April 6, 2016

Labor Groups’ Suit Over Silica Rule May Signal Push For Stricter Standards

A coalition of major labor groups is suing OSHA over its controversial rule setting new standards to limit occupational exposures to crystaline silica, suggesting they may push to strengthen the regulation even as industry groups argue the measure is unlawful because it is technologically and economically unachievable.

The coalition, including the AFL-CIO, United Steelworkers (USW) and United Auto Workers (UAW), April 1 petitioned the U.S. Court of Appeals for the 3rd Circuit to review OSHA’s March 25 silica rule.

While the groups have long pushed for the rule and welcomed its eventual release, they also argued in their comments on the proposed version of the rule that OSHA should strengthen the measure’s standards. For example, UAW said in its comments on the proposed version of the rule that the permissible exposure level (PEL) should be set at 25 micrograms per cubic meter (ug/m^3) “or lower where feasible” rather than the 50-ug/m^3 limit that OSHA proposed and later adopted.

“In general industry and maritime, engineering and work practice controls can reduce exposures to less than 50 μg/m3 for the vast majority of workers,” UAW said.

“In construction, where the changing and mobile nature of the work create more variable exposures, the preliminary feasibility analysis finds that for more than 82 percent of all construction workers engineering and work practice controls can reduce exposures to less than 50 ug/m3,” UAW added.

The labor groups’ petition was filed days before a a host of industry groups launched their own challenges in several other appellate circuits.

The multiple petitions ensure that the Judicial Panel on Multi-District Litigation will decide by lottery in the coming weeks which circuit will be the venue for the consolidated litigation. The panel’s decision will be important as the selected circuit could favor one side or the other due to past legal precedents.

Such suits must be filed within 10 days of the rule’s promulgation in order to ensure they will be considered in the judicial panel’s lottery.

Among the industry cases that have been filed so far, several construction industry groups have filed separate petitions in the 5th Circuit, while the Oklahoma Chamber of Commerce has sued in the 10th Circuit.

In addition, the Greater North Dakota Chamber of Commerce April 4 filed a petition for review in the 8th Circuit.

Rule’s Requirements

The rule at issue marked the first overhaul of OSHA’s silica standards in more than 40 years. Key among the changes is the agency’s decision to strengthen the current PEL for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 ug/m^3 to 50 ug/m^3 over eight hours.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements, including monitoring requirements.

The rule set two standards, one for the construction sector and another for maritime and general industry, such as brick manufacturing, foundries, and hydraulic fracturing.

According to OSHA, the rule generally requires employers to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

The rule also requires medical exams to monitor highly exposed workers and gives them information about their lung health.

Industry groups are expected to argue that the rule’s PEL is unlawful because it is economically and technologically unachievable, violating OSH Act requirements that the agency set standards to prevent unlawful risk and exposure.

But the labor groups charge in their comments that evidence in the rule’s record suggests PELs at levels at or below 25 ug/m^3 are achievable.

“Many of the underlying studies on which the feasibility analysis is based found that engineering and work practice controls — generally wet methods and local exhaust ventilation — reduced exposures for many workers to levels below the proposed PEL,” UAW says .

“Thus the feasibility analysis and the underlying evidence show not only that the 50 ug/m3 standard is indeed technologically feasible, it also provides evidence that in some operations, the proper and consistent application of available control measures can reduce exposures to 25 ug/m3 or below,” the group adds.


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