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How does OSHA and EPA define "retail establishment" in regards to their "exemptions" from PSM/RMP PDF Print E-mail
Safety Info Posts - Chemical Process Safety (PSM/RMP)
Written by Bryan Haywood   
Thursday, 16 February 2006 00:00

Retail facilities are exempted from PSM requirements.  At first glance it appears this is a pretty broad exemption as the standard just states..

This section does not apply to:
1910.119(a)(2)(i) Retail facilities;

But as I wrote about last month, not all retail facilities selling a PSM Highly Hazardous Chemical (HHC) in the USA are exempt.  In 2010, the state of Oregon began covering retail businesses that sell Anhydrous Ammonia under their state OSHA plan PSM standard.  And what I am about to say here will probably surprise one or two facilities who thought they were exempt since they are a "retail facility", but it is not that simple.  Here's why...

Everything below in italics is driectly from OSHA and the non-italics are my comments

OSHA considers an establishment to be qualified under the PSM "retail facilities" exemption, if that establishment receives more than half of its income from the direct sales of the PSM-covered highly hazardous chemical (HHC) to end users. If you pay close attention you noticed that I brought attention to three (3) segments within that one sentence.  This implys that there are restrictions on who is actually exempted as a "retail facility".  The income referenced above applies to the income obtained from the sales of PSM-covered HHCs, and not the total sales of the establishment. For example, establishment A distributes and sells HHC X to a chain of supply stores and to homeowners (end users). Establishment A obtains 60% of its income from the sale of HHC X to the chain of supply stores - these supply stores are not the direct end users or consumers. The other 40% of the income obtained from the sale of HHC X is from sales to homeowners. Since establishment A's income from homeowners (end users) is less than 50%, establishment A does not qualify for the PSM retail exemption. In addition, if establishment A sells other products besides PSM-covered chemicals, the income derived from the sale of the other products is not part of the determination of whether establishment A qualifies for the retail exemption.

Here is what EPA guidance says about RMP exemptions...

EPA's Risk Management Program Rule has a different set of exemptions than the OSHA PSM standard; OSHA exempts some processes that EPA does not exempt, and vice versa. You should carefully evaluate the exemptions of the Risk Management Program rule to determine whether your process is covered, even if it qualifies for an OSHA PSM exemption. For example, the EPA rule exempts flammable substances used as fuel and fuels sold at retail facilities, but does not exempt non-fuel substances sold at retail facilities. The EPA rule does not exempt substances stored in atmospheric storage tanks, and it applies to state and local governments. If such governments own or operate a facility where there is more than a threshold quantity of a regulated substance in a process, they must comply with the rule. As discussed in Section 1.5, many oil and gas production facilities, as well as most retail gas stations and propane retailers are not subject to the rule because the flammable substances at these facilities are excluded from threshold determinations.

I have not seen or heard an estimate from OSHA as to how many "retail facilities" they believe have incorrectly exempted themselevs and I am not aware of any of these types of businesses getting cited for not having a PSM program, but I can tell you from first hand experience there are several such facilities in th midwest.  I will never mention names, but these are the small "mom and pop" businesses in the small town USA that had a consultant tell them in 1992 that they were exempt under the "retail facility" exemption.  I come along 20 years later for an entirely different issue and just make mention to them they may want to seek a 2nd opinion.  Of course I get lumped in with the other consulting vultures and they give you the look like you are just trying to drum up business.  When you try to explain that EPA's RMP rule came out June 22, 1999 and that the only toxic exempted is farmers with NH3 used as a fertilizer and that RMP listed EHS fuels are only exempted when they are used a fuel or for sale at a retail facility.  Many of these business got expert advice from their "trade groups", which many of them joined at the time to better understand OSHA's PSM standard was it was being rolled out.  But once they were told they were exempted as a "retail facility" they canceled their membership(s) and have not looked into it for the past 20 years.  So if you are sitting there reading this and you feel you are a "retail facility" as defined by OSHA and EPA and therefore have always considered yourself exempt from the PSM/RMP requirements and you are uncomfortable calling your local OSHA office, give me call and I can help you understand the in's and out's of the "retail exemption".  I promise you I will NOT ask your name, nor will I ask for your contact info and I will NOT try to sell you anything or any services.   After speaking with me you can go off and hire a different consultant or work with your trade group or whatever it is your business decides to do - this is a NO STRINGS attached offer to the small businesses out there who do not have in-house EHS professionals on staff.  If I do get your name rest assured I have never provided OSHA or EPA with any information about clients or potential clients (BTW the way, OSHA and EPA do not have a referral program like the satellite provider Direct TV - I was asked this not too long ago at a conference I was speaking at - and they were 100% serious!!!!!!)

CLICK HERE to see OSHA entire LOI on this matter.

CLICK HERE to see EPA's explanation of "retail" exemption. (Updated 2004)

 

 
 

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