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A federal appeals court has denied a request by industry groups challenging the U.S. Occupational Safety and Health Administration’s silica rule for a 60-day extension to give the Trump administration time to evaluate the rule while supporters lobby the court to preserve the regulation.
The Occupational Exposure to Respirable Crystalline Silica rule reduces 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.
A coalition of trade associations urging the U.S. Court of Appeals for the District of Columbia Circuit to vacate the silica rule requested the extension Feb. 7.
“The facts in this case provide good cause for the requested extension,” the industry groups said. “The change in administration on Jan. 20, 2017, may alter how this case proceeds because the new administration may be open to resolving some or all of the issues that industry petitioners raised in their opening brief. The requested extension would afford the new administration time to evaluate whether alternative resolution of any of these issues might be possible.”
However, the request was opposed by labor unions arguing that OSHA has not expressed an intent to resolve the issues the industry groups raised in their brief or given an indication that an extension was warranted, according to court documents.
“There is no basis for assuming that OSHA would wish to engage in such a process,” the unions said in their brief responding to the extension request filed on Thursday. “Adoption, even in part, of industry’s position on the issues raised in its brief would require OSHA to reverse factual determinations it made on the basis of a massive record produced in a lengthy rulemaking. The facts have not changed with the change of administration.”
The D.C. appeals court denied the extension request on Monday without explanation.
On Friday, the American Thoracic Society and the American College of Occupational and Environmental Medicine filed a brief in support of OSHA’s efforts to lower the permissible exposure limits, saying their health care professional members regularly treat patients with health impairments caused by respirable crystalline silica.
“Silica, when inhaled as small particles, causes silicosis, lung cancer, certain kinds of autoimmune diseases including ones that damage the kidneys, susceptibility to deep lung infections, and a condition closely related to emphysema,” the organizations said. “Silicosis … is the most common occupational lung disease in the world.”
The organizations also expressed strong support for OSHA’s rule calling for medical surveillance triggered by exposure assessments showing respirable silica levels exceeding the new action level of 25 micrograms per cubic meter of air.
“The action level makes sense as even the new permissible exposure level does not prevent all silica-related diseases and cases can be identified that should trigger attempts to lower silica exposures at the
workplace and for the individual, and treat diseases like silicotuberculosis, lung cancer, autoimmune diseases, and chronic obstructive lung diseases,” the groups said in their brief.
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.