VIA ELECTRONIC FILING
May 5, 2016
Mark J. Langer, Clerk
United States Court of Appeals
District of Columbia Circuit
333 Constitution Ave., NW
Washington, DC 20001
Re. 28(j) Letter – Agricultural Retailers Association, et al. v. United States Department of Labor, et al., Nos. 15-1326 and 15-1340
Dear Mr. Langer:
Respondents write to advise the Court that earlier today OSHA initiated Small Business Regulatory Enforcement Fairness Act proceedings, the first step in a comprehensive rulemaking to update its 20-year-old Process Safety Management (PSM) Standard (see attached representative letter to Mr. Auger). As part of this rulemaking, OSHA is considering whether to codify its current interpretation of the term “retail,” i.e., the interpretation contained in the July 22, 2015 memorandum that is the subject of this litigation, in the text of the PSM Standard.
Dear Member of Congress,
I am writing to respond to concerns expressed regarding the Occupational Safety and Health Administration's (OSHA) July 2015 retail exemption interpretation and to update you on regulatory action OSHA is taking in this matter.
Permit-required confined spaces can present conditions that are immediately dangerous to workers’ lives or health if not properly identified, evaluated, tested and controlled. OSHA has developed a standard for Confined Spaces in Construction (29 CFR 1926 Subpart AA) for any space that meets all of the following criteria:
One provision of the standard requires employers to develop and implement procedures for summoning rescue or emergency services in permit-required confined spaces. An employer who relies on local emergency services for assistance is required to meet the requirements of §1926.1211- Rescue and emergency services. OSHA recognizes that not all rescue services or emergency responders are trained and equipped to conduct confined space rescues. When employers identify an off-site rescue service, it is critical that the rescuers can protect their employees. The emergency services should be familiar with the exact site location, types of permit-required confined spaces and the necessary rescue equipment.
OSHA issue Enforcement Policy Memo to Regional Administrators on "RAGAGEP in Process Safety Management Enforcement"
May 11, 2016
MEMORANDUM FOR: REGIONAL ADMINISTRATORS
THROUGH: DOROTHY DOUGHERTY, Deputy Assistant Secretary
FROM: THOMAS M. GALASSI, Director Directorate of Enforcement Programs
SUBJECT: RAGAGEP in Process Safety Management Enforcement
NOTE: much of the emphasis has been added by me
This enforcement policy addresses the Process Safety Management (PSM) Standard's recognized and generally accepted good engineering practices (RAGAGEP) requirements. Enforcement activity, including the Petroleum Refinery Process Safety Management National Emphasis Program (Refinery NEP), and requests for assistance from the field, revealed the need for this guidance. This memorandum rescinds and replaces the memorandum of the same title dated June 5, 2015. It is intended to be a clarification of the policy described in the earlier memorandum and does NOT reflect any substantive change in OSHA enforcement policy.
Background on Recognized and Generally Accepted Good Engineering Practices
The PSM Standard, 29 CFR 1910.119, directly references or implies the use of RAGAGEP in three provisions:
On May 6, OSHA issued 42 serious and four other-than serious safety and health violations following three separate inspections at the bio-refinery in November 2015. Inspectors found the ethanol production facility violated OSHA’s process safety management regulations including failing to:
Here is a breakdown of the PSM citations...
I came across this citation at an Ethanol plant (May 2016) regarding their combustible dusts hazards and the lack of WARNING signs...
Citation 2 Item 1
Type of Violation: Other-than-Serious; $0.00
29 CFR 1910.145(c)(2)(i): Caution signs shall be used only to warn against potential hazards or to caution against unsafe practices:
Responding to a complaint from employees at a facility operated by the fourth largest foodservice distributor in the U.S., OSHA found that a check valve in the food plant's pump room leaked about 9 pounds of anhydrous ammonia on Oct. 21, 2015. Inspectors also found the ammonia sensor in the pump room did not sound an alarm as expected. OSHA's inspection identified several deficiencies in the Process Safety Management program. As a result of its findings, OSHA cited the business on April 20, 2016, for six serious and two repeated violations of workplace health standards. The company faces a total of $72,000 in proposed penalties. In this case, the process is the facility's refrigeration system which uses 27,500 pounds of anhydrous ammonia. The deficiencies included:
The existing PSM standard applies in part to processes involving a flammable liquid or gas on site in one location in a quantity of 10,000 pounds or more. However, the existing PSM standard contains an exemption for
“[f]lammable liquids stored in atmospheric tanks or transferred which are kept below their normal boiling point without benefit of chilling or refrigeration.” 29 CFR §1910.119 (a)(1)(ii)(B).
OSHA is considering clarifying this exemption in response to a decision by an Administrative Law Judge of the Occupational Safety and Health Review Commission. In Secretary of Labor v. Meer Corporation, No. 95-0341 (OSHRC 1997), an administrative law judge ruled that PSM coverage does not extend to flammables stored in atmospheric tanks, even if the tanks are connected to a process. As a result, employers can exclude the amount of flammable liquid contained in an atmospheric storage tank, or in transfer to or from storage, from the quantity contained in the process when determining whether a process meets the 10,000-pound threshold quantity. On May 12, 1997, OSHA issued a Regional Administrator’s memorandum acknowledging this decision (OSHA, 1997). The Meer decision was contrary to OSHA's earlier interpretation of subsection (a)(1)(ii)(B), which was that the standard covered all stored flammables when connected to or located in close proximity to a process. The Meer decision was relevant in the Motiva refinery explosion and fire in Delaware City, DE, in 2001, and in an explosion at National Vinegar Company in Houston, TX in 1997.
As an initial step, and prior to publication of any proposed changes to existing rules or enforcement policies, OSHA is convening a Small Business Advocacy Review Panel (“SBAR Panel”) in accordance with the Regulatory Flexibility Act, or RFA (Sections 601 through 612 of Title 5 of the United States Code). This Panel consists of members from OSHA, the Small Business Administration Office of Advocacy (SBA’s Office of Advocacy, or Advocacy), and the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). The SBAR Panel identifies individuals who are representative of affected small entities, termed Small Entity Representatives (SERs). The SBA has established two widely-used size standards for small businesses – 500 employees for most manufacturing and mining industries and $7.5 million in average annual receipts for many nonmanufacturing industries. However, there are a number of exceptions, and OSHA always uses the industry specific size (for more information, visit https://www.sba.gov/content/summary-size-standards-industry-sector). This process enables OSHA, with the assistance of Advocacy and OIRA, to obtain advice and recommendations from SERs about the potential impacts of a rule as outlined in the SER Background Document and suggestions on alternatives that may minimize those impacts while meeting the objectives of the OSH Act.
Process Safety Management Small Business Regulatory Enforcement Fairness Act (SBREFA) SER Background Document (May 2016)
The Process Safety Management (PSM) standard is intended to prevent or minimize the consequences of catastrophic releases of highly hazardous chemicals (HHCs). It requires employers to adopt a comprehensive management program that integrates technologies, procedures, and management practices to help assure safe and healthy workplaces. OSHA is considering revisions to the PSM standard, including changes to the scope and requirements of the standard. The potential changes in the scope of the standard include: