OSHA Update
Are you a One Percenter? Enforcement Delay of PSM 1% Concentration Policy

Recently in popular culture and the news the term “one percenter” can be heard. What does that mean, to be a one percenter? According to one urban dictionary site a one percenter is defined as a member of the top one percent of a population as decided by wealth. The term comes from the same rationale as being in the ninety-ninth percentile which means there is only one percent of the population who is better. So do you fall into the one percenter club? You might be surprised at the answer.

For those who are not familiar with the new one percent policy, let’s review some terminology and information on this standard. OSHA Standard 29 C.F.R. § 1910.119 which is the Process Safety Management of Highly Hazardous Chemicals “contains requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals. These releases may result in toxic, fire or explosion hazards.” Part of this standard is Appendix A (found here) which contains a listing of toxic and highly reactive hazardous chemicals that could present a potential for a catastrophic event at or above the threshold quantities. In 1991 the PSM Final Rule was published. It was followed by a series of letters of interpretation and compliance directives. In 1994, OSHA further defined the policy. The letter from 1999 basically stated:

“chemicals listed in Appendix A without minimum concentrations are covered at “commercial grade” concentrations and higher. The letter defined “commercial grade” as “a typical maximum concentration of the chemical that is commercially available and shipped.” OSHA also noted that an employer could determine the maximum commercial concentration by referring to any published catalog of chemicals for commercial sales. OSHA PSM compliance directives issued during this period contain similar statements describing the agency’s policy.

However, in all of these “updates” and letters things still remained unclear to many manufacturers. With all of this ambiguity and a criminal case that was later dismissed, OSHA did a critical review of the “commercial grade policy”.

Here OSHA looked to the Environmental Protection Agency’s (EPA) policies on releases of hazardous chemicals and how these releases impact the public and environment. OSHA decided to use the one percent concentration cut-off that the EPA uses. According to the memo released in March, “the one percent concentration cut-off established in the EPA rule is …the concentration of an Appendix A chemical that must be present in a mixture before the threshold quantity of the chemical must be determined.” This is different from the “commercial grade” and pure grade policies that do not have a clear level for when a chemical or mixture is covered.” This new one percent policy was published on June 5, 2015. For the full memo, click here. It should be noted that this new policy could and has expanded the number of facilities covered by PSM. Are you one of them now that should be called a one percenter?

Take heart though, on Wednesday, March 23rd, the U.S. Occupational Safety and Health Administration (OSHA) issued a temporary delay in enforcement for the new one percent concentration policy to determine if a chemical should be subject to the Process Safety Management (PSM) standard. Enforcement of this new policy now will not be in effect until September 30, 2016. For the exact language of the delay, click here.

National Association of Chemical Distributors (NACD) and the American Chemistry Council are currently in litigation with OSHA on this new policy and are working to have this rescinded.

Stay tuned to see if your status as a one percent stays. As always, ICC Compliance Center is working to keep you informed on all changes to regulations.

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