DC Circuit Rejects Challenge to Workplace Silica Rule

WASHINGTON (CN) – The D.C. Circuit on Friday ruled against industry groups challenging a Labor Department rule that limits workers’ exposure to the chemical compound silica, but agreed that the rule is missing a provision for already exposed workers to be pulled off the job site.

In March 2016, the Occupational Safety and Health Administration, or OSHA, an agency of the U.S Department of Labor, published the rule regulating exposure to silica by the more than 2 million workers it says come into contact with some form of the compound.

Silica is most often found at work sites with rock, sand, gravel, concrete and brick. Prolonged exposure can cause silicosis, a type of lung disease, and even death.

In a challenge to the rule last year, the North America Building Trade Union and others argued OSHA’s findings on the effects of silica exposure were questionable. The U.S. Chamber of Commerce intervened in the case on behalf of the unions and industry entities.

But the D.C. Circuit found in an unsigned order issued Friday that OSHA’s use of a “no threshold exposure response model” to assess silicosis risk was satisfactory. The model means there is “no exposure level below which workers would not be expected to develop adverse health effects,” according to the ruling.

Industry groups contend OSHA never definitively found this to be the case. Instead, they argued, OSHA’s standard was “inconsistent with common sense” and “mounting judicial skepticism of no-threshold models.”

The Washington, D.C.-based appeals court was satisfied with the integrity of OSHA’s findings, saying the agency’s reliance on two studies – referred to as the Mannetje study and the Park study – showed “a statistically significant association between silicosis mortality and cumulative exposure.”

While trade groups argued the Park study data was skewed due to an unknown number of respondents who smoke – therefore increasing the likelihood of lung disease – the court found OSHA can rely on imperfect evidence.

“OSHA did recognize and account for the weaknesses of the two studies it relied on here,” the ruling states.

The D.C. Circuit questioned one study relied on by OSHA connecting silica exposure to kidney failure, but found that its other evidence on health effects related to such exposure supported the contested rule.

“We need not and do not decide whether OSHA supported its renal disease findings with substantial evidence because OSHA’s findings with respect to silicosis and [non-malignant respiratory disease] mortality, lung cancer mortality, and silicosis morbidity are sufficient to uphold the requisite threshold finding of a significant risk of material health impairment,” the ruling states.

The court also rejected arguments by the U.S. Chamber of Commerce claiming laborers in the brick industry should be excluded from the silica-exposure rule altogether.

OSHA argued brick workers should be covered by the rule based on findings in what is referred to as the Love study, a survey that found just over 1 percent of brick workers discovered “small abnormalities” in their lungs during an x-ray. The study’s authors said the abnormalities were “most likely silicosis.”

The industry groups argued OSHA “used the Love study when it wanted to and did not use the Love study when it did not want to,” the ruling states.

“Specifically, OSHA found the Love study showed a significant risk of silicosis but declined to include [it] in the group of studies that formed the basis of OSHA’s silicosis morbidity quantitative risk assessment. If OSHA exhibits ‘apparently inconsistent handling of the evidence available to it,’ OSHA cannot be said to have relied on the best available evidence,” according to the ruling, which summarized the groups’ arguments.

The court also ruled in favor of OSHA on this point, nothing that the Love study did not include retired workers and had little follow-up data on workers that were included.

“If anything, OSHA reasoned, the failure to study workers at later stages of their career, when the latent effects of silica exposure are more likely to manifest, meant the Love study ‘underestimated’ the risk of silicosis to brick industry workers,” the 60-page ruling states. “

But the D.C. Circuit sided against OSHA on the issue of for omitting medical removal protection provisions from the silica rule. Those provisions require employers to remove a worker from exposure to a chemical when it is recommended by a doctor, while maintaining the employee’s pay rate and other rights and benefits.

OSHA argued that while some employees would benefit from being pulled off a work site after exposure, temporary removal would rarely improve employee health since silica-related diseases are irreversible.

The court rejected the argument, saying the agency missed “a logical step.”

“According to OSHA, medical surveillance provides information so that employees can take action, such as changing jobs or wearing a respirator for additional protection. The medical privacy protections may well mitigate the concern that employees will underreport symptoms to their doctors. But without [the provision] employees whose doctors recommend removal may hide those recommendations from their employers,” the ruling states.

The federal appeals court remanded the rule to the agency for further consideration.

Celeste Monforton, a lecturer in public health at Texas State University and former OSHA project director, told Courthouse News on Friday she was happy to see the ruling fall as it did. The rule languished at the Office of Management and Budget for almost three years before going into effect, she recalled.

The reason why OSHA opted out of the medical protection provision, she said, was likely a political ploy by the Obama administration to keep critics from calling the rule a “job killer” or one that would “wreck the economy.”

“Medical provisions are the ones that are the most costly and most difficult to actually demonstrate a benefit for. So when OSHA has to cost these things out, [those provisions] tend to be the most expensive for the industry,” she said.

Long before Friday’s order, Monforton said she thought OSHA’s arguments for the omission were lacking.

“I almost felt sad for the Labor Department attorneys because they really weren’t given much to work with in terms of the rationale the agency gave,” she said. “They did their best to explain but it was apparent it was a big weakness in the agency’s arguments.”

Leverage on the future of protection guidelines could shift back to the trade unions now that the case is remanded, she said.

“With negotiations looming, the court has already said, ‘OSHA, you didn’t adequately explain this.’ OSHA would have been better able to explain it if there was something in the record that would allow them to make the argument. Since there really wasn’t anything there and the rule has to be based on the record, it’s an even greater challenge,” Monforton said.

But she said the ruling is still a win for workers.

“This is a regulation that is long overdue. The hazard is well recognized and the means for controlling exposure to silica dust were well understood. This is a rule that should not have taken the DOL as long as it did to finish…and it was really clear the judges were completely convinced that the risk is significant,” she said. “Since health standards for workers are few and far between, it’s really very satisfying when you see a law designed to protect workers’ health can do its job. The statute is still strong and when you have regulators that want to fulfill their responsibility, now they have a statute which will allow them to do that.”

The Department of Labor did not immediately respond Friday to a request for comment. Neither did the U.S. Chamber of Commerce, AFL-CIO or Chemical Safety Board.

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