Will Industry's Legal Challenge of New Silica Standard Succeed?
I just finished listening to the oral arguments
that were made earlier this week before the D.C. Circuit in the case
challenging OSHA’s new silica standard. As we have explained in other posts in
this blog, the new silica standard not only reduces the permissible exposure
limit (PEL) for silica dust to 50 micrograms per milliliter, but also requires
many industries — including the fracking industry — to begin complying with a
host of new requirements, including medical surveillance for exposed employees
and implementing engineering measures to reduce exposure (see here, here, and
Anyone who has been hoping that the Trump
administration would reverse course is likely to be disappointed. The Secretary
of Labor’s lawyer clearly did not get the “memo” that the silica regulation
ought to be buried in the dust heap along with other Obama-era regulations.
Instead, she offered a robust defense of the new regulation and the
“overwhelming” scientific evidence that OSHA considered when it decided to
lower the PEL.
Were the Judges sympathetic to the challenger’s arguments?
As I have said before in this blog, it is always dangerous for lawyers to
predict the outcome of a case based on the judges’ questions. However, based on
what I heard at the arguments, I would suggest that industry continue to make
plans to comply with the new requirements.
Perhaps not surprisingly, Judges Merrick Garland
and David Tatel did not appear to be persuaded that OSHA had failed to
demonstrate that employees exposed to silica at the old 100 micrograms per
milliliter PEL suffered significant risk of material impairment of health and
that the Silica Rule’s new exposure limit substantially reduces that risk. But
even the mostly quiet — and much more conservative — Judge Henderson seemed
skeptical about the Petitioner’s arguments, suggesting that it was hard to take
issue with the new regulation when silicosis was, in fact, the “most prevalent
chronic occupational disease in the world.”
The Judges also seemed to agree that there was
substantial evidence that the rule was technologically feasible for industry to
implement and noted that OSHA only needed to demonstrate feasibility in most operations most of the time.
My prediction is that the D.C. Circuit will deny
the industry groups’ petitions and the new Silica Rule will go into effect as
planned by OSHA.
For more on this topic, be sure to attend our
Seventh Annual Hydraulic Fracturing Symposium next Wednesday, October 4, 2017. We hope to see you there!