February 11, 2014
Occupational Safety and Health Administration
OSHA Docket Office
Docket No. OSHA-2010-0034
U.S. Department of Labor
Room N-2625
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Re:
Docket No. OSHA–2010–0034
Occupational Exposure to Respirable Crystalline Silica
The following pages are comments submitted by the National Ready Mixed Concrete
Association (NRMCA) regarding the Occupational Safety and Health
Administration’s (OSHA) proposed rulemaking:
“Occupational Exposure to Respirable Crystalline Silica”
N A T I O N A L
R E A D Y
M I X E D
C O N C R E T E
A S S O C I A T I O N
900 Spring Street, Silver Spring, MD 20910 888-84-NRMCA www.nrmca.org
On behalf of the National Ready Mixed Concrete Association (NRMCA), I am writing to
submit comments regarding the September 12, 2013 Occupational Safety and Health
Administration’s (OSHA) proposed rulemaking “Occupational Exposure to Respirable Crystalline
Silica” (proposal).1
NRMCA was founded on December 26, 1930, and today represents more than 2,250
companies and subsidiaries that employ more than 125,000 American workers who manufacture
and deliver ready mixed concrete. The Association represents both national and multinational
companies that operate in every congressional district in the United States. The industry currently
includes 68,500 ready mixed concrete trucks and 5,000 ready mixed concrete plants.
The ready mixed concrete industry2 manufactures a construction material vital for
constructing our built environment. From roads and bridges, to homes and high-rises, our built
environment could not be realized without the use of ready mixed concrete. This important building
material is created by combing fine and coarse aggregates, cement and water. In 2012 alone, the
industry produced 289,781,000 cubic yards of ready mixed concrete, representing a value of
roughly $30 billion.
NRMCA is currently a member of the Concrete and Masonry Silica Coalition3 (coalition)
along with 8 other concrete, cement and masonry industries. In this capacity, the coalition is a
1
78 Federal Register 56273
North American Industry Classification System (NAICS) code: 327320 Ready-mix concrete manufacturing
3
Coalition members include: Architectural Precast Association (APA), Brick Industry Association (BIA), Cast Stone
Institute (CSI), Interlocking Concrete Pavement Institute (ICPI), National Concrete Masonry Association (NCMA),
National Precast Concrete Association (NPCA), National Ready Mixed Concrete Association (NRMCA),
Prestressed/Post-Tensioned Concrete Institute (PCI), and Portland Cement Association (PCA)
2
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voting-member of the American Chemistry Council’s (ACC) Silica Panel (panel).4 NRMCA hereby
incorporates by reference and endorses comments submitted by the American Chemistry Council
Silica Panel (panel comments) and those submitted by the members of the coalition.
NRMCA Position:
While NRMCA and its members support and agree with the necessity for having and
maintaining a silica standard to protect American workers’ safety and health, the ready mixed
concrete industry disagrees with the need to change the current silica standard and permissible
exposure limit (PEL). As current data shows, the silica regulations currently in place have worked
extremely well at protecting workers in the ready mixed concrete industry and continue to do so
today. The continued compliance with and enforcement of current silica regulations, engineering
controls, and proper protective equipment (PPE) use, properly and effectively limit worker silica
exposure and result in downward trends of U.S. silicosis rates. Furthermore, the ready mixed
concrete industry goes to great lengths to protect its workers from silica exposure by understanding
the industry hazards, and by understanding the industry worker makeup; two critical elements
necessary for safeguarding a set of workers and both of which OSHA has entirely characterized
incorrectly for the ready mixed concrete industry in its proposal.
NRMCA’s comments are specific to the ready mixed concrete industry, which is covered by general
industry sector standards. NRMCA’s comments cover:
1. Why any change to the current PEL is unnecessary;
4
ACC Silica Panel members include: 3M, American Foundry Society, Badger Mining Corporation, Fairmont Minerals,
International Diatomite Producers Association, ISP Minerals, Inc., Lafarge North America Aggregates and Concrete,
National Industrial Sand Association, National Stone, Sand & Gravel Association, Omya, Inc., The Refractories
Institute, Unimin Corporation, U.S. Gypsum Company, U.S. Silica Company, Vulcan Materials Company, and
Concrete and Masonry Silica Coalition
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2. The need for employee rotation as a control method;
3. How OSHA’s estimated cost for the proposed rule underestimates actual costs;
4. The need for convening a new Small Business Regulatory Enforcement Fairness Act
(SBREFA) Panel; and
5. More time is needed to fully evaluate and respond to the proposed rule.
Permissible Exposure Limit (PEL) Should Remain Unchanged:
NRMCA believes the current PEL should remain unchanged for the general industry
sector, and an action level is entirely unnecessary. The current standard has proven to reduce, and
nearly eradicate silicosis in the United States. Data from the Centers for Disease Control and
Prevention (CDC) notes that in 2007 deaths due to silicosis (combined underlying and contributing;
73 and 50 respectively) were 123,5 far less than the 688 deaths6 OSHA claims it will prevent each
year. Furthermore, data from the U.S. Department of Labor, Bureau of Labor Statistics for 2011 and
2012 put deaths from harmful substance inhalation, such as silica dust, totaling 97;7 silica only
being a portion of those 97. Additionally, the U.S. silicosis mortality rate declined by 93% between
1968 and 2002,8 again ,virtually eliminating silicosis existence in the U.S., and validating the
effectiveness of the current silica standard.
NRMCA objects to OSHA basing the necessity for and science behind the proposal on
outdated and inaccurate studies, reports, essays and independent contractor models. Many of these
5
Centers for Disease Control and Prevention (CDC). (2012). Silicosis: Number of deaths by sex, race, age, and median
age at death, U.S. residents age 15 and over, 1998-2007. The website for this table is found here:
http://www2a.cdc.gov/drds/worldreportdata/FigureTableDetails.asp?FigureTableID=2596&GroupRefNumber=T03-01
6
78 Federal Register 56276
7
U.S. Department of Labor, Bureau of Labor Statistics, Table 1. Fatal occupational injuries by event or exposure,
2012. (August 22, 2013). The website for this table is found here: http://www.bls.gov/news.release/cfoi.t01.htm.
8
CDC. Morbidity and Mortality Weekly Report. Vol. 54, No. 16, April 29, 2005.
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reports attempt to draw a correlation between silica exposures in certain industries (ie coal mining,
gold mining, granite crushing, etc.) with a necessity for silica standards changes for all industries.
Please review ACC Silica Panel Comments for notes on incorrect association of silica exposure on
multiple industries and indirect silica exposure health effects.9
On June 14, 2011, during a meeting before the White House Office of Management and
Budget, Office of Information and Regulatory Affairs (OIRA), with U.S. Department of Labor and
U.S. Small Business Administration officials present, NRMCA stated that a new standard and
lowered PEL were not needed as evidenced by the clear silicosis downward trend displayed by the
CDC data, and industry fears of over burdensome and unnecessary increased compliance costs.
NRMCA’s comments were in addition to similar comments made at the meeting by several other
concrete and cement related trade organizations.10
Specific to the ready mixed concrete industry, OSHA has included information in its
proposal which is inaccurate and depicts an industry over exposed to respirable silica. This OSHA
data and information is far from the truth and wrongly characterizes the industry. The proposal data
establishes specific exposure limits for different ready mixed concrete industry worker positions.11
Specifically, OSHA lists exposures of:
Drivers (concrete mixer truck drivers or mixer drivers): 100% at >250 μg/m3
Material handlers: 75% at <25 μg/m3, and 25% at 50-100 μg/m3
Batch operator: 100% at <25 μg/m3
9
American Chemistry Council (ACC) Silica Panel comments submitted on proposed rule dated February 11, 2014.
In attendance: American Concrete Pipe Association (ACPA), National Concrete Masonry Association (NCMA),
Prestressed/Post-Tensioned Concrete Institute (PCI), and Portland Cement Association (PCA)
11
78 Federal Register 56349
10
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Maintenance operators: 60% at <25 μg/m3, 20% at 25-50 μg/m3, and 20% at 50-100 μg/m3
Quality control technician: 100% at <25 μg/m3
As well, OSHA’s proposal establishes a total number of workers in the industry and the
amount of the workers that are exposed at different silica exposure levels.12 Those numbers include:
Total # of industry workers: 107,190
Exposed to >0 μg/m3: 43,920
Exposed to >25 μg/m3: 32,713
Exposed to >50 μg/m3: 32,110
Exposed to >100 μg/m3: 29,526
Exposed to >250 μg/m3: 29,526
According to OSHA’s numbers, a simple extrapolation would mean that at most there are
29,526 concrete mixer truck drivers and all are exposed to silica levels of >100 μg/m3 and >250
μg/m3.
This data differs drastically from the ready mixed concrete industry data collected each year,
much of which is made public. Each year, in working to expand the industry’s self-awareness,
NRMCA conducts a number of industry surveys, one of which is the NRMCA Fleet Benchmarking
and Costs Survey (survey). The survey was established to provide concrete producers with
information to evaluate and benchmark ready mixed concrete fleet maintenance and utilization. The
survey was developed and responses analyzed by the NRMCA Operations, Environmental and
Safety Committee. One portion of the survey is determining the number of concrete mixer trucks
12
78 Federal Register 56350
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and mixer drivers currently being employed around the country. The most recent survey results13
establish the number of concrete mixer trucks and mixer drivers in the United States at 68,500 each,
a difference of 38,974 according to OSHA’s data. Already, OSHA’s data does not account for
nearly 40,000 mixer drivers.
Moreover, OSHA’s data on mixer driver exposure is based off of assumptions that all mixer
drivers take part in the practice of “drum chipping”; the practice whereby cured, excess ready mixed
concrete built-up on the inside of a concrete mixer drum is physically chipped out using hand and
power tools, which creates high silica exposure levels. This practice and process, although
conducted, is not done by the vast majority of mixer drivers. Another survey conducted each year
by NRMCA is the NRMCA Ready Mixed Concrete Industry Data Report (report). The report
provides detailed financial results of ready mixed concrete firms. The analyses in the report are the
result of extensive review by Lydon Fetterolf Corydon, P.A., a professional tax and accounting
firm. The most recent report14 outlines how 85% of ready mixed concrete companies hire thirdparty contractors to chip out their mixer drums. This data leaves only about 15% of mixer drivers
actually doing any drum chipping, a drastic difference from OSHA’s erroneously established 100%
of the industry’s mixer drivers.
The readily accessible information on the ready mixed concrete industry demographics and
OSHA’s failure to obtain it, especially given the fact that the ready mixed concrete industry is one
of just 25 named industries specifically affected by the proposal, begs the question as to whether
13
14
2013 NRMCA Fleet Benchmarking and Costs Survey
2013 NRMCA Ready Mixed Concrete Industry Data Report
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OSHA has properly, thoroughly, effectively, and accurately assessed the necessity for a new silica
PEL and how it truly needs to be applied to various industries.
Currently, the ready mixed concrete industry has great resources and practices for
compliance with the current silica standard that have been proven to work. Following the lead of
federal OSHA, the Illinois Department of Commerce and Economic Opportunity, in partnership
with the Illinois Ready Mixed Concrete Association, developed an industry specific guide,15 with
verified testing as of 2006, for approaching silica exposure at ready mixed concrete plants and while
chipping out mixer drums. While following common and widely used engineering controls for
chipping out drums, such as water spray nozzle equipped chippers, open hatches and ventilation
units, along with coveralls and added face, eye and respiratory PPE, the test result from the guide
“…showed that… employees can perform drum cleaning for up to 6 hours without being exposed to
particulates containing silica which exceed the OSHA Permissible Exposure Limit (PEL).“ While
NRMCA recognizes that 6 hours is less than the 8-hour time-weighted average (TWA) used to
determine a worker’s exposure, this time frame is inconsequential, as drum chipping also is required
to abide by hearing conservation program regulations,16 which in turn end up limiting drum
chipping to only about 4 hours per day. This amount of time, often split up with numerous breaks,
drastically reduces worker exposure.
The guide’s test results are continually confirmed as NRMCA members across the nation
implement such practices and procedures, as is common practice by the ready mixed concrete
15
Williams, DR and Sam K. ‘‘Illinois Ready-Mixed Concrete Association Industrial Hygiene Study: October 1997
through June 1999.’’ Illinois Department of Commerce and Community Affairs, Illinois On-Site Consultation Program,
100 West Randolph Street, Chicago, Illinois (1999).
16
Title 29 Code of Federal Regulations §1910.95
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companies who still utilize their drivers to chip out drums. For the companies that hire third-party
contractors to chip out their mixer drums, they too follow strict practices and procedures to ensure
both the ready mixed concrete company and the contractor’s employees do not exceed the PEL
requirements. Specifically, ready mixed concrete companies qualify contractors before any work is
performed by requiring, at a minimum, a company approved Safety and Health Policy, Procedure
and Plans, release and indemnity document, proof of liability and workers compensation insurance,
and a conference to discuss and review company policy requirements and safety training.
NRMCA members also use other manuals for ensuring the safety and health of their workers
and to reduce silica exposure. Specifically, NRMCA members frequently refer to NRMCA’s Mixer
Drum Cleaning guide17 and a publication distributed by Georgia Tech’s Safety and Health
Consultation Program, “Chipping Out the Drum: Safe Work Practices”.18 Both references illustrate
the practices needed to remain compliant with the current regulations, while emphasizing the
importance of maintaining a high level of safety and health.
Concerning other ready mixed concrete industry workers who do not drive mixer trucks or
chip out drums, OSHA again has missed the mark. Industry monitoring data from a large ready
mixed concrete company with ready mixed concrete plants throughout the Southern and Midwest
regions from 2003 through 2012 show a very different exposure rate than OSHA suggests.
Exposure for batch plant operators was only 20% of the proposed PEL, maintenance operators was
17
NRMCA, Mixer Drum Cleaning. Safety Series Publication #3.
Georgia Tech’s Safety and Health Consultation Program, “Chipping Out the Drum: Safe Work Practices”. An OSHA
Susan Harwood 2004 Training Grant Project. Grant Number: 46D3-HT02.
18
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26%, and material handlers was 32%.19 These low exposure limits are not indicative of
necessitating a restructuring of the current silica standard and PEL.
NRMCA believes adding an action level to the silica standard is unnecessary, innocuous and
redundant. NRMCA believes adding an action level in addition to the current or proposed lowered
PEL serves no purpose for the rule’s effectiveness or the well-being of workers. Through
establishing a maximum permissible expose limit and then employing controls to keep workers
below that threshold is the focus of a silica standard. Requiring the measurement of respirable
crystalline silica well below a PEL is arbitrary; especially when the measured levels are often still
below the current or even proposed lowered PEL.
To further ensure a safe and healthy work environment, common and best management
practices at ready mixed concrete plants consist of wetting aggregates and driveways, keeping truck
and loader cabs in good condition, closed building and vehicle windows with air conditioners and
heaters, minimal sweeping, dust ventilation systems, strict adherence to confined space
regulations,20 PPE and frequent worker training.
Finally, NRMCA believes that OSHA has not met its statutory burden that this new standard
“is economically feasible; is technologically feasible; is cost effective; is consistent with prior
Agency action or is a justified departure; [and] adequately responds to any contrary evidence and
argument in the rulemaking record…”21 In crafting a new respirable silica exposure standard and
PEL, OSHA has not demonstrated that lowering the PEL from its current level will increase worker
safety and health, or is even achievable by industry. For more content and information on OSHA’s
19
NRMCA Member, Respirable Silica Monitoring Data (2003-2012).
Title 29 Code of Federal Regulations §1910.146
21
76 Federal Register 24576, 24579
20
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failure to meet this burden please review the ACC Silica Panel’s Comments under heading “OSHA
Has Not Shown that a Significant Risk of Material Health Impairment Exists at the Current PEL or
that Any Such Risk Would Be Reduced Substantially if the PEL Were Lowered to 50 μg/m3.”22
Worker Rotation:
OSHA’s proposal specifically mentions that, “The employer shall not rotate employees to
different jobs to achieve compliance with the PEL.”23 NRMCA believes worker rotation should be
allowed as a method of compliance for controlling worker silica exposure. As mentioned above,
few ready mixed concrete companies still utilize their employees to chip out mixer drums.
However, on the occasion that a driver does perform this task, chipping out a drum is only
performed on average two times a year24 and it is common practice that multiple workers assist with
different sections of the drum. Worker rotation in conjunction with the numerous other controls
mentioned above drastically reduces worker silica exposure over the 8-hour TWA and throughout
the course of a year. Part of OSHA’s reasoning for prohibiting this control is to not increase the
“population of exposed workers”.25 This reasoning assumes that other workers that are rotated in
otherwise would not have been exposed. However, in the case of workers that chip out mixer
drums, these workers already have this task as part of their work duties, rendering OSHA’s
argument moot. Before OSHA makes a final determination on the use of worker rotation, NRMCA
requests OSHA reexamine the control method’s benefits. For more content on the use of worker
rotation please view PCA’s Silica Comments.26
22
American Chemistry Council (ACC) Silica Panel comments submitted on proposed rule dated February 11, 2014.
78 Federal Register 56489
24
2013 NRMCA Fleet Benchmarking and Costs Survey
25
78 Federal Register 56466
26
Portland Cement Association (PCA) comments submitted on proposed rule dated February 11, 2014.
23
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Proposal Underestimates Actual Compliance Costs:
OSHA’s proposal estimates annual industry costs will only reach $637.3 million per year
covering all industries.27 When examined closer, this number turns out to be only a mere fraction of
the true cost to industry. Specifically for the ready mixed concrete industry, OSHA estimates an
annual compliance cost of $16,511,080, however third-party analysis by the URS Corporation,
details a stark cost difference of over $657,000,000 annually.28 The URS data notes that, “The
OSHA cost model underestimates the number of impacted employees by using only 10% of the
workers currently exposed over 50 μg/m³. The URS cost model assumes 50% of the workers
currently exposed over the existing PEL of 100 μg/m³ will remain exposed over the new PEL of 50
μg/m³ after all engineering controls have been installed. This method conservatively accounts for
the same difficulty facilities have faced in achieving the current PEL. This subset of workers was
used to calculate the costs for quarterly exposure monitoring, triennial medical exams, respirators,
and regulated areas.”
As well, the hydraulic fracking industry calculates a different cost entirely. In part, the
industry believes it will cost roughly “.35 percent of its annual industry revenue of $8.2 billion”;29
another drastic departure from OSHA’s cost estimation. OSHA’s $637.3 million per year is a big
difference from just one industry’s calculated $2.87 billion cost.
27
78 Federal Register 56277
URS Corporation, Ancillary Annual Costs. January 2014.
29
Robert Iafolla, Fracking Industry Could Bear Heavy Economic Burden Under Silica Rule, http://www.BNA.com,
(October 31, 2013).
28
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Specifically, a good portion of the increased costs associated with the proposal come from
the increased air monitoring the rule will inadvertently require, new worker training requirements,
recordkeeping, and particularly medical monitoring.
Detailed in PCA’s Silica Comments, PCA found that, based on average costs of the types of
medical exams needed for compliance with the proposal, the actual costs are “more than five times
the estimate provided to OSHA.”30
Small Business Regulatory Enforcement Fairness Act Panel:
NRMCA believes a new Small Business Regulatory Enforcement Fairness Act (SBREFA)
Panel is needed to provide more complete, accurate, timely and relevant information on how small
businesses will be affected by the proposal. The 2003 SBREFA Panel31 information and
recommendations received by OSHA for use in the proposal contain incomplete data and
information at least a decade old. In the period since the 2003 SBREFA Panel was finalized, the
United States has seen dramatic changes in economic conditions, drastic industry growth and
retraction, exceptional technological advances, large population growth and extraordinary medical
innovations; all of which should be considered when crafting such a large, costly, burdensome
health and safety standard.
As an industry that is specifically identified in the proposal as being one of 25 general
industry subsectors affected by the proposal,32 it is poor practice, ill-advised and out of character for
OSHA to further regulate an industry that was not included in the 2003 SBREFA but which is
comprised of 85% of small businesses. It is crucial that OSHA obtain and utilize complete,
30
Portland Cement Association (PCA) comments submitted on proposed rule dated February 11, 2014.
Report of the Small Business Advocacy Review Panel On the Draft OSHA Standards for Silica, December 19, 2003.
32
78 Federal Register 56340
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accurate, timely and relevant data and information about such an industry before further regulating
it. Furthermore, the ready mixed concrete industry is only one of at least 13 other industries
identified in the proposal as being affected by the proposal, but which were not included in the 2003
SBREFA.
NRMCA believes the current proposal lacks complete, accurate, timely and relevant data
and information to craft and eventually finalize a new respirable silica standard. In order to
sufficiently and effectively address, what NRMCA would label as questionable and already low
respirable silica exposures, OSHA needs to appropriately and further consider such a rule’s affects
on all the small businesses it intends to regulate.
More Time Should Be Given For Proposal Evaluation:
As NRMCA has stated previously, NRMCA believes it is imperative that any final rule be
based on sound science and that OSHA's decision-making processes remain transparent and
encourage the greatest degree of public participation. In order to adequately assess a proposal of this
size and complexity, with implications for numerous safety, health, operational and technical issues,
compliance costs and to accurately assess the effect of the rule on the ready mixed concrete industry
and how many industry workers are truly exposed; more time is necessary to evaluate and properly
respond to the proposal. Moreover, it is unreasonable for OSHA to assume that all businesses,
mainly small businesses, will have the time, resources, and in-house knowledge to effectively read
and analyze the 1,720 essential supplemental documents attached to the docket within the provided
time frame.
In order to ensure that a final rule is based on sound science and has the greatest degree of
public participation it will require more time for the ready mixed concrete industry and the public to
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evaluate and properly respond to the proposal. Such extensions will allow adequate time for a
thorough assessment of the proposed rule in order to provide OSHA with the most accurate and
responsible data and comments as they pertain to the ready mixed concrete industry. Finally, such
extensions are especially appropriate, as OSHA is not under any statutory or court-ordered deadline
to finalize the proposal by a specific date.
Conclusion:
NRMCA and the ready mixed concrete industry support maintaining a silica standard to
protect American workers’ safety and health, however a change from the current silica standard,
PEL and added action level are unwarranted and indefensible, as proven by current data and
industry’s adherence to the current regulations. As evidenced by OSHA’s inaccurate
characterization of the ready mixed concrete industry, NRMCA believes OSHA has drastically
underestimated the feasibility, achievability and economics associated with the proposed rule.33
Should OSHA continue with finalizing and implementing a new rule, OSHA should allow worker
rotation as a method of compliance for controlling worker silica exposure. In addition, it is
recommended OSHA reevaluate its cost estimates for industry compliance before making a
determination on its economic feasibility. As well, before finalizing a new standard OSHA should
convene a new Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel to provide
more complete, accurate, timely and relevant information on how small businesses, such as ready
mixed concrete companies, will be affected by the proposal. Although more time should be granted
for commenting on the proposal in order to achieve the greatest level of transparency and public
33
Review of American Chemistry Council (ACC) Silica Panel comments submitted on proposed rule dated February
11, 2014, is needed for greater detail and content on the proposal’s economic infeasible; its technological infeasible; and
lack of cost effectiveness.
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participatioon, NRMCA
A requests OSHA
O
abandoon its propossal and give greater defeerence to its
current siliica standard enforcemennt proceduress and actionss.
NR
RMCA appreeciates the oppportunity too comment on
o OSHA’s proposed ruulemaking
“Occupatioonal Exposu
ure to Respirrable Crystallline Silica”.34
Shoould you hav
ve any questtions or needd more inform
mation pleasse feel free to
t contact mee at
rgarbini@nnrmca.org or (240) 485--1139.
Sincerely,
Robert Gaarbini
President
R
Mixed
d Concrete Association
A
(
(NRMCA)
National Ready
34
78 Federaal Register 56273
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