Creating Solutions Together

TFI would like to ask you to Take Action on an important policy change that will impact approximately 3,800 agricultural retail facilities that store or handle Anhydrous Ammonia, a critical nitrogen fertilizer. On July 22, 2015, the Occupational Safety and Health Administration (OSHA) made a significant policy change that subjects these facilities to the Process Safety Management (PSM) program. This change, made without proper public notice and comment, revoked a 23-year-old policy that excluded agricultural retail facilities from coverage under the PSM program. We need your voice to urge Congress to include legislative language in the FY2017 Labor, Health and Human Services, Education and Related Agencies appropriations bill, to prevent OSHA from implementing or enforcing this new policy. For your reference, below please find an issue brief.

Please Click Here to Take Action and write your members of Congress.

After you Take Action we hope you will share this call to action with others. Also, please visit our Fertilizer Advocacy website Click Here to learn more about TFI’s efforts.

Thank you for your time and assistance on this important issue.

J. Clark Mica
Vice President of Legislative Affairs
The Fertilizer Institute
425 Third Street, SW
Suite 950
Washington, DC 20024
Tel-(202) 515-2725

OSHA Process Safety Management (PSM) Retail Facility Exclusion Policy

On July 22, 2015 the Occupational Safety and Health Administration (OSHA) issued a revised policy for the retail facility exclusion under the Process Safety Management (PSM) Standard (29 CFR 1910.119). Since 1992, OSHA’s policy has been that an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.” The new policy states: “Only facilities, or the portions of facilities, engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the NAICS Manual may be afforded the retail exemption at 29 CFR 1910.119(a)(2)(i).” Therefore, unless a facility is in NAICS 44 or 45 and hold threshold quantities of highly hazardous chemicals (NH3 -10,000lbs, aqua ammonia – 15,000lbs) they are now subject to PSM.

These changes will place a significant time and cost burden on agricultural retailers. OSHA believes approximately 4,800 facilities will be affected, approximately 3,800 are agricultural retailers. Industry cost estimates are: Approximately $30,000 for initial compliance, $12,000 for annual compliance, $18,000 for 3 year audit. These estimates do not include the cost of potential upgrades which could easily exceed $70,000 per facility if they need to replace one anhydrous ammonia storage tank.

Current federal regulations already covering anhydrous ammonia at agricultural retail facilities include:
CFATS – Chemical Facility Anti-Terrorism Standards
MTSA – Maritime Transportation Security Act
General Duty Clause
Standard 1910.111: “Storage and Handling of Anhydrous Ammonia”
Standard 1910.1000: “Air Contaminants”
Emergency Planning and Community Right-to-Know Act (EPCRA)
Clean Air Act, Section 112(r)(7) Risk Management Plans (RMPs) – Program 2

Any potential changes to the requirements for the safe storage and handling of anhydrous ammonia could be better addressed by these existing regulations.

Current Status
OSHA’s new policy was effective immediately. However, following multiple congressional hearings and letters from members of congress expressing displeasure with OSHA’s failure to adhere to proper rulemaking processes, Congress included the following language in the Joint Explanatory Statement of the FY2016 Omnibus Appropriations bill:

The agreement directs that the revised enforcement policy relating to the exemption of retail facilities from coverage of the Process Safety Management of Highly Hazardous Chemicals standard (29 CFR 1910.119(a)(2)(i)) issued by the Occupational Safety and Health Administration on July 22, 2015, shall not be enforced nor deemed by the Department of Labor to be in effect in fiscal year 2016 until: the Bureau of the Census establishes a new North American Industry Classification System code under Sector 44-45 Retail Trade for Farm Supply Retailers, and the Secretary of Labor, acting through the Assistant Secretary of Labor for Occupational Safety and Health, has carried out all notice and comment rulemaking procedures and invited meaningful public participation in the rulemaking.

In response to this language, OSHA issued another enforcement memo on Dec. 23, 2015 delaying enforcement of the rule until Oct. 1, 2016.

Desired Outcome(s)/Ask:
1) OSHA should withdraw the July 22 memo and submit the proposed rule change for full notice and comment rulemaking to allow for adequate stakeholder input.
2) OSHA should submit the rule change for an independent third-party cost analysis.
3) Congress should include similar language in the actual text of the FY2017 Labor HHS Appropriations bill.