Court Rejects Business Group Challenges to OSHA Silica Rule

Enforcement will begin on June 23 for many general industry provisions

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Court Rejects Business Group Challenges to OSHA Silica Rule

​The U.S. Court of Appeals for the District of Columbia Circuit recently rejected industry challenges to the Occupational Safety and Health Administration's (OSHA's) 2016 silica dust standard, which requires certain employers to provide added protection to workers who are exposed to cancer-causing particles.

Workers who inhale very small crystalline silica particles face an increased risk of developing serious diseases, including lung cancer, chronic obstructive pulmonary disease and kidney disease, according to OSHA.

Therefore, the agency issued two new respirable crystalline silica standards: one for construction and the other for maritime and general industry. The standards lower the permissible exposure level and require covered employers to provide respirators, safety training and periodic medical exams.

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The U.S. Chamber of Commerce and other business groups challenged the rule, questioning whether substantial evidence supports OSHA's finding that limiting workers' silica exposure actually reduces health risks and whether the rule is technologically and economically feasible for employers.   

The appellate court rejected all of the business groups' arguments.

Substantial Evidence

Before OSHA issues a new safety standard, it must make a "threshold finding" that "it is at least more likely than not that long-term exposure" to the regulated substance at current exposure levels "presents a significant risk of material impairment" that "can be eliminated or lessened by a change in practices," the court explained.

OSHA must support its finding with substantial evidence—but that standard doesn't require absolute certainty, the court said.

Regarding economic feasibility, the agency's only obligation is to confirm, on the basis of substantial evidence, that its rule does not "threaten massive dislocation to, or imperil the existence of, the industry," the court said. "There can be little doubt that OSHA has done so here," the judges concluded.

"Although there was room for debate on both sides, OSHA didn't have to be right. OSHA only had to be reasonable," said Arthur Sapper, an attorney with Ogletree Deakins in Washington, D.C.

The ruling is a big victory for OSHA, said Patrick Miller, an attorney with Sherman & Howard in Denver. Some employers may not like the outcome, but it was a very lengthy and well-considered opinion by the court, he said. "It shows that regulating agencies, even in this day and age, still get a lot of leeway in promulgating standards."

Union Challenge

The court also considered a union challenge to the rule arguing that the standard doesn't go far enough to protect workers. Specifically, the rule provides that workers will receive medical surveillance only if they wore a respirator for 30 days for one employer in a one-year period. The unions also opposed the absence of medical removal protections, which call for employees to be removed from a worksite when a doctor so recommends to alleviate work-related symptoms. They continue to receive pay and benefits.

The court rejected the unions' challenge to the construction standard's 30-day trigger for medical surveillance, but it gave weight to the argument about medical removal protections. "We conclude that OSHA failed to adequately explain its decision to omit medical removal protections from the rule," the court said, sending the case back to the district court for further consideration of the issue.

The case is North America's Building Trades Unions v. OSHA, D.C. Cir., No. 16-1105 (Dec. 22, 2017).

Enforcement

If covered employers haven't taken a hard look at their silica exposure yet, they better do so now because a key compliance deadline is approaching, Sapper noted.

Enforcement will begin on June 23 for most provisions of the standard for maritime and general industry—though covered employers will have until June 23, 2020, to offer medical exams to certain workers.

Many of the construction standard's provisions took effect in 2017.

 

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