By Eric J. Conn, Amanda R. Strainis-Walker, and Bryan A. Carey

In March 2015, the U.S. Supreme Court issued its decision in the closely watched Perez v. Mortgage Bankers. The Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to federal agency rules, even if the changes are “interpretive” in nature, must go through Administrative Procedure Act public notice-and-comment. Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

In the post-Mortgage Bankers world, the Occupational Safety and Health Administration (“OSHA”) has a powerful new tool for backdoor rulemaking, and OSHA wasted no time taking advantage of this new legal doctrine. OSHA’s first efforts to utilize the new authority were seen in changes to its Process Safety Management of Highly Hazardous Chemicals standard (29 CFR 1910.119), which detail the requirements for operating and maintaining processes that use highly hazardous chemicals.  Less than three months after the Supreme Court issued the Mortgage Bankers decision, OSHA issued three separate interpretation letters to amend the PSM Standard:

1. Narrowing the long-standing “Retail Exemption” from PSM-coverage;
2. Defining and enforcing the application of “Recognized and Generally Accepted Good Engineering Practices” (“RAGAGEP”); and
3. Expanding the scope of chemical mixtures covered by the PSM Standard.

Read our earlier article about these three enforcement memorandum and the resolution by settlement of a legal challenge to the RAGAGEP interpretation.

The Chemical Mixture Interpretation

On June 5, 2015, OSHA issued an enforcement memorandum regarding PSM and Covered Concentrations of Appendix A Chemicals, which substantially revised OSHA’s policy on the concentrations of components of chemical mixtures that trigger the coverage under the PSM Standard.  Appendix A of the PSM Standard lists the “highly hazardous chemicals” that are Continue reading →