exceed 50μg/m3 (the lowest feasible PEL). Such measures could include establishing exposure assessment, respiratory protection, hazard communication medical surveillance, and record keeping for workplaces where crystalline silica exposures exceed. Remember that 100μg/m3 is the current limit in the UK.

How will this type of ruling affect US companies working with silica sand?

Generally speaking, regulations will always impact companies; some will profit, others will lose. This ruling may appear to benefit companies involved in providing engineering controls, such as IPS; however, the problem with continuously adding restrictive regulations is that you will eventually run out of profitable businesses. In some cases, correcting the problem will involve shutting down operations and re-configuring systems. The effect could be detrimental to some companies.

We have no doubt that the proposed limits, if implemented, would impose costs on the US companies working with silica sand. The numbers we have seen range between $1bn and $5bn per annum.

We believe that companies that have been dealing with silica sand for years would not be substantially affected, as they have standards similar to the OSHA proposals. Unfortunately, small businesses that are resource-constrained or with limited silica sand experience are at a disadvantage; these businesses would have to expend a lot of their resources on the initial high cost of compliance and the cost of implementing some of the ancillary measures (medical surveillance and exposure monitoring when exposure exceeds 25μg/m3).

Do you think this will have a great impact on industrial mineral markets such as hydraulic fracturing?

This proposed standard would put a lot of pressure on smaller companies with limited silica sand experience. In the past 10 years, due to the use of sand in hydraulic fracturing, we have seen the consumption exponentially increase. In fact, the consumption of silica sand in hydraulic fracturing went from about 4m s.tons in 2005 to about 28m s.tons in 2012.

According to the annual USGS reports, between 2005 and 2013, about 22 companies entered the sand production market - the number of companies went from 65 to 87 between 2005 and 2013, respectively. With such high demand, the market had to adjust as numerous players that were inexperienced in handling sand entered the market.

As a result, many of these operations did not have the right engineering controls to protect the employees from exposure that exceeded the current PELs. Unfortunately, we believe that a lot of these companies (whether on the production, storage, or transloading/transport of frac sand) won’t be able to compete due to pressure from low frac sand prices and the proposed exposure limits, which, if implemented, would require them to invest in new equipment. We definitely believe that the hydraulic fracturing industry will be impacted, but employees will only benefit if the employer can stay in business.

The Hazard Alert jointly issued by OSHA and NIOSH in June of 2012 indicates that the exposure to silica at the well site exceeded the 100μg/m3 in numerous cases. Moreover, the Hazard Alert discussed numerous options that could be used to control dust at the well site. If these companies could not maintain the exposure below the current PELs, they will definitely not be able to meet the proposed limits.

Thus, there is no doubt that this proposed regulation, if implemented, will come at a price that would impact the industry.

How likely to do you think it is that these rulings will be passed?

OSHA has been trying to amend the current PELs for years, and it will eventually succeed. I am not sure that the current proposed PELs will be implemented, particularly when the cost of implementation comes at a hefty price and the US economy is still trying to recover from a recession. Even if the proposed limits pass, OSHA has already mentioned a possible five-year grace period.

Do you think it would be more beneficial to increase the safety standards of workplaces where crystalline silica exposure levels are high before reducing the PEL?

The current PELs were implemented in 1971. Since then, occupational exposures to silica and silicosis mortality rates have continuously declined.

Regrettably, a small number of workers is still being diagnosed with silicosis or silica related diseases, but not all workplaces comply with the OSHA PELs.

Therefore, we do believe that increasing the safety standards of workplaces where silica exposure is above the current PEL would be much more beneficial than halving the current limits. At the end of the day, silicosis should not be an issue when exposures are maintained consistently below the current 100μg/m3 PEL and measures are taken when exposures exceed 50μg/m3.