“The world hates change, yet it is the only thing that has brought progress.” — Charles Kettering
I just got notice from OSHA that I am registered as a participant in their upcoming stakeholder meeting about the changes to the PSM Standard that they are considering. I asked to speak and will get about three minutes. That’s not much time, so I’m doing my homework to make sure that I use those three minutes well.
Executive Order 13650
The rulemaking process is arduous, which is one reason that OSHA and other regulatory agencies approach it with reluctance. It’s not because they don’t want to regulate—that’s what they were born to do—it’s because they don’t want to go through the rulemaking process. OSHA’s current effort to update and revise the Process Safety Management (PSM) standard (29 CFR 1910.119) started on August 1, 2013, when the president issued Executive Order 13650. Executive Order 13650, Improving Chemical Facility Safety and Security, was a response to the ammonium nitrate explosion at West Fertilizer in Texas that killed 15 people on April 17, 2013.
It only took the president 3½ months to recognize the issue, consult with experts, formulate an approach, and issue an executive order. On the other hand, it has taken OSHA almost a decade to get to the point in the rulemaking process that they are seeking broad stakeholder input. No wonder that OSHA and other regulatory agencies prefer to issue letters of interpretation when they can; letters of interpretation don’t require going through the rulemaking process.
This not to say that OSHA has been sitting on its hands since 2013. They jumped on it and proposed rule changes by December 8, 2013. Altogether, Docket OSHA-2013-0020 includes 22 documents. Except for the announcement of their upcoming stakeholder meeting, the last entry into the docket from OSHA was on August 24, 2016.
But there was a lot done before then, and homework for the upcoming stakeholder meeting includes reviewing the work already done.
OSHA has revised its original proposed rule changes. In large part, that revision was based on comments from Small Entity Representatives (SERs) and the Small Business Advocacy Review Panel (SBARP). Essential reading, then, is OSHA’s PSM SER Background Document, where OSHA describes what it plans to do, and the SBARP’s report, where the advocacy panel and the SERs respond. OSHA issued the background document, 148 pages, on May 4, 2016, and the SBARP issued their response, 504 pages, on August 2, 2016.
Fortunately, one does not have to read all 652 pages to understand what OSHA planned and what people thought about those plans. OSHA’s intentions, along with the government’s typically low estimates of the cost of implementation, are in Section IV of the background document, on pages 17-79. A summary of the responses is in Section 3 of the SBARP’s report, on pages 3-25, and recommendations are in Section 4 of the SBARP’s report, on pages 25-36. A look at these two documents tells us what OSHA has already heard about their proposed changes, and so tell us what we might want to double down on. It also gives us an idea of what issues the SERs didn’t address, meaning we might want to address them in the upcoming stakeholder meeting.
In OSHA’s announcement of the upcoming stakeholder meeting, OSHA lists eight potential changes to the scope of the standard (in paragraph (a) and Appendix A) that it is considering. It also lists fourteen potential changes to other paragraphs in the existing standard and the addition of a new element, paragraph (q), Written PSM Management Systems.
Of these 24 potential changes, OSHA included 22 of them in the work that was done in 2016, including the new element requiring a written PSM Management System. (Yes, that means a Process Safety Management Management System.) However, there are also two new potential changes, changes on which there has not been an opportunity to comment.
One is defining the limits of a PSM-covered process. OSHA already has a letter of interpretation on this, commonly known as AkzoNobel, 28-Feb-1997. It has always seemed to me to be a reasonable, understandable approach to take, and it is the approach that OSHA has offered for decades. I hope OSHA’s intent is simply to codify what is already existing practice, but until we know specifically what they are planning, it is hard to tell.
The other is “clarifying” paragraph (e), on process hazard analysis “to require consideration of natural disasters and extreme temperatures in their PSM programs.” I’m not a climate change denier, but I have no idea about what “consideration of natural disasters and extreme temperatures in … PSM programs” means or how it would be done. So, I would like to see a lot more discussion of this idea before it becomes a regulation for which there could be citations and penalties for not meeting OSHA’s expectations. Assuming they can be met.
OSHA’s announcement also lists potential changes that I believe are bad ideas—bad ideas that have been around for a while.
One is the regulatory requirement that PHAs include an analysis of inherently safer technology and alternatives. It’s not that I oppose the use of inherently safer technology and alternatives. However, “inherently safer technology” is not a single thing and warrants judicious use and an understanding that what is safer for one receptor may be less safe for another receptor. As a regulatory requirement, rather than as a design tool, it will create hurdles where there don’t need to be. Yes, there are many examples where the use of inherently safer technology resulted in better, less hazardous designs. But anecdotes aren’t enough to make the case that “inherently safer technology” should be regulatory requirement to be applied universally.
The other is the regulatory requirement to have compliance audits conducted by third parties. As a process safety consultant, I could be expected to be in favor of this, especially since it throws more work my way. But I am not. Implicit in the requirement is the assumption that employers are too corrupt to audit themselves. My experience, however, is that employers would rather find a problem during an audit, knowing that they will have to address it, than to wait for an OSHA inspector to find it, when not only will they have to address it but will also face citations and penalties.
So Little Time
Given that there are 24 proposed changes under consideration, I’m afraid that three minutes is not enough time to speak to everything I have thoughts about. So, I’m going to carefully prepare, knowing that I only have time to address three or four items at most. But I’m not going to let it go at that. I also plan to send written comments, where there is no time limit or page limit.
Time for Change
It’s hard to argue that the PSM standard is perfect and that after 30 years, it’s not time to for an update. Fortunately, the regulated community is not required to suffer these changes in silence. You don’t need to hire lawyers or lobbyists to make a case. You can do it yourself.
OSHA’s stakeholder meeting is a virtual meeting to be held from 10 am to 4 pm ET on Wednesday, October 12, 2022. Participation as speaker or simple attendance require advance registration. If you can’t make the meeting, either because you’re tied up on October 12 or because registration is closed, you also have until Monday, November 14, 2022, to submit written comments. Voting is how you influence the political process, but commenting is how you influence the regulatory process. Be an influencer.