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Opponents of the U.S. Occupational Safety and Health Administration’s silica rule continue to press a federal appeals court to reject the regulation, but OSHA’s outgoing head expects the rule to stand.
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. But a coalition of trade associations has urged the U.S. Court of Appeals for the District of Columbia 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.
OSHA failed to provide substantial evidence that employees face a significant risk of material health impairment and that the proposed rule will significantly reduce or eliminate that risk, according to a brief filed on Friday by the U.S. Chamber of Commerce and local chamber chapters.
“First, OSHA ignored countervailing empirical evidence showing that employees did not face significant risks under the existing silica limits,” the organizations said in the brief. “For more than 40 years, OSHA has limited workplace exposure to silica and during that time silica-related deaths in the United States have plummeted. Moreover, to the extent silica-related deaths continue to occur, they are not because of inadequate silica limits.”
The opponents “make some really good arguments,” which may have sway in President-elect Donald Trump’s administration, if not in court, particularly if Mr. Trump follows through on pledges to rebuild and expand the nation’s infrastructure, said Matthew Linton, of counsel at Holland & Hart L.L.P. in Denver.
“If I was a betting man, I would bet that we are not going to see this rule in this current form enforced starting in June when the first provisions come into play for the construction industry,” he said. “I don’t see the court throwing it out entirely. I think there’s more likelihood that we’re going to see a new head of OSHA come in and at a minimum perhaps provide the opportunity for revisiting some of the scientific side. Just because it’s a final rule doesn’t mean it’s set in stone, especially before implementation.”
But David Michaels, assistant secretary of Labor for Occupational Safety and Health, expressed confidence that the silica rule will persevere.
“We don’t think there’s any question,” he said on the sidelines of an Advisory Committee on Construction Safety and Health in Washington last week. “Regulations take a very long time to issue because there’s a tremendous amount of thought and work put into it. Once they are issued, they have a certain permanence. In silica, we’ve seen many, many employers already change their processes and comply with the right equipment to make sure workers are safe, and that’s going to continue.”
Luis Pieretti, Tampa, Florida-based manager of industrial hygiene for insurer The MEMIC Group, said his general industry clients are proactively working toward complying with the silica rule. General industry employers must use feasible control methods to reduce employee exposure to the permissible exposure limit or to the lowest limit possible if the limit is not achievable and then complement that with the use of personal protective equipment, he said.
“The construction industry may have more difficulty complying with the standard because silica is more prevalent in the construction industry than general industry,” Mr. Pieretti said. “There will be some types of industries within general industry that have a lot of exposure to silica, but it’s more indoors and it’s more of a process versus in construction, where every day is different.”
Litigation over the U.S. Occupational Safety and Health Administration's silica rule should not delay its implementation, according to an agency official.