The Legal Challenge to OSHA’s Crystalline Silica Rule
Click here to see this article as it appears in Modern Casting.
In March 2016, the U.S. Occupational Safety & Health Administration (OSHA) finalized a new regulatory structure for the control of crystalline silica, including significantly reducing the silica permissible exposure limit (PEL) and action level. Silica (quartz) is one of the most common minerals on earth and found in countless products. It is essential for manufacturing, particularly for metalcasting, construction, brick making, and oil and natural gas. The U.S. metalcasting industry uses millions of tons of silica sand per year in the production of metal castings.
The new rule reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter (µg/m3) of air, averaged over an 8-hour shift—half the current maximum for general industry. In addition, OSHA sets an action level of 25 µg/m3, which triggers an employer requirement to conduct air monitoring and other mandates.
The new rule will require foundries to implement extensive engineering and workplace controls to limit silica exposure over other available technology. Outside economists estimated compliance with the rule will require a substantial investment of at least $1 million dollars per plant. The standard for general industry will take effect June 23, 2016; however, metalcasters will have two years to come into compliance with most obligations of the silica rule starting June 23, 2018.
What does compliance with the new PEL mean? The distribution of exposure levels is log normal, meaning with a mean exposure level at the new standard, metalcasters would still have half of their exposures exceeding the PEL. For an 84% confidence of compliance, metalcasters would actually have to reach a mean exposure level of 20 µg/m3 (10 µg/m3 to achieve 95% confidence).
To achieve this clean room level of exposure, metalcasters will have to minimize sweeping and compressed air (dust from a compressed air gun may stay suspended for days), incorporate thorough cleanings, limit traffic, pay close attention to sand spills and leaks, and incorporate other environmental controls.
Metalcasting facilities also will have to dedicate resources for exposure assessment, which will include sampling, recordkeeping and supplying information to medical practitioners.
Metalcasters have argued the estimated costs OSHA includes in its rule are significantly lower than what actual costs will be. For example, in the standard, OSHA estimated incorporating a HEPA vacuum to remove dust with a 15-gallon vacuum, the size of a shop vac at a $3,633 initial cost. The American Foundry Society (AFS) estimated a metalcasting facility would likely need at least a 2-cu.yard 40 horsepower vacuum system with a HEPA filter at an initial cost of $60,000. OSHA’s solution for environmental controls in abrasive blast cleaning is a $8,000 glove box. Industry estimates for a new production blasting machine are greater than $100,000. The rule underestimates or completely omits the cost of equipment and practices, such as new dust collectors, which can cost more than $1 million to install. In addition, some metalcasting plants will be forced to redesign ventilation systems and make changes to air permits from EPA, which can take at least a year to obtain.
In the two years since the formal silica proposal was released, the metalcasting industry has voiced its concerns regarding the regulation in numerous ways.
In April, AFS and the National Association of Manufacturers (NAM), numerous industry trade groups, and labor unions, filed legal challenges to the rule’s validity in several circuit courts across the country. The petitions have now been consolidated into the U.S. Court of Appeals for the D.C. Circuit (Docket No. 16-1105).
A petition filed by a labor coalition contended OSHA did not go far enough. The United Auto Workers (UAW), one of the petitioners, said the PEL should be set at 25 µg/m3 or lower where feasible. The labor group was joined by the United Steelworkers and the AFL-CIO. Separately, North America’s Building Trades Unions argued that the medical testing provisions can be improved in their petition. AFS/NAM also will be challenging these petitions.
In June, the court likely will issue briefing notices, at which point the petitioners will have the opportunity to file briefs. OSHA will be represented by attorneys from the U.S. Department of Labor and will have an opportunity to file one brief. Oral arguments will be heard most likely later this year. A court decision could be made 3-6 months after oral arguments, well into 2017.
In the legal challenge, AFS/NAM and other petitioners will be asking OSHA to prove significant risk, technological feasibility and economic feasibility. The agency will be asked to show if there is a significant risk at the current PEL and that the new standard will substantially reduce that risk to the extent feasible. Further, it will be asked to show the PEL can be reached in most operations most of the time and that the standard will not cause a disruption of entire industries. The court decision must be based on the substantial evidence within the rulemaking record.
Part of the legal challenge will include the following key issues:
Whether OSHA’s determination to set a PEL for respirable crystalline silica of 50 µg/m3 measured as an eight-hour time weighted average for all of general industry in its “Occupational Exposure to Respirable Crystalline Silica” standard (81 Fed. Reg. 16286 (March 25, 2016) meets the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (“OSH Act” or “Act”), is adequately justified, and is supported by substantial evidence in the rulemaking record.
Whether OSHA’s determination to set an action level of 25 µg/m3 measured as an eight-hour time weighted average for all of general industry in the standard meets the requirements of the OSH Act, is adequately justified, and is supported by substantial evidence in the rulemaking record.
Whether OSHA relied on the best available evidence in determining that a PEL of 50 µg/m3 for general industry is technologically and economically feasible.
Whether OSHA ignored evidence of exposure variability in general industry in finding that a PEL of 50 µg/m3 measured is technologically and economically feasible.
Whether OSHA’s reliance on the hierarchy of controls (i.e., its stated preference for engineering controls and workpractice controls before the use of respiratory protection) for general industry is adequately justified and based on substantial evidence.
Whether the ancillary provisions are necessary and appropriate.
Over 60 metalcasters met with lawmakers during the May AFS Government Affairs Conference to strongly urge OSHA to re-examine and reassess how its final rule will negatively harm the metalcasting industry. Specifically, AFS members urged lawmakers to support language from Sen. John Hoeven (R-North Dakota) and Rep. Bill Huizenga (R-Michigan) in the fiscal year 2017 Labor-HHS-Education Appropriations bill that would prohibit funding the implementation of the silica rule until additional studies and reports are completed, including:
A new small business panel review conducted by OSHA under the Small Business Regulatory Enforcement Fairness Act (SBREFA). OSHA conducted a SBREFA review related to respirable crystalline silica in 2003, more than 10 years before the corresponding regulation was actually proposed. Since then, the economy and the state of the metalcasting industry has changed dramatically.
A study by the National Academy of Sciences (NAS) on the ability of affected industries, particularly small businesses, to comply with the new standard. NAS conducts several studies to answer key issues that OSHA has not addressed. The language in the bill would ask NAS to examine the ability of commercial laboratories to measure silica exposure accurately, consistently, and at the new OSHA exposure limit and action level. Finally, NAS would also be directed to study the level of protection provided by personal protective equipment (PPE), the costs of the different types of PPE compared with the costs of engineering, and work practice controls.
In March, over 70 Representatives signed a dear colleague letter sent to the House Appropriations Committee leaders urging the inclusion of the Huizenga silica language in the underlying 2017 Labor/HHS Appropriations bill. The measure is not expected to be debated and voted on until June.
Ultimately, despite the pending legal challenges, the silica rule is set to go into effect on June 23, 2016, and the first compliance deadlines will apply on June 23, 2018. Foundries should keep these dates in mind in their compliance planning processes, and should continue to monitor the pending legal challenges.
For more information on the silica rule, including updates on the court challenges and congressional activities, visit www.afsinc.org/silica.