OSHA -- 2017

North America's Bldg. Trades Unions v. OSHA   (D.C. Circuit)

Challenging OSHA's Silica Rule

On May 2, 2016, the NAM joined with the American Foundry Society to challenge the Occupational and Health Administration’s (OSHA) new crystalline silica rule, which cuts the current permissible exposure limit in half and requires employers to implement costly engineering controls. The rule attempts to limit exposure to silica-containing materials such as concrete and stone in industries such as brick manufacturing, foundries and hydraulic fracturing. We fought this rule on all fronts by both petitioning for review of the final rule and intervening to address the union filings directly.

Manufacturers are committed to safe, productive and modern workplaces. This rule, however, relies on out-of-date economic data and drastically underestimates the costs that will be inflicted on manufacturers and the entire economy. As a result, some manufacturers could be forced to close their doors while others will be saddled with crushing regulations. Manufacturers tried to work with OSHA to make this a feasible, effective rule and have long stressed the need for flexibility, clear justification and reliable, current data in the rulemaking process. Our suggestions, however, were ignored. Employers have worked for decades to achieve compliance with the current exposure limits and, through these efforts, have adopted the best possible and most cost-effective ways to keep all their employees safe. Because of OSHA’s failure to work with industry in setting reasonably achievable exposure limits, we were forced to take our fight to the courts.

On Dec. 22, 2017, the D.C. Circuit upheld OSHA's rule. It found that OSHA had substantial evidence to support setting the silica threshold at 50 μg/m3. It considered that there was evidence of harm at lower levels and that OSHA's decision not to use a dose-rate model for risk assessment of cumulative exposure was within a "zone of reasonableness." It found that OSHA had substantial evidence supporting its conclusions on adverse health effects of silica, and adequately responded to criticisms of the studies it relied on. OSHA could rely on the "cumulative evidence . . . [e]ven if a reasonable person could also draw the opposite conclusion . . . ."

On technological feasibility, the court used a highly deferential standard of review, approving rules if there is a "reasonable possibility that the typical firm will be able to develop and install engineering and work practice controls that can meet the [standard] in most of its operations." Under this test, it upheld the standard for three industries: foundries, hydraulic fracturing, and construction. Even if sufficient controls do not exist in an industry, OSHA can force the industry to develop and diffuse new technology to meet the standard if they can do so in a reasonable amount of time.

Likewise the court upheld OSHA's economic feasibility finding, since the rule did not "threaten massive dislocation to, or imperil the existence of, the industry." It is reasonable, according to the court, for OSHA to consider a rule exonomically feasible if annualized costs of compliance are less than one percent of revenue or ten percent of profit. It also rejected challenges to the rule's requirements relating to medical surveillance of certain employees, and limitations on dry sweeping, dry brushing and the use of compressed air around silica.

Related Documents:
Industry Reply Brief  (March 3, 2017)
Industry Joint Brief  (February 24, 2017)
Industry opening brief  (November 18, 2016)
NAM motion to intervene  (May 2, 2016)
NAM petition for review  (May 2, 2016)
NAM press release  (April 4, 2016)


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