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Presented by:
Manesh RathPartner
Javaneh NekoomaramAssociate
THE D.C. CIRCUIT’S RULING ON
OSHA’S SILICA RULE
Copyright © 2018
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3Copyright © 2018
Manesh Rath is a partner in Keller and Heckman’s litigation and
OSHA practice groups. He has been the lead amicus counsel on
several cases before the U.S. Supreme Court including Staub v.
Proctor Hospital and Vance v. Ball State University.
Mr. Rath is a co-author of three books in the fields of wage/hour
law, labor and employment law, and OSHA law. He has been
quoted or interviewed in The Wall Street Journal, Bloomberg, Smart
Money magazine, Entrepreneur magazine, on "PBS's Nightly
Business Report," and C-SPAN.
Mr. Rath currently serves on the Board of Advisors for the National
Federation of Independent Business (NFIB) Small Business Legal
Center. He served on the Society For Human Resources (SHRM)
Special Expertise Panel for Safety and Health law for several
years.
MANESH K. RATH
Manesh RathPartner
202-434-4182
He was voted by readers to Smart CEO Magazine's Readers' Choice List of Legal Elite; by
fellow members to The Best Lawyers in America 2016, 2017 and 2018; selected by Super
Lawyers 2016 – 2017, 2017 – 2018; and by corporate counsel as the 2017 Lexology
winner of the Client Choice Award.
4Copyright © 2018
JAVANEH S. NEKOOMARAM
Javaneh Nekoomaram is an associate in the environmental and
workplace safety and health (OSHA) practice groups at Keller
and Heckman. Ms. Nekoomaram practices in all areas of
environmental law as well as occupational health and safety law,
and chemical control law. She routinely advises clients on a broad
range of environmental health and safety compliance issues.
Prior to joining Keller and Heckman, Ms. Nekoomaram served for
three years as Counsel for the American Coatings Association. She
provided regulatory compliance and advocacy on a number of
issues on behalf of the coatings industry including TSCA, Prop 65, hazard
communication and labeling, state chemical regulation, hazardous waste, air
and water quality, occupational health and safety, and chemical safety regulations. She
also served as Advocacy Counsel for the Graffiti Resource Council, an organization
supported by the aerosol coatings industry that provides anti-graffiti strategies for
cities across the country.
Javaneh S. Nekoomaram
Associate
202-434-4176
5Copyright © 2018
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6Copyright © 2018
Overview of OSHA’s Silica Rule.
Understanding challenges to the Rule.
D.C. Circuit decision.
What employers should do.
TOPICS TO BE DISCUSSED
7Copyright © 2018
Crystalline Silica: common component in sand, stone,
rock, concrete, brick, mortar, paints, fillers
Potential exposure occurs in:
• Processing: cutting, sawing, drilling, and crushing
materials
• Manufacturing: glass, foundries, pottery, and jewelry
• Hydraulic fracturing
Over 675,000 workplaces affected by Silica Rule
Silicosis is considered the most prevalent chronic
occupational disease in the world
OVERVIEW OF SILICA RULE
8Copyright © 2018
Final rule published 3/25/2016
• PEL: 50 μg/m3, 8-hour TWA
• (Lowered from 100 μg/m3 Gen. Ind; 250 μg/m3 construction)
• Action level: 25 μg/m3, 8-hour TWA
• Engineering controls, work practices, respiratory protection,
• In construction, Table 1 methods
• Employee training
• Written exposure control plan
• Exposure assessment and monitoring
• Housekeeping
• Medical surveillance
• Recordkeeping
OVERVIEW OF SILICA RULE
9Copyright © 2018
Petitions for review filed following release of Silica Rule
• North America’s Building Trades Unions v. OSHA
Petitions filed by industry and by unions
Industries included building, brick, Chamber of Commerce
Case argued before D.C. Circuit on Sept. 26, 2017
Decided December 22, 2017
UNDERSTANDING CHALLENGES TO RULE
10Copyright © 2018
Standards, 29 U.S.C. 655(b)(5):
• Standards dealing with toxic materials must ensure, to
the extent feasible, on the basis of the best available
evidence, that no employee will suffer material
impairment of health
Judicial review of standards, 29 U.S.C. 655(f):
• The determinations of the Secretary shall be conclusive
if supported by substantial evidence in the record
considered as a whole
UNDERSTANDING CHALLENGES TO RULE
11Copyright © 2018
Industry challenged lack of substantial evidence for:
• Significant risk
– Use of no-threshold exposure-response models
– Decision not to account for dose-rate effect in the model
– Exposure to silica above PEL presents significant risk of four discrete adverse health effects
– Inclusion of brick industry in rule
• Technological feasibility or economic feasibility
– Hydraulic fracturing, foundry and construction industries
UNDERSTANDING CHALLENGES TO RULE
12Copyright © 2018
• Employees can keep medical exam results confidential
• OSHA’s prohibition on employers from using dry
cleaning methods unless doing so is infeasible
– Complete prohibition on the covered method
APA claim
• OSHA did not disclose OSHA information system data
until last day of submission period
• OSHA relied on data and estimates from ERG but
failed to disclose basis for ERG’s assumptions
UNDERSTANDING CHALLENGES TO RULE
13Copyright © 2018
Unions argue substantial evidence does not
support OSHA’s findings regarding:
• Decision to not include medical removal provisions
– OSHA engaged in unreasoned decision-making
– OSHA’s stated reasons for rejecting MRP are
inadequate
• Decision to include medical surveillance requirements
for construction workers only if employee has to wear
respirator for 30 days for 1 employer in 1-yr period
– Concerned with employee exposures who split use
of respirator across multiple employers
UNION CHALLENGES TO RULE:
14Copyright © 2018
Court: OSHA supports findings with substantial evidence
Significant risk findings:
• OSHA must rely on a body of reputable scientific
thought
• OSHA adequately explained why it rejected
significant contrary evidence
• Court won’t “choose a particular side,” in a scientific
dispute; it must uphold OSHA’s choice if it falls within
a “zone of reasonableness”
DECISION ON INDUSTRY CHALLENGES
15Copyright © 2018
Ancillary provisions
• Medical surveillance
– Court held that OSHA explained logic and policies underlying choice; reasonable judgment
• Dry sweeping
– OSHA found that silica exposures below the PEL pose a significant risk to employee health and that the Rules restrictions on dry methods reduce exposure
APA claim
• OSHA gave stakeholders 2 additional months to submit final briefs after released OSHA information system data
• Industry failed to provide alternative data source or explain why ERG opinions insufficient
DECISION ON INDUSTRY CHALLENGES
16Copyright © 2018
Technological feasibility
• OSHA demonstrated tech feasibility for the typical firm in
most operations with substantial evidence
• Exposure levels be met in “most operations most of the time”
• Hydraulic fracturing: OSHA can force industry to develop
and diffuse new technology to meet its standard
• OSHA considered and responded to industry’s objections
Economic feasibility
• OSHA supported with “substantial evidence” that rule does
not threaten massive dislocation to or imperil the existence
of the industry
DECISION ON INDUSTRY CHALLENGES
17Copyright © 2018
Medical surveillance requirements for construction
workers only if employee has to wear respirator for 30
days for 1 employer in 1-yr period
• Unions argued that employers could split respirator use across
multiple employers. Should be triggered based on one day of
respirator use
• Court: Unions failed to present evidence that a stricter rule
would significantly benefit worker health
Not include medical removal provisions
• Court: OSHA failed to adequately explain its decision to omit
medical removal protection. Remand for further consideration.
DECISION ON UNION CHALLENGES
18Copyright © 2018
Be prepared to comply with standard by the
compliance dates
Court remand to OSHA on medical removal
protection provisions means future rulemaking
Challenges based on significant risk must address
whether OSHA presented substantial evidence
Medical privacy challenge must address agency
authority and purpose of OSH Act
Identify Table 1 activities
WHAT EMPLOYERS SHOULD DO
19Copyright © 2018
Compliance dates for general industry and maritime:
• By 6/23/18: Comply with standard except for AL trigger for
medical surveillance
• Starting 6/23/18: Employers must offer medical exams to
employees exposed above the PEL for 30 or more days a year
• Starting 6/23/20: Employers must offer medical exams to
employees exposed at or above AL for 30 or more days a year
Compliance dates for construction industry:
• By 9/23/17: Comply with standard except methods of sample
analysis
• Starting 6/23/18: Comply with methods of sample analysis
OVERVIEW OF SILICA RULE
20Copyright © 2018
MORE FROM THE OSHA 30/30:
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23Copyright © 2018
Javaneh
Nekoomaram
Associate
202-434-4176
Manesh RathPartner
202-434-4182
Thank you!
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