Industry challenges to OSHA Silica Rule rejected, but union gets remand on rule’s lack of medical removal protections

By Joy Waltemath

By Lisa Milam-Perez, J.D.

More than two million U.S. workers are exposed to some level of silica. In 2016, OSHA published a final rule regulating workplace exposure to silica, “Occupational Exposure to Respirable Crystalline Silica.” The Silica Rule pleased no one: industry condemned it as too stringent, labor deemed it not stringent enough, and both sides sued. In a detailed opinion, the D.C. Circuit rejected one-by-one the challenges leveled by several trade groups (and the U.S. Chamber of Commerce, intervening). The union fared better; it struck out as to one of its assertions, but won remand on its objection to the rule’s lack of medical removal protections. Finding that OSHA failed to adequately explain its decision to omit these protections from the final rule, the appeals court remanded to the agency for further consideration on that point (North America’s Building Trades Unions v. OSHA, December 22, 2017, per curiam).

Industry challenge. Contending the rulemaking was procedurally faulty and the rule itself substantively unfeasible, the industry petitioners sought review of five issues:

1.

whether substantial evidence supports OSHA’s finding that limiting workers’ silica exposure to the level set by the rule reduces a significant risk of material health impairment;

2.

whether substantial evidence supports OSHA’s finding that the rule is technologically feasible for the foundry, hydraulic fracturing, and construction industries;

3.

whether substantial evidence supports OSHA’s finding that the rule is economically feasible for the foundry, hydraulic fracturing, and construction industries;

4.

whether OSHA violated the Administrative Procedure Act in promulgating the rule; and

5.

whether substantial evidence supports two ancillary provisions of the rule—one that allows workers who undergo medical examinations to keep the results confidential from their employers and one that prohibits employers from using dry cleaning methods unless doing so is infeasible.

The appeals court rejected each of these challenges, upholding the rule’s substantive provisions under the “substantial evidence” standard, and finding no APA breach.

Union challenge. The union objected to the Silica Rule’s requirement that medical surveillance for construction workers be provided only if the employee has to wear a respirator for 30 days for one employer in a one-year period. But the appeals court upheld the construction standard’s 30-day trigger for medical surveillance.

The union also challenged the absence of medical removal protections in the final rule. Here, the appeals court held that OSHA did not adequately explain its decision to omit these protections from the rule. Specifically, it found that the agency was arbitrary and capricious in failing to require medical removal protections “for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.” Therefore, the appeals court remanded for OSHA to reconsider, or further explain, this provision of its final rule.

Source:: Industry challenges to OSHA Silica Rule rejected, but union gets remand on rule’s lack of medical removal protections