On December 22, the U.S. Court of Appeals for the District of Columbia announced that they had rejected all remaining challenges to OSHA’s controversial Respirable Crystalline Silica (RCS) regulation for general industry and construction employers. The challenges had been filed by various industry trade groups representing the construction, foundry and manufacturing industries.
The final portion of the rule is now slated to take effect in June of this year, as planned. An earlier rule affecting only the construction industry already took effect last year.
The regulation cuts the Permissible Exposure Limit (PEL) for Respirable Crystalline Silica in half, from 100 micrograms per cubic meter of air, to 50 and creates dozens of new obligations related to written exposure control programs, medical examinations for affected employees, respiratory protection, housekeeping, engineering controls, and training.
The groups challenging the new requirements made several arguments, including that the rule will not have a material affect on the prevention of deaths from diseases such as silicosis and lung cancer, and that the new rule is not technologically or economically feasible. They had also argued that OSHA violated several administrative procedural requirements in promulgating the new rule.
The court not only rejected all of those arguments, but sided with labor groups, including the AFL-CIO, who argued that the rule didn’t go far enough in protecting workers because it lacked “medical removal” provisions which would have required employees to be removed from jobs when they became ill, and only required medical surveillance for employees who were exposed for 30 days per year or more.
The court rejected the latter argument but agreed with the first, calling OSHA’s actions in foregoing these protections “arbitrary and capricious”. The court ordered OSHA to reconsider and further explain that aspect of the rule.
If you have questions about OSHA’s requirements related to Respirable Crystalline Silica and what employers need to do to comply, please call Sotera Consulting, LLC at (612)597-6463 or email firstname.lastname@example.org.