|OSHA’s high-priority but controversial final rule seeking to limit workers’ exposure to crystalline silica dust appears to be poised for imminent release after it cleared review by the White House Office of Management & Budget (OMB), usually one of the last steps before such regulations can be promulgated.
According to OMB’s website, the office completed the interagency review March 21, returning the final version of the rule to the Labor Department “consistent with” recommended changes.
The action clears the way for top officials to release the final regulation — long a top priority for OSHA Administrator David Michaels — early enough to avoid a likely privileged effort in Congress to block the measure while also ensuring that any litigation challenging the final rule will be handled by the Obama administration.
Michaels told Inside OSHA Online late last year that the silica rule will be completed “during Obama’s presidency,” thereby ensuring the administration that championed the measure will be responsible for defending it.
The proposed version of the rule sought to cut in half the permissible exposure limits (PELs) on crystalline silica dust in general industry and construction to 50 micrograms per cubic meter (ug/m^3), time-weighted average, and put numerous ancillary measures in place to prevent worker inhalation of the dust, which is blamed for silicosis and other illnesses following chronic exposures.
The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements.
But the proposed rule met with fierce opposition from industry, which argues that it is costly, infeasible and may not prove effective in reducing overall silicosis incidence rates.
As a result, the measure will almost certainly face numerous efforts to block its implementation. Industry sources, for example, have said they will challenge the rule in court. One industry attorney, for example, has said that “many employer groups see the action level of 25 ug/m^3 as a major issue from the economic and technical feasibility standpoints.”
Construction industry officials have also charged that the rule would be difficult to implement because it does not accommodate differences between work sites and the monitoring requirements could be costly.
Congressional lawmakers are also likely to oppose the measure. While lawmakers declined to include a rider blocking the rule in the omnibus budget legislation President Obama signed late last year, sources have said that lawmakers could seek to withhold funding for the measure in upcoming spending legislation.
But lawmakers appear unlikely to be able to overturn the measure under the Congressional Review Act (CRA), which creates a privileged process for Congress to try to block regulations if they act within 60 legislative days of a rule’s promulgation.
According to American Action Forum, a group that generally opposes regulations, says that in order for a rule to avoid a CRA resolution of disapproval it must be issued at least by May 17, though that may slip if lawmakers hold a lame duck session after the November election.