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

According to OSHA, as many as 2.3 million workers, many in the construction and manufacturing industries, are affected by the rule, which went into effect September 23, 2017.

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 flawed as this measure,” says Stephen Sandherr, CEO of the Associated General Contractors of America. “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.”

The petitioning organizations argued that the industry “presented substantial evidence that OSHA’s proposed PEL was technologically and economically infeasible” but that the agency moved forward with the PEL anyway.

The court decided in favor of OSHA.

“OSHA has demonstrated technological feasibility for the typical firm in most operations and has supported that finding with substantial evidence, it has satisfied its burden and we must defer to its conclusions,” the ruling reads. “To mount a successful attack on OSHA’s feasibility finding, then, challengers must do more than suggest that compliance will be infeasible for some firms or in “a few isolated operations.”

According to the ruling, in assessing the technological feasibility of its rule in the construction industry, OSHA relied 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. (The Table 1 controls include saws that continually feed water across the blade to reduce dust and tools with dust-collection systems.)

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. OSHA also found the rule to be technologically feasible for tasks not appearing on Table 1.

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 undermine 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 groups challenging the standard contended that OSHA’s final cost estimates “make no sense in the real world of construction,” pointing to several industry subgroups where OSHA’s estimated annualized cost per affected establishment is under $1,000.

“But just because the amounts seem low does not imply that they are unsupported,” the court’s ruling reads. “And OSHA explained that many firms have only a handful of affected employees, and that recommended controls are often inexpensive systems integrated into hand tools. In light of OSHA’s explanation of the reason for the apparently low costs in certain construction industry groups, Industry’s bare argument that the costs are too low carries little weight.”

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. OSHA’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.”

“There can be little doubt that OSHA has done so here,” reads the ruling.

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.

“In sum, we reject all of the petitioners’ challenges to the Silica Rule, with three exceptions,” the court’s conclusion reads. “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.”

Sandherr insists that despite the ruling, the standard can be improved.

“Our intention from day one has been to find a way to continue reducing exposure to, and illness from, silica. While we never disagreed with federal officials’ motives, we have long felt that the Obama administration’s silica rule would do little to improve workplace health and safety and that better approaches did, and do, exist,” says Sandherr. “Moving forward, we will continue to work closely with federal officials to make improvements to this measure and how it is enforced in a way that leads to the meaningful safety and health improvements all of us seek. And we will continue to provide our members with resources and support as they work to comply with a measure. In particular, we will continue working to stimulate the development of new technology that will enable firms to comply with standards that exceed current technological capacity.”

Brian Turmail, vice president of public affairs and strategic initiatives at AGC of America, told DWM that the organization is currently reviewing its options in regard to a new challenge of the silica rule.

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