Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

Process Safety Management


OSHA Warning: DC Circuit Says Expanding Safety and Health Standards Through Informal Guidance Will Face Harsh Scrutiny

In a major blow to OSHA’s ongoing efforts to modify existing safety and health standards through informal agency guidance, a unanimous panel of federal judges recently invalidated a July 2015 OSHA memorandum that had significantly narrowed the Process Safety Management standard’s retail facility exemption. Retail facilities have been exempt from the PSM standard since its May 1992 promulgation, based on the understanding that hazardous chemicals are usually only present in such facilities in small quantities that are not likely to create a risk of a catastrophic release. In 1


President’s Budget Proposal Seeks Enhanced Civil Penalties under OSH Act

In its budget proposal for Fiscal Year 2016 (“FY 2016”), the Obama Administration has asked Congress to increase civil penalties for violations of the Occupational Safety and Health Act (“OSH Act”). As the proposal notes, OSH Act civil penalties have been increased only once since the law was passed 44 years ago. In addition, the proposal urges Congress to apply the Federal Civil Penalties Inflation Adjustment Act to the OSH Act, which would increase the civil penalties to keep pace with inflation.


Arent Fox OSHA Team Hosts Webinar on Proposed Changes to PSM Standard and RMP Rule

On June 26, 2014, Arent Fox OSHA Group leader, Mark Dreux, and AcuTech Group, Inc. Technical Manager, Michael Hazzan, presented a webinar on the recommended changes to the PSM Standard and RMP Rule from the Executive Order 13650 Working Group. In the webinar, Mr. Dreux and Mr. Hazzan boil down the Working Group’s interim report and offer critical insight on the recommended regulatory changes and what they could mean for the refining and chemical industries.

Readers can access the full webinar presentation (along with slides) by clicking here.


Major Changes Proposed for the PSM Standard: OSHA Issues Request for Comment on 14 Potential Revisions to the PSM Standard that Could Fundamentally Alter Industry Practices

OSHA is seeking public comment on fourteen significant changes it is considering making to its Process Safety Management (PSM) standard, plus potential updates to its Explosives and Blasting Agents, Flammable Liquids, and Spray Finishing standards. The request is in response to Executive Order 13650, which directed OSHA and several other federal agencies to improve chemical safety and security. Public comment must be submitted to OSHA within 90 days of publication of its request for information (“RFI”) in the Federal Register, which is expected to take place within the next several days. Responses may be submitted at, the Federal e-Rulemaking Portal, or by mail and facsimile.

OSHA’s request for information includes, in most instances, an explanation and examples of possible revisions that it is considering to the PSM standard. These proposed changes represent an enormous expansion of coverage and compliance requirements for employers. Both the fiscal and administrative burdens of complying with such dramatic changes could prove to be enormous.


OSHA Indicates Regulatory Changes are Coming to Fix “Gaps” in PSM Standard

Recently, OSHA unveiled a new regulatory agenda that included proposed rulemaking on “Process Safety Management and Flammable Liquids.”  This decision is hardly a surprise given the catastrophic explosions in West, TX, Geismar, LA, and Donaldsonville, LA, all of which have occurred within the past few months.

At the same time, OSHA has faced increased public scrutiny, most recently from US Chemical Safety Board (CSB) Chairperson, Rafael Moure-Eraso, who, on July 25th, publicly criticized OSHA’s lack of response to several PSM-related CSB recommendations as “unacceptable.” Shortly thereafter, President Barack Obama issued an Executive Order re: “Improving Chemical Facility Safety and Security” on August 1st, calling for regulatory updates to cover additional hazardous chemicals (including reactives), interagency cooperation on information sharing, and identification of best practices for chemical facility safety and security.  

If OSHA follows through with its regulatory agenda, employers can expect several changes to the PSM standard that will undoubtedly affect their operations.


ALJ Rejects OSHA’s Attempt to Create Requirements Not Found in the Text of the PSM Standard

In a recent initial decision by an Administrative Law Judge from the Occupational Safety and Health Review Commission, the ALJ rejected OSHA’s attempt to specify how process safety information must be maintained by an employer. 

Among the issues before the judge in Sec. of Labor v. BP Products North America, Inc. et al. was whether 29 C.F.R. § 1910.119(d)(3)(i) requires process safety information for equipment in a PSM covered process to be presented in a specific format, specifically whether 119(d)(3)(i) requires an ASME Form U-1 for a covered pressure vessel.  In its opinion vacating the citation, the ALJ criticized OSHA for “impermissibly creat[ing] a significant requirement not found in the cited standard.”

The decision reinforces the position that in a performance based standard like PSM, an employer has significant latitude regarding how process safety information should be maintained.

For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.


Tips for Preparing for your OSHA PSM Inspection

On June 5, I had the privilege of speaking at the Texas Chemical Council’s Environmental, Health & Safety Seminar at the Moody Gardens Convention Center in Galveston, Texas. For those of you who were not able to join us, I have uploaded my slide presentation “Tips for Preparing for your OSHA PSM Inspection”.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.