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Tales from DC: Latest SBA OSHA/MSHA Roundtable Meeting

Posted in on Fri, Jan 31, 2014

The following is a memo from the Law Offices of Adele Abrams, Esq., reporting on the latest regular meeting held by the Small Business Administration’s Office of Advocacy to allow stakeholders to discuss the latest OSHA/MSHA regulatory developments.

January 31, 2014

On January 24, 2014, I represented ASSE at the bimonthly meeting of the Small Business Administration’s OSHA/MSHA Roundtable. The first topic was an update by Michael Marshall of OSHA on Executive Order (EO) 13650, concerning improvement of chemical facility safety and security (prompted by the 2013 disaster in West, TX) and the related OSHA Request for Information (RFI) on Process Safety Management standard changes. SBA’s Bruce Lundegren asked the association representatives present if there was a coalition formed yet to provide feedback to OSHA and there does not appear to be one. Lundegren offered to help “connect” anyone interested in such an effort.

EO 13650 directs the federal government to improve operational coordination with its state and local partners; enhance federal agency coordination and information sharing; modernize policies, regulations and standards; and, work with stakeholders to identify best practices. A working group has been formed to implement the EO, with representatives from DHS, USDA, DOJ, DOL, DOT and EPA. When asked if the Chemical Safety Board was involved with this initiative, Marshall said only to the extent that CSB has a memorandum of understanding (MOU) with OSHA.

The working group is involved with the following actions:

  • Develop a plan for regulators, emergency responders, facility owners and operators, and communities to work together and assess their ability to share explosive material storage data and chemical facility anti-terrorism standards data (CFATS – a DHS program).
  • Implement a federal interagency pilot program on chemical facility safety and security, including developing standard operating procedures for managing risks, improving MOUs and processes for federal coordination.
  • Analyze ways to increase information sharing between agencies, to track chemical facility data, and improve the data sharing process.
  • Improve standards and rulemaking practices to improve the sale, storwage and handling of ammonium nitrate, review the EPA Risk Management Program and OSHA Process Safety Management coverage. OSHA is chairing this section, but DHS and ATF are also looking into ammonium nitrate updates, and the group hopes to identify a list of chemicals (poisons and reactives) to include on CFATS “Chemicals of Interest” list.
  • Identify changes to the retail and commercial grade exemptions to PSM.
  • Conduct stakeholder outreach including meetings and “listening sessions” to identify best practices.

Marshall then discussed OSHA’s RFI for changes to the PSM standard, which was published on 12/9/13. Comments are due 3/10/14 to Docket OSHA-2013-0020 RIN 1218-AC82, and he stressed that OSHA will NOT extend the comment deadline per instructions from the White House. OSHA wants candidates for rulemaking or enforcement policy changes on 17 items including:

  • PSM exemptions
  • Oil and gas well drilling and servicing coverage
  • Coverage of oil production facilities
  • PSM coverage for reactive hazards
  • Updates to the list of highly hazardous chemicals in Appendix A of PSM
  • Additional management system elements to PSM (risk based process safety elements)
  • Amendments to Paragraph (d) of PSM to require updates to “Recognized and generally accepted good engineering practices” (RAGAGEP) and to add a definition of RAGAGEP
  • Expand Paragraph (j) to cover mechanical integrity of safety-critical equipment
  • Revise Paragraph (n) to require emergency plans coordinated with emergency response authorities
  • Revise Paragraph (o) to require third party compliance audits (currently, PSM requires the employer to audit with a team; Marshall stressed that the third party audits would have to be produced to OSHA on request to verify compliance with the rule, and this would be an exception to OSHA’s audit “safe harbor” provision)
  • Expand 29 CFR 1910.109 and update 1910.106 and 1910.107 based on the latest consensus standards (which prompted some discussion of the “free access” and IBR issue)
  • Update regulations on storage, handling and management of ammonium nitrate
  • Change the enforcement policy on PSM exemption for retail facilities
  • Change the enforcement policy for highly hazardous chemicals in Appendix A without specifying a concentration of such chemicals.

The next portion of the meeting was a general discussion of the electronic recordkeeping proposed rule, which seems to be opposed by most at the meeting.  Marc Freedman of the US Chamber offered support for ASSE’s comments (as did Bruce Lundegren). The Chamber is looking at whether OSHA has the statutory right to publish this data publicly and raised privacy concerns that injured workers could be identified through “reverse engineering” of the data. There are issues concerning how this data would be used, by whom (unions seem to be the entities wanting access to data from non-union workplaces), and what benefits might result from publishing the data as part of the “blame and shame” OSHA campaign. The comment deadline is 3/8/14, which is a Saturday. No word on whether this will be corrected. Freedman also noted that the previous appropriations rider that barred compilation of MSD data has expired and was not included in the current appropriations bill so this initiative would allow OSHA to gather MSD data to support I2P2, general duty clause enforcement, etc. Several participants noted that this rule will cause employers to more carefully scrutinize each suspected injury/illness and could result in more underreporting, whereas now employers typically err on the side of caution and just put the case on its log. SBA may hold a separate roundtable on this rulemaking, closer to the comment deadline, if there is interest.

The final topic was the silica rulemaking, which also seems to be opposed by many associations. The comment deadline was 1/27/14, and some noted that the OSHA website was not permitting comments to be filed now, saying the record was closed. After the meeting, OSHA issued a release extending the deadline to 2/11/14, for this reason. Some at the meeting argued that OSHA should have done a second SBREFA panel because of the changes in the rule from the draft and because the hydraulic fracturing industry had not been included in the first SBREFA panel as a stakeholder but will be heavily affected by the rule. OSHA seems to be in a rush to get the rule finalized before the Obama Administration ends, some believe. It was suggested that the March 2014 public hearings could last two weeks or more.

There also was a discussion about information sharing between OSHA and CSB, and it was stated that the sharing was governed by the MOU but was done on a case-by-case basis and the two agencies’ attorneys decide what information from each agency’s case file can be shared.

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