OSHA Update
Silica Dust Just One Account in History (Part 1)

The Hawk’s Nest Incident

In Muriel Rukeyser’s book, The Book of the Dead, which is considered poetry, it tells of the historical Hawk’s Nest Incident. It is the grand truth told of one of the worst industrial disasters in US history. It happened in Gauley Bridge, West Virginia. This story is particularly near to my heart, because my grandparents and our extended family are from the area. When I was a young girl we used to frequent the area often to camp and visit our family. I remember hearing stories of some of my ancestors working in the tunnels and mines of West Virginia but it was only years later, as an adult, that I realized what that actually meant.

The Hawk’s Nest Incident revolves around the contraction of silicosis while constructing a power plant. Silicosis is a lung disease caused by breathing in tiny bits of silica, a mineral that is part of sand, rock, and mineral ores such as quartz. It mostly affects workers exposed to silica dust in occupations such as mining, glass manufacturing, and foundry work. Exposure to silica particles causes scarring in the lungs, which can inhibit your ability to breathe. The most common warning sign shown by sick people is shortness of breath. Silicosis is contracted through inhaling rock dust that contains silica dust. Blasting away at the rock in order to build a tunnel at Hawk’s Nest produced this such dust.

A proposal to build a hydroelectric plant on the New River was brought up in 1927 in which this project was to help boost West Virginia’s economy. The project created a multitude of jobs in which many workers came from the Southeast. A company out of Charlottesville, VA was contracted to begin construction. Construction began on this job which included the construction of numerous structures, power stations, dams, and tunnels. A process used in which the rock was broken and removed from the tunnel was called mucking. When workers removed the broken up rock it assisted in the dispersal of dust that was highly likely to be contaminated with silica dust and because the workmen schedule was rigorous, a six day work week with ten-hour shifts, exposure to the dust was at a high level. This dust has been considered to be the root cause in several hundred infected men who work on this site.

Working in Hawk’s Nest

Working in the tunnel was by far the worst of the jobs, where in the tunnel work shifts consisted of two three-hour shifts where they used a process where they would drill holes in the rock, dynamite was inserted to blast out the remainder of the rock and after the explosion the debris would have to be removed. This removal involved a high level of exposure to silica dust. The use of gasoline powered equipment also polluted contaminated air in addition to the dusty conditions. Certainly, not ideal conditions for working.

Hawk's Nest Tunnel - Silica Dust

It was noted that there were never steps taken to evaluate the risk of exposure to silica dust for the workers on this site. There are also many accounts on how workers from the site would come out of the tunnels coated in dust from head to toe. Members of the community reported that when these workers would walk home from the mines they would leave a trail of dusty footprints from the thick layer of dust they were covered by.

The number of how many workers actually died as a result of Silicosis in Gauley Bridge, Hawk’s Nest project has never been confirmed. It has been estimated and agreed upon to be around 700 deaths. The fatalities remain for the most part anonymous in part from lack of record keeping or lack of knowledge at the time. Reports differ on how many died and the causes of these deaths were persistently debated.

Records were accessible through only a certain date, leaving several incomplete files. These records did not take in to account the number of migrant workers who left the area after the project completed and possibly died from Silicosis. Investigators attempted to find more information about deaths during this time through an assessment of county records, but found them lacking. Records of medical services received by the workers have never been fully recovered. Without them it is difficult to figure out whether or not patients truly suffered from Silicosis. At the time it was difficult for physicians to diagnose due to unfamiliarity with Silicosis and the fact that it resembled tuberculosis so closely.

Lawsuits and Regulations

Hawk's Cave employees Gauley Bridge, West Virginia

Eventually, lawsuits began to be filed for the affected workers. Residents testified for the workers, stating that the workers were coated with dust when they left the work site. The general manager of the project, who was employed by the construction company that headed the work, claimed that there wasn’t any negligence by the administration and there were no known documented cases of Silicosis from any of his workers. He also declared his employees never complained about the working conditions while working in the tunnels. The courts eventually ruled in favor of rewarding the complainants. In 1935, the West Virginia House of Delegates passed a state worker’s compensation law which would compensate workers who were infected with Silicosis. This was a giant step forward by paying workers for illness contracted from the job, however there were many loopholes such as, clearing the employer of responsibility for the disease and made eligibility for this law almost impossible for workers. Clauses that made eligibility difficult involved the length of employment a worker had to endure before they could claim workman’s compensation under this law. The hearings that existed brought attention to the danger of working with silica dust and the risks involved with working in tunnels and mines, though they did not do enough for the victims and their families.

In the late 1930s a lot of news-magazines such as Time and Newsweek were publishing articles about the Hawk’s Nest Incident and the dangers of silica dust. The nationwide coverage that Silicosis had now received, made other industrial projects aware of the dangers associated with it and what their workers could be subjected to. Silicosis remained absent from the list of diseases that could be claimed under the workman’s compensation laws until the 1940s.

Fast forward to today and there have been slow strides in making OSHA standards to protect these workers from such aforementioned hazards specific to Silica dust. How so? They have recently adopted a new final rule that affects many industries and how they must approach Silica dust. Please look for my upcoming blog for more information on this ruling.

Other Articles in the Silica Blog Series

2 Million Plus Workers Get Protection From Deadly Dust! (Part 2)

Crystalline Silica Rule (Part 3)

PHMSA Update – Reverse Logistics Ruling

A final rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT has been adopted into the regulation on March 31, 2016. This ruling is the HM-253 Reverse Logistics ruling (RRR).

PHMSA has adopted regulatory amendments of certain hazardous materials by highway transportation applicable to the reverse logistics shipments. This ruling defines “reverse logistics” and provides provisions for reverse logistics of hazardous materials inside the scope of this ruling.

I used to work in the automotive industry and I can think of many examples that in my time there where parts should’ve been handled as hazardous and were not. An example is that some automotive parts that would be purchased and powered by the vehicle engines would be returned to our stores after being used and contained residual fuel. When we would first receive the automotive part in from our supplier it contained no fuels and therefore was not hazardous. Once returned from the customer after being used now had residue. Which could create the potential for it to be hazardous and therefore pose a risk during transportation back to the supplier or manufacture. This would cause it to now be regulated. Though there are many scenarios, this is just one possibility.

How can this be done? Do the workers at the retail stores have to be trained now? What do this mean for us as shippers?

Well let’s start by defining what this actually means. The definition for reverse logistics in the 49 CFR means the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g., to receive manufacturer’s credit), recall, replacement, recycling, or similar reason. This definition does not include materials that meet the definition of a hazardous waste as defined in this section.

It was noted within the petition for this rule making that reverse logistics shipments of hazardous materials were able to be classified as Other Regulated Material (ORM-D) and could be shipped under the “Consumer Commodity” shipping designation.

The regulations have updated and you will now find references throughout in regard to reverse logistics. More specifically you can find in part 173.157, newly added, the authorization for Reverse logistics – General requirements and exceptions for reverse logistics.

The regulatory text is as follows:

(a) Authorized hazardous materials. Hazardous materials may be offered for transport and transported in highway transportation under this section when they meet the definition of reverse logistics as defined under §171.8 of this subchapter. However, hazardous materials that meet the definition of a hazardous waste as defined in §171.8 of this subchapter are not permitted to be offered for transport or transported under this section. Hazardous materials authorized for transport according to a special permit as defined in §171.8 of this subchapter must be offered for transportation and transported as authorized by the special permit.

(b) When offered for transport or transported by non-private carrier. Hazardous materials must be both authorized for limited quantity provisions as well as explicitly authorized for reverse logistics transportation under their applicable limited quantities section. Except for alternative training provisions authorized under paragraph (e) of this section, all hazardous materials must otherwise meet the requirements for a limited quantity shipment.

(c) When offered for transport or transported by private carrier. Hazardous materials are authorized under paragraph (b) of this section or are subject to the following limitations:

(1) Division 1.4G materials offered for transport and transported in accordance with §173.65 of this subchapter.

(2) When sold in retail facilities; Division 1.4G or 1.4S fireworks, Division 1.4G ammunition, or Division 1.4G or 1.4S flares. Shipments offered for transport or transported under this subparagraph are limited to 30 kg (66 pounds) per package. All explosive materials subject to an approval must meet the terms of the approval, including packaging required by the approval.

(3) Equipment powered by flammable liquids or flammable gases.

(i) Flammable liquid-powered equipment. The fuel tank and fuel lines of equipment powered by an internal combustion engine must be in the closed position, and all fuel tank caps or closures must be securely in place.

(ii) Flammable gas-powered equipment. A combustion engine using flammable gas fuel or other devices using flammable gas fuel (such as camping equipment, lighting devices, and torch kits) must have the flammable gas source disconnected and all shut-off devices in the closed position.

(4) Division 2.1 or 2.2 compressed gases weighing less than 66 pounds and sold as retail products. For the purposes of this section a cylinder or aerosol container may be assumed to meet the definition of a Division 2.1 or 2.2 materials, respectively, even if the exact pressure is unknown.

(5) Materials shipped under this paragraph (c) must also comply with the segregation requirements as required in §177.848.

(6) Shipments made under this section are subject to the incident reporting requirements in §171.15.

(d) Hazard communication. Hazardous materials offered for transportation and transported by private carrier in accordance with paragraph (c) of this section may use the marking “REVERSE LOGISTICS—HIGHWAY TRANSPORT ONLY—UNDER 49 CFR 173.157” as an alternative to the surface limited quantity marking found under §172.315(a). Size marking requirements found in §172.301(a)(1) apply.

(e) Training. (1) Any person preparing a shipment under this section must have clear instructions on preparing the reverse logistics shipment to the supplier, manufacturer, or distributor from the retail store. This includes information to properly classify, package, mark, offer, and transport. These instructions must be provided by the supplier, manufacturer, or distributor to ensure the shipment is correctly prepared for transportation or through training requirements prescribed under part 172 subpart H of this subchapter.

(2) Employers who do not provide training under part 172 subpart H of this subchapter must:

(i) Identify hazardous materials subject to the provisions of this section, verify compliance with the appropriate conditions and limitations, as well as ensure clear instructions from the manufacturer, supplier, or distributor associated with product’s origination or destination;

(ii) Ensure clear instructions provided are known and accessible to the employee at the time they are preparing the shipment; and

(iii) Document that employees are familiar with the requirements of this section as well as the specific return instructions for the products offered under this section. Documentation must be retained while the employee is employed and 60-days thereafter. Alternatively, recordkeeping requirements under part 172 subpart H may be used.

We can definitely see where some business will be able to make use of this regulatory change. Always remember to check the regulations for the most recent changes. Also be sure to make use of our regulatory helpline by calling ICC!

Special Permits
Adoption of Special Permits into the HMR (HM-233F)

There was a Legislative act signed by US president Barack Obama in July of 2013 called Moving Ahead for Progress in the 21st Century Act or MAP-21. As a result, the Pipeline and Hazardous Materials Safety Administration (PHMSA) is making changes to the Hazardous Materials Regulations (HMR). These changes will incorporate some provisions from some of the special permits that have a proven safety record and have been widely used over an extended period of time. The intent in doing this is to provide widespread access to regulatory flexibility normally offered in special permits and removing the need for abundant renewal requests. The adopted amendments will also reduce paperwork burdens and help commerce while sustaining an appropriate level of safety.

Special permits set out variances to the requirements found in the regulations, but still has a level of safety that is equal to the safety level required otherwise in the regulations. The MAP-21 legislation required PHMSA to take a look at the special permits that have been in effect for 10-years. PHMSA conducted an investigation of all active special permits and categorized them, as appropriate, as suitable for inclusion into this rulemaking.

The result is PHMSA amending the regulations, 49 CFR Parts 171–180, by accepting requirements within 96 existing special permits. These amendments are based on the review they did of all active special permits as of January 1, 2013. There were 1,070 Special Permits that were not suggested for inclusion in the HMR due to these special permits having requirements that do not have a wide range for applicability, have already been implemented into the HMR, are being addressed in other rulemakings, or were removed after receiving comments in response to the notice of proposed rulemaking (NPRM) under this HM-233F.

In doing this PHMSA was to determine which ones may be implemented into the HMR. This also required PHMSA to adopt any special permits identified for inclusion in a final rule by October 1, 2015.

The factors to be considered during the examination to determine suitability for implementation into the HMR are as follows:

  1. The safety record of the hazardous materials (hazmat) transported under the SP;
  2. The application of a SP;
  3. The suitability of the provisions in the SP for incorporation into the hazmat regulations; and
  4. Rulemaking activity in related areas. [i]

Before the MAP-21 was put into legislation, PHMSA had already completed a number of rulemakings to adopt some special permits that had a proven safety record into the HMR. Some of these can be found on Table 1[ii] in this final rule.

After the passing of the MAP-21, PHMSA had to change its approach to fulfill the requirements set forth in this legislation. They established terms for reviewing, set up criteria and categories, and put tools in place to help track and facilitate in analyzing current special permits in timely and efficient manner.

In the MAP-21 Legislation the Federal Hazardous Materials Transportation Law was revised to address the “SP and exclusions,” section under paragraph (f).

It states:

(f) Incorporation into regulations.

(1) IN GENERAL-Not later than 1 year after the date on which a SP has been in continuous effect for a 10-year period, the Secretary shall conduct a review and analysis of that SP to determine whether it may be converted into the hazardous materials regulations.

(2) FACTORS-In conducting the review and analysis under paragraph (1), the Secretary may consider-

(A) the safety record for hazardous materials transported under the special permit;

(B) the application of a special permit

(C) the suitability of provisions in the special permit for incorporation into the hazardous materials regulations; and

(D) rulemaking activity in related areas.

(3) RULEMAKING- After completing the review and analysis under paragraph (1) and after providing notice and opportunity for public comment, the Secretary shall either institute a rulemaking to incorporate the special permit into the hazardous materials regulations or publish in the Federal Register the Secretary’s justification for why the special permit is not appropriate for incorporation into the regulations[iii]

PHMSA was also required to implement standard operating procedures (See my previous blog on SOP) to assist with the special permit review and approval processes.

PHMSA has requested comments from holders of special permits that were not implemented. “We stated that we were particularly interested in comments that confirm or refute the suitability, safety, and general applicability of the Special Permit. We asked that if you are a holder of a SP that was not proposed to be adopted but believe it should be, you should submit material to support such an argument.”

They requested that special permit holders submit information and supporting arguments along with technical/scientific data as well as the cost, benefits and frequency of shipments made under said special provision. Information regarding any incidents during transport with said special provision and how often the incidences occurred is also to be provided. PHMSA also asked for commenters to include suggested regulatory text.

The final rule includes much more detailed information like a special permit conversion project chart, where the method is shown on how they staged the analysis and decision process. This includes the specific Special Permits proposed for inclusion, also includes many comments from industry that give a good look into what others are thinking, which brings in different useful perspectives. For more on this final ruling please follow the HM-233 links within this blog.

[i] Pg. 4 of the HM-233F Final Rule

[ii] Pg. 6 of the HM-233F Final Rule

[iii] Pg. 7-8 of the HM-233 Final rule

More Hazard Communication Issues

An inquiry was made by the American Coatings Association, which they asked OSHA to clearly outline the import of materials and the export of materials in sealed containers for the Hazard Communication Standard (HCS). The Occupational Safety & Health Administration (OSHA) responded with a Letter of Interpretation (LOI) on November 23rd, 2015 which further clarified the responsibilities of US companies when importing or exporting materials that require attention under the 29 CFR 1910.1200

In regard to import OSHA’s guidance in the LOI states the responsibility falls on the importers to assure compliant labeling when the material becomes under their control. Once in their control, importers must follow the requirements of 29 CFR 1910.1200(b)(4) where applicable. Importers must also assure compliance with HCS 2012 prior to shipping within the United States. In this LOI, OSHA encourages the review of their CPL-02-02-079 Section X.F.2h compliance directive which entails information for materials packaged for shipment prior to June 1st, 2015.

OSHA’s guidance for export in this LOI for sealed containers is that if prepared for direct shipment outside the US and are inside a USDOT approved shipping container, the manufacturer can label the container for the destination country. A HCS compliant label must be affixed to the outside package or be attached to the shipping papers as well. The container would also have to be labeled according the appropriate regulation for transport. In the case of said containers being stored in a manufacturer’s onsite warehouse prior to shipment overseas, then the external packaging must be labeled in accordance with 29 CFR 1910.1200(f)(6) in addition to the above mentioned labeling. The requirements of 29 CFR 1910.1200 (b)(4) apply in addition to the requirements already mentioned if containers are stored off-site or in a third party warehouse prior to overseas shipment. The manufacturer must provide a safety data sheet to the third party employer.

Manufacturers that are exporting materials may find relief from the burden of attempting to label shipped containers under the US and other country’s regulations. Reminders have been given to importers that if it cannot be arranged for compliant labeling to be applied materials prior to US entry, the duty will fall upon them.

Access to this LOI, which contains the above information, was provided by the Society for Chemical Hazard Communication (SCHC).