March 21, 2013

OMB Hears From Industry on Silica Rule In First Stakeholder Meeting in 19 Months

From: Bloomberg/BNA — Occupational Safety & Health Reporter™

By Robert Iafolla

The White House Office of Management and Budget held its first stakeholder meeting in 19 months on the long-delayed proposed rule to modify regulations for occupational exposure to silica, OMB said March 14.

OMB heard a presentation from the American Foundry Society arguing that lowered permissible exposure limit for silica is unnecessary and would impose massive costs on the metal-casting industry, according to documents from the meeting posted on OMB’s website.

The March 12 meeting appears to signal that OMB is taking steps to move on the silica proposal, which has been under review at its Office of Information and Regulatory Affairs since February 2011.

“The meeting is evidence that something is happening,” American University law professor Jeffrey Lubbers, who specializes in regulatory law and procedure, told BNA. “It’s hard to say how strong the evidence is and whether [the proposed rule] is going to move, but OMB is definitely devoting some attention pointing to that direction.”

Former OIRA administrator Jim Tozzi told BNA that the public spotlight that’s been cast on the two-year review of the rule has likely motivated OMB officials to take action on the rule.

“That rule is a hot potato that’s been in their pocket for a long time and they want to get rid of it,” said Tozzi, who directs the Center for Regulatory Effectiveness.

Meetings Before HazCom Rule

A flurry of stakeholder meetings sometimes precedes OMB releasing a rule. For example, the office convened seven meetings on the new hazard communication standard between November 2011 and February 2012. OMB completed its review six days after its last meeting (42 OSHR 190, 3/1/12).

OMB held a series of nine stakeholder meetings on the silica proposal between March and August 2011. Seven of those meetings were attended by industry representatives, one by organized labor, and one by the American Thoracic Society, a public health group that advocates on issues related to pulmonary diseases and related conditions.

Peg Seminario, safety and health director at AFL-CIO, said the union has no plans for another meeting with OMB on the silica proposal.

“We just want them to free the rule,” Seminario told BNA. “We told them that when met before. We’ve conveyed that to OMB, to the administration, to everyone.”

Speculation on Extended Review

In light of OMB’s silence on the issue, the cause of OIRA’s extended review of the proposed silica rule has been the subject of speculation. Unions have said politics and pressure from the business lobbies have held the rule back, while industry has argued the rule has been delayed because it is costly and flawed (43 OSHR 152, 2/14/13).

Former OMB officials have told BNA that the long review period strongly suggests there is a problem with the proposed rule, which might have been raised by another agency. OSHA may be conducting new analyses on the proposal, they said (43 OSHR 215, 3/7/13).

OSHA’s draft proposal for general industry and construction is expected to include a reduction in the existing permissible exposure limit (PEL) for silica dust to as low as 0.05 milligram per cubic meter of air and to set new requirements covering issues such as regulated work areas and engineering controls (41 OSHR 985, 11/17/11).

Cost Estimates Widely Diverge

In its presentation to OMB, the American Foundry Society argued the PEL reduction would cost the industry $2 billion per year. OSHA has estimated it would cost the industry $150 million per year.

Industry advocates have long opposed changing the PEL, often buttressing their arguments with their own analysis on the cost of a lower PEL.

Lawrence P. Halprin, a partner at Keller and Heckman LLP who has represented industry, compared the American Chemistry Council’s estimated $5 billion-per-year cost of a new rule with a lower PEL to OSHA’s preliminary estimate that a new rule would prevent 60 premature deaths per year.

That would factor out to $83 million per premature death prevented, Halprin told BNA in an email. And the risk of early death “more likely involves workers who would be in their later years and quite possibly retired,” he said.

“If these numbers are even roughly accurate, spending $83 million per worker for the speculative benefit of extending a life by 10 to 20 years is a public policy decision that the OSH Act may not be suited to address through a public rulemaking,” Halprin said. “This is the kind of decision that is probably best made before initiating a public rulemaking.”




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