OSHA's Narrowed PSM Retail Exemption Now On Hold
In the July interpretation, OSHA narrowed the PSM exemption to include only those facilities that fall into the NAICS definition of retail trade (NAICS codes 44 and 45). This action was taken in part as a response to the April 2013 ammonium nitrate explosion at a fertilizer plant in the town of West, Texas and the subsequent Executive Order to improve chemical safety (EO 13650).
The new interpretation would have taken effect last month. However, since OSHA updated its interpretation of “retail” under the PSM Standard, industry groups including the Agricultural Retailers Association and the Fertilizer Institute had filed suit to stop the Agency from enforcing PSM compliance at facilities that no longer meet OSHA’s definition of “retail.”
Narrowed Retail Exemption Put on Hold
Last month, the US Court of Appeals for the DC Circuit ruled against OSHA. This means that the narrowed interpretation of “retail” is on hold, at least for now. For the foreseeable future, the old version of the PSM retail exemption will still apply for facilities that “generate more than 50% of their income from direct sales of chemicals to end users.”
What Is Process Safety Management?OSHA’s Process Safety Management (PSM) Standard at 29 CFR 1910.119 is a set of requirements for managing hazards associated with “processes” that involve highly hazardous chemicals. The PSM requirements apply to employers who operate processes that use designated hazardous chemicals in amounts that exceed given thresholds.
How Does OSHA Define “Employer” and “Process”?Under the PSM Standard, “employer” has the usual OSHA meaning of every private business or non-profit institution that employs employees. In states authorized to oversee an OSHA State Plan, “employer” also includes government entities and their employees.
Under the PSM Standard, a “process” can mean any of the following with respect to highly hazardous chemicals:
- On-site movement
What Chemicals Are Covered Under OSHA’s PSM Standard, and What Are the Thresholds?Two kinds of chemicals trigger OSHA's PSM Standard:
Any chemical listed as a highly hazardous chemical in Appendix A to the PSM Standard (29 CFR 1910.119)
Any other flammable liquid or gas
Exceptions from OSHA's PSM StandardExceptions from OSHA's PSM Standard are available for:
- Retail facilities, but only if they’re purely retail, as discussed in recent fact sheets
- Remote facilities of any kind that are normally unoccupied
- Oil and gas well drilling and servicing operations
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