2017 Construction Industry Silica Standards Are Here to Stay
Source: https://www.lexology.com, January 24, 2018
By: Smith Currie & Hancock
In 2016, the Occupational Safety and Health Administration (“OSHA”) published its final rule lowering the permissible silica exposure level (“PEL”) from 250 µg/m3 to 50 µg/m3. In response, OSHA received petitions from both a collection of industry petitioners (“Industry”) arguing that OSHA made the regulation too stringent and several union petitions (“Unions”) arguing that OSHA failed to make the regulation stringent enough to protect workers. On December 22, 2017, the United States Court of Appeals for the District of Columbia rejected all of the industry’s challenges to the regulation. See N. Am.’s Bldg. Trades Unions v. Occupational Safety & Health Admin., No. 16-1105, 2017 WL 6543858 (D.C. Cir. Dec. 22, 2017). The court further held that OSHA failed to adequately explain its decision to omit medical removal protections from the regulation and remanded the issues for further consideration.
At the forefront of the court’s opinion, it outlines 29 U.S.C. §655(f), “the substantial evidence standard”, under which OSHA only needed to provide substantial evidence to uphold the requisite threshold finding of a significant risk of material health impairment that will be reduced by the new PEL (50 µg/m3). Under this standard, while OSHA must rely upon a “body of reputable scientific thought” when assessing risk, it is not required to “calculate the exact probability of harm” or support its findings with anything approaching scientific certainty.” [pg 8]. “OSHA is not precluded from relying on imperfect evidence so long as it ‘recognize[s] and account[s] for the methodological weaknesses’ of the evidence.” [pg 14]. The basis of the court’s holding is that the Industry failed to demonstrate how OSHA failed to meet its substantial evidentiary burden.
Petitioners’ Arguments and Court’s Analysis
The Industry petitioned for the review of the following issues:
(1) Whether substantial evidence supports OSHA’s finding that limiting workers’ silica exposure to the level set by the Rule reduces a significant risk of material health impairment. In OSHA’s 2016 promulgation of the regulation, it concluded that long-term silica exposure above the PEL presents a significant risk of four discrete health effects: (1) silicosis and NMRD mortality; (2) lung cancer mortality; (3) silicosis morbidity; and (4) renal disease mortality. The court held that OSHA’s findings as to the first three adverse health effects are supported by substantial evidence, which in turn, supports OSHA’s overall finding of a significant risk.
(2) Whether substantial evidence supports OSHA’s finding that the regulation is technologically feasible for the foundry, hydraulic fracturing, and construction industries. Where OSHA “has demonstrated technological feasibility for the typical firm in most operations and has supported that finding with substantial evidence, it has satisfied its burden.” [pg 24]. In the court’s analysis, it points out that the Industry challenged OSHA’s feasibility findings in only three industries: foundry, hydraulic fracturing, and construction. The relevant question in these industries is whether OSHA has demonstrated with substantial evidence that the typical firm can meet the standard in most operations. Ultimately, the court held that “[w]hile Industry identifies sundry examples of infeasibility for certain firms or in certain operations, their objections do not collectively undermine OSHA’s overall finding of feasibility for the typical firm in most operations nor to do they meaningfully call into question the evidence on which OSHA relied.” [pg 25]. None of the isolated exceptions argued by the Industry undermines OSHA’s finding of feasibility for the typical firm, in most operations.
(3) Whether substantial evidence supports OSHA’s finding that the regulation is economically feasible for the foundry, hydraulic fracturing, and construction industries. “A rule is economically feasible in a particular industry so long as it does not ‘threaten massive dislocation to, or imperil the existence of, the industry’” [pg 34]. Thus, a regulation “is not infeasible because it threatens the survival of some companies within an industry.” [pg 34]. The Industry’s economic feasibility arguments, like its technological feasibility arguments, “raise a host of claims about OSHA’s sources that do not collectively undermine the evidence OSHA relied on and the conclusions it reached, especially in light of [the court’s] standard of review and the narrow scope of the industry’s challenge.” [pg 35]. The court ultimately held that OSHA’s only obligation was to confirm, on the basis of substantial evidence, that its rule does not “threaten massive dislocation to, or imperil the existence of, the industry.” [pg 43].
(4) Whether OSHA violated the Administrative Procedure Act (APA) in promulgating the regulation. The OSHA Act (29 U.S.C. § 655(B)(2)) and the APA (5 U.S.C.§ 553) govern the process for promulgating occupational safety and health standards, and require the Secretary to publish proposed rules and provide an opportunity for comment. Despite the Industry’s procedural challenges, the Court held that “OSHA’s actions here were at worst harmless, and more likely, not even in error.” [pg 44].
(5) Whether substantial evidence supports two ancillary provisions of the regulation – one that allows workers who undergo medical examinations to keep the results confidential from their employers and one that prohibits employers from using dry cleaning methods unless doing so is infeasible. The court finds that substantial evidence supports OSHA’s choices and rejects both challenges. On the issue of letting employees decide whether to notify employers of doctors’ recommendations, OSHA met its substantial evidence burden by providing good reasons for this approach, “explaining that disregarding employees’ ‘reluctance to let employers know about their health status’ could compromise worker safety by deterring employees fearful of the employment consequences of an adverse diagnosis from participating in medical surveillance.” [pg 47] Regarding the prohibition of dry sweeping, dry brushing, or (barring suitable ventilation) the use of compressed air where such activity could result in exposure, the court held that the Industry failed to undermine OSHA’s supportable finding that “silica exposure, even at levels below the PEL, poses significant risks to employee health”, and that restricting the methods of dry sweeping, dry brushing, and compressed air to any degree reduces this risk. [pg 49].
The Unions petitioned for the review of the following issues:
(1) The requirement that medical surveillance for construction workers be provided only if the employee has to wear a respirator for 30 days for one employer in a one-year period. In regard to the construction standard, the court held that while “OSHA’s stated reason for adopting the 30-day trigger does leave something to be desired… OSHA did not abuse the ‘almost unlimited discretion the statute affords it to devise means to achieve the congressionally mandated goal.’” [pg 54].
(2) The absence of medical removal protection procedures. Medical removal protection (“MRP”) provisions require an employer to remove the employee from exposure when such an action is recommended by a written medical opinion and to maintain the employee’s rights and benefits. 81 Fed. Reg. at 16,838. The court held that OSHA’s decision not to require MRP was “arbitrary” and “capricious” 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 remanded these three issues back to OSHA for further explanation.