Litigation

The U.S. Court of Appeals for the 5th Circuit is weighing an enforcement appeal about the bar employers must clear to show compliance with OSHA’s machine-guarding standard, including whether they can rely on evidence that their safety practices are in line with “industry custom” -- a claim that an attorney for the agency said at oral argument could “eviscerate the OSH Act” if judges back it.

Unions and worker-safety advocates are asking the D.C. Circuit to hold that TSCA forbids the agency from considering workers’ use of personal protective equipment (PPE) when evaluating chemicals’ risks, saying its rule on the subject shows a “fundamental misunderstanding” of OSHA’s requirements for employers to provide protective gear.

Vehicle manufacturers say EPA’s Trump-era evaluation of industrial and commercial uses of chrysotile asbestos overestimated exposures, cherry-picked data and used flawed science to find that that nearly all such applications pose “unreasonable risk” to workers, backing chemical-sector groups’ calls to scrap both the rule based on the review and the analysis itself.

Chemical manufacturers say EPA’s landmark rule phasing out chrysotile asbestos uses -- largely over workplace dangers -- “usurps” OSHA’s statutory power to protect workers, amid broader arguments seeking to cabin EPA’s power to regulate existing chemicals under the reformed TSCA.

Unions representing industrial workers and firefighters, as well as a broad coalition of environmentalists and public-health advocates, are urging the U.S. Court of Appeals for the 5th Circuit to conclude that EPA’s landmark TSCA rule for chrysotile asbestos is unlawfully weak, arguing that the agency unjustifiably declined to regulate or even evaluate risks from several uses of the mineral.

A chemical firm trying to intervene in litigation over the deadlines for 22 overdue EPA risk evaluations of toxic substances says the agency and environmentalists are raising “straw man” arguments against its participation in the case in order to prevent it from extending the proposed 2024 settlement deadline for formaldehyde.

A New Jersey steel fabricator is asking a federal district court to declare the Occupational Safety and Health Review Commission (OSHRC) unconstitutional, aiming to build on new Supreme Court precedent limiting when Congress can allow administrative law judges (ALJs) rather than federal courts to review OSHA and other agencies’ enforcement actions.

The Mine Safety and Health Administration (MSHA) is asking the D.C. Circuit to review two enforcement cases where administrative law judges (ALJs) rejected that agency’s claims that it has “unfettered” authority to drop already-issued citations in favor of settlement agreements, teeing up what could be precedent-setting decisions on the scope of its enforcement discretion.

A formaldehyde manufacturer is asking to intervene in environmentalists’ suit against EPA seeking deadlines for 20 overdue TSCA risk evaluations months after the two sides proposed a deal that would require a final formaldehyde analysis by Dec. 31, saying that schedule “is unreasonably short” and ignores some peer reviewers’ criticism of the draft evaluation.

An attorney for the free-market Center for Individual Rights (CIR) says the landmark Supreme Court decision that opened OSHA and other agencies’ long-standing rules to new legal challenges will likely produce a host of circuit splits requiring officials to apply different legal frameworks or even separate regulations in different regions of the country.