Just one day after President Trump’s nominee for Secretary of Labor declined to take a position on OSHA’s silica rule at his confirmation hearing, the agency filed a legal brief in the federal court defending the rule.

While the silica rule officially took effect last year, it remains under court challenge. In yesterday’s legal brief, the government doubled down on its prior position, writing, “It is undisputed that silica causes serious, even fatal, health effects in exposed workers . . . . Substantial evidence supports OSHA’s conclusions about these health risks and demonstrates that the lives, health, and livelihoods of America’s silica-exposed workers depend on the new Rule.”

Industry groups have argued since the rulemaking began that disease from silica has declined dramatically under the prior rule, underscoring that existing exposure limits were adequate to protect workers. Critics of the rule say that new cases of silicosis do not arise because of insufficient exposure limits but rather because OSHA failed to adequately enforce the limits and ensure that all employers complied. In addition, they have argued that, without adding benefit, the rule imposes significant costs and requires exposure levels that are impossible to achieve.

Despite new administration, the litigation goes on.

After OSHA published the rule, a number of industry groups filed petitions for review in various federal appellate courts before the rulemaking challenge cases were consolidated at the U.S. Court of Appeals for the D.C. Circuit. In February, attorneys for the industry challengers had requested to delay briefing in the case to give the Trump administration time to review the rule and re-consider OSHA’s position, but the D.C. Circuit rejected that request. No doubt, the industry challengers hoped that if the new administration wishes to overturn the regulation, it could simply agree to settle the case by accepting the invalidation of the rule.

I cannot make a commitment because the Department of Labor has been ordered to review all rules.”

— Secretary of Labor nominee Alexander Acosta on the silica rule

Yesterday’s final brief in the case by the Department of Labor came one day after Labor Secretary nominee Alexander Acosta was non-committal on how the Trump administration would handle the rule. In response to questions about silica from Senator Elizabeth Warren (D-MA) at his confirmation hearing, Acosta noted that President Trump asked all agencies to review their rules and that as a result, “I cannot make a commitment because the Department of Labor has been ordered to review all rules.” Acosta did say that OSHA would enforce the rule while the review is underway as long as it is in effect and hasn’t been stayed.

Phasing in over the next several years, the rule dramatically cuts exposure limits.

OSHA’s silica rule, which drastically cut silica exposure limits, went into effect in June 2016. However, companies will not have to comply with the rule until various compliance deadlines. The construction industry has one year to comply (until June 23, 2017), general industry and maritime companies have two years (until June 23, 2018), and oil and gas fracking companies have two years for most requirements (until June 23, 2018) but until June 2021 for engineering controls.

Among other mandates, the rule requires employers to:

  • Comply with a permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air, averaged over an 8-hour shift (half of the prior allowed level).
  • Follow the “hierarchy of controls” by first employing engineering controls (such as reducing airborne dust using water or removing dust with ventilation) to reduce exposures as much as possible. Only then can employers rely on respirators to protect workers.
  • Limit employee access to high exposure areas and provide medical exams to highly exposed workers.
  • Develop a written exposure control plan.
  • Train workers on the risks of silica exposure and how to limit them.