Litigation

OSHA's review commission appears split over when and how the agency can use its general duty clause powers to cite employers for hazards not covered by the agency's standards, suggesting that the outcome of two pending cases under review may not provide clear indications of how regulators may proceed in the future.

OSHA's enforcement review commission is holding unusual oral arguments June 7 in two closely watched cases that attorneys say could test the agency's power to cite employers under its general duty clause for heat stress and workplace violence -- two emerging issues for which OSHA has not set unique standards and is thus forced to rely on its general duty powers when citing employers.

The Labor Department (DOL) is appealing an OSHA review commission ruling that struck down a citation against a ship repair company for failing to conduct a hazard assessment to determine whether employee respirator use is “necessary,” a move that underscores the agency's long-standing effort to expand enforcement oversight of employee chemical exposures.

The Teamsters union is suing several pharmacy benefit managers, drug manufacturers and distributors over excess use of opioids, alleging they marketed the drugs for chronic pain treatment to treat workplace and other injuries despite their limited long-term effectiveness and addictive qualities, which resulted in increased costs for the union's benefits programs and further worsened workplace safety.

A key labor union is offering a tepid response to OSHA's settlement with industry groups that would narrow aspects of the Obama-era beryllium rule's general industry requirements, but is expressing concerns about future deals that may seek a broader rollback of the rule's requirements for maritime and shipyard industries.

OSHA has agreed with several industry petitioners to clarify language regarding the ancillary provisions of its Obama-era beryllium rule for general industry and further delay the rule's compliance dates, according to a just-filed proposed settlement, but the rulemaking faces a steep deadline to begin amending the regulation before a May 11 compliance deadline.

Environmentalists have filed their opening brief in their suit challenging EPA's “framework” rules for prioritizing and assessing existing chemicals for possible regulation under the revised Toxic Substances Control Act (TSCA), arguing the rules violate a requirement to conduct a holistic review that considers all of a chemical's uses.

The U.S. Chemical Safety and Hazard Investigation Board's (CSB) is asking a federal appellate court to grant it broad power to subpoena documents related to “potential” releases at facilities where it is investigating industrial incidents, a move that a major refiner is resisting, charging it amounts to an unlawful expansion of the board's powers.

Critics of EPA Administrator Scott Pruitt's two-year delay of Obama-era updates to the agency's risk management plan (RMP) facility safety program are criticizing a list of prior rule delays that EPA says justify postponing the RMP rule, with opponents of the delay saying the other rules had legal justifications and were not tested in court.

OSHA's review commission is seeking unusual public input on whether and how regulators can address workplace heat stress cases under the agency's general duty clause, as a company is challenging a citation arguing that the Secretary failed to establish that the hazard existed or that the employer could have reasonably recognized such a hazard.