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OSHA silica rule faces pushback from employers

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A coalition of trade associations urged the U.S. Court of Appeals for the District of Columbia Circuit to vacate the U.S. Occupational Safety and Health Administration’s silica rule, challenging both the need for the rule and the agency’s determination of its feasibility. 

The Occupational Exposure to Respirable Crystalline Silica rule will reduce the permissible exposure for crystalline silica over an eight-hour shift to 50 micrograms per cubic meter of air for the construction industry, one-fifth of the previous maximum, as well as for general industry and the maritime industry, half of the previous maximum.

The group, which includes the Washington-based National Association of Manufacturers, urged the D.C. Circuit to vacate the rule, arguing in part that OSHA failed to demonstrate through substantial evidence that there is a significant risk of material harm warranting a revision of the permissible exposure limit, according to a brief filed on Friday. 

OSHA also dismissed studies casting doubt on the theory that silica exposure causes lung cancer, according to the brief.

“This regulation is a solution in search of a problem,” the coalition said. “Silicosis mortality rates have declined more than 90% in this country — a decrease from 1,065 deaths in 1968 to 101 in 2010.” 

The agency must also determine that compliance with an OSHA standard is technologically and economically feasible, but its finding that the rule is feasible in the foundry, hydraulic fracturing and construction industries is not supported by substantial evidence, according to the brief. 

“Feasibility sets a critical boundary to OSHA’s rulemaking authority,” the coalition said. “It reflects Congress’ judgment that OSHA’s authority in the realm of safety and health is not limitless and the agency must consider the ability of industry to comply with the requirements of new health standards and the related costs.”

A group of unions is also engaged in the silica litigation, but their objection is based on the argument that the rule does not adequately protect workers from the deadly effects of silica exposure, according to their brief, also filed on Friday. 

“Specifically, the standard is inadequate because the provisions for general industry fail to require employers to remove at-risk workers from exposure to silica when recommended by a medical professional and to provide that such removals will be without loss of pay, and the provisions for construction leave many workers exposed above the permissible exposure limit without the protection of medical surveillance,” the unions said in their brief. “We urge the court to remand the standard to OSHA for reconsideration of these two issues.”

Lawsuits challenging the silica rule were filed by multiple organizations in six different circuit courts of appeals since its March publication, but the cases were consolidated in the D.C. Circuit in April.