U.S. Court of Appeals Upholds OSHA’s Crystalline Silica Rule

Several construction industry organizations are back to square one with their challenge of the Occupational Safety and Health Ad-ministration’s (OSHA) final crystalline silica standard.

The U.S. Court of Appeals for the District of Columbia Circuit upheld the standard on December 22, 2017.

The rule limits workers’ exposure to respirable crystalline silica. It reduces the permissible exposure limit (PEL) for workers to 50 micrograms per cubic meter of air, averaged over an eight-hour shift. It also requires employers to implement engineering controls, offer medical exams and develop control plans related to the issue.

The Associated General Contractors of America (AGC) was among the groups challenging the rule.

“It is disappointing that the Appeals Court has decided to allow the misguided federal silica rules to proceed despite the many legitimate concerns we and other groups raised about the measure. [The] decision underscores just how difficult it is to overturn federal regulations, even one as deeply fl awed as this measure,” says Stephen Sandherr, CEO of the AGC. “That is why we have long cautioned our members to take every possible step to comply with this measure instead of gambling on a long-shot legal victory.”

According to the ruling, in assessing the technological feasibility of its rule in the construction industry, OSHA re-lied on the Table 1 safe harbor. Under the new rule, if a construction employer implements the controls listed on Table 1—applicable to 19 of 23 construction tasks—it is freed from its obligation to achieve the new PEL.

OSHA determined not only that most employers would follow Table 1 for most tasks, but also that it would be technologically feasible for them to do so given the ready availability of Table 1 controls.

The industry group’s primary challenge to OSHA’s feasibility finding is that the Table 1 controls cannot always be implemented and sometimes require respiratory protection. The court ruled that even if it accepted the arguments, these isolated exceptions do not under-mine OSHA’s finding of feasibility for the typical firm in most operations.

The court also ruled that the silica standard is economically feasible. A rule is economically feasible in a particular industry if it does not “threaten massive dislocation to, or imperil the existence of, the industry.”

The court ruled that OSHA does not have to have perfect cost estimates due to limitations of available data and the uncertainties inherent in predicting future costs.

The groups also challenged OSHA’s significant risk findings, but the court upheld OSHA’s findings that prolonged silica exposure can cause silicosis and NMRD mortality, lung cancer mortality, silicosis morbidity and renal disease mortality.

The ruling’s conclusion reads, “In sum, we reject all of the petitioners’ challenges to the Silica Rule, with three exceptions. We hold that OSHA was arbitrary and capricious in declining to require [medical removal protection] (MRP) for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate [chronic obstructive pulmonary disease] (COPD) symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination. We remand to the agency to reconsider or further explain those aspects of the rule.”

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