April 5, 2016

OSHA Draws Multiple Industry Challenges To Just-Promulgated Silica Rule

Just days after its promulgation, OSHA’s rule setting strict new standards for crystaline silica has drawn at least three separate appellate challenges from various industry groups, launching a process that will allow the groups to make the case that the new exposure limits that are at the heart of the rule are economically and technologically unachievable.

An alliance of Texas, Mississippi and Louisiana construction industry groups April 4 asked the U.S. Court of Appeals for the 5th Circuit to review the rule.

The affiliated national organizations of the construction industry groups–the American Road and Transportation Builders Association, American Subcontractors Association, Associated Builders and Contractors (ABC), the Associated General Contractors of America, Mason Contractors Association of America, Mechanical Contractors Association of America and National Association of Home Builders–will join the Texas construction groups’ petition, ABC said in a joint press release.

A separate coalition of Texas foundries and other Lone Star state businesses April 4 also petitioned the 5th Circuit to review the measure.

In addition, the State Chamber of Oklahoma filed its own petition for review in the 10th Circuit.

The three challenges, as well as any subsequent petitions, will likely be consolidated and assigned to a single circuit to be selected in a lottery by the Judicial Panel on Multi-District Litigation.

The petitions come just days after the rule’s March 25 publication in the Federal Register, much sooner than the 60 days that challengers otherwise have. But in order to be considered in the lottery, petitions must be filed within 10 days of the rule’s promulgation.

The rule 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 permissible exposure limits (PEL) for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 micrograms per cubic meter (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 Opposition

But the rule has drawn strong opposition from industry groups, especially those in the construction sector, who have long charged that the rule’s new PEL and action levels are technologically and economically unachievable.

“The construction industry raised numerous concerns regarding OSHA’s proposal, but the agency failed to address many of these issues when promulgating the final rule,” ABC said in its April 4 statement. “In particular, the industry presented substantial evidence that OSHA’s proposed [PEL] was technologically and economically infeasible,” the group added.

While the just-filed petitions do not detail the industry arguments, many industry groups detailed their arguments in comments on the proposed version of the rule, which included the same PEL and action level as the final version.

For example, in February 2014 comments on OSHA’s proposed rule, the Construction Industry Safety Coalition (CISC), an alliance of 25 construction sector trade associations that came together to address the silica rule, charged that the Agency had “not met its burden of demonstrating that the [rule] is technologically and economically feasible.”

For example, the alliance charged that OSHA did not identify all the construction tasks and worker job categories that would be affected by the proposal and also did not address the omitted tasks and job categories in the technological and economic feasibility analysis,. Similarly, the CISC charged that OSHA’s analysis does not consider the “broad range of tasks and variety of settings and environments” in which construction work occurs.

The CISC also charged that OSHA underestimated — by as much as a factor of four — the costs of implementing the rule. For example, the group said OSHA omitted at least1.5 million workers, including plumbers, roofers, electricians, plasterers, tile and marble setters and many of their helpers, from its analysis. “Together, the additional occupations increase OSHA’s base estimate of the affected workforce by approximately 50 percent,” CISC said.

In addition, the group charged that OSHA had used “highly unrealistic assumptions” about the costs and productive penalties associated with control equipments’ deployment and use in the construction industry. “OSHA has incorrectly estimated costs for engineering controls by assuming a more limited number of at-risk workers than will truly be affected by any final rule,” the group charged.

ABC said in its statement that OSHA “failed to take into account this evidence and moved forward with the same infeasible PEL in the final rule. This and other final rule provisions display a fundamental misunderstanding of the real world of construction.”


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