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