The respirable crystalline silica exposure rules remain in effect, for now.
OSHA began enforcing stricter requirements for limiting exposure to airborne respirable crystalline silica in September 2017. “The new rule lowers the permissible exposure limit (PEL) for silica to fifty micrograms per cubic meter … from the previous construction standard of 250 micrograms per cubic meter.”
As Michael Metz-Topodas explains in an article in Construction Law Now, the construction industry filed suit claiming the new rules were unreasonable and unnecessary. Building Trades Union v. Occupational Safety and Health Administration and U.S. Dept. of Labor, U.S. Ct. of Appeals, District of Columbia, No. 16-1105, December 27, 2017.
“Facing significantly increased costs to implement the new Silica Rule, Industry principally argued that OSHA lacked substantial evidence that (1) the Silica Rule addresses a significant health and safety risk and (2) certain industries subject to the Rule had technically and economically feasible ways to comply.”
The Court rejected these arguments stating that the plaintiffs failed to prove their allegations “sufficiently enough to overcome the deference courts must give to OSHA’s rules and decisions.”
Contractors must comply with the new rule by meeting the requirements outlined in information contained in a table provided by OSHA or by implementing ‘their own air monitoring program … ”
Protecting the health of construction workers is vitally important. No reasonable person in the industry disputes this. But is the Silica Rule another example of overreach by OSHA?
Despite the Court’s finding, the construction industry’s argument “that OSHA relied on flawed methodology and inconclusive findings” has merit, and the industry’s claim that the compliance protocols required by OSHA are cost prohibitive without dramatically increasing project costs is based on solid data.
However, until the Trump Administration revises the present Silica Rule, or the Supreme Court overturns the ruling of the Court of Appeals, contractors must, as Mr. Metz-Topodas asserts, “determine how to comply with the rule in a cost-effective, but legally compliant, way.”
This may prove difficult.
ICYMI: Federal Appeals Court Upholds New OSHA Silica Rule, Michael Metz-Topodas, Construction Law Now, March 16, 2018.