Changes May Be Coming to EPA and Now OSHA Process Safety Requirements

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); updated at 87 Fed. Reg. 57520 (Sept. 20, 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. The stakeholder meeting has since been rescheduled for October 12. Comments are due by November 14.

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’s stakeholder meeting is aimed to address the issues raised in its notice, with written comments due November 14. EPA’s stakeholder meetings will be September 26, 27, and 28, and written comments on its proposed rule are due October 31.

Beveridge & Diamond counsels clients on a wide range of matters relating to the Clean Air Act’s Risk Management Program requirements, OSHA’s Process Safety Management standards, and the general duty clauses under both the Clean Air Act and the OSHA statute. Our work includes compliance strategies, assistance with program development and implementation, and enforcement response. For more information, please contact the authors.