The U.S. Court of Appeals for the District of Columbia Circuit has canceled oral arguments in an agriculture industry challenge to OSHA's 2015 policy memo that for the first time subjects small facilities that sell fertilizer to the agency's process safety management (PSM) facility accident prevention program.
In a May 5 order in the case Agricultural Retailers Association (ARA) et al. v. OSHA, a appeals court panel says oral arguments are unnecessary, and that the court will decide the case based on arguments in court filings.
The order follows a joint March 11 request from both sides that the court forgo oral arguments. The parties agreed the case has been sufficiently briefed. In subsequent statements, ARA has said oral arguments would prolong the case and increase costs.
The coalition of agricultural industry groups is challenging OSHA's July 22, 2015 memo that tightened the agency's exclusion from PSM for “retail” facilities.
The memo followed an OSHA review conducted as part of a broad federal effort to implement President Obama's Executive Order (EO) 13650 on improving the safety and security of industrial plants.
With the memo, OSHA did away with a so-called 50 percent test, which classified establishments as “retail” if at least half their income came from end users. OSHA now says the test inappropriately exempted facilities that sell to industry, and so was contrary to the intended purpose of the exemption.
The memo had the effect of subjecting sellers of fertilizer to PSM requirements for the first time, a move that many health and safety advocates had sought in the wake of the fatal 2013 explosion at a West, TX, fertilizer plant.
But ARA is arguing that the memo inappropriately creates a different standard to implement the EO and was issued without following proper rulemaking procedures and in violation of the Administrative Procedure Act and the Occupational Safety and Health Act.
OSHA, however, is asking the court to dismiss the case, arguing the memo is an “interpretive rule,” which petitioners do not have a right to challenge outside of a specific enforcement action. Also, OSHA says the memo does not create a new standard or new obligations outside of the existing PSM rule.