OSHA Plans Release of Final Silica Rule in 2016
Congressional intervention to negate the rule likely will be vetoed by President Obama.
A Modern Casting Staff Report
(Click here to see the story as it appears in the December issue of Modern Casting.)
It’s been more than two years since the U.S. Occupational Safety and Health Administration (OSHA) formally unveiled its comprehensive and complicated regulation to control crystalline silica. This is one of the agency’s most far-reaching regulatory initiatives ever proposed for the metalcasting industry and calls for a 50% reduction in the permissible exposure limit (PEL). According to OSHA’s regulatory agenda released in November, the agency expects to release its final comprehensive rule in February 2016, before the end of President Obama’s second term.
In the two years since the formal proposal was released, the metalcasting industry has voiced its concerns regarding the regulation in numerous ways. Outside consultants for the metalcasting industry estimate the costs to meet the lower PEL will be more than $2.2 billion a year for the metalcasting industry. During public hearings held March 18-April 4, 2014, the American Foundry Society (AFS) and metalcasting industry representatives testified the proposed silica rule was overly burdensome and not achievable for the metalcasting industry. AFS called on OSHA to work to improve compliance to the current 100 µg/cu.m PEL, work with EPA to allow the expansion of ventilation systems to reduce employee exposures under the current requirement, and withdraw its proposal and modify it to make it economically feasible to achieve compliance.
Since then, AFS and industry representatives have provided post-hearing comments in response to OSHA’s request for additional information and filed a post-hearing brief in August 2014. This was the final formal document outlining and substantiating the industry’s position on the silica rulemaking.
While the OSHA team has been preparing the final rule to be released next year, the metalcasting industry has met with more than 300 congressional offices to discuss the impact of the proposal and the industry’s key concerns for the rule:
- It prohibits work practices that contradict existing industry safe practices, such as using compressed air to clean complex castings.
- 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.
The industry has garnered some support from legislators. In 2014, the governors in Iowa and Texas wrote letters against the silica rule proposal. In June 2015, the Senate Appropriations Committee accepted by voice vote an amendment by Sen. John Hoeven (R-N.D.) that would require OSHA to conduct additional reviews and research before it could finalize the comprehensive silica rulemaking. The Hoeven amendment is part of the Fiscal Year 2016 Labor, Health and Human Services Appropriations bill and would prevent any funds from being used by OSHA to promulgate or release its silica rule until it studies and addresses the following:
- Conduct a Small Business Regulatory Enforcement Fairness Act review—OSHA relied on a decades-old report and metalcasting data from the early 1990s.
- Commission an independent study by the National Academy of Sciences to examine the ability of all impacted industries to comply with proposed exposure limits and the ability of personal protective equipment to safeguard employees, among other issues.
President Obama has threatened to veto the proposed budget for the U.S. Department of Labor.
Other members of Congress are being asked to contact the chairs of the Senate and House Appropriations/HHS Appropriations bill urging them to include the Hoeven amendment into the FY16 omnibus budget. President Obama has threatened to veto a budget bill that includes policy riders for any of its rulemakings.
Although it has been an arduous process for OSHA to produce a final silica rule, the administration is adamant a final rule will be issued in 2016, before the current presidential term has ended. The first step in this finalization process will be OSHA sending the final rule for review to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management & Budget. OIRA usually takes 90 days and sometimes more to review the rule. The office can do one of three things: accept the rule, tell OSHA to go back and fix certain sections, or reject the rule. Interested stakeholders, such as metalcasting representatives, have the opportunity to meet with OIRA after OSHA sends the rule for review.
Once the rule is finalized, affected parties have 60 days to file petitions for judicial review in the U.S. Court of Appeals. Metalcasters also can anticipate lawmakers will introduce a resolution of disapproval, known as the Congressional Review Act. If enacted, the bill would nullify the regulation. However, President Obama has issued a veto threat against the resolution.
Once the final rule is published in the Federal Register, the standard will become effective after 60 days. All obligations set in the rule are required to commence 180 days after the effective date, except for engineering controls and laboratory requirements, which are required after a full year.
To comply with the new standard, metalcasting facilities face two major challenges: economic impact and technical feasibility. While OSHA estimates the cost for additional controls for the metalcasting industry to comply with the lowered PEL to be $32 million a year, industry estimates are as high as $2.2 billion a year—more than 46 times OSHA’s estimate. In addition, OSHA’s ancillary cost estimation of $9 million a year is much lower than the industry’s estimate of more than $90 million a year (Tables 1-2).
If the rule is finalized, metalcasters will have an uphill battle to achieve compliance. According to OSHA’s data, a large minority of the metalcasting industry exhibits noncompliance with the current PEL (Table 3). More than 40% of facilities are noncompliant with the current 100 μg/cu.m limit in three job categories: cleaning/finishing operators, sand system operators and abrasive blasting operators. More than 30% are noncompliant in furnace, knockout, pouring and maintenance operation. The lack of compliance stems largely from the lack of a ready, cost-effective solution. OSHA’s cost analysis estimates include only the cost for those metalcasting facilities who already meet the standard and will be required to reduce PEL from 100 μg/cu.m to less than 50 μg/cu.m. It does not include the costs for those above the current limit to progress to the new, more stringent limit after meeting the current standard.
For more information on the proposed crystalline silica rulemaking, visit www.afsinc.org/silica.