837 F.3d 60
D.C. Cir.2016Background
- OSHA promulgated the Process Safety Management (PSM) Standard in 1992 and exempted "retail facilities," using a "50 percent test" (more than half revenue from direct sales to end users) to define the exemption.
- A 2013 fertilizer explosion in West, Texas killed 15 and revealed that facilities qualifying under the 50% test could store and distribute large bulk quantities of hazardous chemicals.
- President Obama directed review of the retail exemption; in 2015 OSHA issued a Memorandum rescinding prior guidance and replacing the 50% test with a Department of Commerce–based definition limiting "retail facilities" to establishments selling small quantities to the general public.
- The Memorandum effectively expanded coverage of the PSM Standard to facilities (e.g., farm supply/fertilizer distributors) that had previously been treated as exempt.
- Petitioners (Agricultural Retailers Association, Fertilizer Institute, and businesses) sought review, arguing OSHA had to follow the OSH Act's notice-and-comment procedures for promulgating a "standard." OSHA contended the Memorandum was interpretive, not a new standard.
- The Union sought to intervene for OSHA; the court denied intervention for lack of demonstrated standing but granted amicus status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSHA's Memorandum narrowing the retail exemption constituted an OSH Act "occupational safety and health standard" (triggering notice-and-comment and pre-enforcement appellate review) | The Memorandum substantively expands PSM coverage to address a specific risk (bulk storage/distribution) and thus is a "standard," requiring OSH Act procedures and court of appeals review | The Memorandum is interpretive guidance, not a new or modified "standard," so OSH Act procedural requirements and direct appellate jurisdiction do not apply | The Memorandum is a "standard" because its practical effect is to correct a particular significant risk by subjecting many facilities to substantive PSM requirements; OSHA must follow OSH Act notice-and-comment procedures and the court has jurisdiction; Memorandum vacated for procedural defect. |
| Whether the Union may intervene to defend OSHA | Union asserted its members may be affected by the Memorandum | OSHA supported the Union's motion to intervene | Motion to intervene denied for lack of demonstrated organizational standing; Union granted amicus status. |
Key Cases Cited
- Workplace Health & Safety Council v. Reich, 56 F.3d 1465 (D.C. Cir. 1995) (distinguishes "regulations" for information-gathering from substantive "standards" aimed at correcting specific hazards)
- Chamber of Commerce of the United States v. U.S. Dep't of Labor, 174 F.3d 206 (D.C. Cir. 1999) (program imposing substantive compliance obligations held to be a "standard")
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (standing requires concrete, particularized injury; organization must show members are affected)
- Edison Elec. Inst. v. OSHA, 411 F.3d 272 (D.C. Cir. 2005) (distinguishes review routes under OSH Act for standards vs. other rules)
- La. Chem. Ass'n v. Bingham, 657 F.2d 777 (5th Cir. 1981) (characterizing standards as remedial measures addressing identified hazards)