OSHA’s Construction Silica Rule Stays

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to OSHA’s final rule on respirable crystalline silica exposure, issuing its decision Dec. 22.

The silica rule, which reduces the permissible exposure limit to an average of 50 micrograms per cubic meter of air during an 8-hour shift, remains in effect for the construction industry. Most provisions in the agency’s standard for exposure in the maritime and general industry are slated to begin June 23.

Industry groups sought a review of five issues:

  • Whether “substantial evidence” exists that a reduced PEL will significantly decrease health issues surrounding silica exposure.
  • Whether the rule is “technologically feasible for the foundry, hydraulic fracturing and construction industries.”
  • Whether the rule is economically feasible for the aforementioned industries.
  • Whether OSHA violated the Administrative Procedure Act in the rule’s promulgation.
  • Whether substantial evidence supports two ancillary provisions to the rule, one allowing workers to undergo confidential medical examinations and another that prohibits dry cleaning methods – unless that practice is not feasible.

A group of labor unions sought a review of two portions of the rule: the absence of medical removal protections and the requirement that medical surveillance is provided only for workers who have to wear respirators for 30 days for one employer over a one-year interval.

The court stated that OSHA failed to adequately explain its decision to omit medical removal protections from the Rule. Medical removal protections require employers to keep workers from exposure when recommended by a medical finding, determination or opinion. The employee maintains the right to his or her “normal earnings as well as all other employee rights and benefits,” according to the court opinion.