As we approach the mid-term elections in November there is a significant push to try and paint President Trump as some kind of worker and community killer. These accounts are being pushed by major media outlets and even more, sadly some of the Occupational Publications are following suit. Just tonight, BLR posted this article “House Bill would restore retail facilities definition in PSM standard” and it is full of propaganda! The article references a 2015 guidance document from OSHA on how they were going to define “retail facilities”. There is one serious problem with referring to that 2015 letter… all the courts threw it out and told OSHA that they would have to undertake “rulemaking” if they wanted to revise the PSM standard and their “retail” definition that had been in place since the 1990’s. And the article failed to mention OSHA’s most recent letter (April 2018) on this matter in which OSHA clarifies their position on inspecting and citing “retail facilities”.
This once reputable publication (my opinion) goes on to state:
In 2013, an explosion involving stored ammonium nitrate at a West, Texas, fertilizer facility resulted in 15 deaths. Because the facility met the 50 percent test, it was not subject to the PSM. In 2015, President Barack Obama issued an Executive Order directing federal agencies to take action to prevent the occurrence of incidents at facilities that hold large amounts of hazardous chemicals.
How about telling your readers that this incident was NOT a PSM incident and the one chemical that survived the massive ammonium nitrate explosion was in fact the Anhydrous Ammonia which is a PSM chemical. The West tragedy had absolutely nothing to do with the PSM and/or the “retail exemption” and everything to do with lack of complying with 29 CFR 1910.109(i) – Storage of Ammonium Nitrate, an OSHA standard that has been around since the mid 1970’s and has not undergone any major updates since it’s promulgation. Or maybe the fact that OSHA is understaffed so badly that these kind of workplaces may never see an OSHA CSHO!
The BLR article states:
The House Farm Bill would eliminate the 2015 interpretation and return the 50 percent test. In the context of the PSM standard, the bill states:
“… the definition of the term ‘retail facility,’ when used with respect to a facility that provides direct sales of highly hazardous chemicals to end users or consumers (including farmers or ranchers), means a facility that is exempt from such standard because such facility has obtained more than half of its income during the most recent 12-month period from such direct sales.”
Simply put, the 2015 Guidance was thrown out by the courts, multiple courts, and the 2018 Farm Bill has ZERO to do with OSHA having to revise their 2015 position. In fact, as I stated above, OSHA’s most recent position on the “retail exemption” was stated in their April 2018 letter. In fact, the House Farm Bill damn near mirrors OSHA’s original definition of “retail”.
In 2015, when OSHA published their letter on a Monday morning, I was at the ASSE Conference training on Process Safety and I can remember having a discussion with a client who was in my class and she stated…
“Well I went to bed on Friday night having my facilities exempt under OSHA’s PSM standard because we are “retail” and an RMP Program 2 under EPA and when I woke up this morning I was now required to comply with PSM in 6-months and convert all my sites to RMP Program 3 processes in 6-months”.
What’s scarier is that all this was done with the stroke of a pen based on an incident that was NOT a PSM/RMP incident. Yes, the tragedy occurred at a business that was exempt from PSM and was an RMP Program 2 facility (see my articles).
I also take serious issue with tying the 15 deaths (all firefighters) to the fact that this facility was exempt from PSM and was only a RMP Program 2 process! I hear it and read it almost weekly about how if the RMP Amendments don’t get passed people will die and they emphasis emergency responders. This is pure crap! There is this Act that was passed in the 1980’s called the Emergency Planning and Community Right to Know Act (EPCRA) that requires a facility that has hazardous materials on site to report these to their Local Emergency Planning Committee (LEPC). So to tell people that we have to pass the RMP Amendments so that “emergency responders can know what their responding to” is just political hype.
For more on OSHA’s Retail Exemption history see
- Questions and Answers – PSM Retail Exemption Policy
- 2005 LOI – Clarification of the retail facilities exemption under the PSM standard
- DC Circuit Finds OSHA “Interpretation” Narrowing Retail Exemption Under the Process Safety Management Standard Really a “Standard” Subject to Rulemaking Process
- My 2015 Article OSHA’s PSM Retail Exemption, Anhydrous Ammonia, and 2016 Omnibus Bill