“It must be remembered that there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage than a new system. For the initiator has the enmity of all who would profit by the preservation of the old institution and merely lukewarm defenders in those who gain by the new one.” — Niccolò Machiavelli
There may not be anything as inspiring as a bald eagle spreading its wings as it soars through the sky. As a metaphor for a federal agency, however, those spreading wings can be disturbing. Especially when we remember that a bald eagle is a bird of prey, and a soaring eagle is looking for something to kill and eat.
OSHA is once again considering revisions to the Process Safety Management (PSM) standard (29 CFR 1910.119), that will expand the scope of the regulation. What are they, and should they worry us?
30 Years Without Changes to PSM
In the 30 years since it first hit the books, there have only been a handful of minor revisions to the PSM standard, mostly to match the terminology and definitions in other regulations. For example, flammable liquids are now more specifically flammable liquids with a flash point less than 100 F, and material safety data sheets are now called safety data sheets. None of the revisions have changed the requirements of the standard.
That doesn’t mean that the regulation as first promulgated in 1992 is exactly the regulation we need today. The regulated community has been anxious to get clarification on what OSHA really meant by some of the sections of the regulation, and there are many other changes that OSHA has wanted to make. But changing an existing regulation is often harder than creating a new regulation.
There have been many years that updating the PSM standard has appeared on OSHA’s regulatory agenda, yet the PSM standard has not changed. This year, though, OSHA has taken it further than ever before. In addition to sixteen changes to existing provisions of the standard, OSHA is considering eight potential changes to the scope of the standard. They just posted an announcement for a virtual meeting to be held from 10 am to 4 pm ET on Wednesday, October 12, 2022, to get input from stakeholders on their plans. Participation or attendance requires advance registration. If you can’t make the meeting, you also have until Monday, November 14, 2022, to submit written comments.
In this blog, I want to give my take on the eight changes to the scope of the standard that OSHA is considering.
1. Clarifying the Exemption for Atmospheric Storage Tanks
OSHA regretted their wording for this exemption in the standard from the very beginning and tried to interpret their way around it. The EPA didn’t include it in their RMP rule. In 1997, Administrative Law Judge Richard DeBenedetto ruled against OSHA in the Meer case, quoting Humpty Dumpty — “the Secretary may not give a word whatever meaning she chooses” At the time, OSHA stated its intention to clarify the actual language of the standard. I’ll be curious to see the clarification. I hope they continue to allow an exemption for flammable liquids in drums.
2. Expanding the Scope to Include Oil- and Gas-Well Drilling and Servicing
I never understood the rationale for excluding oil- and gas-well drilling and servicing, so I have no objection to including them. In my work as a process safety professional, I’ve only ever worked with oil- and gas-well drilling servicing operations that already wanted to comply with the spirit of the regulation. I imagine the API will have a different opinion.
3. Resuming Enforcement for Oil and Gas Production Facilities
Same comments as for oil- and gas-well drilling and servicing operations.
4. Expanding PSM coverage and requirements for reactive chemical hazards
The Chemical Safety Board has been after OSHA to address reactive chemical hazards for years and it’s hard to argue with the underlying principle. The devil is in the details, though. Will it be an addition to Appendix A, with listed reactive chemicals and threshold quantities? If so, what chemicals, since there are very few substances that don’t react? Or will reactivity be determined by some property, as flammability is addressed? If so, what properties? What threshold quantities?
5. Updating and Expanding the List of Highly Hazardous Chemicals in Appendix A
It’s hard to argue that there aren’t other chemicals that deserve to be listed in Appendix A. The challenge will be in deciding what chemicals to add, and at what threshold quantities. While they’re at it, though, I would like to see OSHA remove the chemicals which are excluded by virtue of their low vapor pressure, specifically alkylaluminums and aqueous solutions of hydrogen bromide at concentrations less than 63%. And if this becomes an opportunity to finally cover hydrochloric acid, I hope they follow the EPA’s lead and only list hydrochloric acid at concentrations of 37% or greater.
6. Amending the Explosives and Blasting Agents Standard to Extend PSM requirements to Dismantling and Disposal of Explosives and Pyrotechnics
If the PSM standard applies to 29 CFR 1910.109, it makes sense to include dismantling and disposal. A change I would really like to see is the addition of a threshold quantity. Surely there is some de minimus quantity where PSM shouldn’t necessarily kick in.
7. Clarifying the Scope of the Retail Facilities Exemption
OSHA didn’t define “retail facility” in the PSM standard, leaving them to define it as they chose. OSHA originally considered a “retail facility” as one where half of its income (Revenue? Profits?) is obtained from direct sales to end users. In 2015, OSHA issued a memorandum, changing this definition to mean an establishment with an NAICS code that refers to retail businesses: 44 or 45. There was something of an uproar at the time, and OSHA backed off. It sounds like OSHA wants to open this again. Or maybe they just want to formalize a definition, so it isn’t subject to the whims of future Directors of Enforcement Programs.
8. Defining the Limits of a PSM-Covered Process
I hope this is simply a case of incorporating the memorandum of interpretation commonly known as AkzoNobel, 28-Feb-1997 directly into the regulation. We’ve been using it for decades and I believe it is a reasonable approach.
Worried? Get Involved in the Rulemaking Process
The courts consistently tell OSHA—and other federal agencies—that they can’t change the rules without going through the rulemaking process. Letters of interpretation, issued unilaterally, aren’t a substitute. OSHA is going through that rulemaking process now as it considers changes to expand the scope of the PSM standard. The primary purpose of the rulemaking process is to assure that all interested parties have a voice.
If you are not worried by whatever changes OSHA wants to make, then there is no reason to get involved. If the prospect of change worries you, though, get involved. Register to participate in the October 12 virtual meeting or send your written comments to OSHA by November 14.