Court Upholds Retail Exemption to PSM

Kelly MarshallAg Group, ARA, Fertilizer, Retailers

fertilizerThe D.C. Circuit Court of Appeals saved U.S. retailers more than $100 million in compliance costs with its ruling on Friday.  The court found the Occupational Safety and Health Administration (OSHA) was not adhering to the Occupational Safety and Health (OSH) Act when it issued an enforcement memo earlier this year that redefined retail facility exemption to the Process Safety Management (PSM) Standard.

“This administration has broadly and unjustly avoided proper procedure to construct and reinterpret myriad federal regulations without public input,” said Daren Coppock, president and chief executive officer of the Agricultural Retailers Association (ARA). “The court’s decision in this case affirms the importance of regulatory agencies following proper notice and comment rulemaking procedure.”

ARA, along with The Fertilizer Institute (TFI), led the battle against the OSHA, arguing the agency did not adhere to the notice-and-comment procedures for issuing a formal standard.  The agencies say the exemption for retailers has been in place for more than 20 years and OSHA should not be allowed to redefine it without opportunity for stakeholders to comment.

“We are pleased with the court’s decision to vacate OSHA’s repeal of the retail PSM exemption,” said TFI President, Chris Jahn. “Through ResponsibleAg, the industry is taking concrete action to ensure that retailers can verify compliance with all applicable federal regulations. We take this work seriously, but need to be able to voice our concerns when new federal rules are proposed.”

Anhydrous Ammonia, the most commonly used nitrogen fertilizer in U.S. agriculture, is already regulated under 29 CFR 1910.111 and the General Duty Clause. PSM applies to any facility storing 10,000 lbs. or more of anhydrous ammonia. However, ag retail facilities selling more than 50 percent of the popular fertilizer to farmers have been exempt from PSM under what was deemed the “50 percent rule.” OSHA’s 2015 memo eliminated the exemption.

“Although ARA could only challenge on the procedural point and not the enforcement memo itself, we’re still very pleased to see the Court rule in our favor and to provide this relief to our members,” Coppock added.

ARA and TFI also point out the importance of organizations like their own in fights like this one.

“As an industry, ag retailers tend to be complacent about regulations that come our way. We keep our heads down and do what’s required,” he said. “But this rule would have limited farmers and retailers options through an agency’s improper regulatory overreach. Thankfully, ARA and TFI were prepared and positioned to defend our industry. They gave us a vehicle to fight and win this battle.”