The federal workplace safety agency denied a request from the auto body industry to exempt it from new rules limiting breathable silica in the workplace. Respirable crystalline silica can be created in a body shop as a result of the sanding of vehicles and vehicle body panel surfaces and also the removal of paint and/or rust from vehicles or vehicle body panels.
The Occupational Safety and Health Administration's (OSHA) new standard goes into effect on June 23, 2018 and establishes a new permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air (50 μg/m3), averaged over an eight-hour shift. The new PEL is half the old standard. In addition to the PEL, the rule includes requirements for exposure assessment, methods for controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping.
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This new PEL will also affect a broad range of auto parts manufacturers, according to a chart of affected North American Industrial Classification System (NAICS) industry codes published by the OSHA. These start at 336310, motor vehicle gas engine & engine parts manufacturing and progress through other auto manufacturing sectors up to 336370, motor vehicle metal stamping.
Auto parts manufacturers had not been fighting the final rule; National Association of Automobile Dealers (NADA) had been doing just that, asking the OSHA to provide them with an exemption from the final rule. NADA presented data to OSHA showing levels of crystalline silica were below levels of concern for employee health at both dealership and independent body shops.
In February 2014, Douglas I. Greenhaus, chief regulatory counsel, Environment, Health, and Safety, NADA, wrote to the OSHA: "The likelihood of worker exposure to significant respirable crystalline silica in dealership auto body operations is de minimis, (which means too trivial or minor to merit consideration), largely due to product substitution, state-of-the-art work practices, and the use of respiratory protection. After a review of its non-public inspection data, OSHA should confirm this conclusion through a clear statement in the preamble of its final rule."
In the final rule issued at the end of March, OSHA declined to provide an exemption for body shops, or any other sector. Instead, it offered a general exemption for any employer who has objective data demonstrating that employee exposure to respirable crystalline silica will remain below 25 micrograms per cubic meter of air (25 μg/m 3) as an eight-hour time-weighted average (TWA) under any foreseeable conditions. NADA did not respond to a request for comment on the final rule.
The agency included a definition for “objective data” in the rule. But the agency then goes on to qualify the exemption: "The exception does not apply where exposures below 25 μg/m 3 as an 8-hour TWA are expected or achieved, but only because engineering or other controls are being used to limit exposures; in that circumstance, but for the controls, exposures above 25 μg/m 3 as an 8-hour TWA would be foreseeable, and are foreseeable in the event of control failure or misuse."
The good news is the agency explicitly blessed NADA data submitted in 2014, saying it was assembled correctly, proved that exposures in body shops were minimal and would clearly qualify for the exemption. "A body shop performing tasks in a manner consistent with that described in the NADA submission would be able to rely on these objective data to demonstrate that exposures do not exceed 25 μg/m 3 as an 8-hour TWA under any foreseeable conditions," the agency stated.
That said, construction industry groups – sandblasting and excavation, major sources of silica dispersal – have already filed a lawsuit in the federal court of appeals asking the court to reject the standard. Republicans on Capitol Hill are also making noises about making a legislative fix of some sort. House Education and the Workforce Committee Chairman Rep. John Kline (R-MN) and Workforce Protections Subcommittee Chairman Rep. Tim Walberg (R-MI) said in a joint statement: "There are a number of concerns with the rule that the committee will carefully review, including its feasibility, the cost to small businesses, and whether employers have enough time to implement it."
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