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Progress on Several Rulemakings, Including Silica, Expected Soon, Michaels, Ruskin Say

Thursday, June 27, 2013

By Stephen Lee

 

LAS VEGAS--Although several key worker safety standards remain stalled in the rulemaking process, officials with the Occupational Safety and Health Administration continued to signal June 25 that some of the rules may finally be advancing soon.

Although he said he was “hesitant to predict anything,” David Michaels, OSHA director, also told attendees at the annual conference of the American Society of Safety Engineers that “hopefully we’ll get a few of these [standards] out soon.”

“Have patience, but we are going to move forward some of these standards very soon,” Michaels said.

Michaels’s clearest recent indication that rulemakings may finally be moving forward came May 21 in Montreal, when he said he expects the long-awaited silica rulemaking to be released soon (43 OSHR 489, 5/23/13).

Silica Supporting Analyses Modified

More specific guidance at the ASSE convention came from Maureen Ruskin, director of OSHA’s Office of Chemical Hazards-Metals in the Directorate of Standards and Guidance, who said the agency is currently modifying the supporting analyses on the silica rule.

“We are responding to [the Office of Management and Budget’s] inquiries as they come up,” Ruskin said, although she was unable to predict when it would be released.

Ruskin also said OSHA is nearing completion on three final rules: electric power generation, transmission, and distribution and electrical protective equipment; walking/working surfaces; and vertical tandem lifts (43 OSHR 489, 5/23/13).

OSHA is in discussions with the White House Office of Management and Budget on the electric power protective equipment rule, Ruskin said. The rule was submitted to OMB for final review on June 27, 2012, and is expected to be completed soon, she said.

On the walking/working surfaces rule, OSHA is analyzing the record and developing the final rule, according to Ruskin.

Updates on Combustible Dust, Beryllium

OSHA is also developing regulatory alternatives to its planned combustible dust rule and is assessing the rule’s economic impacts, Ruskin said. A small business review of the rule is expected in October.

Ruskin further said OSHA is continuing work on its beryllium proposed rule and is reviewing a model standard, which was sent to the agency in 2012, developed by beryllium product company Materion Brush.

Ruskin also said the spring 2013 regulatory agenda is expected “shortly,” although she was unable to give a specific date. The Obama administration has come under criticism, particularly from Republican lawmakers, about its failure to release regulatory agendas on time.

As for OSHA’s injury and illness prevention program rule (I2P2), long pegged as the agency’s highest regulatory priority, Ruskin said the agency is “hoping to start the clock again soon” on a Small Business Regulatory Enforcement Fairness Act panel, which has been long delayed.

Small business representatives are likely be contacted soon to participate in the review panel, Ruskin said.

I2P2 Rule Will Not Be Burdensome

Michaels defended the I2P2 rule against critics, mostly in the business community, who have said they expect it to be too burdensome or intrusive.

For example, Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, told BNA June 20 that the I2P2 rule will become a debate very quickly. “Everyone familiar with OSHA’s intent to do this regulation recognizes it as the most significant OSHA regulation since ergonomics, and in some ways more impactful,” said Freedman.

But OSHA has denied that the rule will address hazards not contemplated by current regulations, and at the ASSE convention, Michaels said, “All this [rule] is saying to employers [is that] you have to think about safety.”

He acknowledged, however, that some employers are likely to resist the I2P2 concept “because nobody likes being told what to do.”

'The Cost of Doing Business.’

In California, which has had an I2P2 regulation since 1991, “Employers realize that this is not such a big deal,” Michaels said. He also said the rule will be “pretty straightforward” for small employers, but noted also that some small companies may have to hire safety and health consultants if they are engaged in high-hazard industries.

“That’s part of the cost of doing business,” Michaels said. For example, employers that deal with asbestos “shouldn’t be running an operation that isn’t safe, and if they can’t afford to do that, then they should think about whether they should be running this kind of business.”

Michaels further said that, notwithstanding some adjustments, such as OSHA's latest focus on temporary workers, “the direction will remain the same for the next three and a half years.”

OSHA's entire leadership team was asked by President Obama to return for his second term, Michaels said.