United States Court of Appeals, District of Columbia Circuit
Agricultural Retailers Association and The Fertilizer Institute, Petitioners
United States Department of Labor and Occupational Safety & Health Administration, Respondents
Submitted May 16, 2016
Petitions for Review of a Memorandum of the Occupational
Safety & Health Administration
H. Baise, Stewart D. Fried, Chris S. Leason, Mark C.
Dangerfield, and Andrew E. Dudley were on the joint briefs
for petitioners. Anson M. Keller Sr. entered an appearance.
Rosenthal, Associate Solicitor, Occupational Safety &
Health Administration, Charles F. James, Counsel, U.S.
Department of Labor, and Lauren S. Goodman, Senior Attorney,
U.S. Department of Labor, were on the brief for respondents.
S. Rabinowitz was on the brief for movant-intervenor for
Before: Rogers, Srinivasan and Millett, Circuit Judges.
Srinivasan Circuit Judge
Occupational Safety and Health Administration, part of the
Department of Labor, aims to secure "safe and healthful
working conditions" for the Nation's workers. 29
U.S.C. § 651(b). To that end, OSHA in 1992 issued the
so-called Process Safety Management Standard to protect the
safety of those who work with or near highly hazardous
chemicals. From its inception, the standard has exempted
retail facilities from its requirements. The exemption rests
on an assumption that the retail setting involves diminished
risks of a substantial release of toxic chemicals. Recently,
after a catastrophic chemical explosion at a Texas fertilizer
company that qualified as an exempt retail facility, OSHA
narrowed the scope of the retail-facility exemption so that
the safety standard's requirements would now apply to
formerly exempt facilities like the Texas plant.
question we confront is whether, when OSHA narrowed the scope
of the exemption for retail facilities, the agency issued a
safety "standard" within the meaning of the
Occupational Safety and Health Act (OSH Act). If so, we have
jurisdiction to review OSHA's action, and the OSH Act
would have required the agency to adhere to procedural
notice-and-comment requirements, which it concededly did not
do. If, however, OSHA's action did not amount to issuance
of a "standard, " we would lack jurisdiction to
review it and the OSH Act would have imposed no obligation to
follow notice-and-comment procedures.
our decisions, when an action by OSHA corrects a particular
hazard, as opposed to adjusting procedures for detection or
enforcement, it amounts to a "standard." Applying
that understanding, we conclude that the agency's
narrowing of the substantive scope of the exemption for
retail facilities qualified as issuance of a
"standard." We therefore have jurisdiction, and
OSHA was required to adhere to notice-and-comment procedures.
Consequently, we grant the petitions for review and vacate
1992, OSHA promulgated the Process Safety Management (PSM)
Standard in an effort to "provide safe and healthful
employment and places of employment for employees in
industries which have processes involving highly hazardous
chemicals." Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 57 Fed.
Reg. 6356, 6359 (Feb. 24, 1992), codified at 29
C.F.R. § 1910.119 (2016). The PSM Standard
"contains requirements for preventing or minimizing the
consequences of catastrophic releases of toxic, reactive,
flammable, or explosive chemicals." 29 C.F.R. §
the outset, OSHA exempted "[r]etail facilities"
from the requirements of the PSM Standard. Id.
§ 1910.119(a)(2)(i). The exemption, OSHA explained in
the preamble of the final standard, was rooted in an
understanding that "chemicals in retail facilities are
in small volume packages, containers and allotments, making a
large release [of toxic chemicals] unlikely." 57 Fed.
Reg. at 6369. OSHA identified "gasoline stations"
as prototypical examples of retail facilities. Id.
Shortly after promulgating the PSM Standard, OSHA issued a
letter defining an exempt retail facility as "an
establishment . . . at which more than half of the income is
obtained from direct sales to end users." See
Letter from Patricia K. Clark, Dir. of Enf't Programs,
OSHA, to Gary Myers, President, The Fertilizer Inst. (June
19, 1992). The "50 percent test" remained the rule
for more than two decades.
April 2013, a catastrophic chemical explosion at a fertilizer
company in West, Texas, resulted in the deaths of 15 persons
and injured many others. Although the company stored large
quantities of a highly hazardous chemical (anhydrous ammonia)
for bulk distribution as fertilizer to farmers, it had been
exempt from the PSM Standard under the 50 percent test for
retail facilities. That test had enabled establishments to
claim the exemption even if they stored large amounts of
hazardous chemicals for ...