Proposed Silica Rule Testimony Under Review
OSHA is considering the testimony from a two-week public hearing on its proposed rule to reduce the permissible exposure limit to silica before it submits its final draft to the U.S. Office of Management & Budget.
Shannon Wetzel, Senior Editor
(Click here to see the story as it appears in June's Modern Casting.)
On August 23, 2013, the U.S. Occupational Safety and Health Administration (OSHA) released a proposal which considerably toughens its regulation of respirable crystalline silica by reducing the permissable exposure limit (PEL) to silica from 100 µg (micrograms)/cu.m to 50 µg/cu.m. A Silica Task Force created by the American Foundry Society (AFS) has been directing the industry’s comments and discussions with OSHA in response to the agency’s proposed silica standard.
Outside consultants for the metalcasting industry estimate the costs to meet the lower level will be more than $2.2 billion a year for the metalcasting industry. Based on this analysis, the proposed PEL would impose annual costs equivalent to 9.9% of the metalcasting industry’s revenue and 276% of its profits.
OSHA gave 105 days for the public to submit comments on the draft regulations, and public hearings before the U.S. Department of Labor were held March 18-April 4. On March 28, AFS and metalcasting industry representatives provided their testimony. The panel consisted of Tom Slavin, AFS Safety & Health Committee Chair and Consulting Industrial Hygienist at Cardno ChemRisk; Bob Scholz, TRC Environmental Corp.; Chris Norch, Denison Industries; Peter Mark, Grede Holdings; Jerry Call, AFS CEO; and Al Spada, AFS director of marketing, communications and public relations.
“The requirements in OSHA’s proposed silica rule are overly burdensome and not achievable for the foundry industry,” Mark said in his testimony in March. “They will significantly impair U.S. foundries’ ability to compete in a global economy, force foundries to go out of business, and make others shift production offshore.”
In the testimony, AFS called on OSHA to:
- Change the formulaic PEL for respirable crystalline silica exposure in foundries to a simple value of 100 µg/cu.m.
- Work with employers to improve compliance with this newly adopted PEL of 100 µg/cu.m through training, outreach and compliance assistance.
- Work with the National Institute for Occupational Safety and Health to help develop innovative approaches to the issues of the industry.
- Work with EPA to allow expansion of ventilation systems to reduce employee exposures under currently permitted criteria.
- Withdraw its proposal, correct the flaws in its economic and technological assessments and modify it to make it economically feasible and allow the use of the most cost effective means of compliance for the metalcasting industry.
“Foundries compete on many levels, but when it comes to health and safety, foundries have freely shared information about controls and best practices,” Call testified. “Despite extensive, expensive and sincere efforts, consistent compliance with the current PEL—which OSHA proposes to cut in half—has not proven feasible in critical areas of the foundry.”
The more than three hours of testimony included substantive, non-contentious dialogue and questions between OSHA and the metalcasting industry panel. Several agency officials complimented AFS on the quality and detailed data the industry provided to the agency.
AFS will be filing post-hearing comments following the public hearings and is reaching out to members of Congress to educate them and their staff about the devastating impact OSHA’s proposal will have on metalcasting facilities.
As the proposed rule stands, metalcasters should be aware of certain changes in compliance requirements. Several provisions are included in the proposed standard beyond a lowered PEL, including:
- Measuring the amount of silica workers are exposed to above an action level of 25 μg/cu.m.
- Protecting workers from respirable crystalline silica exposures above the PEL of 50 μg/cu.m on average over an 8-hour day.
- Limiting workers’ access to areas where they may be exposed above the PEL.
- Using dust controls to protect workers from silica exposures above the PEL.
- Providing respirators to workers when dust controls cannot limit exposures to the PEL.
- Offering medical exams, including chest X-rays and lung function tests, every three years for workers exposed above the PEL for 30 or more days each year.
- Keeping records of workers’ silica exposure and medical exams.
Based on industry input, OSHA has made some adjustments to the language of the standard in the last couple of years, including basing the standard on current sampling technology so a new method or procedure will not have to be tested, vetted and learned. Additionally, OSHA agreed to begin medical surveillance of PEL after 30 days, every three years, avoiding unnecessary testing costs on individuals who do not remain employed at a plant for more than a month.
Following the public hearing held this March, participants who filed notice of intent to appear, including AFS, have the opportunity to file post-hearing submissions. Additional relevant information and data were due June 3 and final briefs, arguments and summations will be accepted through July 18. AFS is in the process of putting together responses to questions from OSHA and final arguments/briefs to meet the deadline.
For the rest of this year and into 2014, OSHA is expected to review and evaluate the written comments, hearing transcripts and post-hearing briefs. During this time, the agency will determine if changes are necessary and can make revisions to the text of the rule. The agency has changed proposed rules in the past after receiving feedback from stakeholders.
Once OSHA has completed the evaluation and made changes to the text of the proposal, it will be reviewed by the solicitor’s office within the agency before the final draft is sent to the U.S. Office of Management & Budget (OMB) for final review before publication. This document is not shared with the public.
At a future date (likely in 2015), AFS plans to meet with the OMB’s Office of Information and Regulatory Analysis to discuss the impact of the OSHA silica rulemaking on the metalcasting industry and focus on the economic and technological flaws of OSHA’s analysis of the metalcasting industry.
After the White House signs off on the rule, it is published in the Federal Register as a final rule, likely sometime in 2015 or 2016. Any group that believes it is adversely affected by the rule may request a judicial review within 60 days of the final rule’s publication.
It is likely a ruling will come before the 2016 election. A court challenge from the metalcasting industry may be necessary to address the major discrepancies that will critically affect the industry’s future sustainability.
Once the final rule is published, the standard will become effective after 60 days. All obligations set in the rule are required to commence 180 days after the effective date, except for engineering controls and laboratory requirements, which are required after a full year.
Economic and Technological Feasibility
OSHA’s rule applies to respirable crystalline silica, with “respirable” defined as having particles less than 5 microns in diameter. Human hair is 80 microns in diameter. The agency estimates 2.2 million workers will be affected by the proposed rule, which applies to all of general industry, including metalcasting. Metalcasting stands to be one of the most affected sectors.
The current PEL of 100 μg/cu.m of respirable crystalline silica was adopted in 1971. OSHA has sought to update the standard because the current one is based on research from the 1960s and uses complicated formulas. The ultimate goal is to protect workers from silicosis, lung disease and kidney disease. The new standard is one of the most significant and comprehensive health rulemakings undertaken by OSHA.
To comply with the new standard, metalcasting facilities face two major challenges: economic impact and technical feasibility. A wide gap of disparity between OSHA assumptions and industry assumptions on cost and feasibility makes for a potentially contentious comment and hearing period for the proposed silica standard.
OSHA estimates the cost for additional controls for the metalcasting industry to comply with the lowered PEL to be $32 million a year. The metalcasting industry estimates the cost to be closer to $1.5 billion a year—more than 46 times OSHA’s estimate. In addition, OSHA’s ancillary cost estimation of $9 million a year is much lower than the industry’s estimate of more than $90 million a year (Tables 1-2).
Perhaps the largest issue is that it is going to be difficult for metalcasters to meet the OSHA proposed PEL. According to OSHA’s data, a portion of the metalcasting industry already exhibits noncompliance with the current PEL (Table 3). More than 40% of facilities are noncompliant with the current 100 μg/cu.m limit in three job categories: cleaning/finishing operators, sand system operators and abrasive blasting operators. More than 30% are noncompliant in furnace, knockout, pouring and maintenance operation. The lack of compliance stems largely from the lack of a ready, cost-effective solution. OSHA’s cost analysis estimates include only the cost to reduce PEL from 100 μg/cu.m to less than 50 μg/cu.m and not the costs for those already above the current limit to progress to the new, more stringent limit.
The disparity in costs goes hand in hand with the disparity in feasibility assumptions. OSHA’s numbers assume a few examples of workable methods in a handful of metalcasting facilities can be applied broadly across the entire industry with the same success. AFS and the industry contend this one-size-fits-all approach will not work, as dust sources are not the same at every facility. A significant portion of costs for compliance will go into iterative (trial-and-error) studies to find a workable solution at individual plants. Other costs not included in OSHA’s economic analysis include permit applications, design engineering, makeup air, baghouse installation, and maintenance and downtime for installation.
For the costs included in OSHA’s analysis, such as equipment and engineering controls, AFS and the industry contend the agency has underestimated the equipment needed to comply with the lowered PEL. For instance, where OSHA’s cost analysis assumed foundries could use a $5,000, 15-gallon HEPA vacuum in place of sweeping, an economic study performed by consulting firm Environomics Inc. figured $45,000 for a 2-cu.yd., 40-horsepower vacuum system with HEPA filter would be needed to achieve compliance in a comparable plant.