The U.S. Court of Appeals for the Seventh Circuit, Chicago, has dismissed NRCA’s petition for review of the Occupational Safety and Health Administration’s (OSHA’s) slide guard rule.
In February, NRCA filed a petition for judicial review of new rules issued by OSHA that fundamentally change the requirements for protecting workers from falls on residential roofing projects. The new OSHA rules, which were issued in December 2010, no longer allow the use of “slide guards,” or roof brackets, as an acceptable means of fall protection except in some narrow circumstances.
NRCA’s petition argued OSHA did not follow appropriate rulemaking procedures when it eliminated an option that has been in place for 15 years; acted without any evidence to suggest slide guards are not an effective method for fall protection; and failed to take into account the effect the new rules would have on small businesses. OSHA argued the rule is not a new standard and is, therefore, beyond the reach of an appeal.
The court agreed with OSHA, concluding that the rule’s 1999 rewrite and 1995 predecessor amounted to “an exercise of prosecutorial discretion” and not a new standard.
“We were extremely disappointed by the court’s decision, even knowing that taking on the government always is a long shot,” says NRCA Executive Vice President Bill Good. “The new OSHA rule now will take effect in just over two months, so we will do our best to help all members prepare. We also hope to meet with OSHA officials to get a better understanding of their enforcement plans. Meanwhile, we encourage all members to let us know of their experiences with the new rule and OSHA enforcement activity.”
Because OSHA’s 1994 fall-protection standard always remained as the operative standard and the only thing that changed was OSHA’s articulation of how it intended to enforce that standard, the Seventh Circuit court concluded that “by deciding to enforce the 1994 regulation as written, the Secretary has not adopted a new occupational safety and health standard.”
Based on that conclusion and because a “standard” was not at issue in NRCA’s petition, the court had no proper jurisdiction, and NRCA’s petition was dismissed.
For more information about the court’s decision, click here.