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Industry challenge to OSHA silica rule rejected by court

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The U.S. Court of Appeals for the District of Columbia Circuit has rejected industry challenges to the U.S. Occupational Safety and Health Administration’s silica rule and ordered the agency to explain why it omitted medical removal provisions.

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. The rule, published in March 2016, is designed to protect the more than two million U.S. workers currently exposed to some level of silica, according to agency data.

Industry groups such as the U.S. Chamber of Commerce challenged the rule based on several arguments, including whether substantial evidence supported OSHA’s finding that limiting workers’ silica exposure to the level set by the rule reduced a significant risk of material health impairment, according to Friday’s ruling. Industry groups also challenged whether substantial evidence supported OSHA’s finding that the silica rule is technologically and economically feasible for the foundry, hydraulic fracturing and construction industries.

In addition, they argued that OSHA violated the Administrative Procedure Act in promulgating the rule and challenged 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,” the D.C. Circuit said in its ruling on Friday.

For example, OSHA satisfied its burden to demonstrate technological feasibility for a typical firm in most operations and supported that finding with “substantial” evidence, according to the court.

“To mount a successful attack on OSHA’s feasibility finding, then, challengers must do more than suggest that compliance will be infeasible for some firms or in a few isolated operations,” the court stated.

Meanwhile, labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections.

“We reject the unions’ challenge to the construction standard’s 30-day trigger for medical surveillance,” the court stated. “We conclude that OSHA failed to adequately explain its decision to omit medical removal protections from the rule and remand for further consideration of the issue.”

“We hold that OSHA was arbitrary and capricious in declining to require (medical removal protections) for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate (chronic obstructive pulmonary disease) symptoms and when a medical professional recommends temporary removal pending a specialist’s determination,” the court continued. “We remand to the agency to reconsider or further explain those aspects of the rule.”

Jordan Barab, former deputy assistant secretary of OSHA during the Obama administration and publisher of the Confined Space safety and health newsletter, called the ruling “good news.”

“There is no better holiday gift than the gift of life, and that is what the D.C. appeals court gave thousands of workers today with their decision upholding OSHA’s silica standard and telling OSHA to make it stronger,” he said.

The court did not order OSHA to implement medical removal protections, Mr. Barab noted, “but if they are not going to implement it, they need to have a better excuse for not including it.”

“Working people won a huge victory today with the court’s decision fully upholding OSHA’s 2016 final silica standard,” Margaret Seminario, director of safety and health at the AFL-CIO in Washington, said in an emailed statement. “This will protect millions of workers from disabling disease and save thousands of lives. The court rejected industries’ arguments and directed the agency to further consider additional union safety recommendations. The labor movement worked for decades to win these life-saving measures and we are proud to see these standards remain the law of the land.”

Spokespersons for the industry and OSHA could not be immediately reached for comment.