OSHA to ag retailers: Get ready for PSM requirements in October

WASHINGTON, Jan. 20, 2016 - Agricultural retailers – and the media that cover them – may have been too hasty last month in announcing a long-term congressional reprieve from Occupational Safety and Health Administration Process Safety Management (PSM) standards.

The omnibus funding bill for fiscal 2016 that was signed into law in late December was hailed as providing wide-ranging relief from the PSM requirements that OSHA had decided to apply to dealers. In addition to giving dealers more time to comply, OSHA would begin a formal rulemaking process, and the Census Bureau would come up with a new Standard Industrial Classification code for dealers.

Just last week, Sen. John Hoeven, R-ND., took credit for the language, saying he helped to include it in “legislation Congress passed in December that prevents OSHA from imposing new restrictions on fertilizer sales that would cause many retailers to stop selling to farmers at rural locations.”

There was just one problem. The language in question was not in the bill itself, but in a House-Senate “explanatory statement” accompanying the bill. In legislative parlance, it was “report language,” not “bill language.”

“Significantly, report language and managers' statements do not have statutory force, (and) departments and agencies are not legally bound by their declarations,” the Congressional Research Service said in a report from 2005. “These documents do, however, explain congressional intent, and executive branch agencies take them seriously because they must justify their budget requests annually to the Appropriations Committees.”

The PSM requirement was issued in new guidance in July, following a 2013 explosion at the West, Texas, fertilizer plant, which killed 15 people and prompted an Executive Order from President Obama.

In addition to questioning the rationale for shoving retailers under a regulatory umbrella they had thus far managed to avoid, the industry said OSHA had vastly underestimated the financial impact of the new rules.

Compliance with PSM could cost dealers more than $25,000 per facility, or at least 10 times more than estimated by OSHA, ARA says.

The report language approved along with the omnibus bill says that the guidance cannot be enforced until OSHA finishes a public rulemaking to implement the PSM standards and the Census Bureau sets up a new Standard Industrial Classification for agricultural retailers.

OSHA responded to the report language last month, extending from July 22 to Oct. 1 the deadline for dealers to comply with the PSM requirements.

“We are hopeful that, whatever our enforcement deadline is, employers will take action to improve the safety of their facilities that that we can prevent any further worker injuries or fatalities in facilities using or storing highly hazardous chemicals,” OSHA Deputy Assistant Secretary Jordan Barab said in a statement provided to Agri-Pulse.

OSHA “does not intend to go through formal rulemaking and is, in effect, taking the position that this congressional directive need not be followed after the current fiscal year ends,” ARA and The Fertilizer Institute said in a statement sent to their members on Jan. 19.

“ARA and TFI worked together on the language in the explanatory report and will seek inclusion of similar language in legislation for the next federal fiscal year,” they said. “At an absolute minimum, we believe the agency must go through formal rulemaking before imposing this significant regulation on thousands of retailers.

“We continue to advocate that OSHA adhere to the intent of Congress and go through a full notice and comment rulemaking, and we are pursuing this through both legislative and judicial means; however, we cannot be sure of the outcome. Therefore, we urge retailers to consider how they will comply with PSM if no further relief is granted.”

ARA, TFI and more than a dozen dealers are suing OSHA, claiming that it should have gone through a public rulemaking process. OSHA, however, claims that guidance does not need to be put out for public comment. The DC Circuit Court of Appeals says briefs related to the matter must be submitted by March 28.

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