The Occupational Safety and Health Administration (“OSHA”) is seeking information and public comments on its Process Safety Management (“PSM”) standards in response to Executive Order 13650 – Improving Chemical Facility Safety and Security. Executive Order 13650 requires OSHA to publish a Request for Information to identify potential changes to its PSM and related standards in order to prevent major chemical accidents. Some of the potential changes OSHA seeks comments on would expand the coverage of the PSM standards, while others would increase the requirements for those already covered.
When OSHA adopted the PSM standard in 1992, it adopted many of the best industry practices available at the time. As industry practices have evolved OSHA is seeking comments on whether additional management-system elements should be incorporated into the PSM standard. OSHA cites the Center for Chemical Process Safety as one safety organization that recommends additional management-system elements. OSHA is also considering safety standards from other federal agencies published after the PSM standard became effective in 1992, including the Bureau of Safety and Environmental Enforcement’s Revisions to Safety and Environmental Management Systems (“SEMS II”) final rule.
One potential increase in the scope of the PSM standard would be to clarify the PSM exemption for atmospheric storage tanks found in 29 CFR § 1910.119(a)(I)(ii)(B). In 1997, an administrative law judge determined that the PSM does not regulate flammables stored in atmospheric tanks, even if the tanks are connected to a process. Under this ruling, employers can currently exclude the amount of flammable liquids contained in atmospheric storage tanks when determining whether a process meets the threshold quantity. OSHA is considering revising 29 CFR 1910.119(a)(I)(ii)(B) to include flammable liquids held in atmospheric storage tanks within or connected to a PSM covered process. If revised, all flammable materials connected to, or in close proximity to, a process would also be regulated under the PSM standard.
OSHA has not updated Appendix A, its list of highly hazardous chemicals subject to the PSM standard, since it was promulgated in 1992. OSHA is soliciting comments on which, if any, new chemicals should be added to Appendix A. Another area of concern for OSHA is the current lack of coverage for reactive chemicals as Appendix A includes some, but not all, highly reactive chemicals. New Jersey’s Toxic Catastrophe Prevention Act (“TCPA”) is a potential model that OSHA may use for addressing reactivity hazards. The TCPA contains multiple lists of hazardous chemicals, including lists of reactive substances. OSHA is seeking comments on the TCPA approach to reactive hazards, and any other potential regulatory approaches to reactivity hazards.
OSHA is considering changes to its Recognized and Generally Accepted Good Engineering Practice (“RAGAGEP”) rule in 29 CFR 1910.119(d)(3)(ii). Currently, an employer must document and confirm that equipment complies with RAGAGEP, but is not required to consider and implement updates to the RAGAGEP once it has designed and constructed the equipment. Employers using existing equipment that conforms to outdated RAGAGEP must only determine that the equipment is designed, maintained, inspected, tested, and operating in a safe manner. OSHA may revise the RAGAGEP rule, which could require employers to continually evaluate updates to RAGAGEP.
In addition to changes to its PSM standard, OSHA is also considering revisions to its flammable liquids (29 CFR § 1910.106) and spray finishing standards (29 CFR § 1910.107). OSHA released these standards in 1974, based on national consensus standards from the 1960s. Since then the national consensus standards have evolved greatly, and OSHA would like to modernize its rules. OSHA is seeking comments on any updates that should be considered in revising the existing standards.
The full list of seventeen topics OSHA has identified for potential rulemaking or enforcement changes are:
- Clarifying the PSM exemption for atmospheric storage tanks;
- Oil- and Gas-Well Drilling and Servicing;
- Oil- and Gas-Production Facilities;
- Expanding PSM coverage and Requirements for Reactivity Hazards;
- Updating the List of Highly Hazardous Chemicals in Appendix A of the PSM Standard;
- Revising the PSM Standard to Require Additional Management-System Elements;
- Amending Paragraph (d) of the PSM Standard to Require Evaluation of Updates to Applicable recognized and generally accepted good engineering practices (“RAGAGEP”);
- Clarifying the PSM Standard by Adding a Definition for RAGAGEP;
- Expanding the Scope of Paragraph (j) of the PSM Standard to Cover the Mechanical Integrity of Any Safety-Critical Equipment;
- Clarifying Paragraph (l) of the PSM Standard with an Explicit Requirement that Employers Manage Organizational Changes;
- Revising Paragraph (n) of the PSM Standard to Require Coordination of Emergency Planning with Local Emergency-Response Authorities;
- Revising Paragraph (o) of the PSM Standard to Require Third-Party Compliance Audits;
- Expanding the Requirements of § 1910.109 to Cover Dismantling and Disposal of Explosives, Blasting Agents and Pyrotechnics;
- Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus Standards;
- Updating the Regulations Addressing the Storage, Handling, and Management of Ammonium Nitrate;
- Changing Enforcement Policy of the PSM Exemption for Retail Facilities; and
- Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A of the PSM Standard without Specific Concentrations.
OSHA discusses all seventeen topics in greater detail in the Federal Register notice. OSHA will accept comments on all topics through March 10, 2014. OSHA will then evaluate the comments to decide what, if any, action it may take to revise the PSM standard.
Executive Order 13650 – Improving Chemical Facility Safety and Security
OSHA, Request for Information, Process Safety Management and Prevention of Major Chemical Accidents, 78 FR 73756, December 9, 2013
Process safety management of highly hazardous chemicals, 29 CFR § 1910.119
Hazardous Materials, 29 CFR 1910 Subpart H, §§ 1910.101 – 1910.126
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