Silica Rule: Not buried in the sand

Court rejects challenges to OSHA’s tougher standards

Posted December 28, 2017

For those who were either counting on OSHA not to defend its controversial 2016 Silica Rule, or the courts to overturn the rule, late December provided quite a shock. In a December 22 opinion, the D.C. Appeals Court rejected five challenges to the rulemaking, essentially allowing it to stand as-is.

In 2016, OSHA promulgated the final rule, which lowered the permissible exposure limit (PEL) to 50 μg/m3 for all covered industries, including the foundry, hydraulic fracturing, brick, and construction industries, who had led the legal challenge. Employers must assess silica exposure levels in the workplace (or, for certain construction industry tasks, adopt specific “safe-harbor” practices) and, if necessary, implement engineering and work practice controls to keep exposures below the PEL. If engineering and work practice controls cannot reduce exposures to the PEL, the employer must use controls to the extent feasible and provide supplementary respirator protections.

The Silica Rule also establishes various ancillary provisions including housekeeping requirements and medical surveillance requirements.

The legal challenge

The rule had been challenged on several fronts by both industry, who argued the rule was too tough to comply with, and labor, who argued the rule didn’t go far enough to protect workers.

The court sided with OSHA and labor, holding that the rule was promulgated properly and based on a sound risk assessment. Further, the court found that the rule does not significantly threaten industry to a point that it should be overturned. In fact, the court agreed with labor that the rule did not go far enough when it comes to “medical removal protection,” asking OSHA to consider:

  • Permanent removal for workers who become sick from exposure to silica under certain conditions,
  • Removal to alleviate COPD symptoms, and
  • Temporary removal while a determination is made.

(The medical removal protection was not mandated by the court, but OSHA is expected to provide a better explanation as to why it is not part of the Standard.)

Compliance dates

The rule’s requirements are already in effect for the construction industry (as of October 2017). For all operations in general industry and maritime, other than hydraulic fracturing operations in the oil and gas industry:

  • Employers are required to comply with all obligations of the standard, except for the action level trigger for medical surveillance, by June 23, 2018.
  • Employers are required to offer medical examinations to employees exposed above the PEL for 30 or more days a year beginning on June 23, 2018.
  • Employers are required to offer medical examinations to employees exposed at or above the action level for 30 or more days a year beginning on June 23, 2020.

For hydraulic fracturing operations in the oil and gas industry:

  • Employers are required to comply with all obligations of the standard, except for engineering controls and the action level trigger for medical surveillance, by June 23, 2018.
  • Employers are required to comply with requirements for engineering controls to limit exposures to the new PEL by June 23, 2021. From June 23, 2018 through June 23, 2021, employers can continue to have employees wear respirators if their exposures exceed the PEL.
  • Employers are required to offer medical examinations to employees exposed above the PEL for 30 or more days beginning on June 23, 2018.
  • Employers are required to offer medical examinations to employees exposed at or above the action level for 30 or more days a year beginning on June 23, 2020.

Crystalline Silica TrainingJ. J. Keller's Crystalline Silica Training addresses critical information workers must be aware of regarding the dangers of respirable crystalline silica.

 

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