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Some “Retail Facilities” No Longer Exempt from OSHA PSM Requirements

Posted on 7/23/2015 by Roger Marks

Update 12/23/15: From a new OSHA Process Safety Management (PSM) interim enforcement policy: "Through September 30, OSHA will not cite employers for violations of the PSM standard at facilities that it would not have cited applying interpretation of the term "retail" that was in place prior to July 22, 2015." 

Update 10/21/15: On October 20, 2015, OSHA extended the compliance deadline for retail facilities covered under the July 2015 Process Safety Management (PSM) Interim Enforcment Policy. These facilities will now have twelve months—until July 22, 2016—to address the OSHA PSM elements and sub-elements. 

In a new Interim Enforcement Policy, the Occupational Health and Safety Administration (OSHA) announced on July 22, 2015 that certain employers will no longer be exempted from compliance requirements under the Process Safety Management (PSM) standard for highly hazardous chemicals at 29 CFR 1910.119.

In the PSM regulations, OSHA grants an exemption for “retail facilities.” [29 CFR 1910.119(a)(2)(i)] Under the new PSM enforcement policy, the “retail facilities” exemption applies only to facilities that fall in NAICS Codes 44 and 45, “retail trade.”

The new interpretation replaces the 1992 OSHA PSM interpretation that defines a retail facility as “An establishment, which would otherwise be subject to the PSM standard, at which more than half of the income is obtained from direct sales to end users.”

Facilities Already Covered Under EPA RMP Rules

Many of the now non-exempt facilities already face similar requirements under US EPA’s Risk Management Planning (RMP) requirements at 40 CFR 68. Even so, these facilities may have to undertake new activities to achieve compliance with the PSM rules. The EPA RMP rules require employers to develop and execute a safety management strategy that covers a majority of the OSHA PSM requirements. Programs already in place may need to be expanded in order to address the remaining OSHA PSM elements and sub-elements.

PSM Enforcement Under the Interim Policy

OSHA states that enforcement personnel will exercise discretion during this period and, except in cases of immediate, severe danger and a lack of a good-faith effort to control the hazard, will “refrain from citing employers for violations of the PSM standard at facilities that (they) would not have cited under former PSM retail exemption policy.”

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