Court of Appeals Upholds OSHA Silica Rule

February 2018

In a wide-ranging decision issued Dec. 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit decisively rejected the arguments made by the American Subcontractors Association and the Construction Industry Safety Coalition (of which AWCI is a member) on the crystalline silica rule issued by the Occupational Safety and Health Administration in March 2016, the ASA reported. The rule, which OSHA started enforcing in the construction industry on Oct. 23, 2017, requires construction employers to limit worker exposure to respirable crystalline silica and to take other steps to protect workers. In a lawsuit filed in April 2016, and in later briefs and oral arguments, industry coalition had petitioned for a review of five issues:
    
(1) whether substantial evidence supports OSHA’s finding that limiting workers’ silica exposure to the level set by the rule reduces significant risk of material health impairment;
    
(2) whether substantial evidence supports OSHA’s finding that the rule is technologically feasible for the foundry, hydraulic fracturing and construction industries;
    
(3) whether substantial evidence supports OSHA’s finding that the rule is economically feasible for the foundry, hydraulic fracturing and construction industries;
    
(4) whether OSHA violated the Administrative Procedures Act in promulgating the rule; and
    
(5) whether substantial evidence supports provisions that allows workers who undergo medical examinations to keep the results confidential from their employers and that prohibits employers from using dry cleaning methods unless doing so is infeasible.
    
The court rejected all five of industry’s challenges. However, the court did agree with the North America’s Building Trades Unions on their petition concerning the absence of medical removal protections. The court ruled 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 COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”
    
The court directed OSHA to reconsider or further explain those aspects of its silica rule.

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