On December 27, the U.S. Court of Appeals for the D.C. Circuit denied a petition from the American Tort Reform Association (ATRA) challenging the Occupational Safety and Health Agency’s (OSHA’s) recent edits to preemption language in the Hazard Communication Standard (HazCom) as ultra vires. Writing for a unanimous panel which included Circuit Judges Griffith and Srinivasan, Senior Circuit Judge Edwards found “no merit in ATRA’s claims.” OSHA’s edits to preemption language, the court concluded, are merely interpretive and thus do not implicate the Administrative Procedure Act’s notice-and-comment requirements. The edits, the court explained, do not definitively determine the preemptive effect of the OSH Act. Rather, they “reflect the agency’s view that HazCom preempts state legislative and regulatory requirements, but not state tort claims.” According to the Court, OSHA acted well within its authority in setting forth its own understanding of the preemptive scope of its regulation. And, because OSHA’s edits were merely interpretive, the court reasoned, “it is not subject to judicial review unless it is relied upon or applied to support an agency action in a particular case.” ATRA’s challenge was thus dismissed as not ripe.

In this case, CCL filed an amicus curiae brief for the American Association for Justice (AAJ) urging dismissal. The brief, written by CCL’s Andre M. Mura, and filed in support of OSHA, expressed AAJ’s concern that if tort remedies against chemical manufacturers are limited through improper application of preemption principles, injured workers will be left without compensation and chemical manufacturers will not have adequate incentive to conduct a thorough hazardous material review, or to update labeling when new hazards emerge.