Update on AFS Silica Litigation: AFS Files Statement of Issues
June 24, 2016
The AFS/NAM legal challenge to the new silica PEL standard is now part of a consolidated case before the U.S. Court of Appeals for the D.C. Circuit. In April, the court ordered all petitions for review regarding the silica rule be part of a single case, regardless of the concerns raised in the petition.
On May 31, the AFS/NAM legal team submitted a broad statement of issues which will be raised in the legal challenge, focusing on the economic and technological feasibility of the new PEL, action level and hierarchy of controls, the procedures OSHA used to justify and support its rulemaking, whether OSHA deprived the public of the opportunity to comment on significant exposure data that was not made available for public review, and a number of other issues.
Several other business-advocacy groups are challenging the silica rule, including the National Stone, Sand and Gravel Association, Brick Industry of America, and a consortium of leading construction-related associations. The US Chamber of Commerce and Portland Cement are intervening in the case. Additionally, several labor unions are challenging the rule from a different viewpoint, arguing the new standard is not sufficiently stringent. They contended that OSHA’s silica rule doesn't include a “medical removal” provision that would provide some job and pay protection for workers whose doctors said they can no longer be exposed to workplace silica.
The court has not announced briefing dates, and no court-ordered mediation has begun. The compliance date for general industry/foundries is two years away, June 23, 2018. At this time, it appears the briefs will not be due until late summer or mid-September. AFS will be working closely with the attorneys on our briefs. The challenge will not be heard until later in 2016 with a decision no later than the second quarter of 2017.