Oregon OSHA has published their PSM NEP which focuses on processes with Ammonia, Chlorine, and Formaldehyde.  The NEP also EXEMPTS VPP sites from any inspections under their Emphasis Program.  To make the most effective use of its limited resources, OR-OSHA will use annual data gathered by the Oregon Office of State Fire Marshal (OSFM) Hazardous Substance Information System (HSIS) to generate PSM inspection scheduling lists. The most current HSIS database will be sorted to generate a list of all employers who reported having chemicals stored at their facilities in excess of the PSM Threshold Quantities (PSM-TQ).  The majority of PSM employers have threshold quantities of ammonia, chlorine, or formaldehyde. Oregon OSHA will divide the list into four groups:

A factory refrigeration technician who lost his lungs to an anhydrous ammonia leak has no case against his employer, a poultry plant in N.C.  The incident in June 2009 killed one refrigeration technician and injured another refrigeration technician and their supervisor. The injured refrigeration technician was in a coma for four to five months and had to have a double-lung transplant.  It all started in April 2009 when the U.S. Department of Agriculture inspected the poultry plant and ordered the facility to replace a part in its refrigeration equipment, a votator heat exchanger, which uses anhydrous ammonia to chill the poultry before packaging.  The company received the part, an inner sleeve, in June 2009 and decided to use its own employees instead of hiring an outside contractor to install it.  The instructions for replacing the inner sleeve include a warning that all of the refrigerant - the anhydrous ammonia - must be removed first.

Screen Shot 2016 05 13 at 11.24.49 AM

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.
For the reasons explained in Respondents’ Brief, the interpretation of “retail” adopted in the challenged memorandum is an interpretive rule (not an OSHA standard), so it is not subject to pre-enforcement judicial review in this Court and need not be issued in accordance with the rulemaking requirements of the Administrative Procedure Act or the OSH Act. Nothing, however, precludes OSHA from codifying its interpretation through rulemaking, cf. 80 Fed. Reg. 25365, 25420 (May 4, 2015) (adopting interpretation of Confined Spaces Standard
for General Industry in analogous provision of Confined Spaces in Construction Standard); 79 Fed. Reg. 20315, 20506-07 (April 11, 2014) (codifying longstanding enforcement policy in text of electrical standard), nor does the commencement of rulemaking moot the present proceedings.

Screen Shot 2016 05 13 at 9.10.48 AM

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.   

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:

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.

 
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