Industry Groups Challenge OSHA’s HazCom/GHS Rule
OSHA’s HazCom/GHS final rule has been challenged in the US Court of Appeals, DC Circuit, by the American Petroleum Institute, the American Tort Reform Association, CropLife America and a coalition of five other industry groups, including American Chemistry Council (ACC). The Chamber of Commerce has expressed support for the Petitions for Judicial Review. The Petitions do not provide specifics about the basis for each challenge. Such information will be included in later filings. However, there are concerns about conflicts between OSHA’s and EPA’s labeling requirements for fungicides and rodenticides. Prior to the final rule, ACC expressed concern about the inclusion of combustible dust and use of “hazards not otherwise classified” in the rule.
Questions about This Action
1. Does this delay implementation of the rule?
Not likely. There is no automatic stay from filing an appeal – the parties would have to file a motion to stay with the Court of Appeals (all of the lawsuits challenging the rule have were filed with the D.C. Circuit). The Rules of Appellate Procedure require that, in most cases, a party asking the Court of Appeals to stay an administrative agency order must first file a motion for stay with the agency, then with the Court of Appeals. The criteria for a stay in the court of appeals is (1) whether the petitioner has made a strong showing that it is likely to prevail on the merits, (2) that without the stay, petitioner will be irreparably harmed, (3) a stay is in the public interest. Given the time periods for implementation of the GHS in the rule, it is not likely that a court would find irreparable harm if a stay is not granted, even if the parties do request one.
2. Assuming plaintiffs win, what is the effect on the rule? Would the Court throw the whole rule out or strike specific items?
Most likely strike specific items. Only the “barebones” petitions for appeal have been filed thus far, so what relief the petitioners will ask for is not known. But, according to reports, the petitioners will ask for relief on specific provisions of the rule (e.g. CropLife America’s challenge is to pesticide labeling, American Tort Reform Association pertains to non-preemption, ACC to combustible dust, and API to the definition of hazardous mixtures). Even if the petitioners did ask for the whole rule to be thrown out, it is unlikely the Court of Appeals would do so. Generally, in challenges to OSHA standards, if the petitioners complaints are with specific provisions (as compared to the overall legal criteria that OSHA applied or procedural errors in the rulemaking), the Courts of Appeals have not “thown out” the entire rule but returned the “offending parts” to the agency for changes.
Prepared by the Law Offices of Adele Abrams, Esq., ASSE’s Federal Representative