Rely on Occupational Safety & Health ReporterSM for full news coverage and documentation of federal and state workplace safety and health programs, standards, legislation,...
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).
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:
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 email@example.com
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org .
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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)