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OSHA revises enforcement policy: regarding PSM standard and covered concentrations of listed Appendix A chemicals.

On July 18, the U.S. Occupational Safety and Health Administration (OSHA) published a field memorandum for regional administrators and state plan designees that rescinds and replaces the memorandum it published last year regarding the Process Safety Management (PSM) standard and covered concentrations of listed Appendix A chemicals.

OSHA's 2015 memo created difficulty for the industry because OSHA changed its previous "maximum commercial grade" policy for determining if substances met the triggering threshold for PSM to the "1% test," a significantly lower threshold so that more processes could trigger PSM compliance. There were also legal issues with this new policy given the field memo went into effect immediately rather than the notice-and-comment rulemaking process.

With this new 2016 memorandum, OSHA responds to many industries' compliance concerns and delays enforcement of the policy until March 31, 2017.


OSHA's PSM standard applies to processes that involve a chemical at or above the specified threshold quantities listed in Appendix A. Appendix A lists 137 chemicals and gives threshold quantities that trigger PSM coverage. For 126 of those listed chemicals, concentrations are not listed, so OSHA issued a series of compliance guidance saying that these chemicals are intended to be covered at "commercial grade" concentrations or higher. However, OSHA argued that its interpretation letters were unclear about the meaning of commercial grade, and one court interpreted the policy to mean a process involving an Appendix A chemical without a specified concentration is covered by the standard only if the chemical concentration is near 99% purity.

However, in last year's field memo, OSHA reconsidered this position since it "did not adequately account for the potential that the chemicals listed in Appendix A without specified concentrations may retain their hazardous characteristics even at low concentrations." As such, OSHA changed its policy requiring that if a listed substance with no specified cut-off concentration is present in a mixture at a concentration of one percent or greater by weight, the threshold quantity of the substance must be determined unless the owner or operator can demonstrate that the partial pressure of the substance under all conditions in the process is below 10 mm Hg.

OSHA had adopted the following enforcement policy:

In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:

(a) the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and

(b) with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of one percent or greater. However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg). The employer shall document this partial pressure determination.

In determining the weight of a chemical present in a mixture, only the weight of the chemical itself, exclusive of any solvent, solution, or carrier is counted.


After OSHA released this policy, trade associations, including the American Chemistry Council, filed suit against the agency arguing that the policy should have been promulgated under notice-and-comment procedures because it expands the universe of facilities subject to PSM. The groups recently settled and agreed to dismiss the case. Following the settlement, OSHA published this memorandum with an interim enforcement policy so that, through March 31, 2017, OSHA will not cite any employers for violations of the PSM standard based on the 2015 memo.

From April 1, 2017, through March 31, 2018, OSHA states that the following policies will apply with respect to processes that are covered by the PSM standard for the first time as a result of the one percent test:

1. OSHA will not conduct programmed inspections of such processes.

2. OSHA will not cite an employer under the PSM standard for any PSM violations involving such processes provided the employer is making good faith efforts to come into compliance with the PSM standard by March 31, 2018. OSHA will consider efforts made by employers to be "in good faith" if they can demonstrate that ongoing efforts to comply with the standard are underway and documented. This policy does not apply in cases involving a fatality or catastrophe.

3. Any citations involving PSM violations at such processes shall be submitted to the OSHA Regional Office prior to issuance to ensure consistency and clarity. For cases where the Regional Office needs assistance in its review, it shall consult with OSHA's Directorate of Enforcement Programs and Office of Chemical Process Safety and Enforcement Initiatives.

Similarly, OSHA also issued a field memo on May 11, 2016, which revises its enforcement policy for PSM's recognized and generally accepted good engineering practices (RAGAGEP) requirements due to a similar lawsuit settlement with trade associations, who argued that it unlawfully expanded and misinterpreted RAGAGEP requirements, and, if left in place, would undermine industry safety efforts.

Contact ACA's Javaneh Nekoomaram ( for more information.
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Title Annotation:ACA Issues In-Depth
Publication:JCT CoatingsTech
Date:Sep 1, 2016
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