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D.C. Circuit Denies OSHA Request for Rehearing on Retail Exemption Policy

Prepared for the Katten Safety Advisory Group
Advisory | January 3, 2017

The U.S. Court of Appeals for the District of Columbia Circuit denied the Occupational Safety and Health Administration ("OSHA") request to rehear its ruling vacating OSHA's 2015 policy narrowing a Process Safety Management ("PSM") Standard exemption for retailers. As previously alerted, the court ruled in September that the agency violated the Occupational Safety and Health Act's notice-and-comment requirements when it issued a "guidance" memorandum in 2015 titled "Memorandum on Process Safety Management of Highly Hazardous Chemicals and Application of the Retail Exemption" that narrowed the retail facility exemption in the PSM Standard. See KSAG Alert 2016-49; Agricultural Retailers Association et al. v. U.S. Department of Labor et al. The new definition would have, for the first time, subjected up to 4,800 facilities to PSM requirements....

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