Executive Summary:

In response to the recent legal challenge to the 2016 Occupational Safety and Health Administration (OSHA) rule toughening workers’ exposure limits to silica dust, on December 22, 2017, the U.S Court of Appeals for the District of Columbia Circuit rejected those challenges.

The US Chamber of Commerce, Association of General Contractors, American Subcontractors Association and several other business groups were challenging whether significant evidence supports OSHA’s claim that health risks are pointedly reduced by limiting a worker’s exposure to silica. In addition, they challenged, that by implementing the new rule, there would be “threat of massive dislocation to, or imperil the existence of the {construction} industry.”

In short, the three-judge panel claimed that OSHA had met legal requirements for determining what standards are feasible, both economically and technically.

“It is disappointing that the appeals court has decided to allow the misguided federal silica rules to proceed despite the many legitimate concerns we and other groups raised about the measure,” said Stephen Sandherr, CEO of the Associated General Contractors of America (AGC), one of the groups that challenged the silica rule. “Today’s decision underscores just how difficult it is to overturn federal regulations, even one as deeply flawed as this measure. That is why we have long cautioned our members to take every possible step to comply with this measure instead of gambling on a long-shot legal victory.”

“Although there was room for debate on both sides, OSHA didn’t have to be right. OSHA only had to be reasonable,” said Arthur Sapper, an attorney with Ogletree Deakins in Washington, D.C.

Before OSHA issues a new safety standard, it must make a “threshold finding” that “it is at least more likely than not that long-term exposure” to the regulated substance at current exposure levels “presents a significant risk of material impairment” that “can be eliminated or lessened by a change in practices,” the court explained.

The court stated that OSHA must support its finding with substantial evidence—but that standard “does not require absolute certainty.”

In response to the claims of economic infeasibility, OSHA’s only obligation is to confirm, on the basis of substantial evidence, that this rule does not “threaten massive dislocation to, or imperil the existence of, the industry,” the court said. “There can be little doubt that OSHA has done so here,” the judges concluded.

What this means for the Safety Supply Customer:

If you, as an employer, haven’t taken a serious look at your silica exposure yet, you’d better do so now because a key compliance deadline is rapidly approaching.

Enforcement will begin on June 23 for most provisions of the OSHA 1910.1053 standards for both general industry and maritime.

Many of the construction standard’s provisions took effect in 2017, and are currently being enforced, though covered employers will have until June 23, 2020, to offer medical exams to certain workers. If you are not familiar with Table 1 of 1926.1153, you should be. Table 1 matches 18 common construction tasks with effective dust control methods, such as using water to keep dust from getting into the air or using a vacuum dust collection system to capture dust. In some operations, respirators may also be needed. Employers who follow Table 1 correctly are not required to measure workers’ exposure to silica from those tasks and are not subject to the PEL.

How can Safety Supply help?

As one of the industry leaders in innovation and product offerings, Safety Supply Inc has a full product line to help your organization get in compliance with Table 1 of the 1926.1153 and 1910.1053 crystalline silica requirements. Our wide selection of filtering facepieces (dust mask), air purifying respirators (APRs), powered air-purifying respirators (PAPRs), supplied-air respirators (SARs), and self-contained breathing apparatus (SCBAs) make us your preferred solution for respiratory protection. If you’re not sure what type of respiratory protection your employees require, we have created a simple APF reference table for you to reference when determining your respiratory needs.

If your organization has elected to not comply to Table 1, and require base-line silica exposure testing, we have your solution as well. If your organization has 1 employee, or 500, we are capable of performing on-site silica exposure baseline testing in an efficient, cost-effective manner.

Visit our online catalog too see our full selection of respiratory equipment, and check out our workplace safety training page for all of our silica awareness training classes available both online and in the classroom.

If you’re still unsure about where your organization stands, and are looking for answers to your compliance questions, please e-mail me at sean@safetysupplyinc.com or call at 800-873-9033.