“A gift to the construction industry”: catchy quotes from Court of Appeals argument on OSHA’s silica standard

OSHA took the long road to adopt a standard to address respirable crystalline silica. Although the final rule was issued in March 2016, it is being challenged by both industry and labor groups. The first says OSHA went too far, the other says OSHA didn’t go far enough.

The long road, however may be coming close to end. The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments last week from parties that are challenging the rule. Judges Merrick Garland, David Tatel and Karen LeCraft Henderson spent more than two hours listening to arguments from the National Stone, Sand and Gravel Association (NSSGA), the Brick Industry Association (BIA), the U.S Chamber of Commerce, the North America Building Trades, the United Steelworkers and others.  Attorneys with the Department of Labor’s Office of the Solicitor were there, too, to defend the OSHA rule.

I enjoyed listening (and relistening) to the court’s audio of the oral argument. What made it particularly enjoyable was listening to the judges---they did their homework!

Judges Garland and Tatel, in particular, probed, cajoled, and challenged the attorneys to clarify their arguments. The judges pressed the attorneys on issues concerning economic feasibility, health risks, and the legal standard for substantial evidence. There were plenty of references to prior litigation on OSHA health standards. They mentioned significant previous court decision on OSHA standards, such as for asbestos, lead and formaldehyde.  I felt a bit like an outsider, listening to the attorneys speak about those rulings. They described them as if they were old friends who remain relevant today. And like relationships with old friends, we don't always agree about what she said or remember events in the same way.

There were times during the oral arguments that the presenting attorney rose to a judge’s challenge for a cogent response. But I cringe a few times when I heard nervous laughter from an industry attorney who knew he was stumped by the judge’s question.

Below are just some of my favorite quotes and exchanges. The text doesn't capture the animation I heard in the audio from the courtroom or the commitment of the attorneys to their arguments. I've included a time stamp at each quote so you can listen for yourself. (I had difficulty distinguishing Judge Garland’s from Judge Tatel’s voice. If I incorrectly attribute the quotes, please leave a comment and I’ll correct it.)

NSSGA and BIA argue that OSHA overstates the risk of health harm caused by exposure to respirable crystalline silica. Their attorney, William L. Wehrum, said:

“We assert that OSHA had a thumb on the scale. We believe the record makes clear that OSHA came to this rulemaking with a determined goal of reducing the level of the standard. We believe it clouded OSHA’s judgement and caused it to lose objectivity, which we believe permeates the entire proceeding." [00:02:36]

Judge Tatel chimed in:

"You say that OSHA had its thumb on the scale, which is a curious statement given our standard of review. The question is: is there significant evidence in the record to support OSHA’s position for what it did? You can certainly point to contrary evidence, but OSHA has explained all that. ...You have to make your argument in terms of our specific standard of review, which is the substantial evidence question. Our case law is very specific about that."

Sounding like a law professor Tatel added:

"What’s your best argument regarding the substantial evidence test?" [00:04:19]

Wehrum had difficulty providing a short and sweet and precise answer.

Judge Garland addressed the problem for the court of dueling scientists. William Wehrum tried to describe the evidence from his side's experts, but Garland interrupted:

"We have scientists on both sides and the law here is quite clear. When there are scientists on both sides, OSHA is permitted to take the ones that are most likely to protect worker safety. There is supposed to be a thumb on the scale in terms of safety. ...That's what our own case says. It is perfectly appropriate for OSHA to weight in favor of worker safety. That's right, isn't it. [00:09:56]

William Wehrum: "Correct your honor to a point, but that dosen't insulate OSHA from review.

Soundly a bit frustrated, Garland said:

"That's what we doing here, but it is not enough to say there is a plausible mechanism. You have to be able to show that OSHA's studies are not themselves substantial evidence."

The attorney representing the U.S. Chamber of Commerce was also schooled by Judge Garland. This time it was a math problem.

Attorney Michael Connolly argued that there are so few deaths today is the U.S. from silicosis that OSHA has not met its burden of demonstrating that exposure to respirable silica poses a significant risk of harm to workers. Connolly pointed to the low number of silicosis deaths reported on death certificates and compared to the millions of workers in silica-related industries.

Judge Garland asked [00:18:50]:

"Is that the right division? Dividing the total number of deaths that are reported on the death certificates by the total number of workers in industry? Or is the right number the total number of deaths at a certain level of exposure? That is, in terms of the 1 in 1,000 test.

(The "1 in 1,000" comes from a 1980 Supreme Court ruling about OSHA's benzene standard. The Supreme Court justices did not offer a specific ratio but indicated that the threshold likely fell somewhere between 1 death per 1 billion (which would not be considered significant) to 1 death per 1,000 (which would be significant.))

Judge Garland continued:

"It's not supposed to be just 1 over the entire population of the United States, or 1 over everybody who works. It’s supposed to be 1 over 1,000 people who work at a certain exposure level, isn’t that right?"

Michael Connolly: "Sure. That’s correct."

Judge Garland:

"Isn't it exposed to silica at a certain exposure levels that matters? Not all people who may have been exposed to silica? [20:03]

Score one for the judge.

I wish I'd been in the courtroom for that exchange. I would have turned my head to see if Judge Garland's remark brought a smile to the attorneys who were defending OSHA's rule.

Labor Department attorney Kristen Lindberg was charged with responding to some of the arguments raised by the industry petitioners. Among her excellent synopsis was this:

[00:35:00] "It's worthwhile to step back a little bit and review the support OSHA had in the record for its findings. Their risk assessment findings were supported by nearly all of the occupational health and medical organizations that commented on the rule, including NIOSH, the American Cancer Society, the American College of Occupational and Environmental Medicine, the American Thoracic Society, the Association of Occupational and Environmental Clinics, and the American Public Health Association."

"... Industry petitioners want you to reject conclusions that have overwhelming support among scientists and that were supported by the independent peer reviewers who scrutinized OSHA’s risk assessment. They want you to reject this extensive body of scientific evidence on the flimsy basis that there are flaws in some of the studies that OSHA relied upon and that there is uncertainty in epidemiology. They want you to impose a legal burden on OSHA that the agency could never meet."

[00:36:53] "The broad support for OSHA’s conclusions within the scientific community should increase the court’s confidence that OSHA’s analysis is sound. The courts understand that OSHA, in marshalling scientific evidence to support a risk assessment, cannot ever reach perfection because the science those risk assessments are based on is not perfect. There will be flaws in studies, there will be stronger and weaker studies, there may be some uncertainty, but what OSHA has done here, its extensive analysis based on a huge body of evidence conforms fully with the OSH Act and with the requirements of courts that have interpreted the OSH Act."

Bradford Hammock argued the case on behalf of the National Association of Home Builders and other industry groups. He tried to convince the judges that OSHA's requirements for the construction industry are not technological feasible.

Victoria Bor, the counsel for North America’s Building Trades Unions dismissed Mr. Hammock's assertions. Her argument began with the following [00:67:40]

"By way of context, Table 1, which is the centerpiece of the construction standard, is a gift to the construction industry. Most OSHA standards set a permissible exposure limit and require employers to monitor their workplaces and devise their own strategies following the hierarchy of controls to bring exposures below the permissible exposure limit (PEL). The silica standard gives employers options. They can follow the traditional approach or they can follow Table 1, which is in effect is a manual that lists 19 of the 23 construction tasks that most commonly generate significant silica exposure, and specifies control strategies for each. Employers who fully and properly implement the controls listed on Table 1 are freed from monitoring their workplace and have a safe harbor for complying with the PEL.

"...OSHA assumes that most employers will follow table, which is a completely reason assumption because it tells employers exactly what they have to do, frees them from monitoring, and gives them a safe harbor for complying with the PEL."

"Now rather than accepting this gift, as Mr. Hammock already explained to you, the industry petitioners point to Table 1 and argue that to the extent it requires the use of respirators....OSHA is conceding that the standard isn't feasible. ...The petitioners’ argument completely ignores that Table 1 does not require employers to comply with the PEL. What it requires is for employers to implement the listed controls. So whether the PEL can be reached without the use of respirators---the question that the industry petitioners focus on--- is actually completely irrelevant."

Victoria Bor continued:

"What is relevant, as Ms. Goodman [of the Labor Department] said, is that the typical employer can comply with Table 1 most of the time. On this question, the petitioners argument on feasibility rests on vague assertions that in certain circumstances, certain employers may not be able to use certain of the wet methods listed in Table 1 at some time. …Petitioners point to no evidence that undermines OSHA’s conclusions that most employers will be able to comply with Table 1 by utilizing those controls most of the time."

There was dead silence after her rebuttal. None of the judges asked Victoria Bor to clarify or further defend her arguments. They seemed convinced.

The excerpts above are just some of memorable moments from the oral argument. Another was a lengthy argument by the unions and rebuttal by the Labor Department about OSHA's provisions for medical surveillance and medical removal protections. It was the one time that the Labor Department's case seemed on shaky ground.

If you  listen to the audio for yourself you'll hear the word "grapple" used numerous times by attorneys for the unions. You'll hear the Labor Department attorneys repeat the phrase"de minimis benefit." You'll hear one judge say to an industry attorney "it's not your principle argument, it's your only argument" and another judge mention "a shopping list." You'll hear all the parties claim that OSHA's decisions are, or are not, "supported by the record." Finally you'll hear many references to previous Supreme Court and Appeals Court decisions on other OSHA standards.

It's been many years since OSHA started down the road toward a comprehensive silica standard. People will disagree on when the agency actually hit the road, but they know that last week's stop at the U.S. Court of Appeals means the road may soon be coming to an end.

Judges Garland, Henderson, and Tatel are now at the wheel. They will decide whether OSHA's rule will stand as is, or whether the agency needs to make a U-turn.

I relished listening to the oral arguments. I'll be eager to read the judge's opinion when it's issued.





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