Employers, Unions Explain Objections to OSHA Silica Rule

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By Bruce Rolfsen

June 1 — New court challenges to OSHA's silica rule raise questions about how the agency determined the feasibility of protection requirements for employers and decided against providing financial protections for workers diagnosed with silica-related health issues ( N. Am.'s Bldg. Trades Unions v. OSHA, D.C. Cir., No. 16-1105, 5/31/16 ).

The questions were asked in “statements of issues” filed May 31 as part of a consolidated case now before the U.S. Court of Appeals for the District of Columbia Circuit. The court ordered in April that any petition for review filed regarding the silica rule be part of a single case, regardless of the concerns raised in the petition (46 OSHR 357, 4/14/16).

As of June 1, no hearing dates had been set and no court-ordered mediation had begun.

OSHA released the final rule (RIN:1218-AB70) on March 25, and it takes effect June 23 (81 Fed. Reg. 16,285).

Compliance dates still are more than one year away—June 23, 2017, for construction; June 23, 2018, for general industry and maritime; and June 23, 2021, for oil and gas hydraulic fracturing. Once the rule is fully implemented, OSHA expects the regulations to prevent 642 deaths annually and 918 moderate to severe silicosis cases (46 OSHR 298, 3/31/16).

State Your Issues

Among the employer representatives filing statements of issues were the National Association of Manufacturers, the American Foundry Society, the National Stone, Sand and Gravel Association and the National Association of Home Builders.

From labor groups, statements of issues were filed by the AFL-CIO, several manufacturing-focused labor groups and North America's Building Trades Unions (NABTU).

While statements of issue often raise concerns about how a rule applies to a specific industry or situation, the employer statements point to broad concerns with the rule.

All the employer statements ask a judge to determine whether OSHA adequately justified its decision to set the permissible exposure limit for respirable silica at 50 micrograms per cubic meter of air, measured as an 8-hour time-weighted average, and whether complying with the exposure limit is technologically and economically feasible.

The old standard was 100 micrograms for general industry and 250 micrograms for construction and maritime worksites.

Employers also want a judge to consider whether OSHA's preference for reducing silica exposure through engineering controls that limit the spread of respirable silica, such as wet cutting concrete and using indoor filter systems instead of workers using respiratory protection, is adequately justified by evidence OSHA collected for the rulemaking.

Other employer concerns include:

  •  the rule's prohibition on employers being provided detailed results of their workers' silica exposure tests unless the employees approve,
  •  whether public comment was short-circuited by OSHA by not providing the significant exposure data it relied on for the rulemaking and
  •  why OSHA used the broader four-digit North American Industry Classification System code numbers instead of more specific six-digit designations when drafting the rule.


Union Medical Concerns

Issues raised by unions center on the rule's requirements for when employers must offer free silica exposure testing to workers and what happens when doctors decide a worker can no longer be in a job where silica exposure is likely (46 OSHR 297, 3/31/16).

The rule doesn't include a “medical removal” provision that would provide some job and pay protection for workers whose doctors said they can no longer be exposed to workplace silica.

The request from the AFL-CIO asks a judge to decide if the administration failed to “explain the logic” of its decision and why the agency rejected “significant contrary evidence and argument.”

Victoria Bor of Sherman, Dunn, Cohen, Leifer & Yellig PC represented the NABTU.

Jeremiah Collins and Thomas W. Perez-Lopez of Bredhoff & Kaiser PLLC represented the AFL-CIO.

Bradford Hammock, Tressi Cordaro and Katherine Soppet of Jackson Lewis PC represented the National Association of Manufacturers, the American Foundry Society and the National Association of Home Builders.

William Wehrum and David Landin of Hunton & Williams LLP represented the National Stone, Sand and Gravel Association.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com .

For More Information

The AFL-CIO statement of issues is available at http://src.bna.com/fuD.

The NABTU statement of issues is available at http://src.bna.com/fuG.

The NAM statement of issues is available at http://src.bna.com/fuE.

The NAHB statement of issues is available at http://src.bna.com/fuF.

The NSSGA statement of issues is available at http://src.bna.com/fuB.

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