There is a LOT of chatter about OSHA’s revised “retail facility” LOI and what it means to some industries and the timing the courts could play in the outcome. The magazine AGProfessional has published a VERY NICE update on the legal proceedings and what lies ahead for the Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) lawsuit(s). Here is a summary of what the article states:
The Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) have sought judicial and legislative remedies to REVERSE, or return to the previous position, the OSHA interpretation of what a “retail facility” is. OSHA extended the enforcement deadline from January 22, 2016, to July 22, 2016, but then OSHA filed a motion to dismiss the ARA/TFI lawsuit. OSHA is trying to make the claim that the D.C. Circuit Court does not have jurisdiction because the Letter of Interpretation was just an LOI and not an actual standard. ARA/TFI position is that the court does have jurisdiction because the LOI is essentially a standard because it puts forth new obligations on the nearly 5,000 facilities that had been exempt from PSM.
OSHA is actually arguing that the revised LOI places no new obligations. OSHA has asked the Court to decide the case on the Motion to Dismiss, without further briefing or oral arguments.
The Court will rule on OSHA’s motion to dismiss in the coming months. Should the Court dismiss it, the case would likely be transferred to the U.S. District Court for the District of Columbia. In December, OSHA will file their response to the “motion to stay”. After that, the Court will make decisions on all outstanding procedural motions (motion to dismiss, motion to intervene by the USW, and motion to stay).
Assuming the D.C. Circuit Court does not rule in favor of OSHA on the motion to dismiss, the merits of the case will be briefed sometime after the Christmas holidays and oral arguments will happen sometime in the spring of 2016. If everything stays on track the Court will likely have a decision by the summer of 2016.
PLEASE BEWARE… With EPA’s official position on when a facility MUST have their RMP updated and re-submitted being January 2017, those who bank on the hopes that OSHA loses the lawsuit will find themselves in a SERIOUS bind! With the legal minds at ARA/TFI estimating their lawsuit will be decided in the summer of 2016, this means that a facility that has done nothing to comply with PSM and RMP Program Level 3 will be left with ONLY MONTHS to get into compliance – a virtually IMPOSSIBLE TASK.
Source: AgProfessional