INITIAL STATEMENT OF REASONS

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


PROBLEM ADDRESSED BY PROPOSED ACTION

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.

FACTUAL BASIS OF PROPOSED ACTION

Board staff proposes a new Section 5189(b)(6)(A)-(I) based on the information contained in Federal OSHA's February 4, 1998 Letter of Interpretation to ORC mentioned earlier. The proposed revision is as follows:

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.

DOCUMENTS RELIED UPON

  1. Letter from Gencorp Aerojet to the Division of Occupational Safety and Health dated March 13, 1998 with enclosure (proposed amendment to Section 5189(b)(6)) .
  2. Letter from the U.S. Department of Labor, Occupational Safety and Health Administration (Fed-OSHA) to Organization Resources Counselors, Inc., constituting Federal OSHA's Letter of Interpretation related to various activities involving explosives and their applicability under Federal PSM regulations.
These documents are available for review during normal business hours at the Standards Board office located at 1300 I Street, Suite 920, Sacramento, California.

IDENTIFIED ALTERNATIVES THAT WOULD LESSEN ADVERSE ECONOMIC IMPACT ON SMALL BUSINESSES

It is anticipated that no adverse impact on small business will occur as a result of the implementation of the proposed amendments. This is because the proposed amendments merely consist of technical, clarifying revisions to existing regulations and do not impose any new or different requirements upon the regulated public. The central issue addressed by the proposed revisions is to clearly indicate to the regulated public the applicability of Section 5189 (PSM) to specific types of explosives manufacturing operations.

SPECIFIC TECHNOLOGY OR EQUIPMENT

This proposal does not mandate the use of specific technology or equipment.

COST ESTIMATES OF PROPOSED ACTION

Costs or Savings to State Agencies
No costs or savings to state agencies will result as a consequence of the proposed revision to Section 5189. This is because the proposal imposes no new or added requirements and merely consists of technical clarifying revision of existing regulations. In addition, no state agency conducts the type of exotic explosives research and development/manufacturing operations listed in the proposal.

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
No impact.

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."

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulations do not impose a mandate requiring reimbursement by the State pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendments will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, these regulations do not constitute a "new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution."

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.

PLAIN ENGLISH STATEMENT

It has been determined that the proposal does affect small business. The express terms of the proposal written in plain English have been prepared by the Board pursuant to Government Code Sections 11342(e) and 11346.2(a)(1) and the informative digest for this proposal constitutes a plain English overview.

ASSESSMENT

The adoption of the proposed amendments to these regulations will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternatives considered by the Board would be more effective in carrying out the purpose for which the regulations are proposed or would be as effective and less burdensome to affected private persons than the proposed action.