Appeals Court Upholds OSHA Silica Standard

There is no better holiday gift than the gift of life and that is what the DC Appeals Court gave thousands of workers today with their decision upholding OSHA’s silica standard and telling OSHA to make it stronger. “We reject all of industry’s challenges,” the court stated.

The court not only rejected five challenges to the rule brought by industry groups led by the US Chamber of Commerce, but sent the rule back to OSHA because the agency did not offer good reasons for leaving out  “medical removal protection” that would have allowed doctors to remove sick workers from exposure to silica under certain conditions:

“We hold 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 didn’t order OSHA to implement MRP, but if they are not going to implement it, they need to have a better excuse for not including it.

Several other OSHA standards, such as the lead, cadmium, benzene and beryllium standards, also include medical removal protection.

The silica standard, issued by OSHA in 2016 is currently being enforced, after several delays. The rule was intended to protect more than two million U.S. workers currently exposed to silica on the job.  OSHA estimated that the standard would save over 600 lives and prevent more than 900 new cases of silicosis each year.   A hearing before the court was held last September and OSHA actively defended the standard in court.

OSHA’s Silica Findings Upheld

OSHA has three major obligations when issuing a health standard: The agency has to establish that the hazard presents a “significant risk” to employees and that the new standard will reduce that risk. The law also requires that OSHA establish that the new standard is technologically and economically feasible.

The court upheld OSHA’s significant risk findings:

Industry challenges OSHA’s significant risk findings in three ways. First, Industry attacks two parts of OSHA’s risk assessment methodology. Second, it challenges OSHA’s findings on each of the four individual health risks. Finally, Industry challenges OSHA’s decision to include the brick industry within the scope of the Rule. We reject each challenge.

The court rejected the industry’s argument that OSHA had not established that the standard was technologically feasible:

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 and we must defer to its conclusions

***

OSHA considered and responded to each of these [industry] objections, making “reasonable predictions based on ‘credible sources of information.’”  Once  again, Industry’s insistence that compliance is infeasible for some firms in some operations some of the time cannot upend our deference to OSHA’s well-supported finding that compliance is feasible for the typical firm in most operations.

The also court rejected the industry’s challenge that OSHA had not determined that the standard was economically feasible:

OSHA’s cost estimates in each of these industries are inevitably imperfect due to the limitations of available data and the uncertainties inherent in predicting future costs. But this is why “hard and precise estimates of costs” are not required. OSHA’s only obligation is to confirm, on the basis of substantial evidence, that its rule does not “threaten massive dislocation to, or imperil the existence of, the industry.”here can be little doubt that OSHA has done so here.

More later, but all-in-all very good news. And there’s so little of that lately.

So, during this holiday season, let’s all give thanks that sometimes truth and justice prevail, government workers, and most of all that thousands of construction, foundry and other workers can look forward to spending a long and healthy retirement with their grandchildren.