In an April 30th memorandum to Regional Administrators, Tom Galassi (Director for OSHA’s Directorate of Enforcement Programs) announced that OSHA’s process safety management (PSM) standard, which establishes requirements for preventing or minimizing explosion hazards related to chemicals, did not apply to “retail facilities.” This had previously been at the center of debate in a 2016 case before the DC Circuit Court of Appeals, Agricultural Retailers Ass’n V. US Dep’t of Labor, where the Court struck down the definition of “retail” provided by OSHA in a memorandum.  837 F.3d 60 (D.C. Cir. 2016).

Galassi’s recent memo states:

In light of the D.C. Circuit’s decision, the following PSM enforcement policy guidance applies:

OSHA will not issue citations under the PSM standard for employers in the following North American Industry Classification System (NAICS) codes:

424510 – Grain and Field Bean Merchant Wholesalers

424590 – Other Farm Product Raw Material Merchant Wholesalers

424910 – Farm Supplies Merchant Wholesalers

The retail exemption is based on the belief that these businesses do not handle chemicals in large volumes and, therefore, do not pose a high risk of hazardous release. However, those who are exempted are still expected to comply with other OSHA regulations, such as the storage and handling of chemicals.

The ARA’s (Agricultrual Retailers Association) continued push to have the retail exemption permanently written into the Farm Bill is now caught up in politicking. The bill failed in the House last week, 198-213.  Democrats opposed President Trump’s proposed stricter work requirements for food stamp recipients while the Republican Freedom Caucus “held the bill hostage, demanding that the House first vote on controversial immigration legislation in exchange for their support” (Politico).

The Senate, meanwhile, is working on a bipartisan Farm Bill but it is unknown if the PSM retail exemption will or will not be included in that bill.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.