The NAM filed an amicus brief involving the definition of “emergency response” under OSHA regulations and OSHA’s ability to depart from its own interpretation letters upon which employers reasonably rely. NAM’s brief asks the 11th Circuit to reject OSHA’s decision to impose penalties on an energy company for reasonable, previously allowed conduct because OSHA’s position in the case contradicts its past policy as expressed in letters of interpretation—letters relied upon by industry for decades. The case, Walsh v. Tampa Electric Co., involves the definition of “emergency response” under a specific OSHA standard (the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 CFR 1910.1020(q)). After OSHA initially issued citations for Tampa Electric Company (TECO)’s alleged violation of the HAZWOPER standard in handling an incidental ammonia release, the Occupational Safety and Review Commission (OSHRC) reversed, concluding that OSHA had failed to show that the standard applied. OSHA, in turn, petitioned the 11th Circuit for review.
NAM’s brief argues that adopting OSHA’s newly asserted interpretation of the scope and coverage of the HAZWOPER standard would severely impact operations involving hazardous chemicals across a broad range of industries. More importantly, if adopted, OSHA’s interpretation would not advance safety for employers and employees that manage risks associated with hazardous chemicals on a daily basis. The case is likely to set important precedents that will significantly impact workplace safety for employers in general, and manufacturers in particular. A favorable ruling for employers is especially important at this time, given the Biden administration’s increased enforcement posture.
Happily, on June 22, 2022, the 11th Circuit affirmed OSHRC's decision.