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Court of Appeals Rejects Industry Challenges to Silica Rule

Wednesday, December 27, 2017

On December 22, the U.S. Court of Appeals upheld OSHA’s 2016 silica rule, rejecting industry challenges.

OSHA published the final rule regulating workplace exposure to silica, Occupational Exposure to Respirable Crystalline Silica (29 CFR 1910, 1915 and 1926), in 2016. The rule is aimed at protecting over 2 million employees exposed to silica dust at work. These employees could face serious illness from the exposure, such as silicosis or tuberculosis.

The Court of Appeals decision came after several industry petitioners argued OSHA made the rule too stringent and several union petitioners argued OSHA did not make it stringent enough.

The industry groups, including the Chamber of Commerce, petitioned for 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 (APA) in promulgating the rule.
  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.

“We reject all of industry’s challenges,” wrote judges Merrick Garland, Karen Henderson and David Tatel.

 

Meanwhile, the union petitioners requested review of two parts of the rule:

  1. The 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.
  2. The absence of medical removal protections.

“We reject the unions’ challenge to the construction standard’s 30-day trigger for medical surveillance,” wrote the judges. They added, however: “We hold that OSHA was arbitrary and capricious in declining to require MRP 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.”

The judges concluded that OSHA “failed to adequately explain its decision to omit medical removal protections from the rule and remand [back to OSHA] for further consideration of the issue.”

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