Fertilizer Dealers Get OSHA Compliance Extension

By Bruce Rolfsen

Oct. 20 — The deadline for fertilizer dealers to comply with OSHA's process safety management requirements for high-hazard chemicals is now July 22, 2016, representing a six-month extension of the old enforcement date, the agency announced Oct. 20.

The deadline extension comes amid pressure from numerous lawmakers to reverse the PSM retailer mandate and a federal court challenge to the OSHA requirements.

Under the new delay, OSHA through July 22, 2016, will “refrain from citing employers for violations of the PSM standard at facilities that it would not have cited under the former PSM retail exemption policy.”

The only exception, the OSHA guidance says, will be when inspectors discover conditions exposing workers to “an immediate and severe danger,” and OSHA's determination that the employer had not made a “reasonable good faith effort” to eliminate or substantially control the hazard.

Any enforcement action in that situation must be approved by OSHA's national office, the guidance says.

50 Percent Test

Sparking the controversy were two July 22 memorandums changing OSHA policies, part of the agency's response to the fatal 2013 explosion at a West, Texas, fertilizer dealer.

Those memorandums exempted facilities handling high-hazard chemicals from the process management standard based on whether they sold merchandise to the general public.

The agency scrapped its so-called 50 percent test. That method had granted a PSM rule exemption to facilities receiving more than half their revenue from the direct sales of chemicals covered by the PSM standard to end users. Basing the exemption on sales allowed companies to claim the exemption for selling chemicals in bulk to end users that are commercial establishments, such as farms.

Compliance Help

An OSHA spokesman told Bloomberg BNA Oct. 20 that the agency decided to extend the compliance date after talking to stakeholders and determining many would benefit from an additional six months to satisfy the new requirements.

The extension notice says providing more time is appropriate, because online compliance material wasn't available until mid-October and other compliance resources are limited.

As part of the extension, OSHA instructed its consultation offices that requests from employers newly required to comply with the PSM standard should be their highest priority for on-site consultations.

Industry Reacts

The delay doesn't resolve industry objections to revoking the PSM retail exemption, Brian Reuwee, spokesman for the Agricultural Retailers Association, told Bloomberg BNA Oct. 20.

The association prefers OSHA delay enforcement until legal challenges are resolved, Reuwee said. Even with the delay, retailers will have to begin employee training and renovation work, costing an estimated $100 million, to meet the new deadline.

The association and the Fertilizer Institute on Sept. 16 filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit (Agric. Retailers Ass'n. v. Dep't of Labor, D.C. Cir., No. 15-1326, petition for review filed, 9/16/15).

The two industry groups, since joined by several other industry organizations and individual retailers, asked a judge to consider whether the July OSHA policy memorandums were invalid because they were written without adhering to the notice, comment and publication procedures required for standards by the Occupational Safety and Health Act and the Administrative Procedure Act.

In addition, a judge was asked to review if the memorandums were “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance” with federal laws.

As of Oct. 20, no hearings had been scheduled, and the parties were still preparing their arguments.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The Oct. 20 OSHA letter extending the deadline is available at http://src.bna.com/E8.