N. America's Bldg. Trades Unions v. Occupational Safety & Health Admin.

• Citation: 878 F.3d 271
• Decision Date: 22 December 2017
• Docket Number: No. 16-1105,C/w 16-1113,16-1126,16-1125,16-1137,16-1131,16-1138,16-1146,16-1105
• Parties: NORTH AMERICA'S BUILDING TRADES UNIONS, Petitioner v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION and United States Department of Labor, Respondents Chamber of Commerce of the United States of America, et al., Intervenors
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

878 F.3d 271

NORTH AMERICA'S BUILDING TRADES UNIONS, Petitioner
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION and United States Department of Labor, Respondents

Chamber of Commerce of the United States of America, et al., Intervenors

No. 16-1105
C/w 16-1113
16-1125
16-1126
16-1131
16-1137
16-1138
16-1146

United States Court of Appeals, District of Columbia Circuit.

Argued September 26, 2017
Decided December 22, 2017

William L. Wehrum, Washington, and Bradford T. Hammock, Reston, argued the cause for the Industry Petitioners. Susan F. Wiltsie, Washington, David Craig Landin, Richmond, Tressi L. Cordaro, Reston, Michael B. Schon, Washington, and Linda E. Kelly, Washington, were with them on brief. Elizabeth C. Chandler Clements, Washington, entered an appearance.

J. Michael Connolly, Arlington, argued the cause for the Petitioners-Intervenors Chamber of Commerce of the United States, et al. William S. Consovoy, Arlington, Steven P. Lehotsky, Washington, and Sheldon B. Gilbert, Washington, were with him on brief.

Jeremiah A. Collins, Washington, and Victoria L. Bor, Washington, argued the cause for the Union Petitioners. Randy S. Rabinowitz, Washington, Lynn K. Rhinehart, Washington, Richard J. Brean, Pittsburgh, and Ava Barbour, Detroit, were with them on brief. Stephen A. Yokich, Chicago, entered an appearance.

Kristen M. Lindberg, and Lauren S. Goodman, Senior Attorneys, and Louise McGauley Betts, Attorney, United States Department of Labor, Washington, argued the cause for the Respondents. On brief were Nicholas C. Geale, Acting Solicitor of Labor, Heather R. Phillips, Counsel for Appellate Litigation, Nathaniel I. Spiller, Counsel for Health Standards, and Anne R. Godoy, Washington, and Allison G. Kramer, Senior Attorneys.

Victoria L. Bor, Washington, argued the cause for the Respondents-Intervenors. Jeremiah A. Collins, Randy S. Rabinowitz, Lynn K. Rhinehart, Washington, Richard J. Brean, Pittsburgh, and Ava Barbour, Detroit, were with her on brief.

William L. Wehrum, Susan F. Wiltsie, Washington, David Craig Landin, Richmond, Bradford T. Hammock, Tressi L. Cordaro, Reston, and Linda E. Kelly, Washington, were on brief for the Industry Respondent-Intervenors.

Lisa W. Jordan, New Orleans, was on brief for the amici curiae The American Thoracic Society, et al. in support of the respondent. Adam Babich, New Orleans, entered an appearance.

Before: Garland, Chief Judge, and Henderson and Tatel, Circuit Judges.

Per Curiam:

878 F.3d 280

Respirable crystalline forms of silica,¹ a compound made of silicon and oxygen, are commonly found in workplaces with rock, sand, gravel, concrete, and brick. Exposure to silica is one of the oldest known occupational hazards. And the health effects of exposure to silica—most commonly silicosis, a progressive and irreversible lung disease caused by the inflammatory effects of silica—are not a thing of the past. "Currently, silicosis is the most prevalent chronic occupational disease in the world." ROBBINS & COTRAN, PATHOLOGIC BASIS OF DISEASE 690 (9th ed. 2015).

In the United States, more than two million workers are currently exposed to some level of silica. In 2016, the Occupational Safety and Health Administration (OSHA), an agency within the United States Department of Labor, published a final rule regulating workplace exposure to silica. Occupational Exposure to Respirable Crystalline Silica, 81 Fed. Reg. 16,285 (Mar. 25, 2016) (codified at 29 C.F.R. Pts. 1910, 1915, and 1926) (Silica Rule or Rule). Petitions to review the Rule came from both sides; a collection of industry petitioners (Industry) believes OSHA impermissibly made the Rule too stringent and several union petitioners (Unions) believe OSHA improperly failed to make the Rule stringent enough.

Industry petitioned for review of five issues: (1) whether substantial evidence supports OSHA's finding that limiting workers' silica exposure to the level set by the Rule reduces a significant risk of material health impairment; (2) whether substantial evidence supports OSHA's finding that the Rule is technologically feasible for the foundry, hydraulic fracturing, and construction industries; (3) whether substantial evidence supports OSHA's finding that the Rule is economically feasible for the foundry, hydraulic fracturing, and construction industries; (4) whether OSHA violated the Administrative Procedure Act (APA) in promulgating the Rule; and (5) whether substantial evidence supports two ancillary provisions of the Rule—one that allows workers who undergo medical examinations to keep the results confidential from their employers and one that prohibits employers from using dry cleaning methods unless doing so is infeasible. We reject all of Industry's challenges.

The Unions petitioned for review of two parts of the Rule: (1) the requirement that medical surveillance for construction workers

878 F.3d 281

be provided only if the employee has to wear a respirator for 30 days for one employer in a one-year period; and (2) the absence of medical removal protections. We reject the Unions' challenge to the construction standard's 30-day trigger for medical surveillance. We conclude that OSHA failed to adequately explain its decision to omit medical removal protections from the Rule and remand for further consideration of the issue.

I. BACKGROUND

The Occupational Safety and Health Act (OSH Act) authorizes the Secretary of Labor (Secretary) to "promulgate, modify, or revoke any occupational safety or health standard," 29 U.S.C. § 655(b), by requiring conditions or the adoption of practices, means, or methods "reasonably necessary or appropriate to provide safe or healthful employment and places of employment," id. § 652(8). If the standard applies to toxic materials or harmful physical agents, the Secretary "shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard" regulated by the standard "for the period of his working life." Id. § 655(b)(5). The Secretary has delegated his authority to OSHA. See 72 Fed. Reg. 31,160 (June 5, 2007).

In 1971, OSHA adopted a standard regulating exposure to a variety of substances, including silica. Occupational Safety and Health Standards; National Consensus Standards and Established Federal Standards, 36 Fed. Reg. 10,466 (May 29, 1971). The 1971 rule established a permissible exposure limit (PEL)—a time-weighted average of a worker's exposure during a workday—of 100 micrograms per cubic meter (μg/m³) in general industry² and 250 μg/m³ in the construction industry. See 81 Fed. Reg. at 16,294. In the 1990s, OSHA studied the efficacy of the 1971 rule regarding silica-related health effects in the workplace and concluded a new rule was needed. See id. at 16,295.

In 2016, OSHA promulgated its final Silica Rule. 81 Fed. Reg. 16,285. The Rule lowers the PEL to 50 μg/m³ for all covered industries, including as particularly relevant here, the foundry, hydraulic fracturing, brick, and construction industries. See 29 C.F.R. §§ 1910.1053(c), 1926.1153(d)(1). Employers must assess silica exposure levels in the workplace (or, for certain construction industry tasks, adopt specific "safe-harbor" practices) and, if necessary, must implement engineering and work practice controls to keep exposures below the PEL. Id. §§ 1910.1053(f)(1), 1926.1153(c)(1), 1926.1153(d)(3)(i). If engineering and work practice controls cannot reduce exposures to the PEL, the employer must use controls to the extent feasible and provide supplementary respirator protections. Id.

The Silica Rule also establishes various ancillary provisions including, again, as relevant here, housekeeping requirements and medical surveillance requirements. Under the challenged housekeeping provision, employers are prohibited from using dry sweeping methods to clean worksites if doing so could contribute to employee exposure to silica unless wet cleaning methods

878 F.3d 282

are infeasible. Id. §§ 1910.1053(h)(1), 1926.1153(f)(1). Under the challenged medical surveillance provisions, employers must provide medical screening to silica-exposed workers if certain conditions are met. Most of the information from the medical examinations, including medical professionals' recommendations limiting the employee's exposure to silica, are confidential and cannot be released to the employer unless the employee authorizes disclosure. Id. §§ 1910.1053(i)(6), 1926.1153(h)(6). Finally, the Rule provides no medical removal protections to workers whose doctors recommend either permanent or temporary removal from silica exposure on the job.

Different compliance dates were established for each industry: June 23, 2017 for the construction industry, id. § 1926.1153(k) ; June 23, 2018 for the foundry industry, id. § 1910.1053(l ) ; and June 23, 2021 for the hydraulic fracturing industry, id.

II. ANALYSIS

We first decide Industry's challenges. In order, we address OSHA's significant risk findings, its technological feasibility findings, its economic feasibility findings, the procedural regularity...