North America's Building Trades Unions v. Occupational Safety & Health Administration
878 F.3d 271
D.C. Cir.
2017

Background

  • OSHA promulgated the 2016 Silica Rule lowering the permissible exposure limit (PEL) for respirable crystalline silica from 100/250 µg/m3 (general industry/construction) to 50 µg/m3 and added ancillary requirements (housekeeping limits, medical surveillance, confidentiality of medical exam results).
  • Multiple petitioners challenged the Rule: industry groups attacked significant-risk findings, technological and economic feasibility (foundry, hydraulic fracturing, construction), APA process, and two ancillary provisions; unions challenged the construction medical-surveillance trigger (30 days respirator use) and omission of medical removal protections (MRP) in general industry.
  • OSHA supported the Rule with a Quantitative Risk Assessment estimating prevented disease/deaths and relying on epidemiological studies; it adopted a no-threshold exposure-response model and used cumulative-exposure metrics.
  • The D.C. Circuit reviewed under the substantial-evidence standard (29 U.S.C. § 655(f)) and administrative-procedure requirements (5 U.S.C. § 553), deferring to OSHA where its explanatory record and evidence fell within a zone of reasonableness.
  • The court upheld OSHA on almost all challenges (significant risk for silicosis/NMRD mortality, lung cancer mortality, silicosis morbidity; technological and economic feasibility across the contested industries; procedural and ancillary housekeeping and medical-surveillance confidentiality provisions).
  • The court remanded only OSHA’s decision not to provide MRP in three specified circumstances (permanent-removal recommendations; temporary removal to alleviate COPD exacerbations; temporary removal pending specialist determination) for further explanation or reconsideration.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Significant-risk finding supporting new PEL Industry: OSHA lacked substantial evidence; methodology (no-threshold, no dose-rate) flawed; some endpoints unsupported OSHA: relied on quantitative risk assessment, multiple studies, explained choices and limits, evidence supports significant risk reductions at 50 µg/m3 Upheld for silicosis/NMRD mortality, lung cancer mortality, silicosis morbidity; court declined to decide renal-disease endpoint but found overall significant risk supported
No-threshold and dose-rate modeling Industry: threshold likely exists and dose-rate matters (overestimation risk) OSHA: weight of evidence shows thresholds (if any) below PEL; key studies use cumulative exposure; explained why dose-rate data were inapplicable Upheld — OSHA’s methodological choices supported by substantial evidence and within zone of reasonableness
Technological feasibility (foundry, fracking, construction) Industry: variability, isolated infeasible operations, lack of controls in fracking, Table 1 infeasible in some construction contexts OSHA: substantial evidence from inspections, studies, vendor comments; technology-forcing statute allows time for development; Table 1 provides safe-harbor and alternatives Upheld — OSHA showed reasonable possibility typical firms can meet PEL in most operations; isolated infeasibility insufficient to overturn
Economic feasibility Industry: OSHA underestimated costs; small/very-small firms disproportionately harmed; revenue/profit baselines unreliable OSHA: used best available evidence, benchmarks (<1% revenue or <10% profit triggers), analyzed small-firm impacts and gave reasoned estimates Upheld — costs do not threaten massive industry dislocation; agency supported estimates with substantial evidence
Procedural notice and consultant reliance Industry: late disclosure of OIS data and insufficient ERG transparency prejudiced comment OSHA: provided extended comment periods, placed contractor materials in the record, challengers cite no specific prejudice Upheld — any disclosure timing or consultant concerns were not prejudicial or were adequately addressed
Ancillary provisions: medical-surveillance confidentiality Industry: employers need doctors’ recommendations to ensure workplace safety OSHA: confidentiality increases surveillance participation and protects employee privacy; surveillance still serves workplace nexus Upheld — OSHA gave reasoned explanation balancing privacy and safety
Ancillary provisions: housekeeping (dry sweeping/compressed air) Industry: rule too broad—bans methods even when contribution to exposure is trivial; alternatives impractical/hazardous OSHA: even low-level exposures pose risk; rule permits exception where alternatives infeasible; multiple studies and comments support restriction Upheld — substantial evidence supports restriction and infeasibility exception suffices
Medical-surveillance trigger (construction) Unions: 30-day respirator trigger misses workers who split respirator days across employers; propose 1-day trigger OSHA: respirator-based trigger practical given Table 1; 30-day strike balance between burden and benefit Upheld — unions failed to show feasibility and more-than-de-minimis health benefit from 1-day trigger
Medical removal protection (MRP) omission Unions: OSHA unreasonably omitted MRP for (a) permanent-removal recommendations, (b) temporary removal for COPD exacerbations, (c) temporary removal pending specialist, (d) inability to wear respirator OSHA: argued privacy protections and other reasons; claimed removal often not beneficial given irreversibility and recurrence; relied on existing respiratory-rescue obligations for respirator inability Remanded for further explanation/reconsideration as to (a), (b), (c); challenge (d) rejected for lack of evidence of meaningful benefit

Key Cases Cited

  • Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (significant-risk threshold guidance)
  • United Steelworkers of Am. v. Marshall (Lead I), 647 F.2d 1189 (D.C. Cir. 1980) (substantial-evidence and feasibility frameworks)
  • Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986) (upholding no-threshold modeling and deference on scientific disputes)
  • Building & Constr. Trades Dept., AFL-CIO v. Brock (Asbestos), 838 F.2d 1258 (D.C. Cir. 1988) (burden on challenger to show feasibility and material benefit)
  • Am. Iron & Steel Inst. v. OSHA (Lead II), 939 F.2d 975 (D.C. Cir. 1991) (typical-firm feasibility; technology-forcing standards)
  • Am. Textile Mfrs. Inst. v. Donovan (Cotton Dust), 452 U.S. 490 (1981) (deference where evidence permits inconsistent conclusions)
  • Nat’l Maritime Safety Ass’n v. OSHA, 649 F.3d 743 (D.C. Cir. 2011) (application of Benzene significant-risk guidance)
  • Int’l Union, UAW v. Pendergrass (Formaldehyde), 878 F.2d 389 (D.C. Cir. 1989) (review of ancillary provisions and change from past agency practice)
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