OSHA Silica Rule Outlasts Legal Challenges

December 28, 2017 - CLDC LMCC LECET

OSHA silica rule outlasts legal challenges

December 28, 2017

Dive Brief:

  • The U.S. Court of Appeals for the D.C. Circuit on Friday dismissed all industry legal challenges against the new silica dust exposure standard implemented by the Occupational Safety and Health Administration (OSHA) earlier this year, according to The National Law Review.
  • The court found that OSHA was reasonable in its decision to lower permissible worker exposure to 50 micrograms per cubic meter of air over an average of eight hours from 250 micrograms per cubic meter over the same time period. The panel of federal judges also said that OSHA was entitled to make decisions using studies that result in better worker protections — shooting down industry claims of bias — and only had to prove that the typical company had a reasonable possibility of being able to institute the necessary engineering and other controls necessary to limit exposure.  
  • The court might have left an opening for certain future employer challenges before the Occupational Safety and Health Review Commission around the issue of whether there are sufficient and feasible engineering controls for tasks like "hole drillers using handheld or stand-mounted drills, jackhammering and using other powered handheld chipping tools, masonry cutters using stationary saws, and mobile crushing machine operators and tenders."

Dive Insight:

OSHA's new silica dust exposure standard went into effect Sep. 23 of this year after a 90-day delay, but the agency delayed enforcement until Oct. 23 to give employers more time to comply.  

This is the first update to the silica standard since the first one was established in 1971, the same year OSHA was formed. Silica dust particles are 100 times smaller than sand granules, and those who breathe in too much can develop illnesses like the incurable and potentially fatal lung disease silicosis, lung cancer, kidney disease and chronic obstructive pulmonary disease.

Those employers not in compliance with the new rule could be hit with an OSHA fine of $12,675 for a serious or other-than-serious violation; $12,675 per day past the abatement date for a failure-to-abate violation and $126,749 for a repeated or willful violation.

The silica standard has fared better than other Obama-era regulations under the Trump administration. A U.S. District Court judge in Texas permanently blocked the "persuader" rule addition to the Labor-Management Reporting and Disclosure Act, requiring companies to disclose publicly any communication, attorney-client discussions included, about their employees' unionization efforts, and, in June, the Department of Labor (DOK) proposed doing away with it entirely.

In addition, this summer another judge in Texas declared the DOL's new overtime rule invalid because it said the agency did not have the authority to enact a regulation that would sidestep the Fair Labor Standards Act's duties tests.