The fate of OSHA’s 2016 silica rule is one step closer to consideration by the U.S. Court of Appeals for the D.C. Circuit. In recent days, the Court said it will hear oral arguments about the validity of the silica rule on September 26th at 9:00 am.
In an August 17th order, the Court provided the parties to the rulemaking challenge with a total of 90 minutes for the argument. It detailed how much time each party and each legal issue will have. The Court carved out distinct time to hear about whether the rule is justified by significant risk from silica (30 minutes), whether the rule is technologically feasible (20 minutes), and whether it is economically feasible (20 minutes).
As we’ve explained before, industry petitioners have alleged that the rule is neither justified by significant risk nor feasible. Since the rulemaking began, industry groups questioned the need for it since CDC data show disease from silica declining dramatically under the prior rule. The rule’s industry critics 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. They also argue that the rule is prohibitively costly and imposes extremely low exposure limits that are technologically impossible to achieve.
The Court’s recent scheduling order also provided several union petitioners with a total of 20 minutes to argue their concerns and objections. Although unions generally supported the rule’s lower silica exposure limits, some have objected that the rule did not go far enough in protecting workers. Some argue that the rule needs a “medical removal” provision, which would require removing a worker from silica exposure – with pay – on a doctor’s instructions. They also claim that the rule should be more demanding in requiring free silica exposure testing regardless of how long a worker is in a role with silica exposures.