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The AFS legal challenge to the new silica rule is progressing, but multiple speedbumps and obstacles could await.

It also will be some time before the outcome of the litigation is known, though the election of Donald Trump to the Presidency could alter the shape of the regulation.

From an executive perspective, the Trump administration can instruct agencies to revisit regulations or provide guidance to not prioritize their enforcement, including the extension of compliance dates. Under Supreme Court precedent, new administrations cannot rescind regulations with the stroke of a pen. The Trump administration will have to go through the same notice and public comment procedures that new rules require. That process can take years, and it’s resource-intensive.

That said, the rule could be stayed and reopened on certain issues, or there could be negotiations to settle.

“I think that the industry should be waiting to discuss this with the new administration as opposed to settling the case,” said Ed Foulke, former OSHA administrator under the Bush administration, and partner and co-chair of Fisher Phillips’ workplace safety and catastrophe management practice group, “and particularly on the fact that the industry and the business community in general has probably done the best job it’s ever done on presenting evidence to show that this is economically and technically infeasible.”

Those efforts could be key parts of a saga that could define metalcasting’s future.

In March, the Occupational Safety and Health Administration (OSHA) published the long-anticipated revision to its crystalline silica rule. Proposed in 2013, the new rule reduced the permissible exposure limit (PEL) to silica in half, from 100 µg (micrograms)/cu.m to 50 µg/cu.m. The rule, which had been one of the agency’s top priorities, also brings an action level of 25 units over an eight-hour period.

The new rule became effective on June 23, 2016, but compliance with all the requirements of the rule must be met by June 23, 2018. It has drawn rebukes from the business and construction industry leaders and government figures, as well.

Multiple industries and groups are challenging the new rule.

In April, the case was consolidated in the Washington, D.C. Circuit Court of Appeals.  AFS and the National Association of Manufacturers (NAM) are challenging the rule together, and opening briefs from industry and intervenor-petitioners were submitted in November. Response briefs from the OSHA/Department of Labor need to be in by Feb. 3, 2017, and amici briefs in support of OSHA are due Feb. 10, 2017.

Reply briefs from industry petitioners, union petitioners and Chamber of Commerce intervenor/petitioners have a deadline of March 3., 2017 Final form briefs need to be filed by March 23, 2017, and oral arguments could begin in the summer, with a decision coming down maybe as early as the fall of 2017. The Court has not yet announced the date for the oral arguments. By the time the case is argued, there likely will be a new Department of Labor solicitor and new OSHA administrator in place who are more “business friendly.”

For AFS and NAM, the challenge centers on the technical and economic feasibility of complying with the new exposure limit, along with the cost projections and the stance that OSHA ignored data submitted in evaluating the metalcasting industry, are the key issues. As a whole, OSHA only estimated the cost per year to meet the new standard for iron facilities at $57,403, $10,149 per aluminum facility, and $8,565 for non-ferrous metalcasters.

Based on estimates performed by expert economists and engineers utilized by AFS, the cost of OSHA’s rule to the metalcasting industry will be more than $2.2 billion annually or at least $1 million per facility.

For instance, OSHA did not account for new dust collectors, which can easily run more than $1 million to install.  Furthermore, foundries will have to exhaust all feasible engineering and work practice controls to meet the new PEL.  OSHA completely dismisses the use of personal protective equipment (PPE), as a primary approach to protecting employees.

The agency assumes a 15-gallon HEPA vacuum will cost $3,495 initially and then over $1,000 annually. The metalcasting industry maintains that’s a grossly low estimate, with a typical facility spending $45,000 initially plus $15,000 more for hoses and attachments on a 2-cubic yard 40 HP system with a HEPA filter.

Another example of a discrepancy is OSHA’s estimate on the cost of abrasive blasting. It estimates $2,000 annually, covering maintenance only, and is based on a $8,000 glove box unit not typical of metalcasting production. Meanwhile, a case study to show feasibility said a used unit costs $107,000 along with $16,814 for parts to rebuild another unit, installation notwithstanding.

As a whole, OSHA has estimated the cost per year to meet the new standard for iron facilities at $57,403, $10,149 per aluminum facility, and $8,565 for non-ferrous metalcasters.

By the time the litigation and challenges are completed and political moves are considered, there could be numerous different outcomes. The standard could stand, which could lead to further industry appeals. Or, the rule could be vacated, which might bring appeals from OSHA or labor unions. Via litigation, the standard could even be sent back to OSHA, which could try to fix errors or negotiate changes and compromises that both sides see as workable.

Regardless of where the litigation winds up, there are actions metalcasters need to take. It’s important to start preparing for compliance dates. Metalcasters also need to know their numbers and identify the sources of the crystalline silica that’s going into the air. Recordkeeping of engineering controls–both successes and failures–is also key. Metalcasters also can assist by contributing to the industry legal fund to offset the costs associated with the litigation battle.

Trump’s presidential victory could alter the course of the silica rule, but it doesn’t guarantee it’s going away. 

This article was adapted from a presentation given in November at a silica compliance conference in Schaumburg, Illinois. For questions regarding the litigation and new administration, contact Stephanie Salmon in the Washington, D.C. office of AFS—ssalmon@afsinc.org.