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OSHA silica rule challenged on several fronts

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Supporters and opponents of the U.S. Occupational Safety and Health Administration’s silica rule sparred over its medical provisions in competing court filings last week while the rule faces an uncertain future under the Trump administration. 

The Occupational Exposure to Respirable Crystalline Silica rule reduces the permissible exposure limit 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. 

A coalition of industry groups is suing to stop the silica rule, with parties on both sides filing briefs on Friday after the U.S. Court of Appeals for the District of Columbia Circuit denied a request for an extension earlier this month to give the Trump administration additional time to evaluate potential ways to resolve the litigation.  

Substantial evidence supports OSHA’s conclusion that occupational exposure to silica at the pre-existing permissible exposure limit presents a significant risk to workers and that compliance with the silica standard is both technologically and economically feasible, according to a brief filed by unions on Friday. 

“OSHA properly rejected industry’s claim that workers no longer are at risk because the number of death certificates on which silicosis is listed as a cause of death has declined,” the unions said. “Scientific experts explained that, for several reasons, death certificates do not support the conclusion industry attempts to derive from them. In addition, industry’s argument ignores the fact that hospitalizations for silicosis have increased, not decreased. And industry’s argument ignores deaths from other silica-related diseases such as lung cancer.”

While clarifying that the industry groups were not endorsing any aspect of the silica rule, they argued that OSHA correctly determined that inclusion of medical removal protection, which would provide for workers to be removed from the worksite and receive pay and benefits when a licensed medical professional recommends removal, in the rule’s general industry and maritime standards was unwarranted, according to the industry groups’ brief.

“Short-term medical leave is not necessary here because, in addition to the numerous other protective ancillary provisions, ‘workers compensation is the appropriate recourse if permanent removal is required’ and because ‘union petitioners have not offered any evidence of medical removal protection costs or otherwise demonstrated that would be economically feasible,’” the industry groups said. 

The unions have challenged OSHA’s trigger for medical surveillance in the silica rule’s construction standard, which requires medical surveillance be made available to employees who are required to wear a respirator for 30 or more days a year. But the industry groups argued that OSHA properly rejected the suggestion to tie medical surveillance to exposure over the permissible exposure limit in the rule’s construction standard.

“OSHA correctly determined that such an approach made no sense due to its adoption of ‘Table 1’ in the construction standard,” the industry groups said. “Furthermore, given the significant expected use of respirators in the construction industry as a result of Table 1 and OSHA’s approach to compliance, it is not at all clear that a different trigger would result in numerous construction employees receiving medical surveillance that would not receive it under the final rule as issued.”

The silica rule provides guidance commonly referred to as Table 1 outlining exposure control methods for selected construction operations, with employers who follow these methods not required to measure workers' exposure and not subject to the permissible exposure limit.