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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 here).

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!

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.