United States Court of Appeals, District of Columbia Circuit
Argued: September 24, 2014.
[Copyrighted Material Omitted]
On Petition for Review of a Final Rule of the Occupational Safety & Health Administration.
Donald C. McLean argued the cause for petitioners and intervenor for petitioners. With him on the briefs were Marc L. Fleischaker and Valerie N. Butera. Philip C. Olsson, Gary H. Baise, and Anson M. Keller Sr. entered appearances.
Louise M. Betts, Attorney, Occupational Safety & Health Administration, argued the cause for respondents. On the briefs were Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, at the time the briefs were filed, Ann Rosenthal, Acting Associate Solicitor for Occupational Safety and Health, Heather R. Phillips, Counsel for Appellate Litigation, and Edmund C. Baird, Attorney. Anne R. Ryder, Attorney, U.S. Department of Labor, entered an appearance.
Randy S. Rabinowitz and Stephen A. Yokich were on the brief for intervenors Change to Win, et al. in support of respondents. Steven H. Wodka entered an appearance.
Before: HENDERSON, ROGERS and GRIFFITH, Circuit Judges. OPINION filed by Circuit Judge ROGERS.
Rogers, Circuit Judge :
Responding to international efforts to harmonize the requirements for identification and labeling of hazardous chemicals, the Occupational Safety and Health Administration (" OSHA" ) revised its Hazard Communication Standard in 2012. See Hazard Communication, 77 Fed. Reg. 17,574 (Mar. 26, 2012) (" Final Rule" ). That standard requires employers across industries to develop a program for classifying the dangers of workplace chemicals and conveying those dangers to their employees. See 29 C.F.R. § 1910.1200. Petitioners (and intervenor for petitioners), whose members include numerous businesses that handle and process grain and other agricultural products, seek vacatur of the Final Rule as it applies to combustible dust. For the following reasons, we deny the petition for review.
The Occupational Safety and Health Act of 1970 authorizes the Secretary of Labor to promulgate workplace safety or health standards, 29 U.S.C. § 655(b), including prescribing the use of labels or other warnings " to insure that employees are apprised of all hazards to which they are exposed." Id. § 655(b)(7). Two longstanding OSHA standards and an ongoing rulemaking are relevant here.
The Hazard Communication Standard was promulgated in 1983 and initially applied only to manufacturers. See 48 Fed. Reg. 53,280 (Nov. 25, 1983) (codified at 29 C.F.R. § 1910.1200). In 1987, OSHA made the Standard applicable to all employers with employees exposed to hazardous chemicals in the workplace. See 52 Fed. Reg. 31,852 (Aug. 24, 1987). The Standard is designed to " address comprehensively the issue of classifying the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees." 29 C.F.R. § 1910.1200(a)(2). " Rather than attempting to identify every hazardous chemical, the [Hazard Communication Standard] 'places primary responsibility for determining which products are hazardous on the chemical manufacturer or importer.'" Nat'l Ass'n of Mfrs. v. OSHA, 485 F.3d 1201, 1202, 376 U.S. App. D.C. 171 (D.C. Cir. 2007) (quoting United Steelworkers of Am., AFL-CIO-CLC v. Auchter, 763 F.2d 728, 739 (3d Cir. 1985)). Manufacturers and importers must evaluate and classify each chemical they produce or import to determine whether it is a " hazardous chemical." See 29 C.F.R. § § 1910.1200(c), (d). They must ensure that hazardous chemicals are labeled for downstream users and create material safety data sheets that explain the hazard and applicable safety procedures in detail. Id. § § 1910.1200(f), (g). Employers must develop, implement, and
maintain " a written hazard communication program" to inform employees about hazardous chemicals present in the workplace through labels and safety data sheets, and they must train employees on the detection of hazardous chemical releases, safe handling methods, and ...