January 9, 2018 Celeste Monforton, DrPH, MPH 0Comment

The U.S. Court of Appeals for the D.C. Circuit ruled late last month to uphold an OSHA rule to protect 2.3 million workers who are exposed to respirable crystalline silica. A three judge panel was not convinced by any of the arguments to reject the OSHA rule that were made by attorneys for the National Association of Home Builders, American Foundry Society, and other industry groups. The judges’ 60-page opinion had this bottom line:

“We reject all of Industry’s challenges.”

The industry groups had raised five specific legal objections to OSHA’s 2016 silica rule. They asserted that OSHA did not provide “substantial evidence” that the rule

  1. would reduce a “significant risk of material impairment of harm”;
  2. is technologically feasible for the foundry, hydraulic fracturing, and construction industries;
  3. is economically feasible for the foundry, hydraulic fracturing, and construction industries; and
  4. can prohibit housekeeping methods that cause silica exposure, such as dry sweeping or using compressed air.

Finally, they claimed that OSHA violated the Administrative Procedure Act by not allowing adequate time for the public to comment on certain data in the rulemaking record.

One-by-one, Judges Merrick Garland, Karen LeCraft Henderson, and David Tatel rebuffed each industry argument. They write, for example, the industry’s assertions that compliance with the rule by construction employer is infeasible

“falls far short of rebutting OSHA’s well-supported finding of feasibility”

They add:

“Industry mounts a handful of additional challenges. None has merit.”

And this:

“Industry quibbles that the rule does not define what is feasible in any particular situation… though it offers nothing beyond unsupported speculation”

I listened in October 2017 to the oral arguments for this case. I thought the industry attorneys got off to a rocky start and then things went downhill. As I wrote at the time, I cringed when I heard nervous laughter from the industry attorneys who knew they were stumped by the judges’ question. What transpired in that courtroom turned out to be a good indicator of how the court would eventually decide the case.

OSHA spent more than 10 years building a record of evidence to support its silica rule.  The agency had the burden of demonstrating with a record of the best available evidence that workers who are exposed to respirable crystalline silica “will suffer material impairment of health or functional capacity” and that feasible means exist to substantially reduce the risk.

Opponents of OSHA’s silica rule argued otherwise, but their attorneys’ arguments failed to sway the Appeals Court.





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