USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 1 of 190 ORAL ARGUMENT NOT YET SCHEDULED RECORD No. 16-1105(L) (consolidated with Nos. 16-1113, 16-1125, 16-1126, 16-1131, 16-1137, 16-1138, and 16-1146) IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NORTH AMERICA’S BUILDING TRADES UNIONS, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent. On Petitions for Review of a Final Rule of the United States Occupational Safety and Health Administration JOINT OPENING BRIEF OF INDUSTRY PETITIONERS Bradford T. Hammock William L. Wehrum Tressi L. Cordaro Susan F. Wiltsie Katherine L. Soppet HUNTON & WILLIAMS LLP JACKSON LEWIS P.C. 2200 Pennsylvania Avenue, N.W. 10701 Parkridge Boulevard, Suite 300 Washington, D.C. 20037 Reston, VA 20191 Telephone: (202) 955-1500 Telephone: (703) 483-8300 Counsel for Petitioners listed on David Craig Landin inside front cover HUNTON & WILLIAMS LLP 951 East Byrd Street Richmond, VA 23219-4074 Telephone: (804) 788-8200 Counsel for Petitioners and Intervenor –Petitioners listed on inside front cover ADDITIONAL COUNSEL LISTED ON INSIDE FRONT COVER DATED MARCH 23, 2017 USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 2 of 190 JACKSON LEWIS P.C. -- Counsel for Petitioners: Associated Masonry Contractors of Texas DBA Texas Masonry Council; Associated Subcontractors Association of Texas, Inc.; Distribution Contractors Association; Louisiana Associated General Contractors, Inc.; Mechanical Contractors Association of Texas, Inc.; Mississippi Road Builders’ Association; Pelican Chapter, Associated Builders and Contractors, Inc.; Texas Association of Builders; American Foundry Society Texas Region 3/Texas Chapter of the American Foundry Society; Texas Association of Business; American Foundry Society; National Association of Manufacturers; American Road and Transportation Builders Association; American Society of Concrete Contractors; American Subcontractors Association; Associated Builders and Contractors; Associated General Contractors; Association of the Wall and Ceiling Industry; Building Stone Institute; Concrete Sawing & Drilling Association; Construction & Demolition Recycling Association; Interlocking Concrete Pavement Institute; International Council of Employers of Bricklayers and Allied Craftworkers; Leading Builders of America; Marble Institute of America; Mason Contractors Association of America; Mechanical Contractors Association of America; National Association of Home Builders; National Demolition Association; National Electrical Contractors Association; National Utility Contractors Association; Natural Stone Council; Association of Union Constructors; and Tile Roofing Institute HUNTON & WILLIAMS LLP -- Counsel for Petitioners and Intervenor- Petitioners: National Stone, Sand and Gravel Association; and Brick Industry Association; Portland Cement Association; and National Concrete Masonry Association Of Counsel: Of Counsel: Linda E. Kelly Michael B. Schon Patrick N. Forrest PORTLAND CEMENT Leland P. Frost ASSOCIATION MANUFACTURERS’ CENTER FOR 1150 Connecticut Avenue NW LEGAL ACTION Washington, D.C. 20036 733 10th Street, NW, Suite 700 Telephone: (202) 719-1977 Washington, D.C. 20001 Counsel for Intervenor-Petitioner Telephone: (202) 637-3000 Portland Cement Association Counsel for Petitioner National Association of Manufacturers USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 3 of 190 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Cir. R. 28(a)(1), Petitioners in Case Nos. 16-1125, 16-1126, 16-1131, 16-1137, 16-1138, and 16-1146 (jointly, “Industry Petitioners”) state as follows: A. Parties, Intervenors, and Amici Because these consolidated cases involve direct review of final agency action, the requirement to furnish a list of parties, intervenors, and amici curiae that appeared below is inapplicable. These cases involve the following parties: Petitioners: No. 16-1105: North America’s Building Trades Unions. No. 16-1113: American Federation of Labor and Congress of Industrial Organizations; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. No. 16-1125: Associated Masonry Contractors of Texas DBA Texas Masonry Council; Associated Subcontractors Association of Texas, Inc.; Distribution Contractors Association; Louisiana Associated General Contractors, Inc.; Mechanical Contractors Association of Texas, Inc.; Mississippi Road Builders’ i USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 4 of 190 Association; Pelican Chapter, Associated Builders and Contractors, Inc.; and Texas Association of Builders. No. 16-1126: American Foundry Society Texas Region 3/Texas Chapter of the American Foundry Society; and Texas Association of Business. No. 16-1131: National Stone, Sand & Gravel Association. No. 16-1137: American Foundry Society; and National Association of Manufacturers. No. 16-1138: American Road and Transportation Builders Association; American Society of Concrete Contractors; American Subcontractors Association; Associated Builders and Contractors; Associated General Contractors; Association of the Wall and Ceiling Industry; Building Stone Institute; Concrete Sawing & Drilling Association; Construction & Demolition Recycling Association; Interlocking Concrete Pavement Institute; International Council of Employers of Bricklayers and Allied Craftworkers; Leading Builders of America; Marble Institute of America; Mason Contractors Association of America; Mechanical Contractors Association of America; National Association of Home Builders; National Demolition Association; National Electrical Contractors Association; National Utility Contractors Association; Natural Stone Council; The Association of Union Constructors; and Tile Roofing Institute. No. 16-1146: Brick Industry Association. ii USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 5 of 190 Respondents: Respondents are the Occupational Safety and Health Administration, United States Department of Labor (in Nos. 16-1105, 16-1113, 16-1125, 16-1126, 16-1137, 16-1138); Occupational Safety and Health Administration (Nos. 16-1131, 16-1146); Thomas Perez, Secretary, United States Department of Labor (in Nos. 16-1125, 16- 1126, 16-1137, 16-1138); and Secretary, Department of Labor (in Nos. 16-1131, 16- 1146). Intervenors-Petitioner: The Chamber of Commerce of the United States of America, the State Chamber of Oklahoma, the Greater North Dakota Chamber of Commerce, the Portland Cement Association, and the National Concrete Masonry Association are all Intervenors for Petitioner Brick Industry Association. Intervenors-Respondents: National Stone, Sand & Gravel Association; American Foundry Society; National Association of Manufacturers; National Association of Home Builders; North America’s Building Trades Unions; American Federation of Labor and Congress of Industrial Organizations; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America are Intervenors for Respondents. iii USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 6 of 190 Amici Curiae: The American Thoracic Society and the American College of Occupational and Environmental Medicine have been granted leave to file a brief as amicus curiae in support of Respondent OSHA. B. Rulings Under Review These consolidated cases involve petitions for review of the final rule titled “29 CFR Parts 1910, 1915, and 1926, Occupational Exposure to Respirable Crystalline Silica” (Docket No. OSHA-2010-0034, RIN 1218-AB70), promulgated by the Occupational Safety and Health Administration (“OSHA”) of the United States Department of Labor (“DOL”) on March 25, 2016, and published in the Federal Register at 81 Fed. Reg. 16,285 (“Silica Rule” or “Rule”). Because this is a direct appeal to this Court, as provided for in 29 U.S.C. § 655(f), there were no proceedings or disposition below. C. Related Cases This case was not previously before this Court. Certain Petitioners filed seven Petitions for Review of the Silica Rule in six different circuit courts of appeals (i.e., Nos. 16-1105, 16-1112, 16-1113, 16-1114, 16-1125, 16-1126, 16-1131). Those Petitions were transferred to this Court per the Consolidation Order of the United States Judicial Panel on Multidistrict Litigation (“MDL”). In re: Occupational Safety and Health Administration, U.S. Department of Labor, “Occupational Exposure to iv USCA Case #16-1105 Document #1667541 Filed: 03/23/2017 Page 7 of 190 Respirable Crystalline Silica; Final Rule,” March 25, 2016, MCP No. 139, Doc. 3 (J.P.M.L. April 12, 2016). Case Nos. 16-1137, 16-1138, 16-1146, and 16-1151 were filed in this Court after the MDL’s April 12th Order. All related cases pending in this Court (Nos. 16-1105, 16-1112, 16-1113, 16- 1114, 16-1125, 16-1126, 16-1131, 16-1137, 16-138, 16-1146, and 16-1151), were consolidated under the lead docket number 16-1105 by the Court’s Orders dated April 28, 2016, May 6, 2016, May 11, 2016, May 17, 2016, and May 25, 2016. Voluntary dismissal of three petitions (Nos. 16-1112, 16-1114, and 16-1151) was granted by the Court’s Orders dated June 7, 2016 and June 9, 2016. The undersigned counsel is not aware of any other related case currently pending in this