Regulatory Developments

Objections to OSHA Silica Rule Dismissed by D.C. Circuit

On December 22, 2017, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit (panel) issued an opinion that denied challenges to all but one provision of OSHA’s March 2016 amendments to its 1971 standards for occupational exposure to respirable crystalline silica.

Silica

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Silica is a basic component of soil, sand, granite, and other minerals and is common in many construction trades and manufacturing sectors (e.g., quarries, granite works, gold mining, and brick production). In its rule, OSHA stated that employees exposed to respirable silica at the permissible exposure limit (PEL) set in the old standard face “a significant risk of material impairment to their health.”

The panel appeared to accept OSHA’s view that the existing risk is unacceptable by referring to a 2015 research report that states that silicosis, the most common—and irreversible—human illness resulting from silica overexposure, is “the most prevalent chronic occupational disease in the world.” Viewing the inadequacy of the 45-year-old standards, the grave consequences of silicosis, and the virtual omnipresence of silica in many occupations, OSHA embarked on a 30-month effort that produced a final rule filling more than 600 pages in the Federal Register (March 25, 2016, FR).

Industry reacted with dismay, claiming that the amendments were neither technologically nor economically feasible. The U.S. Chamber of Commerce noted that small businesses would not be able to afford compliance with the rule. The panel does not disagree with this assessment. However, the panel’s opinion is dominated by a highly deferential view of OSHA’s authority. Most significantly, the panel states that its standard of review in the case—which it derives in part from several prior D.C. Circuit rulings (called Lead I [1980] and Lead II [1991])—is that to meet its statutory responsibility, OSHA needs to show only that there is a “a reasonable possibilitythat the typical firmwill be able to develop and install engineering and work practice controls that can meet the [standard] in most of its operations.” Using a similar standard of review, the panel also found that the cost of the rule—estimated by OSHA at more than $1 billion annually—is economically feasible.

Industry groups asked the D.C. Circuit to review five issues, including the technological feasibility of the rule for three distinct sectors—foundry work, hydraulic fracturing, and construction. The panel upheld the rule against every challenge. Several worker unions also challenged two aspects of the rule. The panel rejected one of these challenges but did agree with the contention that OSHA did not adequately explain why the rule provides no medical removal protections for workers who have developed health problems from jobsite silica exposure. Accordingly, the panel remanded that part of the rule to OSHA for “further consideration.”

OSHA’s Amendments

The 1971 rule established a PEL—a time-weighted average of a worker’s exposure during a workday—of 100 micrograms per cubic meter (µg/m3) in general industry and 250 µg/m3 in the construction industry. The 2016 amendments lowered the PEL to 50 µg/m3 for all covered industries, including the foundry, hydraulic fracturing, brick, and construction work. Employers must assess silica exposure levels in the workplace (or, for certain construction industry tasks, adopt specific safe work practices) and, if necessary, must implement engineering and work practice controls to keep exposures below the PEL. If engineering and work practice controls cannot reduce exposure to the PEL, the employer must use controls to the extent feasible and also provide workers with respirators.

The rule also established housekeeping and medical surveillance requirements. Under the housekeeping provision, which was challenged, employers are prohibited from using dry sweeping methods to clean worksites if doing so could contribute to employee exposure to silica; there is an exclusion to the prohibition when wet cleaning methods are infeasible. Regarding medical surveillance, employers must provide medical screening to silica-exposed workers under certain conditions. Most information from medical examinations, including medical professionals’ recommendations limiting employee exposure to silica, are confidential and cannot be released to the employer unless the employee authorizes disclosure. The rule did not require employers to protect the jobs of employees whose doctors recommend either permanent or temporary removal from silica exposure on the job (called medical removal protection (MRP)).

Different compliance dates were established for each industry—June 23, 2017, for construction; June 23, 2018, for foundries; and June 23, 2021, for hydraulic fracturing.

OSHA estimated that when fully effective, the amendments will prevent 642 fatalities and 918 moderate-to-severe silicosis cases annually. The benefits of the rule were estimated at $7.7 billion a year.

The panel ruled on the following issues.

Significant Risk

Before OSHA promulgates any permanent health or safety standard, it must make a threshold finding that it is at least more likely than not that long-term exposure to the regulated substance at current exposure levels presents a significant risk of material impairment that can be eliminated or lessened by a change in practices. Accordingly, OSHA conducted a quantitative risk assessment in which it reviewed toxicological, epidemiological, and experimental studies about the adverse health effects of silica exposure. Based on the assessment, OSHA concluded that the risks at 50 µg/m3—the new PEL—are lower than the risks at the original PELs of 100 µg/m3 and 250 µg/m3.

Industry asserted that OSHA based the assessment on an incorrect premise—that there is no exposure level below which workers would not be expected to develop adverse health effects. OSHA, in fact, acknowledged that there is considerable uncertainty about whether a threshold exists but found that the weight of evidence supports the view that if there is a threshold, it is likely lower than the PEL.

According to the panel, OSHA provided substantial evidence to back up its no-threshold position. The panel also explained that it is not its role to determine if OSHA was correct regarding the threshold. Rather, the limit of its legal power is to judge if OSHA provided a reasonable explanation for its action, which, the panel concluded, OSHA did.

Technical Feasibility

Industry petitioners offered several arguments to rebut OSHA’s assertion that it is technically feasible to achieve the amended PELs. For example:

  • For the foundry sector, because of the dynamic and unpredictable nature of silica exposure, firms must strive to attain an exposure level well below the new PEL to ensure compliance.
  • Because OSHA only recently recognized the risk of silica exposure in the hydraulic fracturing industry, available data are limited and what data are available show that the vast majority of firms are not yet in compliance with the new standard. This evidence shows that the new standard is unattainable, as there is no evidence of any controls reducing exposure below the new PEL.
  • For the construction industry, OSHA relied on control measures listed in the rule’s Table 1—Specified Exposure Control Methods When Working with Materials Containing Crystalline Silica (p. 16877 in the FR). Under the new rule, if a construction employer implements the controls in Table 1—applicable to 19 of 23 construction tasks—it does not have to meet the new PEL. OSHA determined not only that most employers would follow Table 1 for most tasks but also that it would be technologically feasible for them to do so given the ready availability of Table 1 controls.  Industry’s primary challenge is that the Table 1 controls cannot always be implemented and sometimes require respiratory protection.

In rejecting each of these arguments against technical feasibility, the panel repeatedly pointed out that OSHA relied on data from multiple reliable sources, conducted site visits, responded to comments on its proposal, and documented that many regulated businesses are already meeting the PEL. The panel thus concluded that OSHA met its legal responsibility, as elucidated in Lead I and Lead II, that after consulting the “best available evidence,” OSHA demonstrated that there is “a reasonable possibility” that the “typical firm” will be able to develop and install engineering and work practice controls that can meet the [standard] “in most of its operations.”

The assessment differs for hydraulic fracturing, a recent technology with no known silica controls. Industry argued that OSHA could not assert that unknown controls are feasible. The panel disagreed, stating that OSHA gave the sector a “reasonable” 5 years to meet the PEL standard and, moreover, that the Occupational Safety and Health Act (OSH Act) is technology-forcing. Again citing the Lead rulings, the panel said OSHA presented substantial evidence that companies acting vigorously and in good faith can develop the technology needed to meet the standards.

Economic Feasibility

The OSH Act states that health standards must protect workers to the extent feasible. In Lead I, the D.C. Circuit said a rule is economically feasible when it does not “threaten massive dislocation to, or imperil the existence of, the industry.”  The panel notes that in its economic analysis, OSHA found that for each of the foundry, hydraulic fracturing, and construction industries, the costs of compliance were well below 1 percent of revenue and 10 percent of profits, the benchmarks above which OSHA says a rule is not economically feasible.

“OSHA’s cost estimates in each of these industries are inevitably imperfect due to the limitations of available data and the uncertainties inherent in predicting future costs,” concluded the panel. “But this is why ‘hard and precise estimates of costs’ are not required (Lead II quoting Lead I). OSHA’s only obligation is to confirm, on the basis of substantial evidence, that its rule does not threaten massive dislocation to, or imperil the existence of, the industry. There can be little doubt that OSHA has done so here.”

Other Challenges

Under the rule, employers must offer no-cost medical surveillance to silica-exposed employees. Employees receive periodic medical screening and written reports that include the examining physician’s recommendations regarding limitations on the employee’s exposure to silica. Absent the employee’s written authorization, the employer never receives the recommendations. Industry argued that this approach denies employers information that they could use to protect employee health. OSHA responded that employees have the most at stake in terms of their health and employability and so should be entitled to decide for themselves whether to relay potentially compromising medical information. The panel agreed.

Finally, the single action in the rule rejected by the panel was OSHA’s decision to exclude MRPs. MRPs, which OSHA has included in other rules, require employers to temporarily remove an employee from exposure when such an action is recommended in a written medical opinion and to maintain the employee’s total normal earnings and all other employee rights and benefits. OSHA said the MRP was excluded because silica-related illnesses are irreversible, and any lasting benefit could only be achieved by permanent removal. The panel did not accept this explanation, noting that while OSHA acknowledged the health benefits of removal, it did not provide an adequate reason for rejecting some period of MRP for employees whose doctors recommend permanent removal. The panel therefore remanded this portion of the rule to OSHA for further explanation.

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