By A. Scott Hecker, Adam R. YoungMark A. LiesJames L. CurtisPatrick D. Joyce,  and Craig B. Simonsen

Seyfarth Synopsis: In U.S. Dep’t of Labor v. Tampa Elec. Co., the U.S. Court of Appeals for the Eleventh Circuit used common sense and reason to find the word “uncontrolled” is unambiguous and not open to interpretation – “because we conclude that the release of ammonia at Tampa Electric’s plant wasn’t ‘uncontrolled’ within the meaning of the OSHA standard, we hold that the standard didn’t apply to [the Company’s] response and, therefore, that [it] didn’t violate it.”

Tampa Electric Company received a citation under 29 CFR 1910.120, OSHA’s emergency response regulations also known as “HAZWOPER” (short for Hazardous Waste Operations and Emergency Response). OSHA alleged that Tampa Electric violated HAZWOPER’s respiratory protection requirements when Company employees responded to a release of ammonia within the facility without a self-contained breathing apparatus. At hearing, OSHA argued the release of ammonia was “uncontrolled,” and thus covered by HAZWOPER, because the ammonia was not contained once it entered the atmosphere. Tampa Electric argued HAZWOPER did not apply to its response actions because the Company’s personnel were able to stop and control the release. The Administrative Law Judge, the Review Commission, and the Eleventh Circuit all sided with Tampa Electric.

The Eleventh Circuit explained that the key definition is for “emergency response,” which the regulation defines in three parts. The Court relied upon the definition’s first sentence quoted below, which explains what is an ‘emergency response,’ as well as the second and third sentences, which explain what is not an “emergency response:”

Emergency response or responding to emergencies means a response effort by employees from outside the immediate release area or by other designated responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel are not considered to be emergency responses within the scope of this standard. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses. Slip opinion, pg. 3.

29 C.F.R. § 1910.120(a)(3). (Emphasis added).

The Court found that the determinative question was “whether the release of ammonia at Tampa Electric’s plant constituted an ‘uncontrolled release’ within the meaning of the definition’s first sentence.” The Court agreed with Tampa Electric and the Review Commission, holding that Tampa Electric’s “response to [the ammonia release] wasn’t an ‘emergency response,’ and the HAZWOPER standard didn’t apply.” Accordingly, the Eleventh Circuit denied OSHA’s petition for review and affirmed OSHRC’s order vacating the citation.

The Eleventh Circuit opinion demonstrates how federal courts are giving less weight to Agency interpretations and reigning in federal OSHA’s aggressive enforcement positions and over-extensions of the regulations. The Court cited Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019), signaling the Circuit’s continued deviation from providing Chevron deference to an Agency interpretation. Employers should track developments in OSHA litigation, and work with Seyfarth’s Workplace Safety & Environmental team to ensure that they have limited all relevant liabilities.