A provision in the recent year-end funding bill passed by Congress has temporarily suspended an Occupational Safety and Health Administration policy change on anhydrous ammonia facilities, but groups are continuing to seek permanent action.
The OSHA rule, issued in a memorandum in July, changes the definition of what constitutes a retail facility under the Process Safety Management program.
Previous policy was that a facility is exempt from PSM coverage, and regulated under a separate program, if it "derived more than 50% of its income from direct sales of highly hazardous chemicals to the end user."
The new policy instead suggests that facilities holding 10,000 pounds of anhydrous or 15,000 pounds of aqua ammonia are subject to PSM.
PSM rules, historically aimed and manufacturers, would then be applied to many more suppliers that house anhydrous.
While the language in the bill prevents OSHA from implementing the policy changes in fiscal year 2016, suppliers could be on the hook after the year ends on Sept. 30.
However, legislation does require that the Census Bureau establish a new North American Industry Classification System code for Farm Supply Retailers and conduct a formal rulemaking process with public comment before any guidance change may be implemented.
"The intent by Congress was to stop OSHA from applying its PSM rule to retailers until they go through rulemaking and a new [code] has been established by the Census Bureau," North Dakota Agriculture Commissioner Doug Goehring said in a statement this week. "However, OSHA plans to move forward with implementation in October."
Goehring said that he is still calling for OSHA to repeal the policy change and sent another letter to OSHA in December reaffirming that position.
"The rule poses tremendous costs to agriculture without any discernable benefit to worker or public safety," Goehring said. He estimated that as many as one-third of North Dakota small- and medium-sized operators could be forced out of business due to the rule's implementation costs.
The Agricultural Retailers Association and The Fertilizer Institute, groups that in October sent a letter opposing OSHA changes, have filed a legal challenge that is now pending in federal appeals court.
The groups say they are concerned that the regulations were applied without proper industry outreach.
"OSHA is misguided in trying to apply PSM to ag retailers," said Harold Cooper, ARA Chairman and CEO of Premier Ag Cooperative in Columbus, Ind., shortly after the funding bill was passed last month. "OSHA intentionally exempted ag retailers from PSM since the rule's inception in 1992. Forcing us to comply with regulations aimed at manufacturers would cost my business at least $60,000, and not provide any improvement in worker safety - just more bureaucratic red tape."