NAM Continues Fight Against OSHA’s New Silica Rule

By November 21, 2016Shopfloor Legal

On May 2, 2016, the National Association of Manufacturers joined with the American Foundry Society to challenge the Occupational Safety and Health Administration’s (OSHA) new crystalline silica rule, which cuts the current permissible exposure limit in half and requires employers to implement costly engineering controls. The rule attempts to limit exposure to silica-containing materials, such as concrete and stone, in industries like brick manufacturing, foundries and hydraulic fracturing. We are fighting this rule on all fronts by both petitioning for review of the final rule and intervening to address the union filings directly. Last week, on November 11, we filed our joint industry opening brief to oppose this rule, which will severely stunt the economy and burden manufacturers.

Manufacturers are committed to safe, productive and modern workplaces. This rule, however, relies on out-of-date economic data and drastically underestimates the costs that will be inflicted on manufacturers and the entire economy. As a result, some manufacturers could be forced to close their doors while others will be saddled with crushing regulations. Manufacturers tried to work with OSHA to make this a feasible, effective rule and have long stressed the need for flexibility, clear justification and reliable, current data in the rulemaking process. Our suggestions, however, were ignored. Employers have worked for decades to achieve compliance with the current exposure limits and, through these efforts, have adopted the best possible and most cost-effective ways to keep all their employees safe. Because of OSHA’s failure to work with the industry in setting reasonably achievable exposure limits, we were forced to take our fight to the courts.

Our case argues that this regulation raises serious and significant legal questions and lacks economic and technical feasibility and justification. OSHA’s findings are not supported by substantial evidence, and OSHA failed to consider the best available evidence. The rule places undue burdens and irreparable harm on manufacturers, especially small and medium-sized businesses. For example, OSHA’s rulemaking recording does not establish that the exposure level required to ensure compliance can even be met. For foundry operations, OSHA completely ignores the best available evidence of exposure variability. OSHA also ignores substantial evidence presented in the rulemaking record of foundries that have been unable, in the course of OSHA inspections, to meet the prior exposure limit with OSHA-required controls.

In addition, OSHA’s economic feasibility findings are flawed because OSHA adopts a model for the costs to implement engineering controls that is not supported by the rulemaking record and is completely at odds with the real world of compliance. The adoption of this model, along with several unsupported cost inputs, leads to an overall assessment of feasibility that is not supported by substantial evidence. Also, the rule essentially prohibits standard housekeeping practices like dry sweeping and the use of compressed air for cleaning.

Manufacturers take pride in continuing to find ways to improve the work environment, but this unnecessary and unachievable regulation is not the solution. The implementation date of this rule for the general industry is June 2018, and we hope to have a decision from the court well before that date.

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Leland Frost

Associate General Counsel at National Association of Manufacturers
Leland Frost is the Associate General Counsel at the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Mr. Frost works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Frost's background includes international, environmental and corporate law experience and work on a wide range of policy and regulatory issues.
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