EPA has issued a memorandum to all Regional Administrators to establish EPA policy on the effect of the OSHA’s reinterpretation of the “retail exemption” under the Process Safety Management (PSM) standard. The RMP regulation contains a provision at section 68.190(b)(7) requiring facilities to revise and update risk management plans within six (6) months of a change that alters the Program level that applied to any covered process. In the General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 68), EPA explained that this provision applies in the event that OSHA eliminates a PSM exemption that previously applied. In this case, EPA is interpreting the RMP rule and General Guidance as requiring affected facilities to update RMPs to reflect compliance with the new program level within six (6) months of the end of OSHA’s enforcement delay.
As OSHA’ s enforcement delay is intended to give affected facilities time to implement the requirements of the PSM standard, EPA believes that the OSHA action does not change the Program level of a facility until OSHA begins to enforce full compliance with the PSM standard at affected facilities. It is appropriate for EPA to provide additional time beyond OSHA’s phase-in period, because the RMP rule requires additional actions beyond those required under PSM (i.e., affected facilities must perform a full RMP update, which may also prompt revisions to a facility’ s five-year accident history or offsite consequence analysis). Therefore, if the current compliance date announced by OSHA (i.e., July 22, 2016) remains effective, EPA will require RMP updates for affected facilities to be submitted by January 22, 2017. If the compliance date for OSHA’s interpretation is subject to further extensions, EPA’s compliance date will automatically change to take effect six (6) months after the expiration of such additional extension. Prior to the EPA compliance date, facilities affected by OSHA ‘s action are subject to the Program level that applied to their process before OSHA announced its reinterpretation of the retail exemption. In the event that OSHA rescinds (or is ordered by a court to rescind) its interpretation, this memo is also rescinded. CLICK HERE (pdf) to download the EPA memo.