Industry petitioned for review of five issues:
- 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;
- whether substantial evidence supports OSHA’s finding that the Rule is technologically feasible for the foundry, hydraulic fracturing, and construction industries;
- whether substantial evidence supports OSHA’s finding that the Rule is economically feasible for the foundry, hydraulic fracturing, and construction industries;
- whether OSHA violated the Administrative Procedure Act (APA) in promulgating the Rule; and
- 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.
The court rejected all of Industry’s challenges.
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 of the Rule, and the challenged ancillary provisions. The substantive issues are governed by the “substantial evidence” standard, 29 U.S.C. § 655(f), under which we require OSHA to “identify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to present its reasons for rejecting significant contrary evidence and argument,” United Steelworkers of America v. Marshall (Lead I), 647 F.2d 1189, 1207 (D.C. Cir. 1980). The APA governs the procedural challenge to ensure the Rule is not promulgated “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
We then turn to the Unions’ challenges and address the 30-day medical surveillance trigger in the construction standard and the lack of medical removal protections in the general industry standard. Where the Unions have failed to identify evidence that their proposals would be feasible and generate more than a de minimis benefit to worker health, we reject them. See Building & Construction Trades Department, AFLCIO v. Brock (Asbestos), 838 F.2d 1258, 1271 (D.C. Cir. 1988). Where the Unions have met this initial burden, we ask whether OSHA has supported its decision with substantial evidence and otherwise engaged in reasoned decision making.
Before OSHA promulgates any permanent health or 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.” Industrial Union Department, AFLCIO v. American Petroleum Institute (Benzene), 448 U.S. 607, 642, 653 (1980) (plurality).3 The Supreme Court has provided
the guidepost that OSHA follows: a one-in-a-thousand risk that exposure to the regulated substance will be fatal can reasonably be considered significant but a one-in-a-billion risk is likely not significant. Id. at 655–56.
OSHA must support its significant risk finding with substantial evidence. Id. at 653. Although it must rely on a “body of reputable scientific thought” when assessing risk, id. at 656, OSHA does not have to “calculate the exact probability of harm” or support its finding “with anything approaching scientific certainty,” id. at 655–56. OSHA is entitled to “some leeway” when its “findings must be made on the frontiers of scientific knowledge.” Id. at 656. We “do not reweigh the evidence and come to our own conclusion[s]; rather, we assess the reasonableness of OSHA’s conclusion.” Public Citizen Health Research Group v. Tyson (Ethylene Oxide), 796 F.2d 1479, 1495 (D.C. Cir. 1986).
In promulgating the Silica Rule, OSHA conducted a Quantitative Risk Assessment in which it reviewed toxicological, epidemiological, and experimental studies about the adverse health effects of silica exposure. 81 Fed. Reg. at 16,380. OSHA quantified the excess risk4 of silica-related health effects assuming exposure over a working life (45 years) to various levels of silica, including the original general industry PEL of 100 µg/m3 , the original construction PEL of 250 µg/m3, and the new PEL of 50 µg/m3 . Id. at 16,300.
OSHA concluded that silica exposure significantly “increases the risk of” four adverse health effects: silicosis and other nonmalignant respiratory disease (NMRD) mortality, lung cancer mortality, silicosis morbidity, and renal disease mortality. Id. at 16,300, 16,386–87. OSHA also concluded that the risks at 50 µg/m3 —the new PEL—are lower than the risks at the original PELs of 100 µg/m3 and 250 µg/m3 . Id. at 16,300. In total, OSHA estimated that the Silica Rule will prevent 642 deaths and 918 cases of silica-related disease each year. Id. at 16,399.
Industry challenges OSHA’s significant risk findings in three ways:
First, Industry attacks two parts of OSHA’s risk assessment methodology.
Second, it challenges OSHA’s findings on each of the four individual health risks.
Finally, Industry challenges OSHA’s decision to include the brick industry within the scope of the Rule.
The court rejected each challenge.
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