D.C. Circuit Court rules against industry challenges to silica rule
January 5, 2018
On Dec. 22, the U.S. Court of Appeals for the District of Columbia Circuit rejected industry challenges to the U.S. Occupational Safety and Health Administration’s (OSHA) 2016 rule which significantly lowers the permissible exposure limit for workplace crystalline silica in the foundry, brick, glass, maritime, and construction industries. The rule had been in the works for years.
Business groups, including the American Foundry Society (AFS) and the National Association of Manufacturers (NAM), challenged whether substantial evidence supported OSHA’s finding that the silica rule is technologically and economically feasible for general industry, including the foundry industry.
The court noted OSHA satisfied its burden to demonstrate technological feasibility for a typical firm in most operations and supported that finding with “substantial” evidence.
“To mount a successful attack on OSHA’s feasibility finding, then, challengers must do more than suggest that compliance will be infeasible for some firms or in a few isolated operations,” the court stated.
In addition, the court remanded the standard for OSHA to further explain or reconsider why it did not adopt medical removal protection. OSHA’s new silica standards lower the permissible exposure to 50 micrograms per cubic meter (μg/m3) for all covered industries, down from the current 100 μg/m3 in general industry, as well as a host of ancillary provisions. It does not, however, require medical removal protection for employees whose doctors recommend removal from silica exposure.
In regard to next steps with OSHA, AFS and its lawyers are engaged in discussions with OSHA’s staff on clarification of various aspects of the rulemaking. Over the past month, AFS, in conjunction with the Society's safety and health committee, has drafted dozens of questions to iron out with the agency. These questions deal with key components of the rulemaking involving, but not limited to sweeping, compressed air, regulated areas, exposure assessments, respiratory protection/air supplied hoods, engineering controls, and written control exposure plans.
A final set of Frequently Asked Questions (FAQs) would provide guidance to employers and employees regarding the interpretation of various provisions of the rule and how OSHA intends to enforce certain requirements of the standard. The goal is to have the final FAQs be incorporated into an enforcement directive prepared by the Agency for the rule, as it applies to general industry.
For additional information on OSHA’s silica rule, AFS has created a that contains a host of information on the rulemaking and steps foundries need to take to be in compliance by June 23, 2018.