The Fertilizer Institute Updates on PSM Retail Exemption

The Fertilizer Institute recently shared these updates on the Process Safety Management retail exemption. TFI and the Agricultural Retailers Association are working to reinstate the retail exemption through the Occupational Safety and Health Administration.

1. TFI and ARA File Motion to Stay Change to PSM Retail Exemption

TFI and ARA filed a motion with the DC Circuit Court of Appeals requesting that the court stay the change to the retail exemption under the PSM standard. A copy of the motion is available here. The motion highlights the irreparable harm that will be inflicted on the ag retail industry by the OSHA rule change and provides supporting legal arguments for OSHA to reinstate the retail exemption. This motion will be considered by the court along with the arguments addressing the OSHA motion to dismiss, discussed below. If the court were to grant the motion to stay, it could do a number of things including a reinstatement of the retail exemption (vacating the July 22, 2015 OSHA guidance), or stipulate that OSHA temporarily re-instate the exemption while they consider a potential change to it through formal notice and comment rulemaking.

2. TFI and ARA File a Motion Responding to OSHA Motion to Dismiss Industry Challenge to Change in Retail Exemption

Last week, TFI and ARA filed a reply to a motion by OSHA to dismiss the industry challenge to the OSHA change to the PSM retail exemption. A copy of the reply is available here. In its motion to dismiss the TFI-ARA case, OSHA argued that the industry was incorrect in suggesting that the change to the retail exemption is a “legislative rule,” which requires a formal notice and comment rulemaking to change. It is OSHA’s view that the agency is merely “interpreting” long standing policy, which does not require a formal rulemaking process.

The DC Circuit Court will now consider together the arguments laid out in the OSHA motion to dismiss and the industry motion to stay. While a decision by the court could be issued in December, it is more likely to come in January, following the holidays.

3. Survey to Solicit Feedback on myPSM+RMP Compliance Assistance Tool Training for Retailers

TFI and ARA will circulate a survey soliciting feedback from ag retailers on their desired approach for training on the recently completed myPSM+RMP compliance assistance tool. Options include webinars, face-to-face sessions, or some combination of both. The survey results will dictate next steps. The training will be targeted for the first quarter of 2016.