This blog post is an excerpt from NARI on the Hill
The Construction Industry Safety Coalition (“CISC” or “the coalition”) has been vigorously challenging OSHA’s respirable crystalline silica rule in court and oral argument is set for Tuesday, September 26th. The below list of judges were chosen for oral argument and because of their previous rulings, we feel the outcome is questionable at best:
- Merrick Garland – Chief US Circuit Judge for the Court of Appeals for DC Circuit. You may recall, last year, he was nominated by President Obama to fill Chief Justice Scalia’s position on the Supreme Court of the United States. He is considered fairly middle-of-the-road; however he tends to be a more deferential to agencies in his decision making. He was nominated to Court of Appeals by President Clinton.
- Karen Henderson – US Court of Appeals – DC Circuit. Considered conservative and probably receptive to our arguments on the rule. She was nominated by President George H.W. Bush.
- David Tatel – US Court of Appeals – DC Circuit. Considered very liberal and quite likely to side with the agency on most arguments. He was nominated by President Obama.
CISC has also been in communications with the Department of Labor (DOL) regarding potential resolutions. As a result of those discussions, it became clear the Agency had absolutely NO desire to wholly revamp, vacate the rule in ANY way or even provide another blanket extension. The unions have told the Agency they would file a lawsuit if it provided another blanket extension of the rule. As a result, the Agency is unwilling to do much; however, just two weeks ago, the Agency seemed VERY willing to offer a temporary flexible enforcement policy and to enter into “settlement negotiations” with the coalition and work to develop possible guidance for employers. Given the fact that the agency refused to vacate the rule, its willingness to offer a temporary enforcement policy and work with the coalition was a welcomed development.
Unfortunately, we learned on September 19th, that the settlement negotiations with the DOL, as discussed above, completely dissolved. The Agency’s attorneys told CISC that they are not willing to stay the litigation before oral argument (taking place September 26th), nor would the Agency further extend enforcement or even adopt a flexible enforcement policy for the rule because of opposition from the building trades union. The rule becomes enforceable on September 23rd. This spurred NARI and others in the coalition to act. Members of Congress were contacted to request they reach out to both Labor Secretary Acosta and the White House to request the Agency reconsider its decision to provide temporary enforcement relief to employers in the construction industry. The outreach seemed to work…for now. Two days after learning that the Agency refused to issue a temporary enforcement policy, the Agency did an about-face and issued a memo with a temporary enforcement policy for the construction industry. In short, the Agency would delay enforcement for the first 30 days to those employers who in good faith try to comply with rule but are unable to reduce exposures or meet the requirements in Table 1 (method of compliance for construction employers). Instead, OSHA will now focus on providing compliance assistance and outreach in an effort to assist employers implementing the controls in Table 1.
The coalition and NARI will continue to monitor developments and keep you informed. We will also continue to engage Congress and the administration as needed.