New OSHA Chemical Safety Directive Draws Criticism Over Clarity

A new OSHA inspection directive for refineries, chemical plants, and other businesses handling large amounts of hazardous chemicals retains vague interpretations of the law even as it provides updates to decades-old guidance, some workplace safety attorneys said.

The US Occupational Safety and Health Administration last week issued a 103-page revision to its enforcement directive for process safety management—known as PSM for short. It took 30 years of OSHA letters interpreting workplace safety law in response to direct inquiries and organizing them into a single document.

However, some attorneys said referencing those letters don’t address employers’ concerns about vague interpretations, such as those involving what qualifies as recognized and generally accepted good engineering practices. Nor do they provide an outline for how inspections will be conducted, they said.

“I feel this really muddies the waters for employers who really want a concrete understanding of what is expected of them,” said Valerie Butera, senior counsel with Conn Maciel Carey LLP in Detroit.

The update comes amid OSHA efforts to update a process safety management regulation (RIN:1218-AC82), but the agency has yet to release a proposed rule.

“We know OSHA has been working on an update for years, and this is not that update,” said Heather MacDougall, a partner with Morgan, Lewis & Bockius LLP in Miami and former chair of the US Occupational Safety and Health Review Commission. “It’s an instruction. It’s not a standard, regulation, or any other type of substantive rule.”

Vague Interpretation

Brian Hurt, a member with Steptoe & Johnson PLLC in Houston, cited several questions and answers in the directive covering OSHA’s already vague interpretation of what is an acceptable application of “recognized and generally accepted good engineering practices.”

Those principles, according to OSHA, apply to equipment design and maintenance, as well as inspection and test practices and frequencies. Examples include adhering to fire codes, consensus standards, or a company’s own standards.

“OSHA cannot use a directive to enforce the vague areas of the PSM standard,” Hurt said.

Butera said the agency also could have offered guidance on “interconnectedness.” For example, it could have clarified how to decide if sections of a facility not directly connected to chemical processing equipment should be covered by the rule, she said.

Checklist Replaced

The previous directive’s inspection checklist was replaced by a question-and-answer format that drew mixed reactions.

The checklist offered clarity for inspectors and anyone trying to comply with the standard, said Kristin White, a partner with Fisher & Phillips LLP in Denver.

“It really told inspectors, ‘Here are the questions to ask, here is what to look for,’” she said.

It also aided employers in knowing if their process safety management program would pass an inspection.

“It was a pretty good road map to inspections,” White said.

User Friendly

Steve Sallman, safety and health director for the United Steelworkers, which represents refinery and chemical plant workers, welcomed the checklist’s demise.

Some employers may have focused on how well their practices compared with the checklist, leading to “tunnel vision” where other hazards weren’t addressed, he said.

Safety mangers who prefer the checklist format can continue to use the old directive as a guide, Sallman added.

Mini Kapoor, a partner with Haynes and Boone LLP in Houston, saw an advantage to the question and answer format. An inspector or safety professional wouldn’t have to crosscheck between the individual letters and sections of the standard when looking for guidance, she said.

Kapoor said that while the directive lacks the inspection checklist of the old guidance, the basic steps of conducting an inspection haven’t changed. An inspector is still expected to review company records, conduct a site review, and interview people, she said.