OSHA’s Silica Rule Challenged In Court – How Did It Go?

“When you look at what happened after the prior standard was set in 1971… the incidence of silica disease plummeted in the workforce in the U.S. by more than 90 percent.”

by, Robert Box

Professional societies and industry groups challenged OSHA’s new silica rule for construction last week during a hearing before a D.C. Circuit panel.

Whether it went well or poorly depends on whether or not you want the silica standard for construction to stay in place as-is or not.

OSHA’s new silica rule for construction requires the reduction of silica exposure to workers, previously set at a maximum exposure of 100 micrograms per cubic meter per 8 hours time-weighted average, now set to a maximum exposure of 50 micrograms per cubic meter over the same timeframe.

Originally established in 1971, OSHA’s update of the silica rule for construction looked past the “vast [health] improvement” the original silica standard had on workers, according to the attorney who represented 30 industry groups (including the Portland Cement Association and the National Association of Manufacturers).

The main argument made by William L. Wehrum of Hunton & Williams, LLP, the attorney speaking on behalf of the industry groups was that the rule was unnecessary. 

“When you look at what happened after the prior standard was set in 1971… the incidence of silica disease plummeted in the workforce in the U.S. by more than 90 percent.  It raises the question of whether anything needed to be done other than let that standard continue to work its magic because it was doing a great job.”

Indeed.  According to a confusing OSHA argument when the rule was published, the rule will save 600 lives annually despite only 101 lives being presently lost to silicosis per year (ref. a 2015 Center for Disease Control report).

It would be nicer if the annual silica mortality rate was closer to zero, but considering mortality rates fell by 93% from 1968 to 2002 (according to the CDC), and it continues to fall, the industry groups’ argument appears to make a valid point.

Adding to the argument that OSHA’s revised silica rule for construction is overkill, the U.S. Chamber of Commerce argued that OSHA was conveniently dismissing data collected by the federal government and states that showed a decline in the silicosis-related mortality rate over recent decades.

OSHA said during oral arguments on Tuesday that its revised silica standard is based on “overwhelming scientific evidence” that exposure to crystalline silica at 100 micrograms per cubic meter exposes workers to significant and deadly health risks.

OSHA’s attorney, Kristen Lindberg, said, “There will be flaws in studies.  There will be stronger and weaker studies.  There may be some uncertainty.  But what OSHA has done here, its extensive analysis is based on a huge body of evidence that conforms fully with the OSHA Act.”

Based on this hearing last week, an anonymous source at the Associated General Contractors of America (AGC) said, “a ruling in the coalition’s favor would seem to need a miracle” [for the silica rule to be rescinded]. 

An anonymous source at the Occupational Safety & Health Administration (OSHA) said this past Friday, if you are doing nothing about complying with the new silica rule requirements, betting o the rule to be overturned, “don’t put money on it.”

Safety First Consulting helps businesses identify OSHA compliance issues in their workplaces, manage their safety programs, and we become accountable for the results.  In addition to offering custom written safety programs for companies, Safety First Consulting provides required safety training, industrial hygiene sampling, noise sampling, and workplace inspections