The quick and easy answer is YES and before the changing of Presidential administrations the wheels were in motion, even after several court set-backs. But some would like to accuse me of being a “consultant” and spreading fear to drum up business. I used to laugh off these comments and accusations, but today I received a call on my way home from a great day of training that had me thinking… I wonder if my other clients believe me when I tell them that OSHA has a “wish list” of items they want to see changed? This is not some kind of insider information; this is publically available information. Now whether or not OSHA is successful in getting these changes thru is debatable. What’s not debatable is this is OSHA’s wish list, not some “Haywood list” that some consultant is planting “into your head to scare you so you’ll call him back” (paraphrasing). So what are the items on OSHA’s PSM Wishlist:
NOTE: for those who have been following the RMP Amendments mess, you will see a lot of similar ideas!
The potential changes in the scope of the standard include:
- Clarifying the EXEMPTION for ATMOSPHERIC STORAGE TANKS
- Expanding the scope to include OIL- AND GAS-WELL DRILLING AND SERVICING
- RESUMING ENFORCEMENT for Oil and Gas Production Facilities
- Expanding PSM coverage and requirements for REACTIVITY HAZARDS
- Updating and EXPANDING THE LIST OF HHCS IN APPENDIX A of the existing PSM standard
- Amending Paragraph (k) of the Explosives and Blasting Standard to cover dismantling and disposal of explosives and pyrotechnics under the requirements of PSM.
The potential changes to particular provisions of the existing PSM standard that OSHA is considering include:
- Expanding the scope of Paragraph (c) of the existing standard to include enhanced employee participation and stop work authority
- Amending Paragraph (d) of the existing PSM standard to require evaluation of updates to applicable recognized and generally accepted good engineering practices (RAGAGEP)
- Expanding the scope of Paragraph (e) by requiring safer technology and alternatives analysis
- Expanding the scope of Paragraph (j) of the existing PSM standard to cover the mechanical integrity of any critical equipment
- Revising Paragraph (n) of the existing PSM standard to require coordination of emergency planning with local emergency-response authorities
- Amending Paragraph (e) of the existing PSM standard to require formal documentation with management signature(s), approving the actions taken (or lack thereof) in order to resolve PHA team recommendations
- Amending Paragraph (m) of the existing PSM standard to require root cause analysis
- Revising Paragraph (o) of the existing PSM standard to require third-party compliance audits
- Revising the PSM standard to require additional management-system elements
- In addition, OSHA is considering a number of minor modifications which largely codify existing OSHA interpretations of the PSM standard.
1) Atmospheric Tank Exemption
The PSM standard covers processes with 10,000 pounds or more of a flammable liquid or gas, but exempts those “stored in atmospheric tanks or transferred which are kept below their normal boiling point without benefit of chilling or refrigeration.” 29 CFR § 1910.119 (a)(1)(ii)(B). The atmospheric storage tank exemption was originally intended to exclude processes that only involved flammable liquid storage, such as those at a fuel depot or fuel terminal (OSHA, 1997). However, this intention is not clear in the language of the standard, and an adverse decision by an Occupational Safety and Health Review Commission ALJ suggests that atmospheric storage tanks that are connected to
processing operations are exempt from PSM coverage. OSHA is considering changing the language in § 1910.119(a)(1)(ii)(B) to limit the exemption to NAICS 4247 Petroleum and Petroleum Products Merchant Wholesalers.
OSHA estimates:
- The costs to entities affected by this change would be similar to smaller chemical manufacturers who establish a PSM program for a single process PSM program, or adding a process to an existing program.
- Total cost for a new program is estimated at $66,781 to $98,985.
- Total cost for adding a process is estimated at $50,921 to $77,636.
- Program maintenance costs are estimated to be $23,383 to $35,442. (see Tables IV-2a through IV-5).
- 656 entities would be added, along with 38,504 employees. See Table IV-6.
- This includes 331 small entities with 19,254 employees.
- No entities that employ fewer than 20 employees would be affected.
2) Expanding the Existing PSM Standard to Include Oil and Gas Well Drilling, and Servicing Operations, and Enforcing the Existing PSM Standard in Oil and Ga Production
The PSM standard exempts oil and gas drilling and servicing (§ 1910.119(a)(2)(ii)). At the time the existing PSM standard was promulgated, OSHA planned to adopt a separate rule to address the process safety hazards at oil and gas drilling facilities. However, that standard was never promulgated, and currently OSHA has no standard that covers the process safety hazards at these facilities. OSHA is now considering removing the exemption for oil and gas drilling and servicing in order to provide protection to workers in these facilities. By contrast, the PSM standard has always included covered oil and gas production facilities. However, in a 1999 Memorandum, OSHA agreed not to enforce the standard in oil and gas production facilities until the Agency completed an economic feasibility analysis. Upon the completion of an economic feasibility analysis, OSHA intends to resume enforcement of the PSM standard in oil and gas production. For further explanation of the terms “drilling and servicing” and “production”, please see the background document.
3) Adding Reactive Chemical Hazards – Coverage and Requirements Questions
The PSM standard covers certain chemicals considered to be reactive due to instability. The standard does not address chemicals which pose other sorts of reactivity hazards, such as those associated with the generation of heat or toxic products when combined with other chemicals. OSHA is interested in expanding PSM to cover these additional reactivity hazards.
OSHA is considering the addition of language to § 1901.119(a) that would extend coverage to processes that mix substances with a listed functional group, when the heat of reaction is above 100 kcal/mol or if the reaction generates a toxic product and the substance is at the threshold quantity. The list of functional groups and threshold quantities would be included in an appendix to the standard. OSHA is considering adopting this list from New Jersey Toxic Catastrophe Prevention Act (TCPA) Guidance.
The Agency is considering several alternatives to address reactivity hazards under PSM that may minimize the economic impact on small entities. First, Alternative 2 would adopt the exact TCPA language as a model for expanding the PSM standard’s coverage of reactivity hazards and disregard any toxic product generation in the scope of reactive chemicals. This alternative would cause a smaller increase in the scope of the rule than the proposed option.
A second alternative for addressing reactivity hazards is Alternative 3. Instead of adding a general classification for reactive chemicals to the PSM standard, under this alternative OSHA would add certain known reactive chemicals to the list of covered chemicals under Appendix A of the PSM standard. This alternative would include the same list of chemicals OSHA is currently considering as an update to Appendix A under the next potential change to the standard discussed below.
4) Updating the Appendix A List of Covered Chemicals in the Existing PSM Standard
Appendix A of the existing PSM standard lists substances and threshold quantities to determine PSM coverage. OSHA is considering adding new chemicals to Appendix A.
OSHA is considering, based on a review of updated sources and comments received on the RFI, adding the following chemicals to Appendix A of the existing PSM standard:
- Ammonium Nitrate
- Butyl Peroxyacetate, Tertiary
- Butyl Peroxypivalate, Tertiary
- Chlorodinitrobenzene
- Diethylaluminum Chloride
- Diethyl Telluride
- Dinitrobenzenes
- Dinitrotoluenes, molten liquid or solid
- Hydrazine, anhydrous
- Perchloric Acid, greater than 50% but less than 72%
- Picric Acid, wet, with not less than 10% water
- Sodium Hydroxide
- Toluene Diisocyanate
OSHA has not yet determined appropriate threshold quantities for each of these chemicals.
OSHA is considering adding chemical concentrations and appropriately updating the corresponding threshold quantities of the following chemicals currently in Appendix
- Hydrogen Bromide
- Hydrogen Chloride / Hydrochloric Acid
- Hydrogen Fluoride / Hydrofluoric Acid
OSHA is also interested in soliciting feedback on the appropriate minimum concentrations for these three chemicals in regard to their potential hazards to workers. For example, EPA’s RMP rule covers hydrochloric acid at a concentration 37 percent or greater and hydrofluoric acid at 50 percent or greater; the threshold quantities are 15,000 pounds and 1,000 pounds respectively. It should be noted that the EPA is focused on public and environmental protection, while OSHA is focused on worker safety and health.
Additionally, OSHA is considering the addition of language to Appendix A stating that all forms of the listed chemicals are covered and the removal of “anhydrous” forms from the list of covered chemicals. OSHA is considering these changes because aqueous mixtures of Appendix A chemicals can present the same hazards as non-aqueous forms. If OSHA adopted this change, it would reverse past agency interpretations for certain listed chemicals that the aqueous form is not covered by PSM. In addition, by
eliminating those entries in Appendix A which list an anhydrous form of a chemical, OSHA would ensure that aqueous mixtures of the chemical are within the scope of the standard.
5) Adding Ammonium Nitrate to the Appendix A list of Covered Chemicals in the Existing PSM Standard
OSHA is considering adding Ammonium Nitrate (AN) as a listed chemical under PSM, prompted in part by the West Fertilizer Company incident on April 17, 2013. Currently, AN is primarily used in the production of fertilizer and explosives. OSHA estimated that the addition of AN to the Appendix A list of covered chemicals would expand the scope of PSM applicability to include the following sectors: fertilizer mixers, fertilizer applicators, and explosives distributors.
OSHA has examined sources of RAGAGEP applicable to AN storage sites and estimates these sites would often need to install a fire-suppression system (most likely both a sprinkler and fire alarm system), and to coat wooden bins to prevent AN impregnation. Fertilizer storage facilities span a wide range of sizes, from 500 tons to over 45,000 tons (based on Doran, 2013; Hagen, 2014; and MidWest Plan Service, 1979).
Alternatives
The Agency is considering several alternatives that may minimize the economic impact on small entities. In the background document the eighth alternative addresses the modernizing of ammonium nitrate coverage (as specified by Executive Order 13650) outside of the PSM standard through a separate rulemaking activity. Under this alternative the requirements for AN in § 1910.109, Explosives and Blasting Agents Standard would be updated to incorporate industry best practices such as the National Fire Protection Association’s Hazardous Materials Code (NFPA 400).
The Panel would appreciate comments and insights on this alternative or other alternatives that would achieve OSHA’s objectives while minimizing the costs to small entities.
6) Extending PSM requirements to Cover the Dismantling and Disposal of Explosives and Pyrotechnics
OSHA standard 1910.109, explosives and blasting agents, paragraphs § 1910.109(k)(2) and (3), requires that the manufacture of explosives and pyrotechnics follow the requirements of the PSM standard. Although dismantling and disposing explosives can be just as hazardous as the covered activities, dismantling and disposing are currently not covered by 1910.109 or PSM. OSHA is considering revising the scope of § 1910.109 (k)(2) and (k)(3) to include dismantling and disposal of explosives and pyrotechnics, so that these operations must follow the requirements of the PSM standard as well.
Changes that Affect the Requirements of PSM
The remaining possible modifications to the existing PSM standard will affect all facilities covered by the rule now, as well as any that are added to the scope of the standard.
Employee Participation and Stop Work Authority OSHA recognizes that more employee participation can increase worker safety by empowering employees and giving them a more active role in their employer’s PSM program.
OSHA is considering updating the current employee participation element in § 1910.119(c) to include requirements for:
- consulting with employees on the entire written employee participation plan;
- a system for both employee input and management response to such input, specifying how management, non-management, and contract employees and/or their representatives will be included in this element of the PSM standard;
- a policy for all employees, including employees of contractors, to recommend to the operator in charge of a process that an operation or process be shut down based on safety or health concerns; and
- a policy giving the operator in charge of a process the authority to shut down an operation or process based on safety and health concerns, also known as Stop Work Authority (SWA).
OSHA estimates that each month an establishment will have an hourly employee/management committee meeting to discuss any issues. OSHA assumes this committee consists of two managers, one engineer, one supervisor, and one operator for a total of five employee hours per month or sixty hours per year. The annual per-establishment burden and cost for this meeting is presented in Table IV-17 of the background document. Cost estimates vary by type of establishment from $3,203 to $5,227.
Stop Work Authority (SWA) would require creation and implementation of procedures that authorize employees, including employees of contractors, to recommend when a process should be shut down based on safety or health concerns. That would give the operator in charge of a process the authority to shut down an operation or process based on safety and health concerns. OSHA expects each establishment to complete two activities when implementing a SWA:
1) Developing the program: Managers will need to develop the elements of the SWA program and establish employee responsibilities under the program. OSHA believes that a manager will spend approximately one hour developing the SWA program, across all facility types.
2) Employee Training: All employees will be required to complete training covering employee responsibilities under the SWA. The Agency estimates that each employee will participate in thirty minutes of training related to the SWA. OSHA also allocates thirty minutes for a manager to provide the training, assumes an average class size of ten employees, and anticipates that training will be held annually. In addition, OSHA estimates that thirty minutes of a manager’s time is required to prepare for each training session.
The Agency presents estimated unit costs associated with implementing a stop work authority in Table IV-18 of the background document. OSHA estimates a wide range of cost estimates, related both to the complexity of the plant and the number of employees, including all who would have to be trained to implement this provision. Table IV-18’s costs range from a low of $250 to a high of $117,025.
RAGAGEP Updates
PSM requires employers to document that covered equipment complies with recognized and generally accepted good engineering practices (RAGAGEP). However, § 1910.119(d)(3)(iii) of PSM states that for existing equipment designed and constructed to codes, standards, or practices that are no longer in general use, the employer need merely determine (and document) that the equipment is designed, maintained, inspected, tested, and operates in a safe manner. The PSM standard does not require employers to evaluate updates to applicable RAGAGEP or to examine new RAGAGEP after evaluating and documenting compliance with PSM. OSHA is considering adding a requirement to (d)(3)(iii) that employers periodically review RAGAGEP for updates, and when the employer discovers that RAGAGEP has been updated, implement those updates.
The cost of a requirement to review RAGAGEP for updates could vary widely depending on the specific process and relevant standards reviewed. To estimate the time spent reviewing RAGAGEP, OSHA commissioned a contractor to anonymously interview subject matter experts. The results of these interviews are captured in a memorandum titled “Current Industry Practices on Process Safety Management System” (Chicca, 2015). This memorandum summarizes interviews with various industry consultants and, given this information, the Agency estimates a range for the cost burdens of this activity. Any specific review cycle is estimated to take a year. For a large entity OSHA expects that three
employees will be working on the review full time, while an additional nine to seventeen employees will spend the equivalent of one to four months of full time work each. For medium-sized facilities, OSHA estimates that the review would be performed by four to six employees, each spending one to four months of full time work. At smaller facilities, OSHA estimates there would be one or two employees spending one to four months each working full time on completing the review. Finally, the memorandum states that most facilities will initiate such a review when the consensus standards themselves have completed a review cycle which could be as frequent as every five years (p. A-X).
Therefore, OSHA estimates a five year cycle and takes one-fifth (or 20 percent) of total costs to derive the annual burden for continuous review. These costs are presented in Table IV-19 of the background document. The annual costs to review RAGAGEP vary by technological complexity of the facility and range from a low $1,393 to a high of $384,043.
Alternatives
The Agency is considering several alternatives that may minimize the economic impact on small entities. In the background document the proposed fourth alternative would limit the frequency of RAGAGEP update checks. Reducing the frequency could be achieved by either a fixed schedule of every three years or, every five years to coincide with the required PHA revalidation. The estimated cost for reducing the frequency by either three or five years would result in the following:
- For fixed schedules of once every three years the cost would be reduced by one-third.
- If a fixed schedule of once every five years is selected then the cost would reduce by one fifth.
Safer Technology and Alternatives Analysis
A number of stakeholders have advocated for OSHA to require the implementation of safer technology and alternatives, including inherently safer options. Safer technology and alternatives refer to risk reduction strategies developed through analysis using a hierarchy of controls. The hierarchy of controls organizes hazard controls into a framework. The hierarchy establishes that inherently safer options (e.g., elimination/reduction, substitution, attenuation, and simplification) are preferable and occupy the top of the hierarchy. OSHA is considering adding a requirement to PSM that employers identify and evaluate applicable safer technology and alternatives.
OSHA is considering adding requirements to the PHA specifying that employers must consider safer technology and alternatives when identified hazards result in an employer-specified level of risk. Requirements could specify that employers consider the hierarchy of control in determining the appropriate safeguards and document when safeguards at the top of the hierarchy cannot be implemented.
OSHA draws on the Center for Chemical Process Safety (CCPS) book, Inherently Safer Chemical Processes: A Life Cycle Approach, in developing the preliminary estimates of how long it might take employers to conduct a safer alternatives and technology analysis (CCPS, 2009). In this book, CCPS stated that such an analysis can take anywhere from a few hours to about two days (p. 202). It also states: “The composition of the inherent safety review team will vary depending upon the stages of the development cycle and the nature of the product/process” (p. 173). The book then goes on to list the number of staff and level of their skill-set needed for this task, which ranges from a team of four people (an industrial hygienist, chemist, level IV engineer, and an operations supervisor) for simpler processes, up to a team of seven (an industrial hygienist, chemist, two level IV engineers, two level V engineers, and an operations supervisor) for more complicated processes. The Agency uses this information to estimate a range of unit costs for small and large establishments, presented in Table IV-20 of the background document. The cost estimates in the table range from $750 to $9,774. Performing a safer alternatives and technology analysis will, at times, lead to the implementation of a discovered preferred alternative or technology. The Panel seeks comments on the frequency of this occurring.
Alternatives
The Agency is considering several alternatives that may minimize the economic impact on small entities. The fifth alternative would limit the requirement for safer technologies and alternatives analysis to employers who have certain chemicals or hazards. The Panel would appreciate comments and insights on this alternative or other alternatives put forth by the affected industries that would achieve OSHA’s objectives while minimizing the costs to small entities.
Adding “Critical” Equipment to the List of Covered Equipment under Mechanical Integrity
OSHA is considering expanding the list of equipment to which the requirements of the mechanical integrity (MI) requirements of 1910.119(j) apply. Currently, the MI section of the PSM regulation applies to six categories of equipment:
- Pressure vessels and storage tanks
- Piping systems (including piping components, such as valves)
- Relief and vent systems and devices
- Emergency shutdown systems
- Controls (including monitoring devices and sensors, alarms, and interlocks)
- Pumps
OSHA is considering adding a requirement to § 1910.119(j) specifying that other equipment deemed critical will be included in the application of the PSM standard’s mechanical integrity provisions and adding to the definitions section, § 1910.119(b), a definition of critical equipment that includes equipment where failure can lead directly to a release of HHC or equipment that is relied upon as a safeguard in the PHA.
There are various sources that identify particular types of equipment that might be critical in this sense. In 2007, the American Society of Safety Engineers (ASSE) published an article on MI compliance issues that listed equipment types whose failure might create the necessary pre-conditions for a catastrophic release. Further, the article noted that equipment designed to mitigate the potential damage or consequences if a highly hazardous chemical is actually released might be reasonably included in an MI program (Hazzan, 2007).
OSHA judges the average unit cost of the items listed above is within the range estimated for the equipment already covered by the Mechanical Integrity provisions § 1910.119(j) and costs would be comparable to the costs to implement the Mechanical Integrity provisions presented in Tables IV-2a through IV-5 of the background document.
The Panel solicits comment on this assumption overall, as well as comment on both the cost and necessity of various individual pieces of equipment.
Alternatives
OSHA is considering several alternatives that may minimize the economic impact on small entities. The seventh alternative would specify and limit the equipment covered by the Mechanical Integrity (MI) section of the PSM standard. Under this alternative, OSHA would expand the list of covered equipment under the MI section of the PSM standard to include equipment that is most likely considered “critical.”
Adding Emergency Response Planning and Coordination Requirements
The existing PSM standard requires employers to establish and implement an emergency action plan in accordance with § 1910.38, OSHA’s Emergency Action Plans (EAP) standard, and to meet applicable requirements in § 1910.120, OSHA’s Hazardous Waste Operations and Emergency Response (HAZWOPER) standard. While some OSHA standards require employers to coordinate emergency planning with local emergency response authorities, the existing PSM standard does not. OSHA is considering adding additional requirements for emergency response planning, including coordination with local responders, conducting emergency drills, and evaluation of local emergency response capabilities.
OSHA is considering requiring that employers establish a process to identify, prevent, prepare for, and/or respond to emergencies, including:
- Development of plans to prevent and minimize risks for potential emergencies, such as the availability of emergency response resources (e.g., medical rescue, crisis response, law enforcement, fire departments, etc.);
- Periodic testing of the emergency plans through drills and similar activities, such as tabletop exercises.
Knowing the types of hazards in advance can help local emergency response authorities to determine what precautions need to be taken when responding to specific facilities. Pre-planning will also ensure that first responders have the appropriate training to respond to such incidents. Testing provides an opportunity to evaluate the effectiveness of those plans and helps to ensure that both responders and workers know what they should do in emergencies.
Facility Emergency Drills
OSHA is considering requiring that establishments conduct annual mock emergency disaster drills that would require full staff participation. For certain plants there may be an essential minimal number of staff needed to remain on duty to maintain plant operations. Time to conduct the drill is likely to vary greatly depending on plant size and the emergency situation being simulated.
First Responder Plant Tours
One way coordination with local emergency responders might be enhanced is for the employer to conduct annual establishment tours with local first responders. These tours would allow first responders to gain familiarity with the plant, as well as the types of chemicals on site. Based on the Agricultural Retailers Association document, Building Productive Relationships with First Responders (ARA, No Date), OSHA expects each facility will have to spend time both preparing for the tour as well as conducting the
tour itself:
Preparing for the Tour: Plant staff may choose to gather and produce supplemental documents to provide to first responders on the tour, such as a handout on the types of chemicals at the plant and how they are handled or a map of the plant. They may also choose to review a checklist of topics they wish to discuss on the tour. OSHA assumes that preparing for the tour may take between one, and one and one half hours for four employees.
Conducting the Tour: The tour should discuss key information such as the layout of the building, building materials used, emergency exit routes, and the types of chemicals stored on site. OSHA estimates four employees will conduct the tour and it will last between one and four hours depending on the plant size.
Evaluation of Local Emergency Response Capabilities
Currently, the PSM standard requires employers to establish and implement an emergency action plan for the entire facility in accordance with the provisions of 29 C.F.R. § 1910.38 Subpart E Emergency Action Plans. This emergency action plan may describe scenarios where the facility will completely evacuate and default emergency response to the local emergency responders. However, there are no provisions to ensure that the local emergency responders are capable of responding to the emergency event. OSHA is considering requiring that establishments conduct evaluations of the capabilities of the local first responders. OSHA expects that establishments will communicate with local emergency responders and formally assess their capabilities. OSHA has a similar requirement in its confined spaces standard (see 29 C.F.R. § 1926.1211(a), final rule at 80 FR 25366.) The economic analysis for the confined spaces standard estimated that it would take “one hour of supervisor time to establish rescue procedures” (80 FR 25495) and OSHA uses this as starting point for this requirement, doubling this time to two hours to include a full evaluation of the local responder. Table IV-23 presents this cost in the
background document.
Process Hazard Analysis Management Sign-Off
Subsection (e)(5) of the existing PSM standard requires that the employer “establish a system to promptly address the [PHA] team’s findings and recommendations; assure that the recommendations are resolved in a timely manner and that the resolution is documented; [and] document what actions are to be taken.” Typically, a PHA team identifies hazards and makes recommendations to management, who then decides whether or not to implement those recommendations. Management may decide not to implement PHA team recommendations for a variety of reasons. However, most PHA team recommendations result from an identified hazard and if management does not implement a
recommendation, a hazard may be left unabated.
OSHA is considering adding requirements to § 1910.119(e)(5) specifying that if management decides not to implement or make modifications based on PHA team findings and recommendations, management will ensure that the hazard identified by the PHA team has been adequately addressed. This could take the form of a formal document with management signature(s), approving the actions taken (or lack thereof) in order to resolve PHA team recommendations.
Root Cause Analysis
Currently, PSM-covered establishments are required to investigate incidents (§ 1910.119(m)) but they are not required to conduct a root-cause analysis. Learning from incidents and near misses is an effective way to prevent future incidents, but is best accomplished when investigations determine and address the underlying or root causes of the incidents rather than solely determining the initiating events. OSHA is considering the addition of a requirement to § 1910.119 specifying that the employer conduct a root-cause investigation of all incidents.
OSHA estimates that conducting a root cause analysis increases the time needed to conduct a routine incident investigation by 50 percent. Therefore, the Agency estimates, based on the PSM RIA (OSHA, 1992), that the incremental burden of adding a root-cause analysis to an incident investigation is 28 – 30 hours per investigation. This estimate includes the time to conduct the investigation, prepare a report, and address the report’s findings. The cost and burden associated with conducting a root-cause analysis are presented in Table IV-25 of the background document.
Third Party Compliance Audits
At present, the PSM standard requires that employers certify that they have evaluated compliance with the PSM provisions at least every three years and that the audit is performed by at least one person knowledgeable in the covered process (§ 1910.119). An audit report must also be prepared and responses must be made to the audit findings. OSHA is considering amending § 1910.119 to require that an audit be conducted by a qualified third-party auditor and adding, in the definitions section, a
definition of a qualified third-party auditor.
Alternatives
The Agency is considering several alternatives that may minimize the economic impact on small entities of third-party audits. These regulatory alternatives are:
- Alternative 9 proposed in the background document, would modify the compliance audits requirements, requiring only third-party participation but not third-party auditing. This would lessen the burden for employers by allowing them to employ a single, third-party PHA participant instead of an entire third-party auditing team.
- Alternative 10 proposed in the background document, would modify the compliance audit requirements, making the third-party audits voluntary. OSHA would grant an extension on the compliance audit frequency for employers who utilize third-party auditors from three to five years. This would lessen the burden for employers by allowing them to continue to perform compliance audits exactly as was previously required by the PSM standard.
- Alternative 11 proposed in the background document, would modify the compliance audit requirements, requiring third-party audits after any reportable RMP accidental release. This alternative would mimic EPA’s proposed requirement to conduct third-party audits only after an RMP reportable accident.
Additional Requirements for Reactivity hazards
For covered facilities, the existing PSM standard requires employers to compile process safety information, including reactivity data (§ 1910.119(d)(1)(iv)) and hazardous effects of inadvertent mixing (§ 1910.119(d)(1)(vii)), and to determine and evaluate hazards (§ 1910.119(e)). OSHA is considering adding requirements to provide additional protection against reactivity hazards.
OSHA is considering:
- Adding a requirement to § 119(d)(1)(iv) specifying that employers must use more than one source to collect reactivity data. Relevant data sources would be compiled in a non-mandatory appendix.
- Adding a requirement to § 1910.119(e) specifying that the PHA should include evaluation of reactivity hazards.
New Management System Elements and Record Control Processes
OSHA’s existing PSM standard uses a management system approach to prevent releases of highly hazardous chemicals. When OSHA promulgated the PSM standard in 1992, the standard adopted management-system elements based on best practices from industry at the time. However, best practices have continued to evolve since 1992 and additional management system elements are recognized as effective in preventing incidents. OSHA is considering the following additions or changes to § 1910.119 in management-system elements:
- Written PSM Management Systems;
- Employee Participation and Stop Work Authority;
- Periodic Evaluation and Corrective Actions;
- Performance Metrics, Root-Cause Analysis; and
- Documented Management Decisions on PHA recommendations.
Written PSM Management Systems
OSHA is considering a requirement that employers develop and implement a written PSM Management system which would include (i) written procedures for all elements specified in the standard, (ii) the identification of records required by the standard, and (iii) a records retention policy. These procedures and records would be available to all employees. The ANSI/AIHA Z10-2012: Occupational Health and Management Systems consensus standard states that a document record and control process will require that an establishment create and maintain records, as well as update records as necessary, and that these records should be stored in a safe and easily accessible place. Given this standard and the fact that establishments already have these procedures implemented, the only additional cost to employers would be to document the procedures and retain records. OSHA estimates that it will take between eight and sixteen hours of a Level IV engineer’s time to write out the procedures and an additional two to four hours to gather and retain the records.
Evaluation and Corrective Action
OSHA is considering requiring employers to develop a system for periodic review and necessary revisions to ensure the PSM management system is effective in preventing incidents. It could include requirements for taking corrective action based on the inputs specified in the standard including, employee suggestions, PHA recommendations, operator training, pre-startup safety reviews, equipment testing and inspection, management of change, incident investigation action items, lessons learned from emergency drill, and action items compliance audits.
Clarifications and Minor Modifications to the PSM Standard
This section covers a series of clarifications that OSHA believes involve no costs. The Panel welcomes comment on these updates, what an employer could do to comply with these modifications and clarifications, and whether any costs would likely be incurred.
Process Safety Information
Paragraph (d) requires that process safety information be compiled in accordance with the schedule for PHAs set in paragraph (e)(1). Paragraph (l) Management of Change, requires that the PSI be updated as a result of any changes. OSHA’s intent is that the PSI be maintained and continuously updated. Language could be added to the standard to clarify this intent.
Mechanical Integrity
Paragraph (j)(5) requires that the employer “correct deficiencies in equipment that are outside acceptable limits (defined by the process safety information in paragraph (d) of this section) before further use or in a safe and timely manner when necessary means are taken to assure safe operation.” Language could be added to the standard to clarify that deficiencies should be corrected when the equipment:
- is not operating or functioning as designed by the manufacturer or is outside of acceptable limits;
- is not operating as defined by the process safety information; or
- poses a potential risk of release of a hazardous or toxic chemical.
Management of Change
OSHA’s standing interpretation is that the Management of Change (MOC) element of the existing PSM standard already covers organizational changes. However, confusion on the applicability of the PSM standard to organizational changes remains. OSHA plans to add minimal language to the MOC section in order to clarify that organizational changes are an example of a change covered by the PSM standard.
RAGAGEP Definition
Subsections 1910.119(d)(3)(i) and (ii) and (j)(4) require that employers document that equipment and inspection and test procedures comply with recognized and generally accepted good engineering practices (RAGAGEP). However, the existing PSM standard does not define RAGAGEP. For clarification, OSHA is considering adding a definition of RAGAGEP in 1910.119(b). This definition would be based on already established enforcement policy.
Application
Paragraph (a) specifies that the standard covers processes that involve a chemical at or above the specified threshold quantities listed in Appendix A of the standard. OSHA is considering the addition of text to the standard to clarify that the threshold quantity for mixtures of covered highly hazardous chemicals (HHC) would be determined by multiplying the concentration (by weight) of the HHC by the weight of the entire mixture. This represents OSHA’s interpretation of Appendix A, and would provide the clarity about the PSM standard’s scope that the court found lacking in United States v. Ward, 2001 WL 1160168 (E.D. Pa. Sept. 2, 2001). However, OSHA anticipates no change of its current enforcement policy of covering only those chemicals present in mixtures at least a one percent concentration, where there is no minimum concentration specified in Appendix A, in making the threshold quantity determination.