Silica Proposal May Be Released This Month, OSHA's Updated Regulatory Agenda Says

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A proposed rule that would establish stricter exposure limits for silica is expected to be published later this month, according to the Department of Labor's regulatory agenda, slated for publication in the July 7 Federal Register.

Other updates in the new agenda include a revised standard for electrical power work and new rules for confined spaces in construction and food flavorings.

Portions of an updated Labor Department “regulatory flexibility agenda,”including regulatory actions by the Occupational Safety and Health Administration, were published in the Federal Register. DOL's regulatory flexibility agenda is a truncated version of the semiannual regulatory agenda and lists priorities for regulatory actions that are likely to have a significant economic impact on a substantial number of small entities, as well as rules identified for periodic review under Section 610 of the Regulatory Flexibility Act. The entire agenda was last revised in December 2010 and is supposed to be updated every six months (40 OSHR 1053, 12/23/10).

The full regulatory agenda of the Labor Department will be posted online soon at

Silica Rule This Month

In addition to issuing its silica proposal this month, OSHA also announced it plans to hold public hearings on the proposal beginning in October.

The proposal, which the Office of Management and Budget's Office of Information and Regulatory Affairs has held under extended review since Feb. 14, is expected to include a reduction in the permissible exposure limit (PEL) for silica dust to as low as 0.1 milligram per cubic meter and set new requirements covering issues such as regulated areas and engineering controls. OIRA has held at least seven meetings during that time with industry and union officials regarding their concerns about the proposal, including its technological and economic feasibility, as well as the delay in issuing it (41 OSHR 569, 6/30/11).

“I think they're both expected and good steps and, hopefully, the administration has taken heed to some of the concerns that we had,” Chris Williams, director of occupational safety and health for the Associated Builders and Contractors, told BNA July 6. “We've heard them say before that once they come out with a rule the technology will catch up, but we can't operate under that assumption.”

Breathing dust that contains crystalline silica, often generated during cement work, can cause silicosis, a potentially fatal lung disease. OSHA's current exposure limit for general industry is 10 milligrams per cubic meter divided by the percent of silica plus two measured in that sample.

“The silica rulemaking is so significant because it will have the broadest impact, both in terms of number of employees affected, in the millions, and cost to the industry, in the billions,” Eric Conn, head of the OSHA group at Epstein Becker & Green, a law firm with industry clients, wrote to BNA in a July 6 e-mail. “OSHA's early cost estimate for the rule was $1 billion across all industries, but industry challenged that figure during the [Small Business Regulatory Enforcement Fairness Act] panel back in 2003, and countered that more likely the cost would range between $2 billion to $3 billion, a figure that is surely higher now, eight years later.”

Food Flavorings

OSHA also announced the peer review for its risk assessment of diacetyl and diacetyl substitutes will be completed at the end of July.

Diacetyl is a compound frequently used in the production of artificial butter flavorings. Exposure to it has been linked to bronchilitis obliterans, a potentially fatal lung disease.

The National Institute for Occupational Safety and Health is conducting an internal review of its criteria document on the food flavorings diacetyl and 2,3-pentanedione and plans to publish it for public comment this summer (41 OSHR 464, 5/26/11).

“This is an exciting step forward, we're very pleased about this announcement,” Evan Yeats, spokesman for the United Food and Commercial Workers, told BNA July 6. “This is an important item that will protect the lives of thousands of workers who work in the food industry with diacetyl every day, and we're pleased to see the Obama administration is moving forward with important regulations that protect workers.”

Electric Power Rule Delayed

A new deadline was set for issuing the final rule covering workers and companies involved in constructing and maintaining electric power lines. OSHA now intends to issue the rule in September 2011, having missed the original May 2011 deadline.

“We thought they would miss [the first] deadline,” Charles Kelly, Edison Electrical Institute's director of human resources industry issues, told BNA July 6. “It is a complicated rule. In order to get this right it will take some time.”

Kelly added that when OMB's review is added to the process, he would not be surprised if the standard did not take effect until 2012.

Unlike some rules where there are significant differences of opinion between industry and worker organizations, Edison and the International Brotherhood of Electrical Workers agree on the need for an updated standard because the current rule has been in place for more than 35 years. Work on the revision started in 2003.

Confined Spaces on Track

A final rule to protect workers in confined spaces on construction projects is still on schedule to be issued in November 2011, a deadline unchanged from the last semiannual regulatory agenda. While details of the final rule have not been released by OSHA, the expectation is that it will create new safety requirements for utility construction workers and others and replace the general industry safety standard that now applies to the contractors and workers.

George Kennedy, vice president of safety for the National Utilities Contractors Association, told BNA July 6 that the industry and OSHA have discussed the confined spaces rule for a decade, and he would not be surprised if November passes without the final rule being issued.

“I'll believe it when I see it,” Kennedy said. “I get calls every week asking me when it will come out.”

Five years ago, Kennedy added, he saw the need for a separate construction standard, but since then contractors have learned how to adjust their practices. A new rule would add confusion as workers and companies try to decide whether the new standard or general industry standard applies, Kennedy said.

Officials from the United Steel Workers, a prime proponent of the standard, were not immediately available for comment.

Other Standards

OSHA noted that it was scheduled to complete its economic peer review for its beryllium standard by June, but did not say what its next step in the rulemaking process would be or give a further time line.

Public Citizen and the United Steelworkers petitioned OSHA to reduce the beryllium PEL to 0.2 microgram per cubic meter from its current level of two microgram per cubic meter. The current PEL is based on an analysis conducted over 60 years ago and not health protective, the organization said.

“OSHA has dragged its feet on the issue for too long, leaving untold numbers of workers at risk for beryllium disease and cancer caused by exposure to this toxic substance. The agency continues to drag its feet by issuing the regulatory agenda late and not completing the economic peer review by its self-imposed deadline,” Public Citizen wrote to BNA in a July 6 e-mail. “OSHA must move swiftly to issue a final rule that limits beryllium exposure to protective levels.”

The agency also noted it had completed in June analyzing comments received during its review of the bloodborne pathogen standard (29 C.F.R. 1910.1030). The review is required under the Regulatory Flexibility Act to consider the continued need for the rule, however, the agency has not yet announced the results.

By Greg Hellman and Bruce Rolfsen

An advance version of the Department of Labor and OSHA's regulatory agenda is available at