Court of Appeals rejects industry challenge to silica rule, requests OSHA to consider medical removal protections

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to OSHA’s final rule on respirable crystalline silica exposure, issuing its decision Dec. 22.

The silica rule, which reduces the permissible exposure limit to an average of 50 micrograms per cubic meter of air during an 8-hour shift, remains in effect for the construction industry. Most provisions in the agency’s standard for exposure in maritime and general industry are slated to begin June 23.

Industry groups sought a review of five issues:

• Whether “substantial evidence” exists that a reduced PEL will significantly decrease health issues surrounding silica exposure.
• Whether the rule is “technologically feasible for the foundry, hydraulic fracturing and construction industries.”
• Whether the rule is economically feasible for the aforementioned industries.
• Whether OSHA violated the Administrative Procedure Act in the rule’s promulgation.
• Whether substantial evidence supports two ancillary provisions to the rule, one allowing workers to undergo confidential medical examinations and another that prohibits dry cleaning methods – unless that practice is not feasible.

A group of labor unions sought a review of two portions of the rule: the absence of medical removal protections and the requirement that medical surveillance is provided only for workers who have to wear respirators for 30 days for one employer over a one-year interval.

The court rejected the latter request but stated that, “OSHA failed to adequately explain its decision to omit medical removal protections from the Rule.”

Medical removal protections require employers to keep workers from exposure when recommended by a medical finding, determination or opinion. The employee maintains the right to his or her “normal earnings as well as all other employee rights and benefits,” according to the court opinion.

Judges Merrick Garland, Karen LeCraft Henderson and David Tatel said in their opinion, “We hold that OSHA was arbitrary and capricious in declining to require MRP 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. We remand to the agency to reconsider or further explain those aspects of the Rule.”

The AFL-CIO applauded the decision, calling it a “huge victory” for working people. “This will protect millions of workers from disabling disease and save thousands of lives,” AFL-CIO President Richard Trumka said in a Dec. 22 press release. “The court rejected industries’ arguments and directed the agency to further consider additional union safety recommendations. Now we must turn our efforts to making sure this standard is put into full effect, enforced and protected from further attacks so that workers are finally protected from deadly silica dust.”

Stephen E. Sandherr, CEO of the Associated General Contractors of America – one of the industry groups that challenged the silica standard – expressed his disappointment with the court’s decision in a Dec. 22 statement.

“The appeals court has decided to allow the misguided federal silica rules to proceed despite the many legitimate concerns we and other groups raised about the measure. Today’s decision underscores just how difficult it is to overturn federal regulations, even one as deeply flawed as this measure,” Sandherr said. “Our intention from day one has been to find a way to continue reducing exposure to, and illness from, silica. While we never disagreed with federal officials’ motives, we have long felt that the Obama administration’s silica rule would do little to improve workplace health and safety and that better approaches did, and do, exist.

“Moving forward, we will continue to work closely with federal officials to make improvements to this measure and how it is enforced in a way that leads to the meaningful safety and health improvements all of us seek.”

On Dec. 27, OSHA announced via Twitter that it had released a set of revised fact sheets for the silica rule for the construction industry.