A recent federal appeals court decision rejected a challenge to the Occupational Health and Safety Administration’s new rule for respirable crystalline silica (silica) exposure in the construction industry (the Silica Rule), keeping the rule largely intact. This new rule lowers the permissible exposure limit (PEL) for silica to fifty micrograms per cubic meter (50μ/m3) from the previous construction industry standard of 250 μ/m3. At the time OSHA began enforcing the Silica Rule on September 23, 2017, there still remained pending in federal court a challenge to the rule brought by multiple industry groups (Industry), mostly consisting of commercial construction trade associations representing general contractors, subcontractors, and suppliers.
Facing significantly increased costs to implement the new Silica Rule, Industry principally argued that OSHA lacked substantial evidence that (1) the Silica Rule addresses a significant health and safety risk and (2) certain industries subject to the Rule had technically and economically feasible ways to comply. In challenging OSHA’s determination that lowering silica PEL would reduce health risks, Industry claimed OSHA relied on flawed methodology and inconclusive findings. The Court, however, found that OSHA accounted for such critiques and, thus, had a reasonable basis for reaching an opposite conclusion. In attacking feasibility, Industry pointed to similar research flaws, but the Court found Industry’s isolated examples did not undermine OSHA’s findings. Ultimately, none of Industry’s points challenged the Silica Rule, and its basis, sufficiently enough to overcome the deference courts must give to OSHA’s rules and decisions.
The Court also heard challenges from construction and general industry unions. The Court upheld OSHA’s decision to limit the Silica Rule’s trigger for employer-provided medical surveillance. The requirement is triggered when a worker is required to wear a respirator for thirty or more days per year (the unions argued for a shorter period). The Court, however, found the Silica Rule lacking in its failure to provide medical removal protection, which requires employers to remove an employee from silica exposure upon a physician’s written recommendation but continue the employee’s pay and benefits. The Court directed OSHA to reconsider this omission.
With the Court’s decision, the Silica Rule remains the governing standard. For the construction industry, the Rule provides two paths to comply with PEL. Employers can follow an OSHA-created table (called Table 1) listing the required engineering controls, work practices, and respiratory protection, including required respirator type and usage, to implement for discrete construction activities. In complying with Table 1, employers should ensure all employees associated with performing a listed task, including observers and assistants, abide by the listed controls and practices. Alternatively, employers can conduct their own air monitoring program to assess silica exposure, implement controls accordingly, and ensure such controls keep silica exposure below the PEL, as measured by objective data.
Although commentators on the Silica Rule have hinted that the Trump administration may push OSHA to delay or loosen the rule’s enforcement, such regulatory easing has not yet occurred. Regardless of how, complying with the rule requires construction industry businesses to employ greater safety measures and thus expend additional resources. Assuming the Silica Rule’s extension into construction operations remains unchecked, industry businesses need to determine how to comply with the rule in a cost-effective, but legally compliant, way. Doing so requires consulting with both their safety consultant and their counsel.