CALIFORNIA CODE OF REGULATIONS
TITLE 8: Chapter 4, Subchapter 7, Article 109,
Section 5189(b) of the General Industry Safety Orders
Pre and Post Explosives Manufacturing Research and Testing Activities Exempted-Process Safety Management
Existing Title 8, Section 5189, Process Safety Management (PSM) regulations apply to all types of explosives manufacturing operations including those conducted in a manner which greatly reduce the risk of a catastrophic release of acutely hazardous chemicals/materials (i.e. operations conducted in separate, non-production research or test areas or facilities which cannot cause or contribute to a catastrophic release or interfere with the mitigation of a release). Consequently, the Division of Occupational Safety and Health (Division) continues to enforce the provisions of Section 5189 upon employers conducting low-risk pre and post explosives manufacturing research and testing activities as mentioned above.
In a Letter of Interpretation from the U.S. Department of Labor, Occupational Safety and Health Administration (Federal OSHA) dated February 4, 1998, to Organization Resources Counselors, Inc. (ORC), Federal OSHA acknowledged that the provisions of the PSM standard do not apply to certain pre-manufacturing, post-manufacturing and research and testing activities involving explosives, pyrotechnics or products containing explosives. The Letter of Interpretation resulted from an ORC sponsored defense industry task force's request that sought clarification of the PSM standard with respect to explosives.
Board staff notes that Fed-OSHA routinely issues Letters of Interpretations to clarify its regulations for enforcement purposes. California statutory restrictions do not allow this and the Division must enforce each and every regulation as promulgated by the Standards Board.
The only way to accomplish the codification of the Federal OSHA clarification of this matter described in the February 4, 1998 letter is to perform rulemaking.
For this reason, Board staff is proposing to amend California's PSM regulation as contained in Section 5189, specifically subsection (b) which pertains to the application of PSM, to include a new subsection (b)(6) based essentially verbatim of the information contained in Federal OSHA's February 4, 1998, Letter of Clarification, to ORC, Inc.
Board staff's proposal applies to nine (9) distinct explosives manufacturing operations (e.g. product testing, x-ray analysis, failure analysis, assembly of engineering models, etc.), conducted in separate, non-production research or test area.
Board staff believes the proposal is in keeping with the intent of Section 5189 to prevent large scale catastrophic releases of hazardous chemicals/materials at production/manufacturing facilities which could expose employees to serious physical harm.
Section 5189. Process Safety Management of Acutely Hazardous Materials.
Subsection (b) establishes the application of Section 5189 and specifically discusses the requirements in terms of their application to chemical processes involving quantities at or above specified chemical thresholds or which involves a flammable liquid or gas as defined in the definitions portion of the regulation.
Subsection (b) also contains an exception which excludes situations which do constitute an accidental release threat such as comfort heating fuel consumption, motor vehicle gasoline use, etc., when such fuels are not part of a process involving any of the listed chemicals as indicated in Appendix A of the regulations, retail facilities, etc. Subsection (b) also requires explosives manufacturing to comply with the provisions of Article 119 as well as the PSM regulations and includes a list of phase-in effective dates for various portions of the PSM regulation.
Subsection (b)(5) excludes the installation of explosive devices, bolts, detonating cords, squibs and other explosive devices from the requirements of Section 5189.
A revision is proposed to add a new subsection (b)(6) which excludes nine (9) separate explosives pre and post manufacturing research and testing activities such as but not limited to: product testing, x-raying, scale-up research chemical formulation work, failure analysis tests, etc., provided they are conducted in separate, non-production research or test areas/facilities and cannot cause or contribute to a release or interfere with mitigation of a catastrophic release consequential to explosives manufacturing.
The proposed revisions are necessary to clearly indicate to the employer that the pre and post explosives manufacturing research and testing activities addressed by the proposal are not required to comply with the PSM standard, thereby permitting the employer to direct greater resources towards the operations at risk of a catastrophic release.
Impact on Housing Costs
This proposal will not significantly affect housing costs.
Impact on Businesses
None (see explanation under "Costs or Savings to State Agencies").
Cost Impact on Private Persons or Entities
None (see explanation under "Costs or Savings to State Agencies"). The proposal proposes to exempt certain types of explosive manufacturing operations from the PSM standard.
Costs or Savings in Federal Funding to the State
Costs or Savings to Local Agencies or School Districts Required to be Reimbursed
No costs to local agencies or school districts are required to be reimbursed. See explanation under "Determination of Mandate" and "Impact on Businesses."
Other Nondiscretionary Costs or Savings Imposed on Local Agencies
None. See explanation under "Costs or Savings to State Agencies" and "Impact on Businesses."
The California Supreme Court has established that a "program" within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California 1987 43 Cal.App.3d. 46.)
These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public. Rather, these regulations require local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, these proposed regulations do not in any way require local agencies to administer the California Occupational Safety and Health program. (See City of Anaheim v. State of California (1987) 189 Cal.App.3d. 1478.)
These proposed regulations do not impose unique requirements on local governments. All employers - state, local and private - will be required to comply with the prescribed standard.