OSHA is now considering revisions to the PSM standard, as EPA previously proposed changes to the RMP

Updated: Sep 28



Occupational Safety and Health Administration (OSHA) announced the potential revision of the current standard on Process Safety Management (PSM) of Highly Hazardous Chemicals last August 30, 2022.


Environmental Protection Agency (EPA) has also set forth the Safer Communities by Chemical Accident Prevention (SCCAP) rule last August 18, 2022, which proposes changes to Risk Management Program (RMP).


Potential amendments to OSHA’s PSM and EPA’s RMP

Potential changes were brought up by the identified regulatory gaps and system weaknesses that had enabled the devastating ammonium nitrate (AN) detonation that happened in West, Texas, last April 17, 2013, injuring hundreds of others and killing 15 people. Developing changes that OSHA is considering would broaden the scope of covered employers and would be comparable to EPA's proposed RMP amendments.


OSHA is considering potential changes to specific PSM provisions

OSHA and EPA's PSM and RMP rules have always had significant overlap. Although the two programs are similar, each has its own focus. PSM is an occupational health program intended to protect workers, while RMP is intended to protect the environment and the community. The 1990 Clean Air Act Amendments (CAAA) §112(r) program required EPA to promulgate the RMP rules and required OSHA to publish PSM under section 304 of CAAA. Both OSHA's PSM standard and EPA's RMP rule aim to prevent or minimize the consequences of accidental chemical releases through the implementation of management program elements that integrate technologies, procedures, and management practices.


OSHA established the PSM standard in 1992 (29 CFR § 1910.119). EPA, on the other hand, published the RMP rule (40 CFR Part 68), adopting language that is essentially identical in certain provisions to the PSM standard. Later in 2013, OSHA issued a Request For Information (RFI) on potential PSM amendments in response to the Executive Order titled "Improving Chemical Facility Safety and Security". RFI is the way to ask for information and data on rulemaking and policy options on the Federal Register. The agency will then use the information received in response to this RFI to determine what actions to take. In 2014, EPA also issued a Request For Information in relation to possible RMP amendments. EPA then adopted final amendments in 2017 and modified it in 2019. However, OSHA has not updated the PSM standard since the original 1992 promulgation. Thirty years after 1992, OSHA is now considering revising the PSM standard.


OSHA's PSM revisions would expand the scope to include drilling and servicing for oil and gas wells, as well as resuming enforcement for oil and gas production facilities. The above-mentioned are already part of EPA's RMP rule, so through the revision, OSHA is considering clarifying the PSM exemption for retail facilities and atmospheric storage tanks. Part of OSHA's consideration is expanding PSM coverage and requirements for reactive chemical hazards and also updating and expanding the standard's list of highly hazardous chemicals. OSHA is also amending the explosives and blasting agents standard to broaden PSM requirements to include dismantling and disposal of explosives and pyrotechnics. Lastly, OSHA is considering defining the limits of the PSM-covered process.


OSHA is scheduled to have a stakeholder meeting to discuss the issues raised in the notice, with written comments still due on October 28. On the other hand, the stakeholder meetings of EPA are scheduled for September 26, 27, and 28. The written comments on the RMP proposed rule are due on October 31.


Potential amendments to specific PSM provisions are listed below:

1. Definitions: Include a definition of RAGAGEP; require a definition of critical equipment.

2. Employee Participation: Strengthen employee participation and include stop work authority.

3. Process Safety Information (PSI): Require the evaluation of updates to applicable recognized and generally accepted good engineering practices (RAGAGEP); Require continuous updating of collected information.

4. Process Hazard Analysis (PHAs): Require formal resolution of PHA team recommendations that are not utilized; require safer technology and alternatives analysis (STAA); require the consideration of natural disasters and extreme temperatures in their PSM Program, in response to Executive Order 13990, titled "Protecting Public Health and the Environment."

5. Mechanical Integrity (MI): Require expanded coverage of the mechanical integrity of any critical equipment; Clarification of “equipment deficiencies”.

6. Management of Change (MOC): Clarification of the coverage of organizational changes.

7. Incident Investigation:: Require root cause analysis.

8. Emergency planning and response: Require coordination of emergency planning with local emergency-response authorities.

9. Compliance audits: Require third-party compliance audits.

10. Evaluation and corrective action: Require employers to develop a system for periodic review and assessment for revisions of PSM management systems.

11. Written PSM management systems: Require the development of written procedures for all elements specified in the standard, as well as identify records required by the standard along with a records retention policy.


RMP's SCCAP.

SCCAP is the rule that EPA is proposing to strengthen its RMP regulation. This new rule would further protect the communities from chemical accidents. The proposed rule would include new provisions that were not addressed in the previous RMP rules. Prior to publishing this proposed rule, EPA held virtual public listening sessions where the provisions were based on. The proposed rule is said to impact facilities with Program 2 and Program 3 processes, with further requirements for the petroleum refining and chemical manufacturing industries.


The proposed amendments would require facilities to address risks that are said to be associated with climate change and the environment.


RMP proposed rule provisions said to include the following:

1. Natural hazards: Require hazard evaluation to address external events, such as natural hazards caused by climate change or other triggering events, that could result in an accidental release.

2. Power loss: Require hazard evaluations to address standby or emergency power systems.

3. Stationary source siting: Requires that Program 2 processes also include facility siting, and direct Program 2 and 3 regulated facilities to rely on industry guidance, such as API recommended practices, NFPA codes and standards, and CCPS guidelines, to help address stationary source siting.

4. Safer Technologies and Alternatives Analysis (STAA): Require facilities, densely petroleum refining and chemical manufacturing facilities, to conduct STAA reviews as part of the regular PHA.

5. Root cause analysis: Require all facilities under Programs 2 and 3 to conduct root cause analysis as part of the incident investigation.

6. Third-party compliance audit: Reimpose third-party compliance auditing requirements for Programs 2 and 3.

7. Employee participation: Require covered processes with Program 2 and Program 3 processes to consult with employees regarding decisions on implementing recommendations from PHAs, compliance audits, and incident investigations; provide employees the stop work opportunities under certain circumstances; provide employees the capability to report late or unreported accidents.

8. Emergency response: Address concerns from communities that surround the facilities. EPA would require Program 2 and Program 3 facilities to conduct field exercises to simulate accidental releases at least every ten years.

9. Information availability: Require RMP facilities to provide their chemical hazard information to communities within a 6-mile radius of the facility.


References:
  1. https://www.osha.gov/laws-regs/federalregister/2022-09-20-0

  2. https://www.epa.gov/system/files/documents/2022-08/Fact%20Sheet%20%28Communities%29%20-%20RMP%20SCAPP%20Proposed%20Rule.pdf

  3. https://ehsdailyadvisor.blr.com/2022/09/osha-weighs-broadening-psm-standards-scope/

  4. https://www.trinityconsultants.com/news/risk-management-program-safer-communities-by-chemical-accident-prevention-proposed-rule-highlights

  5. https://www.bdlaw.com/publications/changes-may-be-coming-to-epa-and-now-osha-process-safety-requirements/

  6. https://www.bdlaw.com/publications/climate-change-environmental-justice-and-process-safety-epa-proposes-risk-management-program-rule-amendments/

  7. https://www.regulations.gov/document/EPA-HQ-OLEM-2022-0174-0003

  8. https://www.epa.gov/rmp/risk-management-program-safer-communities-chemical-accident-prevention-proposed-rule

  9. https://www.natlawreview.com/article/changes-may-be-coming-to-epa-and-now-osha-process-safety-requirements

  10. https://www.osha.gov/process-safety-management/background/2022stakeholdermtg

  11. https://www.osha.gov/laws-regs/federalregister/2015-06-18-0

  12. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/

  13. https://www.govinfo.gov/content/pkg/FR-2022-08-31/pdf/2022-18249.pdf

  14. https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18614.pdf

  15. https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-68

  16. https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.119

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