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March 2 — Saying it has more members directly affected by the process safety management standard than any other union, the United Steelworkers filed a brief with the D.C. Circuit March 1 in support of the Department of Labor's position in the challenge to the standard brought by the Agricultural Retailers Association and others.
At issue in the agricultural industry's challenge to the Retail Memorandum issued by the Occupational Safety and Health Administration last summer. The memorandum attempted to clarify which businesses were covered by the PSM standard and which weren't. In 1992, OSHA issued an interpretive letter stating that any business that sold more than 50 percent of its chemicals directly to users was a retail facility.
The agency's 50 percent rule didn't address the size of such retailers, but the preamble to the process safety standard provided the example of a gas station for cars and trucks as the type of retailers excluded. OSHA's revision to the memorandum sought to address the agricultural grade ammonium nitrate blast at a fertilizer distribution center in West, Texas, in 2013.
The 2015 memorandum, according to the Department of Labor, set out to clarify this apparent discrepancy. It said only businesses that were defined by the Retail Trade Sector of the North American Industry Classification System as “retailers,” are exempt from the standard—that is, retailers are those that “sell merchandise in small quantities to the general public.”
The Agricultural Retailers Association and its fellow petitioners claimed in their challenge to the memorandum that it constituted a major change in the standard, removing many businesses that had considered themselves exempted retailers since the 50 percent rule was announced in 1992 .
The petitioners argued the memorandum creates a new standard that must undergo an administrative review process before it is enacted. Petitioners brought their claim to the U.S. Court of Appeals for the D.C. Circuit.
The USW, which also represents paper, rubber, forestry and allied industrial workers, supports the Department of Labor's argument that the retail memorandum does no more than clarify the PSM standard and, therefore, the D.C. Circuit has no jurisdiction to rule on its validity.
As the first order of business in its brief, however, the USW addressed the petitioners' challenges to its right to intervene in the case.
According to the USW brief, the union represents workers in 58 bargaining units that are directly affected by OSHA's interpretation of the PSM standard. “Its members will suffer an injury-in-fact if OSHA's Retail Memorandum is invalidated,” the USW said.
The USW claimed that an assertion that it represents workers directly affected by the standard is sufficient to give it standing to intervene. It added that in 40 years of participating in litigation over OSHA standards, it has never before been challenged over its right to participate.
The union acknowledged that this is a challenge brought by the agricultural industry, and no members of the United Steelworkers work at agricultural retail establishments. That point was irrelevant, the USW maintained, because the retail exception to the standard isn't limited to agricultural facilities.
The USW then argued that the Retail Memorandum is a valid interpretation rather than a new standard because the document it interprets—the letter that set out the 50 percent rule—wasn't itself subjected to administrative review. “OSHA pulled the fifty percent test out of thin air, citing nothing as support for this definition of ‘retail facilities,'” the union said.
Citing Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (U.S. 2015), the USW argued, “If the fifty percent test was a valid interpretation of the PSM standard, then OSHA is permitted to revise or repeal the interpretation and substitute a new or different interpretation, using the same procedures as it did initially.”
The Agricultural Retailers Association has until March 14 to respond to the USW, with final briefs due March 28.
The USW brief was prepared by the Occupational Safety & Health Law Project.
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The USW's brief to the U.S. Court of Appeals for the District of Columbia Circuit in is available at http://www.bloomberglaw.com/public/document/Agricultural_Retailers_Assoc_et_al_v_LABR_et_al_Docket_No_1501326/1.
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