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OSHA Promises Silica Rule Soon, but Its Future Remains Uncertain

By Bradford T. Hammock
  • September 24, 2015

The Occupational Safety and Health Administration has pledged to release a comprehensive final rule on crystalline silica by the end of the current Administration, in January 2017.

“We will get it out before the end of President Obama’s term,” promised OSHA chief Dr. David Michaels, as reported by Bloomberg BNA. Michaels noted that silica has been a priority since 2009, when the President first took office.

Prolonged exposure to elevated levels of silica causes silicosis, a debilitating and sometimes fatal lung disease. OSHA believes the mineral also causes lung cancer. Since 1974, the National Institute for Occupational Safety and Health has consistently recommended that OSHA issue a stronger rule to control silica exposure, which OSHA estimates would save 699 lives and prevent 1,626 silica-related illnesses a year.

But work on a regulation has been slow. OSHA began the current effort under President George W. Bush. In December 2009, after President Obama took office, it announced a schedule for publishing a proposed regulation by July 2010. The agency sent a draft rule to the White House Office of Management and Budget (OMB) in February 2011. OMB regulatory reviews are supposed to take no more than 90 days, but, OSHA’s silica rule stayed at OMB for two and a half years.

The proposed rule would affect general industry as well as the maritime and construction sectors. It would cut the allowable employee exposure in half in general industry and maritime (even more in construction), require periodic air monitoring, limit workers' access to areas where exposures are high, enforce effective methods for reducing exposures, provide medical exams for workers with elevated exposures, and require training for workers about silica-related hazards and how to limit exposure.

The business community has noted that the number of silica-related deaths has long been declining because of improved controls. “We think the current standard has been working,” said Dan Bosch, Senior Manager for Regulatory Policy at the National Federation of Independent Business (NFIB), as quoted by Bloomberg BNA. “There hasn’t been enough effort to help businesses comply with the rule as it currently stands.”

The Mine Safety and Health Administration, OSHA’s sister agency within DOL, is also considering a silica regulation, but on a slower timetable. In its latest regulatory agenda, released in May, MSHA said it would issue a proposed rule in April 2016.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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