Petitions appealing the silica rule will be heard by the D.C. Circuit Court of Appeals.
be made 3-6 months after oral argu- ments, well into 2017. In the legal challenge, AFS/NAM and other petitioners will be ask- ing OSHA to prove significant risk, technological feasibility and economic feasibility. Te agency will be asked to show if there is a significant risk at the current PEL and that the new standard will substantially reduce that risk to the extent feasible. Further, it will be asked to show the PEL can be reached in most operations most of the time and that the standard will not cause a disruption of entire industries. Te court decision must be based on the substantial evidence within the rulemaking record. Part of the legal challenge will
include the following key issues: • Whether OSHA’s determination to set a PEL for respirable crystal- line silica of 50 µg/m3
measured
as an eight-hour time weighted average for all of general industry in its “Occupational Exposure to Respirable Crystalline Silica” stan- dard (81 Fed. Reg. 16286 (March 25, 2016) meets the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (“OSH Act” or “Act”), is adequately justified, and is sup- ported by substantial evidence in the rulemaking record.
• Whether OSHA’s determination to set an action level of 25 µg/m3 measured as an eight-hour time weighted average for all of general industry in the standard meets the
32 | MODERN CASTING June 2016
requirements of the OSH Act, is adequately justified, and is sup- ported by substantial evidence in the rulemaking record.
• Whether OSHA relied on the best available evidence in determining that a PEL of 50 µg/m3
for gen-
eral industry is technologically and economically feasible.
• Whether OSHA ignored evidence of exposure variability in general industry in finding that a PEL of 50 µg/m3
measured is technologi- cally and economically feasible.
• Whether OSHA’s reliance on the hierarchy of controls (i.e., its stated preference for engineering controls and workpractice controls before the use of respiratory protection) for general industry is adequately justified and based on substantial evidence.
• Whether the ancillary provisions are necessary and appropriate.
Congressional Challenge
Over 60 metalcasters met with lawmakers during the May AFS Government Affairs Conference to strongly urge OSHA to re-examine and reassess how its final rule will negatively harm the metalcasting industry. Specifically, AFS members urged lawmakers to support language from Sen. John Hoeven (R-North Dakota) and Rep. Bill Huizenga (R-Michigan) in the fiscal year 2017 Labor-HHS-Education Appropria- tions bill that would prohibit funding the implementation of the silica rule
until additional studies and reports are completed, including: • A new small business panel review conducted by OSHA under the Small Business Regula- tory Enforcement Fairness Act (SBREFA). OSHA conducted a SBREFA review related to respirable crystalline silica in 2003, more than 10 years before the corresponding regulation was actually proposed. Since then, the economy and the state of the metalcasting industry has changed dramatically.
• A study by the National Academy of Sciences (NAS) on the ability of affected industries, particularly small businesses, to comply with the new standard. NAS conducts several studies to answer key issues that OSHA has not addressed. The language in the bill would ask NAS to examine the ability of commer- cial laboratories to measure silica exposure accurately, consistently, and at the new OSHA exposure limit and action level. Finally, NAS would also be directed to study the level of protection provided by per- sonal protective equipment (PPE), the costs of the different types of PPE compared with the costs of engineering, and work practice controls. In March, over 70 Representatives signed a dear colleague letter sent to the House Appropriations Com- mittee leaders urging the inclusion of the Huizenga silica language in the underlying 2017 Labor/HHS Appropriations bill. Te measure is not expected to be debated and voted on until June. Ultimately, despite the pending
legal challenges, the silica rule is set to go into effect on June 23, 2016, and the first compliance deadlines will apply on June 23, 2018. Foundries should keep these dates in mind in their compliance planning processes, and should continue to monitor the pending legal challenges. For more information on the silica
rule, including updates on the court challenges and congressional activi- ties, visit
www.afsinc.org/silica.
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