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SEPTEMBER 13, 2022


VOLUME XII, NUMBER 256


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Sarah A. Kettenmann





Beveridge & Diamond PC
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CHANGES MAY BE COMING TO EPA AND NOW OSHA PROCESS SAFETY REQUIREMENTS

Friday, September 9, 2022

On the heels of the Environmental Protection Agency’s (EPA) proposed rule to
amend its Risk Management Program (RMP) rule, the Occupational Safety and Health
Administration (OSHA) is considering revising its standard on Process Safety
Management of Highly Hazardous Chemicals (PSM) according to a new notice. 87
Fed. Reg. 53020 (Aug. 30, 2022). Many of the potential changes that OSHA is
considering would expand the scope of covered employers and would echo EPA’s
proposed RMP amendments. Our alert on EPA’s proposed RMP amendments is
available here.


BACKGROUND

OSHA and EPA have been tag teaming their PSM and RMP rules for three decades, at
least to some extent. The Clean Air Act Amendments of 1990 directed EPA to
promulgate its RMP rules and directed OSHA to adopt its PSM rule. In doing so,
each agency was required to coordinate with the other. After OSHA established
its PSM standard in 1992 (29 C.F.R. § 1910.119), EPA promulgated the RMP rule
(40 C.F.R. Part 68), adopting, in certain provisions, language essentially
identical to OSHA’s PSM rule.

Responding to a 2013 Executive Order, “Improving Chemical Facility Safety and
Security,” OSHA issued a Request for Information on potential PSM amendments
later in 2013. EPA did the same for possible RMP amendments in 2014. EPA adopted
final amendments in 2017 (later modified in 2019), but OSHA has not updated its
PSM standard since the original 1992 promulgation.


OSHA ANNOUNCES POTENTIAL CHANGES TO PSM STANDARD

On August 30, 2022, OSHA published a Notice of Stakeholder Meeting to discuss
potential changes to particular provisions and the scope of the PSM rule.
Although the stakeholder meeting was scheduled for September 28, OSHA has since
postponed the meeting and has not yet rescheduled. See here. Comments are due by
October 28.


EXPANDING PSM SCOPE

First, OSHA is considering expanding the scope of the PSM standard to include
oil and gas-well drilling and servicing, and resuming enforcement for oil and
gas production facilities. These activities and industries are already within
the scope of EPA’s RMP rule. OSHA is also considering clarifying the PSM
exemption for retail facilities.


POTENTIAL CHANGES TO SPECIFIC PSM PROVISIONS

Of the 14 potential changes that OSHA is considering to specific provisions,
half address topics that EPA is also proposing to amend in the RMP proposed
rule.

EMPLOYEE PARTICIPATION (29 C.F.R. § 1910.119(C))

 * OSHA is considering expanding § 1910.119(c) to strengthen employee
   participation and include stop work authority

OSHA may be considering a provision similar to that in EPA’s proposed RMP
amendments. EPA’s proposed employee participation provision would include a Stop
Work requirement for Process 3 facilities. It would require employers to ensure
that employees and their representatives have authority to refuse to perform a
task that could reasonably result in a catastrophic release, and recommend or
allow a qualified operator to partially or completely shut down an operation or
process based on the potential for a catastrophic release. Proposed 40 C.F.R. §
68.63.

PROCESS HAZARD ANALYSES (PHAS) (29 C.F.R. § 1910.119(E))

 * OSHA is considering amending § 1910.119(e) to require formal resolution of
   PHA team recommendations that are not utilized.

This consideration is similar to EPA’s proposed RMP amendments. EPA would
require that facilities explain their rationales for not implementing PHA
recommendations by requiring that RMPs include specific declined evaluation
recommendations and their associated justifications. EPA’s proposal details that
facilities would need to specifically justify their decline of recommendations
for natural hazard, power loss, and siting hazard evaluations and safety gaps
between codes, standards, or practices to which the process was designed and
constructed and the most current version of applicable codes, standards, or
practices. Proposed 40 C.F.R. §§ 68.170(e)(7) and 68.175(e)(8).

 * OSHA is considering expanding § 1910.119 (e) by requiring safer technology
   and alternatives analysis (STAA).

This consideration mirrors EPA’s proposed RMP amendments. EPA has proposed to
limit STAA requirements to petroleum refining (NAICS 324) and chemical
manufacturing (NAICS 325) facilities that are located within 1 mile of another
RMP-regulated NAICS 324 or 325 facility. Proposed 40 C.F.R. § 68.67. While the
proposed RMP STAA provision would, according to EPA, address environmental
justice in nearby communities, OSHA’s PSM provision may be targeted toward
protecting potentially affected employees.

 * OSHA is considering clarifying § 1910.119(e) to require consideration of
   natural disasters and extreme temperatures in their PSM programs, in response
   to Executive Order 13990.

EPA proposed that PHAs must address natural disasters and climate change
concerns, and address standby power sources or emergency power systems for air
pollution control or monitoring equipment associated with prevention and
detection of accidental releases. Proposed 40 C.F.R. § 68.50. EPA further
proposed a definition of “natural hazards.” Proposed 40 C.F.R. § 68.3.

ROOT CAUSE ANALYSIS (29 C.F.R. § 1910.119(M))

 * OSHA is considering amending paragraph (m) to require root cause analysis.

Like EPA’s proposed amendments, OSHA is considering adding a requirement to
conduct a root cause analysis as part of an incident investigation. OSHA’s PSM
incident investigation provision currently requires that an investigation
include “factors that contributed to the incident” § 1910.119(m)(4)(iv)), while
EPA’s proposed RMP rule would add a definition of “root cause” and possibly add
a requirement to investigate a “near miss” incident. Proposed 40 C.F.R. § 68.3;
87 Fed. Reg. 53603.

THIRD PARTY AUDITS (29 C.F.R. § 1910.119(O))

 * OSHA is considering amending paragraph (o) to require third-party compliance
   audits, at least in some circumstances.

OSHA’s standard currently requires compliance audits but does not require that
they be conducted by a third party. EPA’s proposed rule would require
third-party compliance audits for qualifying release events, or when EPA or an
implementing state agency determines that conditions exist that “could lead” to
an accidental release. Proposed 40 C.F.R. §§ 68.58(f)-(h), 68.59, 68.79(f)-(h),
68.80.

EMERGENCY PLANNING (29 C.F.R. § 1910.119(N))

 * OSHA is considering revising paragraph (n) to require coordination of
   emergency planning with local emergency-response authorities.

OSHA and EPA may extend coordination efforts of facility employers – or owners
and operators – with local emergency response authorities. EPA noted that it
drafted this requirement to address and improve communication with surrounding
communities. The provision that OSHA is considering revising, “Emergency
Planning and Response,” refers to emergency action plans for evacuating
employees and protecting employees against exposure to hazardous wastes. §
1910.119(n) (citing provisions for Emergency Action Plans (§ 1910.38) and
Hazardous Waste Operations and Emergency Response (§ 1910.120)).

RECOGNIZED AND GENERALLY ACCEPTED GOOD ENGINEERING PRACTICES (RAGAGEP) (29
C.F.R. §§ 1910.119(B), (D))

 * OSHA is considering amending paragraph (b) to include a definition of
   RAGAGEP.

 * OSHA is considering amending paragraph (d) to require evaluation of updates
   to applicable recognized and generally accepted as RAGAGEP.

Although the existing PSM standard refers to “recognized and generally accepted
good engineering practices,” OSHA has not defined this phrase. EPA’s proposed
rule does not include a definition of RAGAGEP, but proposes to harmonize two
different approaches to complying with RAGAGEP. The proposed RMP rule would
remove the sentence “Compliance with Federal or State regulations that address
industry-specific safe design or with industry-specific design codes and
standards may be used to demonstrate compliance with this paragraph.” Proposed
40 C.F.R. § 68.48(b). EPA apparently considers the RMP provision – and thus the
PSM provision – to be outdated and thus inadequate to require or enforce RAGAGEP
where needed.


NEXT STEPS

OSHA will reschedule a stakeholder meeting on the issues raised in its notice,
with written comments apparently still due October 28. EPA’s stakeholder
meetings will be September 26, 27, and 28, and written comments on its proposed
rule are due October 31.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 252

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--------------------------------------------------------------------------------

About this Author

Mark N. Duvall
Principal

Mark has over two decades of experience working in-house at large chemical
companies. 

His focus is product regulation at the federal, state, and international levels
across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances
Control Act (TSCA) includes enforcement actions, counseling, rulemaking,
advocacy, and legislative actions. Since the enactment of TSCA amendments in
2016, he has been heavily involved in advocacy, compliance activity, and
litigation arising from EPA's implementation...

mduvall@bdlaw.com
202-789-6090
www.bdlaw.com
Sarah A. Kettenmann

Associate

Sarah uses her knowledge of environmental law and the physical sciences to help
clients solve complex problems in a conservation-minded manner.

She maintains a diverse environmental practice, which includes litigation
matters involving toxic torts and products liability and class action litigation
concerning environmental and regulatory claims. Her regulatory practice includes
advising clients on compliance with, and enforcement of, land use restrictions
and remediation, and due diligence for waste facility permits under federal and
state statutes. She also counsels clients on...

skettenmann@bdlaw.com
212-702-5425
www.bdlaw.com




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