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Action Plan: Modernizing Policies and Regulations

Modernizing OSHA’s PSM Standard to Improve Safety and Enforcement

OSHA’s PSM standard is over 20 years old. The PSM standard has been effective in improving process safety in the United States and protecting workers (and, by extension, communities) from many of the hazards associated with uncontrolled releases of highly hazardous chemicals. However, major incidents have continued to occur. Modernizing the PSM standard will help OSHA overcome obstacles to effective enforcement, implement advancements in management practices for reducing risk and controlling hazards, and protect workers from previously unrealized chemical hazards.

Short Term (within 1 year of this report) Plan:

  • Clarify confusing and misunderstood policies. 
    • Revise the current interpretation of "retail facilities" based on comments received in OSHA’s PSM Request for Information (RFI) process to more accurately reflect the original intent of the exemption as expressed in the PSM Preamble to the Final Rule.
    • Revise the current interpretation of chemical concentrations covered by OSHA’s PSM standard to more clearly describe what is covered and align with better established practices.
  • As a next step towards developing a proposed rule to modernize the PSM standard, initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) review, in order to solicit small business views on modernizing the PSM standard. Based on information collected from the OSHA RFI and the EO Section 6 Options document, the PSM rulemaking will consider, among other things:
    • Clarifying the PSM standard to incorporate lessons learned from enforcement, incident investigation, and advancements in industry practices, root cause analysis, process safety metrics, enhanced employee involvement, third-party audits, and emergency response practices.
    • Addressing ammonium nitrate hazards through one or both of the following options: 1) covering reactive chemical hazards under the PSM 2) adding ammonium nitrate specifically to the PSM Appendix A highly hazardous chemicals list
    • Adding substances or classes of substances to the PSM Appendix A List of Highly Hazardous Chemicals and providing more expedient methods for future updates.
    • Expanding coverage and requirements for reactive chemical hazards, which have resulted in many incidents.
    • Covering oil and gas drilling and servicing operations that currently are exempt from PSM coverage.
    • Continuing harmonization with EPA’s RMP regulation.
    • Requiring analysis of safer technology and alternatives.
    • Requiring coordination between chemical facilities and emergency responders to ensure that emergency responders know how to use chemical information to safely respond to accidental releases, possibly including exercises and drills.

Modernizing EPA’s RMP Regulation

The RMP regulation has been effective in preventing and mitigating chemical incidents in the United States and protecting human health and the environment from chemical risks and hazards. However, major incidents highlight the importance of reviewing and evaluating current practices and regulatory requirements and applying lessons learned to continuously advance process safety management. Stakeholders at EO listening sessions and public comments received on the EO options documents identified the need for EPA to modernize the RMP regulation. In order to gather the information necessary to proceed with regulatory modernization and retain close coordination with OSHA on its implementation of the PSM standard, EPA will seek public input on process safety and risk management issues relevant to the RMP regulation through publication of an RFI in summer 2014. The RFI will guide EPA in any potential actions that may further reduce the number of chemical incidents that can adversely affect communities within the United States.

Short term (within 1 year of this report) Plan:

  • Gather further input through an RFI and begin regulatory process to modernize RMP by considering strengthening or clarifying existing requirements and adding new prevention and emergency response program elements. In addition to the potential addition and deletion of chemical hazards, this his will include consideration of other potential improvements, including:
    • Revising mechanical integrity requirements of safety-related equipment.
    • Adding new requirements for automated detection and monitoring systems, or adding performance measures for facilities already using these systems.
    • Establishing an obligation to track and conduct root cause analyses of frequent process events and near misses.
    • Requiring employees to implement a stop work authority for employees who witness an activity that creates a threat of danger and providing clearly defined requirements to establish an ultimate authority on the facility for operational safety and decision making.
    • Strengthening contractor safety requirements.
    • Establishing mechanisms to implement the newest available technologies and methods.
    • Requiring compliance audits be done by an independent auditor.
    • Establishing new performance measurement and management review requirements.
    • Clarifying what is required in order for a process hazard analysis (PHA) to be updated and revalidated, requiring revalidating PHA more frequently than every 5 years, and requiring certain events such as an incident to trigger PHA revalidations prior to the next scheduled 5-year revalidation.
    • Clarifying emergency planning requirements to ensure effective coordination with community responders and ensuring facility personnel practice the plans.
    • Enhancing disclosure of key elements of a facility’s risk management plan and program from facilities to improve community understanding of chemicals.
    • Incorporating examination of the use of safer technology alternatives into the PHA.
    • Using the Acute Exposure Guideline Levels (AEGLs) developed by the NAC for Acute Exposure Guideline Levels for Hazardous Substances (NAC/AEGL Committee) to recalculate RMP reporting thresholds and toxic endpoints for offsite consequence analyses.

Enhancing Ammonium Nitrate Safety and Security

Ammonium nitrate poses a unique challenge because it is a high-volume chemical used in both the fertilizer and explosives industries. Because of the hazardous nature of ammonium nitrate, OSHA, EPA, and DHS all have Federal regulations that govern its management. The Working Group assessed current regulations across the diverse industries that handle ammonium nitrate and developed a list of opportunities to improve the existing system of safeguards.

Short Term (within 1 year of this report) Plan:

  • Review comments from the OSHA RFI and determine whether ammonium nitrate hazards should be addressed through one or both of the following options.
    • Updating the 1910.109 standard based on the work of consensus standard organizations, such as National Fire Protection Association (NFPA), that are in the process of developing ammonium nitrate safe handling practices
    • Covering ammonium nitrate in a more comprehensive PSM standard
  • Form an OSHA Alliance with the fertilizer industry, emergency response organizations, and other Working Group Agencies to develop solutions to promote best practices for ammonium nitrate safety.
  • Work closely to consider if additional EPA action is needed to complement OSHA ammonium nitrate safety regulations.
  • Complete a final rule to implement the Secure Handling of Ammonium Nitrate provisions of the Consolidated 2008 Appropriations Act.
  • Solicit feedback through a Chemical Facility Anti-Terrorism Standards (CFATS) Advance Notice of Proposed Rulemaking (ANPRM) on potential modification of the CFATS regulations to address ammonium nitrate. For example, consider lowering the current screening threshold quantities for ammonium nitrate under CFATS.
  • Update the Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate.

Promoting Safer Technology and Alternatives

One risk reduction approach for chemical incident prevention developed and implemented by industry and advocated for by a number of stakeholders, is the promulgation of requirements for, and 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.

Short Term (within 1 year of this report) Plan:

  • Issue an alert on safer technology and alternatives and work with industries to publicize examples of best practices.

Medium Term (prior to the end of FY2016) Plan:

  • Develop voluntary guidance to make chemical operators aware of safer technology, processes, and alternative solutions to reduce the overall risk of their facilities.
  • Based on experience with the alert, guidance, and public input, consider potential modification of RMP and/or PSM requirements to include specific safer alternatives analysis and documentation of actions taken to implement feasible alternatives.

Building a Stronger CFATS Program

The CFATS program is an important part of our Nation’s counterterrorism efforts as DHS works with our industry stakeholders to keep dangerous chemicals out of the hands of those who wish to do us harm. Since the CFATS program was created, DHS has engaged with industry to identify and regulate high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with the possession of chemicals of interest. CFATS has also played a significant role in reducing the number of high-risk chemical facilities that are susceptible to attack or exploitation, with more than 3,000 facilities having eliminated, reduced, or modified their holdings of chemicals of interest. The progress made in the CFATS program over the last 2 years has significantly enhanced the security of the Nation’s chemical infrastructure; however, there is still work to be done. DHS continues to engage with stakeholders and focus on three core areas: reducing the backlog of site security plan approvals, improving the risk assessment process, and ensuring that all potentially high-risk facilities are identified and are meeting their regulatory obligations as required by CFATS. DHS’s continued focus on these areas will help ensure that its stakeholders have the stability they need to comply with their regulatory obligations.

Short Term (within 1 year of this report) Plan:

  • Solicit public comment on an ANPRM on potential updates to the list of chemicals of interest (COI) and other aspects of the CFATS regulation.
  • Improve the methodology used to identify and assign risk tiers to high-risk chemical facilities.
  • Coordinate chemical facility security activities and explore ways to increase harmonization among chemical facility security regulatory programs.
  • Identify facilities that should have submitted a CFATS Top-Screen but failed to do so.
  • Work with Congress to seek long-term CFATS authorization to ensure that an authority lapse does not occur and to provide regulated chemical facilities with the certainty they need as they consider making substantial capital investments in CFATS-related security measures.
  • Work with Congress to pursue action to streamline the CFATS enforcement process to allow DHS, in extreme circumstances, to immediately issue orders to assess civil penalties or to close down a facility for violations, without having to first issue an order calling for correction of the violation.
  • Work with Congress to pursue action to remove the Water and Wastewater Treatment Facilities Exemption from CFATS so that security at these facilities can be regulated.

Developing Guidance and Outreach Programs to Help Industry Understand Process Safety and Security Requirements and Best Practices

Guidance and outreach programs to help industry understand process safety and security requirements and best practices are an integral part of the comprehensive approach to chemical facility safety and security. The Working Group is developing the guidance to assist industry compliance; additionally, these guidance products will improve the understanding of process safety and security requirements and best practices.

Medium Term (prior to the end of FY 2016) Plan:

  • Develop and publish an EPA alert to help improve public safety at oil and gas storage facilities where unauthorized public access has resulted in a number of fatal incidents.
  • Develop an EPA and OSHA process safety terminology guidance.
  • Develop a fact sheet on existing resources detailing how to conduct root cause analyses.
  • Develop guidance for PSM at small businesses and storage facilities.
  • Consolidate best practices for process safety and metrics from OSHA Voluntary Protection Program (VPP) facilities. Develop guidance for PSM at explosive facilities.
  • Develop best practice guidance for CFATS risk-based performance standards.
  • Develop a comprehensive regulatory fact sheet covering EPA, OSHA, and DHS programs, for State regulators, facilities, stakeholders, and other non-Working Group Federal agencies.
  • Develop a checklist of Federal Regulations in coordination with industry associations that stakeholders can use to determine regulations applicable to their facilities.
  • Develop best practice guidance for implementing the framework for improving critical infrastructure cybersecurity at chemical facilities.
    • DHS will coordinate with industry to develop a voluntary guidance document for chemical facilities that increases awareness and use of the cybersecurity framework developed by the National Institute of Standards and Technology (NIST).
  • Work with standards-setting organizations to expand information sharing and provide other actions to enhance the safety and security of chemical facilities.

Work with States to Improve Safe Drinking Water Act (SDWA) Measures to Prevent and Prepare for Chemical Spills

In 2014, 4-methylcyclohexanemethanol was released from a Freedom Industries chemical storage facility into the Elk River (West Virginia), contaminating the water supply for the principal West Virginia American Water intake, treatment plant, and distribution system. In order to reduce the occurrence and impact of any future spills, EPA will work with states to improve SDWA measures.

Short term (within 1 year of this report) Plan:

  • Engage with State drinking water administrators to encourage them to revisit existing source water assessments, review and update existing plans using information available through the various chemical regulatory programs, and determine whether adequate warning, preparedness, and preventive measures are in place.

Increasing OSHA Penalties

OSHA’s PSM standard and EPA’s RMP regulation were created at about the same time pursuant to the CAA amendments to address the same underlying general hazards. Yet the OSH Act’s penalty provisions are much weaker than those under the CAA’s RMP program. This imbalance in penalties should be corrected.

Short Term (within 1 year of this report) Plan:

  • Work with Congress to pursue action to strengthen the OSH Act’s monetary and criminal penalties.

Pursuing Statutory Amendment to the Safe Explosives Act (SEA)

The Federal explosives law administered by ATF requires that an applicant for a Federal explosives license or permit submit names of and appropriate identifying information regarding all employees who will be authorized by the applicant to possess explosive materials in the course of their work (employee possessors). ATF is required to conduct background checks on these individuals to ensure that they are not prohibited from possessing explosives (e.g., convicted felons, persons dishonorably discharged from the armed forces, fugitives from justice). Under some circumstances, individuals who are not bona fide employees of the licensee/permittee handle explosives on behalf of the licensee/permittee, under the supervision of a responsible person or employee possessor. Examples of such individuals are temporary labor service workers, volunteers, and employees of other companies. Because none of these types of workers are employees of the licensee or permittee company for whom the work is being performed, the law does not authorize ATF to perform background checks, and these persons are not able to act in the capacity of an employee possessor. This lack of a requirement for background checks on persons handling explosives creates the potential for prohibited persons to come into possession of explosives, and to become familiar with the storage, use, and other business practices of explosives companies.

Long Term (Beyond FY2016) Plan:

  • ATF will work with Congress to explore whether Federal explosives laws should be amended to require submission of security information on workers who handle explosives but are not covered by existing laws, and to give ATF authority to conduct background checks in the same manner as currently allowed for employees.

Improving Process for Notification of Stored Explosives to Fire Authorities

The Federal explosives regulation at 27 CFR 555.201(f) requires that any person storing explosives notify the local fire authorities of such storage. This requirement is to ensure that local fire authorities are aware of the potential dangers from fighting fires near these stored explosives. During listening sessions and in meetings with explosives industry members pursuant to the Executive Order, industry members and association representatives noted that personnel turnover in local emergency response operations may sometimes render the original notification of stored explosives of less value, because incoming personnel may never be aware of such documentation. Further, many locations rely upon volunteer or part-time personnel for their fire response activities. The industry representatives contended that the safety and security of explosives facilities, responders, and the surrounding communities would be improved with more frequent communication between explosives facilities and fire response authorities.

Long Term (Beyond FY2016) Plan:

  • ATF will work closely with explosives industry associations to develop best practices, procedures, and/or regulations to improve communication with fire authorities.

Resource Materials

Request for Information

Guidance Documents

Policy Changes

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