Trump Needs Time to Consider Silica Rule’s Fate, Industries Say

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By Bruce Rolfsen

The Trump administration deserves time to consider whether it should defend OSHA’s silica exposure rule in court, several business groups are telling a federal appeals court.

The alliance of more than 30 industry associations wants the court to delay for 60 days a series of deadlines for the rule’s opponents and backers to present their arguments to the U.S. Court of Appeals for the District of Columbia Circuit.

Delaying the case would allow the Trump administration time to evaluate whether the Department of Labor will continue to defend all or parts of the silica rule, the Feb. 8 motion says ( N. Am. Bldg. Trade Unions v. OSHA , D.C. Cir., 16-1105, 2/7/17 ).

The arrival of the Trump administration “may alter how this case proceeds because the new administration may be open to resolving some or all of the issues” that the groups have raised, the motion said.

The delay request comes as construction companies prepare to meet the rule’s June 23 compliance deadline.

About 2.3 million workers are exposed to silica in workplaces and of those, about 940,000 are exposed to silica levels exceeding the new standard, according to the Occupational Safety and Health Administration.

OSHA said the rule will prevent 642 deaths a year and 918 moderate-to-severe silicosis cases.

Precedents Set

In justifying a delay, attorney Bradford Hammock of Jackson Lewis PC’s Reston, Va., office, told the court that other federal jurisdictions granted similar extensions in cases challenging Environmental Protection Agency and Affordable Care Act rules.

“There would appear to be no good reason for the Court not to follow suit here,” Hammock said in his motion.

The groups opposing the rule in court include several construction company organizations, the National Association of Manufacturers and American Foundry Society.

Unions supporting the rule, and in some instances asking the court to broaden the rule, oppose the delay.

Jeremiah Collins, an attorney with Bredhoff & Kaiser PLLC in Washington, represents the AFL-CIO and two other unions. Collins told Bloomberg BNA Feb. 8 that he anticipates filing a motion objecting to the delay. Specific reasons for rejecting the extension will be explained in the motion, Collins said.

The current case schedule calls for industry groups and unions to submit briefs Feb. 24 and to file final briefs March 23.

The industry groups want initial brief filing delayed to April 25 and final briefs pushed back to May 22.

Oral arguments haven’t been scheduled.

80 Percent Less Dust

OSHA issued the silica rule March 25, 2016, and the first petition for review challenging the rule was filed April 1, 2016. The rule (RIN:1218-AB70) calls for construction companies to comply by June 23. Most general industry and maritime worksites have until June 23, 2018, to meet rule mandates.

The silica rule (81 Fed. Reg. 16,285) sets a permissible exposure limit (PEL) for airborne crystalline silica of 50 micrograms per cubic meter of air (50 μg/m3) for general industry, construction and maritime employers. The new PEL is half the old general industry PEL of 100 μg/m3, and 80 percent less than the old construction and maritime standard of 250 μg/m3.

To contact the reporter on this story: Bruce Rolfsen in Washington, D.C., at BRolfsen@bna.com

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

For More Information

The motion is available at http://src.bna.com/l4W.

The silica rule is available at http://src.bna.com/dHU.

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