OSHA Seeks Consolidation of Silica Rule Challenges

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By Bruce Rolfsen

April 12 — With petitions for review challenging OSHA's new silica rule filed in six federal appeals courts, the Department of Labor on April 11 requested a court order consolidating the petitions into a single case.

The DOL's Office the Solicitor filed the notice with the U.S. Judicial Panel on Multidistrict Litigation in Washington. An OSHA spokesman told Bloomberg BNA April 12 that the senior DOL attorney who filed the notice, Lauren Goodman, was unavailable to discuss the request.

Drum Roll, Please

The notice sets the stage for the judicial panel to select by a random drawing which appeals court will handle the seven petitions and any future petitions.

The judicial panel's rules call for the panel's clerk to randomly select a circuit court of appeals “from a drum containing an entry for each circuit” where a petition was filed. In cases where multiple petitions were filed with the same appeals court, as happened with two silica petitions, that appeals court will be allotted only one entry, the rules say.

Appeals Court Docket No. Petitioner Filed Petitioner's Law Firm
D.C. Circuit 16-1105 North America’s Building Trades Unions April 1, 2016 Sherman, Dunn, Cohen, Leifer & Yellig PC
3rd Circuit 16-1774 AFL-CIO, et. al. April 1, 2016 Bredhoff & Kaiser PLLC
5th Circuit 16-60208 Associated Masonry Contractors of Texas, et. al. April 4, 2016 Jackson Lewis PC
5th Circuit 16-60208 American Foundry Society, et. al. April 4, 2016 Jackson Lewis PC
8th Circuit 16-1819 North Dakota Chamber of Commerce April 4, 2016 Jackson Lewis PC
10th Circuit 16-9518 State Chamber of Oklahoma April 4, 2016 Jackson Lewis PC
11th Circuit 16-11502 Georgia Construction Aggregate Association, et. al. April 4, 2016 Hunton & Williams LLP

The consolidation move was one of the reasons labor unions and employer groups swiftly filed petitions for review following the official March 25 release of the silica rule .

Federal law (28 U.S.C. 2112(a)(3)) says that if an agency receives petitions from multiple circuits within 10 days of the rule being issued, then only those circuits can be entered into the random drawing.

New petitions for review can continue to be filed through late May. According to federal law they will be consolidated with the earlier petitions.

The silica rule takes effect June 23. However, compliance dates are more than one year away—June 23, 2017, for construction, June 23, 2018, for general industry and maritime, and June 23, 2021, for oil and gas fracking operations.

Once the rule is fully implemented, OSHA expects the regulations to prevent 642 deaths and 918 moderate to severe silicosis cases annually.

Issues Still to Come

None of the petitions filed as of April 11 explained the issues the litigants want a court to consider.

Labor safety officials have told Bloomberg BNA that they want worker protections increased under the rule's medical surveillance requirements for construction sites and medical removal protection for employees if health-care providers recommend they stop working in high-exposure jobs due to adverse health effects from silica .

Construction groups in releases announcing their opposition to the final rule have said the permissible exposure limit of 50 micrograms per cubic meter of air is beyond the capacity of existing dust filtration and removal technology and that the existing limits of 250 micrograms per cubic meter for construction and maritime and 100 micrograms per cubic meter for general industry are adequate when enforced.

Among the employer groups filing petitions are the National Stone, Sand and Gravel Association, the Louisiana Chapter of the Associated General Contractors of America, the Texas Chapter of the American Foundry Society and the Oklahoma State Chamber.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com.

For More Information

The DOL notice is available at http://src.bna.com/d4y.