September is shaping up to be chemical plant safety month.
First, EPA has scheduled public hearings for September 26, 27, and 28 to receive comments on its Risk Management Program proposal. We wrote about that proposal here.
We also asked “Where Is OSHA?” noting that the workplace safety agency had not even issued a proposal for an updated Process Safety Management standard more than 9 years after the West Fertilizer ammonium nitrate explosion and subsequent Executive Order that launched the efforts by EPA and OSHA to update their chemical plant safety standards.
As if responding to my question, on Tuesday OSHA announced that it was scheduling an informal stakeholder meeting from 10:00 a.m. to 4:00 p.m. ET, on Wednesday, September 28, 2022 concerning the rulemaking project for OSHA’s Process Safety Management (PSM) standard. OSHA will also provide a brief overview of its work on the PSM rulemaking project to date.
NOTE: OSHA just announced that the hearing will be postponed “due to a scheduling conflict” for two to three weeks. Watch this space.
NOTE: OSHA has announced that the meeting will now be held on Oct. 12, 2022. Register here.
Written comments can also be submitted electronically at www.regulations.gov by October 28.
What Does OSHA Want to Know?
OSHA will be looking for more information on the following topics:
1. Clarifying the exemption for atmospheric storage tanks; (This was a CSB recommendation resulting from an adverse court decision)
2. Expanding the scope to include oil- and gas-well drilling and servicing; (See below)
3. Resuming enforcement for oil and gas production facilities;
4. Expanding PSM coverage and requirements for reactive chemical hazards; (This was a CSB recommendation)
5. Updating and expanding the list of highly hazardous chemicals in Appendix A; (Should ammonium nitrate and other reactive chemicals be added to the PSM list as recommended by the CSB, the Government Accountability Office and other experts?)
6. Amending paragraph (k) of the Explosives and Blasting Agents Standard (Sec. 1910.109) to extend PSM requirements to cover dismantling and disposal of explosives and pyrotechnics; (This was a CSB recommendation)
7. Clarifying the scope of the retail facilities exemption; (This was included in the Obama Executive order, but when OSHA attempted to change it through an “interpretation” during the Obama administration, Congress added rider forbidding OSHA to implement the change, and a court later required OSHA to go through full rulemaking.)
8. Defining the limits of a PSM-covered process.
The potential changes to particular provisions of the current PSM standard that OSHA is considering include:
1. Amending paragraph (b) to include a definition of RAGAGEP;
2. Amending paragraph (b) to include a definition of critical equipment;
3. Expanding paragraph (c) to strengthen employee participation and include stop work authority; (as the EPA’s RMP proposal includes)
4. Amending paragraph (d) to require evaluation of updates to applicable recognized and generally accepted as good engineering practices (RAGAGEP);
5. Amending paragraph (d) to require continuous updating of collected information;
6. Amending paragraph (e) to require formal resolution of Process Hazard Analysis team recommendations that are not utilized;
7. Expanding paragraph (e) by requiring safer technology and alternatives analysis; (as the EPA’s RMP proposal includes and CSB recommended)
8. Clarifying paragraph (e) to require consideration of natural disasters and extreme temperatures in their PSM programs, in response to E.O. 13990; (as the EPA’s RMP proposal)
9. Expanding paragraph (j) to cover the mechanical integrity of any critical equipment;
10. Clarifying paragraph (j) to better explain “equipment deficiencies”
11. Clarifying that paragraph (l) covers organizational changes;
12. Amending paragraph (m) to require root cause analysis; (as the EPA’s RMP proposal includes)
13. Revising paragraph (n) to require coordination of emergency planning with local emergency-response authorities; (as the EPA’s RMP proposal includes)
14. Amending paragraph (o) to require third-party compliance audits;(as the EPA’s RMP proposal includes)
15. Including requirements for employers to develop a system for periodic review of and necessary revisions to their PSM management systems (previously referred to as “Evaluation and Corrective Action”); and
16. Requiring the development of written procedures for all elements specified in the standard, and to identify records required by the standard along with a records retention policy (previously referred to as “Written PSM Management Systems”).
Energy Industry Opposition
The energy industry will oppose many of these proposals, particularly including covering ammonium nitrate, requiring safer technology and alternatives analysis and expanding PSM coverage to oil and gas drilling. Oil- and gas-well drilling and servicing operations are exempt from PSM coverage (Paragraph (a)(2)(ii) of § 1910.119). These operations were exempted because OSHA had begun a separate rulemaking for oil and gas well drilling and servicing operations. However, the agency subsequently removed the oil and gas well drilling and servicing operations rulemaking from its regulatory agenda and never promulgated a final rule for these operations.
At one point, however, OSHA asserted that it would enforce oil and gas production, which is different than oil and gas drilling. Production occurs after drilling and is defined as “a phase of well operations that deals with bringing well fluids to the surface, separating them, and then storing, gauging and otherwise preparing the product for the pipeline.” OSHA therefore announced in 1999 that it would enforce oil and gas production, but withdrew the memo in 2000 after the American Petroleum Institute argued that because OSHA had not conducted an economic analysis of oil and gas production in the original PSM standard, it couldn’t enforce production.
What Lies Ahead?
What can we expect? Despite this stakeholder meeting, OSHA is putting very few resources into a revised PSM standard. At this rate, we will not see any further progress by the end of the first Biden term, and even in a second Democratic term, it’s unlikely that we’ll see a final standard unless OSHA prioritizes chemical plant safety.
What are the prospects of improvements for oil field workers? OSHA’s Process Safety Management standard modernization continues to languish on the agency’s “Long Term Agenda” with no guarantee that the agency will even consider the option of either expanding the standard to the oil fields or working on a separate oil field standard. What are the prospects?
David Michaels, who led OSHA at the time, said he met regularly with upstream leaders and they were not universally opposed to more regulation. Still, trade groups such as the American Petroleum Institute argued for the status quo, pointing to the industry’s relatively low injury rate. Michaels didn’t buy it. “They have a low injury rate because they often don’t report their injuries,” he said in a recent interview. “They have a very high fatality rate, so it’s simply not possible they have a low injury rate.”