‘People are designed to deal with dust’ — EPA air nominee

Source: Amanda Reilly, E&E News reporter • Posted: Wednesday, September 27, 2017

President Trump’s pick to head U.S. EPA’s air office attempted to poke holes in the scientific justification for Obama administration standards meant to protect workers from inhaling tiny and sometimes deadly silica particles.

Representing industry challengers, attorney William Wehrum in part argued that people had “physiological mechanisms” to deal with dust at the levels that the Occupational Safety and Health Administration says are harmful and cause respiratory diseases.

“People are designed to deal with dust,” Wehrum said. “People are in dusty apartments all the time and it doesn’t kill them.”

Wehrum was one of eight attorneys to argue today over the future of the Obama administration’s silica standards. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard more than two hours of arguments in a packed courtroom.

Earlier this month, Trump nominated Wehrum, who leads the administrative law group at Hunton & Williams LLP, to serve as assistant administrator for EPA’s Office of Air and Radiation.

Wehrum is a former EPA official in the George W. Bush administration, joining EPA as counsel in 2001 and becoming acting air chief in 2005. Bush nominated Wehrum to serve permanently, but his record came under biting attack by Democrats and he was never confirmed.

Environmentalists have opposed Wehrum’s nomination to the top air office position, where he would be in charge of unraveling some of the Obama administration’s signature air rules. He has yet to go through his Senate confirmation hearing (E&E Daily, Sept. 20).

The focus of today’s arguments was not an EPA regulation but rather a rule issued by the Department of Labor’s OSHA in 2016.

In its rule, OSHA decreased the 1971 exposure limit to silica particles from 100 micrograms of respirable crystalline silica per cubic meter of air for general industry to 50 micrograms, which it said would substantially reduce the risk of public health impacts. The Obama administration also increased protections in all affected industries, with exceptions for some agriculture practices (Greenwire, March 24, 2016).

Crystalline silica is ubiquitous in construction and manufacturing industries around the world. It’s a major component of most building products, including brick, concrete, shingles and ceramic tile, and is present in crushed stone and gravel used to construct roads.

But inhaling tiny silica particles can cause health problems, including silicosis, respiratory diseases such as COPD, lung cancer and kidney disease.

According to OSHA, the new standard would prevent 642 deaths and 918 silica-related illnesses a year, with a monetized annual benefit of $8.6 billion. In all, the rule was expected to affect nearly 700,000 facilities in the United States and more than 2.3 million workers.

Dozens of industry entities and trade unions sued over the rule, which became effective in June 2016 with phased-in compliance deadlines. A special judicial panel on multidistrict litigation sent the consolidated challenges to the D.C. Circuit.

‘Significant risk’

Industry calls the rule “one of the most far-reaching health standards promulgated by OSHA in the last two decades.”

One of industry’s main arguments is that OSHA failed to show that there’s a significant risk at exposure levels of 100 micrograms and that lowering the limit to 50 micrograms for general industry will substantially reduce health risks.

“We believe that when you take a hard look, in fact, their level of proof doesn’t rise to the level of substantial evidence,” said Wehrum, who’s representing the Brick Industry Association and National Stone, Sand & Gravel Association in the litigation.

The groups have accused OSHA of cherry-picking data from studies to support a policy choice to lower the standard.

“We assert that OSHA had a thumb on the scale,” Wehrum said.

They also say OSHA’s analysis was flawed because it made the “unsupportable assumption” that there’s no threshold exposure level of silica-related respiratory disease. In other words, OSHA assumed there’s no exposure level at which a person will not become ill and that people will become ill and die at levels below 50 micrograms.

OSHA “predicts bodies in the streets,” Wehrum said, adding that “objective evidence” doesn’t support the conclusion.

He also pointed to trend lines showing that deaths related to silicosis have fallen more than 90 percent between the early 1970s, when the country’s first silica standard was put in place, and 2010.

“Common sense” says that the current standard “seems to be working,” he argued.

But D.C. Circuit Chief Judge Merrick Garland appeared skeptical. “There are scientists that believe the opposite of you,” he said.

Garland, who presided over today’s arguments, noted that on issues where there’s a legitimate scientific dispute, it’s “perfectly appropriate” for OSHA to weigh in favor of more protections for workers.

Judge David Tatel, a Clinton appointee, also took issue with arguments presented by the U.S. Chamber of Commerce on death certificate data kept by the Centers for Disease Control and Prevention. Michael Connolly, an attorney representing the U.S. Chamber, argued that the data “fundamentally undermines” the new standard because it shows an “enormous decline” in silicosis deaths.

But Tatel called OSHA’s argument “logical” that the data represent a decline in workforce participation during that time.

Kristen Lindberg, a senior attorney at OSHA, urged the court to uphold the standards.

“Industry petitioners want you to reject conclusions that have overwhelming support among scientists,” she said.


Industry’s other key argument is that the rule is neither technologically nor economically feasible for the foundry, hydraulic fracturing and construction industries. OSHA says control technologies are widely available, but industry says the agency never identified how the lower standard could be met and whether employers can even achieve it at all.

The new standard “will serve only to impose enormous new costs on industry with no cognizable health benefits for workers at all,” the groups said in a court brief.

In the construction industry, the standard cannot be met most of the time by engineering controls, meaning workers will frequently have to wear respirators, said Bradford Hammock, an attorney at Jackson Lewis, arguing on behalf of industry trade groups.

Hydraulic fracturing is another industry that’s significantly affected by the rule. Drillers inject silica sand to drive out oil.

OSHA estimated that it would cost hydraulic fracturing operations 0.56 percent of their annual revenues, or 7.94 percent of annual profits, to meet the new standards. The agency identified certain controls, including exhaust ventilation and passive dust collection systems, to lower silica dust.

Other technologies are under development and can be widely implemented within the five-year compliance deadline for the sector, OSHA says. But industry contends that OSHA underestimated compliance costs and that control technologies are not on the “horizon.”

At the arguments today, judges dug into the competing studies, models and mathematic calculations presented by industry and OSHA on the rule’s costs, technologies and variability among operations.

Judge Karen LeCraft Henderson, a George H.W. Bush appointee who was otherwise relatively quiet during the arguments, saved one of her few questions for the rule’s impact on hydraulic fracturing. At the time of the rule, OSHA found that many operations hadn’t yet met the previous standard of 100 micrograms.

“How are they doing so far?” Henderson asked.

Lauren Goodman, an OSHA attorney, said control technologies were being rolled out but conceded that there was limited data. She said standards can be “technology forcing.”

Later, she pushed back on industry’s arguments over the economic feasibility of the rule.

“An OSHA rule is not infeasible just because it is costly or even very costly,” Goodman said. Judges could only find an OSHA rule is economically infeasible “if it threatens the downfall of an entire industry,” she said.

Union challenges

Labor unions intervened in the litigation on behalf of OSHA but also filed their own challenges to the rule. Unlike industry, they argue that the rule is too weak.

At issue: OSHA’s decision not to protect workers from losing pay if a doctor recommends they be removed from a job due to silica exposure. Unions are also protesting the rule’s medical surveillance requirements for construction workers.

“OSHA was required to do more to protect the hundreds of thousands of workers who continue to face significant health risks from exposure to silica under the new standard,” the unions said in a court brief.