Get Ready for MSHA to Tackle Crystalline Silica
BY Therese Dunphy
Asphalt pros and others under the Occupational Safety and Health Administration’s (OSHA) jurisdiction have had several years to learn how that agency’s crystalline silica rulemaking affects their operations. Now, their counterparts in the aggregates industry are watching and waiting for Mine Safety and Health Administration (MSHA) to release its own rule, which seems likely to parallel OSHA’s more stringent permissible exposure limits.
“The OSHA rule is really already out there and it’s kind of a blueprint,” said Libby Pritchard, construction materials safety director, National Stone, Sand & Gravel Association (NSSGA). “We assume that there will be some similarities between the two rules, but that doesn’t mean the MSHA rule will be a copy/paste version of the OSHA rule.” Provisions likely to carry over include the lower permissible exposure limit and the inclusion of medical surveillance, she said.
Setting the precedent
In 2016, OSHA published a final rule on crystalline silica requiring worker protection over the permissible exposure limit (PEL) of 50 micrograms per cubic meter, averaged over an 8-hour day, which is half the current MSHA standard PEL of 100 micrograms per cubic meter. Other provisions include measuring worker silica exposure, limiting access to high-exposure areas, using effective methods for reducing exposure, providing medical exams to workers with high silica exposures, training workers about the hazards and how to limit their exposure, and, of course, recordkeeping.
During the Trump administration, the rule was challenged in a number of court cases, including one in the U.S. Court of Appeals, D.C. Circuit. There, Merrick Garland, now the U.S. Attorney General under the Biden administration, upheld challenges to the rule. He also ruled in favor of union objections to the absence of medical removal provision, which was in the proposed rule, but eliminated from the final rule without comment. Garland directed OSHA to reopen the rule and reconsider medical removal. While the agency is not required to include it, it must articulate support for its stance on the issue.
“This medical removal issue is kind of a ticking time bomb over in the corner that nobody’s really talking about,” said Adele Abrams, president, Law Office of Adele L. Abrams P.C., explaining that there is no bio marker to determine a level to trigger medical removal.
“Lung damage is not reversible,” she also noted. “There’s no going back to a point where it would be safe to resume work in that silica-exposing position. That person is never going back to mining again; they’re probably going to be out on permanent partial disability. That’s huge from a worker’s compensation perspective.”
Looking for opportunities
As both OSHA and MSHA consider crystalline silica, asphalt and aggregate producers have an opportunity to argue for facets of their operations to be addressed like construction industry jobs regulated in Table One of OSHA’s rule. The table specifies exposure control methods for various equipment uses and tasks. If the control methods are used for those tasks, the operator is not required to measure the worker’s silica exposure and is not subject to the PEL.
Abrams explained that the construction materials industry would like to see those exposure control methods applied across the board. Currently, she said, an asphalt producer could be using the same protective measures outlined in Table One, but would technically still be required to perform periodic sampling, which is more complicated and expensive.
“We think there is a place for (Table One) in an MSHA crystalline silica standard,” added John Ulizio, director of NSSGA’s Industrial Sand Division. “We have a lot of jobs that have control booths. If you work in a control booth and you have adequate door seals, adequate filtration for incoming air, practice good housekeeping, and the booth is under positive pressure, it really doesn’t make sense for the operator to spend money and time and effort on sampling. It’s better for the operator to spend the sampling efforts on other jobs.”
Gearing up for a new standard
If they have not already done so, aggregate producers should benchmark their silica programs to OSHA’s current standard, Abrams advised. California producers should adhere to the CalOSHA standard, which includes an additional injury and illness prevention program.
With many operations that share workers between asphalt and aggregate operations, it’s best to ensure that all worker exposure falls under the OSHA threshold, she said. “From a moral perspective, how do you justify affording your people on the asphalt side of the road under OSHA twice the protection you’re giving your miners on the quarry side of the road who are making raw materials for the asphalt plant,” Abrams added, noting that it could be inviting litigation to maintain different standards for asphalt and aggregate operations.
Operators should also implement the hierarchy of controls to reduce worker exposure. Begin using all feasible engineering controls such as ventilation, dust suppression, and enclosures. Then move on to administrative controls and work practices such as worker rotation. Use of personal protective equipment should be the last resort to minimizing worker exposure. Finally, equipment maintenance is essential.
“Employers need to upgrade their tools,” Abrams said. “Don’t nurse the old stuff because, in the end, you’re going to spend a lot more energy trying to use alternative engineering methods rather than replacing it with one that has been designed to help you achieve the standard.”
As MSHA collects data and formulates its approach to crystalline silica, industry leaders are engaged in ongoing dialogue with the agency.
“We have a substantial interest in what MSHA does with respect to crystalline silica,” Ulizio said. “We want to be a partner with MSHA…and share the experience and insights our members may have learned over the course of their operations and work toward getting a good rule that’s going to enhance worker protection and allow us to continue to provide our essential materials.”
“We support a silica standard that improves worker health and safety and works for operators,” Pritchard added.
Therese Dunphy has covered the aggregates industry for 30 years. As owner of Stone Age Communications, she provides communications consulting services to help producers build strong relationships within the communities they serve. She can be reached at firstname.lastname@example.org.