Process Safety Management and Prevention of Major Chemical Accidents, 73756-73768 [2013-29197]

Download as PDF 73756 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules (b) Effective/applicability date. This section applies to a technical termination of a partnership under section 708(b)(1)(B) that occurs on or after December 9, 2013. ■ Par. 3. Section 1.708–1 is amended by adding paragraph (b)(6) to read as follows: termination of a partnership under section 708(b)(1)(B) that occurs on or after December 9, 2013. Heather C. Maloy, Deputy Commissioner for Operations Support. [FR Doc. 2013–29177 Filed 12–6–13; 8:45 am] BILLING CODE 4830–01–P § 1.708–1 Continuation of partnership. * * * * * (b) * * * (6) Treatment of certain start-up or organizational expenses following a technical termination—(i) In general. If a partnership that has elected to amortize start-up expenditures under section 195(b) or organizational expenses under section 709(b)(1) terminates in a transaction (or a series of transactions) described in section 708(b)(1)(B) or paragraph (b)(2) of this section, the new partnership must continue to amortize those expenditures using the same amortization period adopted by the terminating partnership. See section 195 and § 1.195–1 for rules concerning the amortization of start-up expenditures and section 709 and § 1.709–1 for rules concerning the amortization of organizational expenses. (ii) Effective/applicability date. This paragraph (b)(6) applies to a technical termination of a partnership under section 708(b)(1)(B) that occurs on or after December 9, 2013. * * * * * ■ Par. 4. Section 1.709–1 is amended by: ■ 1. Designating the text in paragraph (b)(3) as paragraph (b)(3)(i), adding a heading to newly designated paragraph (b)(3)(i) and adding paragraph (b)(3)(ii); ■ 2. Adding a sentence at the end of paragraph (b)(5). The additions read as follows: § 1.709–1 Treatment of organization and syndication costs. maindgalligan on DSK5TPTVN1PROD with PROPOSALS * * * * * (b) * * * (3) Liquidation of partnership—(i) In general. * * * (ii) Technical termination of a partnership. If a partnership that has elected to amortize organizational costs under section 709(b) terminates in a transaction (or a series of transactions) described in section 708(b)(1)(B) or § 1.708–1(b)(2), the termination shall not be treated as resulting in a liquidation of the partnership for purposes of section 709(b)(2). See § 1.708–1(b)(6) for rules concerning the treatment of these organizational costs by the new partnership. * * * (5) * * * Paragraph (b)(3)(ii) of this section applies to a technical VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA–2013–0020] RIN 1218–AC82 Process Safety Management and Prevention of Major Chemical Accidents Occupational Safety and Health Administration (OSHA), Department of Labor. ACTION: Request for information. AGENCY: In response to Executive Order 13650, OSHA requests comment on potential revisions to its Process Safety Management (PSM) standard and its Explosives and Blasting Agents standard, potential updates to its Flammable Liquids standard and Spray Finishing standard, and potential changes to PSM enforcement policies. In this Request for Information (RFI), the Agency asks for information and data on specific rulemaking and policy options, and the workplace hazards they address. OSHA will use the information received in response to this RFI to determine what action, if any, it may take. DATES: Submit comments and additional material on this Request for Information March 10, 2014. All submissions must bear a postmark or provide other evidence of the submission date. The following section describes the available methods for making submissions. ADDRESSES: Submit comments and additional materials by any of the following methods: Electronically: Submit comments and attachments electronically at http:// www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions. Facsimile: OSHA allows facsimile transmission of comments and additional material that are 10 pages or fewer in length (including attachments). Send these documents to the OSHA Docket Office at (202) 693–1648. OSHA does not require hard copies of these SUMMARY: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 documents. Instead of transmitting facsimile copies of attachments that supplement these documents (for example, studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Technical Data Center, Room N–2625, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210. These attachments must identify clearly the sender’s name, the date, subject, and docket number (OSHA– 2013–0020) so that the Docket Office can attach them to the appropriate document. Regular mail, express mail, hand delivery, or messenger (courier) service: Submit comments and any additional material (for example, studies, journal articles) to the OSHA Docket Office, Docket No. OSHA–2013–0020 or RIN 1218–AC82, Technical Data Center, Room N–2625, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210; telephone: (202) 693–2350. (OSHA’s TTY number is (877) 889–5627.) Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express mail, hand delivery, and messenger service. The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t. Instructions: All submissions must include the Agency’s name and the docket number for this Request for Information (that is, OSHA–2013–0020). OSHA will place comments and other material, including any personal information, in the public docket without revision, and these materials will be available online at http:// www.regulations.gov. Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public and submitting comments that contain personal information (either about themselves or others) such as Social Security numbers, birth dates, and medical data. If you submit scientific or technical studies or other results of scientific research, OSHA requests (but is not requiring) that you also provide the following information where it is available: (1) Identification of the funding source(s) and sponsoring organization(s) of the research; (2) the extent to which the research findings were reviewed by a potentially affected party prior to publication or submission to the docket, and identification of any such parties; and (3) the nature of any financial relationships (e.g., consulting agreements, expert witness support, or research funding) between investigators who conducted the research and any organization(s) or entities having an interest in the rulemaking and policy E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules options discussed in this RFI. Disclosure of such information is intended to promote transparency and scientific integrity of data and technical information submitted to the record. This request is consistent with Executive Order 13563, issued on January 18, 2011, which instructs agencies to ensure the objectivity of any scientific and technological information used to support their regulatory actions. OSHA emphasizes that all material submitted to the record will be considered by the Agency if it engages in rulemaking. Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. The http:// www.regulations.gov index lists all documents in the docket. However, some information (e.g., copyrighted material) is not available publicly to read or download through the Web site. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions. FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger, Director, OSHA Office of Communications, Room N–3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–1999; email: meilinger.francis2@dol.gov. General and technical information: Ms. Lisa Long, Director, Office of Engineering Safety, OSHA Directorate of Standards and Guidance, Room N–3609, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–2222; email: long.lisa@dol.gov. SUPPLEMENTARY INFORMATION: Copies of this Federal Register notice and news releases: Electronic copies of these documents are available at OSHA’s Web page at http:// www.osha.gov. Copies of this Federal Register notice also are available at http://www.regulations.gov. maindgalligan on DSK5TPTVN1PROD with PROPOSALS I. Background A. Executive Order 13650 On August 1, 2013, President Obama signed Executive Order 13650, entitled Improving Chemical Facility Safety and Security. Section 6(e)(ii) of the order requires OSHA to publish, within 90 days, an RFI designed to identify issues related to modernization of its PSM standard 1 and related standards 1 https://www.osha.gov/SLTC/ processsafetymanagement/. VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 necessary to meet the goal of preventing major chemical accidents. In response to the Executive Order, OSHA is publishing this RFI to collect data and information on its PSM standard and related standards, as well as other regulatory issues involving hazardous chemicals. B. Process Safety Management of Highly Hazardous Chemicals OSHA originally promulgated the § 1910.119 Process Safety Management (PSM) standard in 1992 in response to a number of catastrophic chemicalrelease incidents that occurred worldwide. The incidents spurred broad recognition in the safety community that accidental releases of highly hazardous chemicals can result in multiple worker injuries or fatalities. The main objective of the PSM standard is to prevent or minimize employee exposure to the hazards associated with uncontrolled releases of highly hazardous chemicals. The PSM standard is a comprehensive management program for highly hazardous chemicals that integrates technologies, procedures, and management practices to help assure safe and healthful workplaces. One of the key components of the PSM standard is the requirement that employers perform a process hazard analysis, which is a careful review of what could go wrong and what safeguards employers must implement to prevent uncontrolled releases. The PSM standard also mandates written operating procedures; employee training; prestartup safety reviews; evaluation of the mechanical integrity of critical equipment; and written procedures for managing change. In addition, the PSM standard specifies a permit system for hot work; investigation of incidents involving releases or near misses of covered chemicals; emergency-action plans; compliance audits at least every three years; and trade-secret protection. While the PSM standard has been effective in improving process safety in the United States and protecting workers from many of the hazards associated with uncontrolled releases of highly hazardous chemicals, major incidents have continued to occur. (1) On April 23, 2004, an explosion and fire at Formosa Plastics in Illiopolis, Illinois, killed five workers and severely injured three others. According to the U.S. Chemical Safety and Hazard Investigation Board’s (CSB) report on the incident (CSB Report No, 2004–10– I–IL), while Formosa failed to properly implement many OSHA-required elements of its PSM program, PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 73757 modernization of the PSM standard to include several issues discussed below would likely have prevented or minimized the consequences of this incident. In 2005, OSHA reached a settlement agreement with Formosa with 48 citations, 31 of which were PSM citations, and fines totaling $300,000. The CSB report contains a detailed analysis of the root causes of this incident. (2) On March 23, 2005, 15 workers died and more than 170 others were injured at the BP Refinery in Texas City, Texas. As a result of the incident, OSHA issued over 300 citations and fined BP over $21 million. Many of the citations were for PSM violations, including failing to properly implement mechanical integrity, training, and standard operating procedures. In a 2009 follow-up investigation, OSHA found numerous deficiencies at the BP Texas City Refinery and issued 270 failure-to-abate notices. In a 2010 settlement agreement with OSHA, BP agreed to pay a penalty of $50.6 million to resolve the notices. (3) On April 2, 2010, an explosion and fire at the Tesoro refinery in Anacortes, Washington, killed seven workers. The incident occurred when a heat exchanger suddenly ruptured during maintenance, releasing a highly hazardous chemical that subsequently exploded. The company operated under the jurisdiction of the Washington State Department of Labor and Industries Division of Occupational Safety and Health (DOSH), which adopted OSHA’s PSM standard into its state plan regulations at WAC 296–67. DOSH inspectors found that Tesoro failed to properly implement its PSM program by inadequately testing its equipment and continuing to operate failing equipment. As the result of the incident, DOSH issued 44 citations, 36 of which were PSM citations, to Tesoro, totaling $2.39 million. The root cause investigation is ongoing, however, modernization of the PSM standard to include several issues discussed below would likely have prevented or minimized the consequences of this incident. (4) On April 17, 2013, an ammonium nitrate explosion at the West Fertilizer Company storage and distribution facility in West, Texas, killed at least 15 people—the majority of whom were firefighters responding to a fire at the facility—and injured over 160 others. The West Fertilizer facility is not currently covered by PSM, however it is a stark example of how potential modernization of the PSM standard may include such facilities and prevent future catastrophe. E:\FR\FM\09DEP1.SGM 09DEP1 73758 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules In 2007, OSHA initiated its Petroleum Refinery PSM National Emphasis Program (NEP) to reduce or eliminate the workplace hazards associated with the catastrophic release of highly hazardous chemicals in petroleum refineries. The program outlined a new approach for inspecting PSM-covered facilities that allowed for a greater number of inspections using better allocation of OSHA resources. In 2009, OSHA built upon that inspection program by implementing a pilot PSMCovered Chemical Facilities NEP, which it later expanded into a full NEP. Under both of the PSM NEPs, OSHA was able to increase the number of PSM-covered facilities inspected and gained valuable inspection data. maindgalligan on DSK5TPTVN1PROD with PROPOSALS C. Rulemaking and Enforcement Policy Change Options Under Consideration OSHA has determined that revisions to its PSM standard may be needed to address issues in coverage. As specified in Executive Order 13650, the Agency is also considering related revisions to its Explosives and Blasting Agents standard to address potential issues in coverage; updates to its Flammable Liquids standard and Spray Finishing standard to better align with current versions of applicable consensus standards; and changes in its enforcement policies for these standards. OSHA identified a number of rulemaking and policy options through the Agency’s PSM NEPs, its investigation of major accidents, and its review of recommendations from the safety community. OSHA identified the following topics as potential candidates for rulemaking or enforcement policy changes: 1. Clarifying the PSM exemption for atmospheric storage tanks; 2. Oil- and Gas-Well Drilling and Servicing; 3. Oil- and Gas-Production Facilities; 4. Expanding PSM Coverage and Requirements for Reactivity Hazards; 5. Updating the List of Highly Hazardous Chemicals in Appendix A of the PSM Standard; 6. Revising the PSM Standard to Require Additional Management-System Elements; 7. Amending Paragraph (d) of the PSM Standard to Require Evaluation of Updates to Applicable recognized and generally accepted good engineering practices (RAGAGEP); 8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP; 9. Expanding the Scope of Paragraph (j) of the PSM Standard to Cover the Mechanical Integrity of Any SafetyCritical Equipment; VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 10. Clarifying Paragraph (l) of the PSM Standard with an Explicit Requirement that Employers Manage Organizational Changes; 11. Revising Paragraph (n) of the PSM Standard to Require Coordination of Emergency Planning with Local Emergency-Response Authorities; 12. Revising Paragraph (o) of the PSM Standard to Require Third-Party Compliance Audits; 13. Expanding the Requirements of § 1910.109 to Cover Dismantling and Disposal of Explosives, Blasting Agents, and Pyrotechnics; 14. Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus Standards; 15. Updating the Regulations Addressing the Storage, Handling, and Management of Ammonium Nitrate; 16. Changing Enforcement Policy of the PSM Exemption for Retail Facilities; and 17. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A of the PSM Standard without Specific Concentrations. The subsections below discuss each of these potential rulemaking topics in greater detail. 1. Clarifying the PSM Exemption for Atmospheric Storage Tanks Pursuant to paragraph (a)(1)(ii) of § 1910.119, the PSM standard applies to processes involving a flammable liquid or gas on site in one location in a quantity of 10,000 pounds or more. However, paragraph (a)(1)(ii)(B) contains an exemption for ‘‘[f]lammable liquids stored in atmospheric tanks or transferred which are kept below their normal boiling point without benefit of chilling or refrigeration.’’ In Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 95–0341), an administrative law judge ruled that PSM coverage does not extend to flammables stored in atmospheric tanks, even if the tanks are connected to a process. As a result, employers can exclude the amount of flammable liquid contained in an atmospheric storage tank, or in transfer to or from storage, from the quantity contained in the process when determining whether a process meets the 10,000-pound threshold quantity. The Meer decision was contrary to OSHA’s earlier interpretation 2 of paragraph (a)(1)(ii)(B), which was that the standard covered all stored 2 https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_table= STANDARDS&p_id=9760. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 flammables when connected to, or in close proximity to, a process. OSHA believes that revising paragraph (a)(1)(ii)(B) to include flammable liquids in atmospheric storage tanks within or connected to a PSM covered processes would improve the safety of workers by remedying the issue in PSM enforcement that has existed since the Meer decision. In the questions in this RFI, the Agency requests comment on revising paragraph (a)(1)(ii)(B) to clarify that the PSM standard covers all stored flammables when connected to, or in close proximity to, a process. 2. Oil- and Gas-Well Drilling and Servicing Paragraph (a)(2)(ii) of § 1910.119 exempts oil- and gas-well drilling and servicing operations from PSM coverage. The preamble to the PSM final rule explained that OSHA excluded these operations because it had begun a separate rulemaking for oil and gas well drilling and servicing operations (48 FR 57202). However, the Agency subsequently removed the oil and gas well drilling and servicing operations rulemaking from its regulatory agenda and never promulgated a final rule for these operations. In light of this history, OSHA requests public comment on whether to retain or remove the § 1910.119(a)(2)(ii) exemption. 3. Oil- and Gas-Production Facilities On March 4, 1998, a catastrophic vessel failure and fire killed four workers at an oil- and gas-production facility near Pitkin, Louisiana, owned by Sonat Exploration Company. Sonat was using well fluid to purge air from a twomile pipeline that connected a separation facility to a production well when the separation vessel failed. In its investigation report on the incident (Report No. 1998–002–I–LA), the CSB stated that ‘‘[t]wo elements of the PSM standard, process hazard analyses and written operating procedures, are particularly relevant to the Sonat incident.’’ The CSB further concluded that ‘‘[t]he incident would likely have been prevented if process safety management principles or good engineering practice had been followed more effectively at the facility.’’ The exemption in § 1910.119(a)(2)(ii) does not extend to oil- and gas-well production operations such as the Sonat facility noted in the previous paragraph. A December 20, 1999, memo from Compliance Programs director Richard Fairfax to OSHA regional administrators, entitled PSM Applicability to Oil/Gas Production Facilities, explained that ‘‘production E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules facilities . . . were always intended to be covered under PSM.’’ The memo described covered production operations as follows: Production, as recognized by the petroleum industry, is a phase of well operations that deals with bringing well fluids to the surface, separating them, and then storing, gauging and otherwise preparing the product for the pipeline. This production phase occurs after a well has been drilled, completed, and placed into operation, or after it has been returned to operation following workover or servicing. A completed well includes a ‘‘Christmas tree’’ (control valves, pressure gauges and choke assemblies to control the flow of oil and gas) which is attached at the top of the well where pressure is expected. It is at this point, the top of the well, where the covered PSM process begins. The distance between separation equipment and the well is not a factor when determining PSM applicability for production facilities. maindgalligan on DSK5TPTVN1PROD with PROPOSALS The American Petroleum Institute (API) objected to the December 20, 1999, memo, asserting that PSM coverage of oil- and gas-production facilities was invalid because OSHA did not conduct an economic analysis during the original PSM rulemaking proceedings addressing such coverage. In a March 7, 2000, letter to API, OSHA conceded that the original economic analysis for the PSM standard did not include oil- and gas-production operations, and stated further that the Agency would suspend enforcement of the PSM standard for oil- and gas-production operations until it performed the analysis. OSHA is considering completing this analysis so that it can resume enforcement of the PSM standard for oil- and gasproduction facilities. OSHA believes that implementation of an effective PSM program in accordance with the requirements in § 1910.119 by oil and gas production facilities could prevent or mitigate accidents like the Sonat explosion. In the questions in this RFI, the Agency requests public comment on completing an economic analysis and possibly resuming enforcement for PSM-covered oil- and gas-production facilities. OSHA will review the comments received to determine what action, if any, the Agency will take. 4. Expanding PSM Coverage and Requirements for Reactivity Hazards Paragraph (a) of § 1910.119 states that the standard applies to any ‘‘process which involves a chemical at or above the specified threshold quantities listed in Appendix A,’’ and to any ‘‘process which involves a Category 1 flammable gas (as defined in 1910.1200(c)) or a flammable liquid with a flashpoint below 100 °F (37.8 °C) on site in one location, in a quantity of 10,000 pounds VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 (4535.9 kg),’’ unless the process meets one of the exceptions in § 1910.119(a)(1)(ii)(A) and (B). Appendix A of § 1910.119 contains a list of 137 highly hazardous chemicals that present a potential for a catastrophic event at or above the listed threshold quantities. A number of the chemicals listed in Appendix A are highly reactive chemicals based on a variety of metrics, including consensus standard sources, but the list does not cover all highly reactive chemicals. OSHA has long been aware of the need to update the PSM standard to address hazards associated with reactive chemicals. In response to a 1995 chemical explosion that killed five workers at Napp Technologies, Inc., in Lodi, New Jersey, OSHA received a petition to revise its PSM standard to address reactivity hazards. OSHA and the U.S. Environmental Protection Agency (EPA) investigated the Napp Technologies accident and concluded in a jointly issued 1997 report (EPA–550– R–97–002) that the explosion was most likely triggered by an uncontrolled chemical reaction of water, sodium hydrosulfite, and aluminum powder. Aluminum powder and sodium hydrosulfate are relatively stable chemicals, with instability/reactivity ratings 3 of one 4 and two,5 respectively. However, when both of these chemicals are mixed with water the reaction is extremely hazardous. In 2000, OSHA added an advance notice of proposed rulemaking (ANPRM) for reactive chemicals (RIN 1218–AB63) to its regulatory agenda. However, OSHA removed the item from its regulatory agenda in 2002 and never published the ANPRM. In 2003, the labor unions refiled their petition for OSHA to revise its PSM standard to address reactivity hazards. The CSB has also made a number of recommendations to OSHA on how the PSM standard could be amended to more comprehensively control reactive hazards. In a 2002 report, the CSB broadly recommended that OSHA extend PSM coverage to chemicals based on a class of highly reactive properties, similar to the way the existing PSM standard defines a class of flammable liquids or gases. The CSB explained that a performance-based 3 Instability/reactivity ratings listed are set by the National Fire Protection Association’s Standard System for the Identification of the Hazards of Materials for Emergency Response (NFPA 704). 4 NFPA 704 instability/reactivity of one: ‘‘normally stable, but can become unstable at elevated temperatures and pressures.’’ 5 NFPA 704 instability/reactivity of two: ‘‘undergoes violent chemical change at elevated temperatures and pressures.’’ PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 73759 approach to evaluating reactive hazards would allow for both a comprehensive analysis and flexibility in implementation, but it cautioned that a proper hazard analysis of reactive hazards would require expertise in reactivity hazards. One approach to regulating reactive hazards is the New Jersey Toxic Catastrophe Prevention Act (TCPA). Enacted in 1986, the TCPA is a New Jersey statute that contains many process safety elements similar to the PSM standard, but the TCPA differs from PSM by explicitly covering reactive hazards, including reactive mixtures. Unlike the PSM standard, which contains only one list of covered hazardous chemicals in Appendix A, the TCPA contains multiple lists. This includes the List of Individual Reactive Hazardous Substances, as well as a list of Reactive Hazard Substances Mixture Functional Groups. N.J.A.C. 7:31–6.3(a), Table I, Part D, Group I, N.J.A.C. 7:31– 6.3(a), Table I, Part D, Group II. These functional groups include certain molecular structures that have been identified as highly reactive, based on scientific research and accident history. Under the TCPA, covered facilities must determine if any of the chemicals they are intentionally mixing include components on the Functional Group list. If so, then the facility must determine the heat of the reaction and the corresponding threshold quantity for TCPA coverage. This approach takes into account not only certain specific chemicals, but also their overall reactivity in determining the level of coverage. In the questions in this RFI, OSHA invites comment on different regulatory approaches to covering reactive hazards, including the approach used in the TCPA. 5. Updating the List of Highly Hazardous Chemicals in Appendix A of the PSM Standard Appendix A of § 1910.119 contains a list of 137 highly hazardous chemicals that present a potential for a catastrophic event at or above the threshold quantity of the standard. OSHA compiled the Appendix A list of chemicals from multiple sources, including: • New Jersey’s Toxic Chemical Prevention Act; • Delaware’s Extremely Hazardous Substances Risk Management Act; • The World Bank’s Manual of Industrial Hazard Assessment Techniques; • U.S. Environmental Protection Agency’s List of Extremely Hazardous Substances; E:\FR\FM\09DEP1.SGM 09DEP1 73760 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules maindgalligan on DSK5TPTVN1PROD with PROPOSALS • U.S. Department of Transportation’s Emergency Response Guidebook; • Council of the European Communities’ Council Directive of June 24, 1982, on the Major Accident Hazards of Certain Industrial Activities (82/501/EEC); • United Kingdom Health and Safety Executive’s A guide to the Control of Major Accident Hazards Regulations 1999 (as amended); • API’s Recommended Practice 750— Management of Process Hazards; • National Fire Protection Association’s (NFPA) NFPA 49— Hazardous Chemicals Data; and • Organization Resources Counselors, Inc.’s Recommendations for Process Hazards Management of Substances with Catastrophic Potential. Every chemical listed in Appendix A appeared in at least one of these sources as warranting a high degree of management control due to its extremely hazardous properties; most of the chemicals appeared in several of the sources. Appendix A has remained unchanged since OSHA promulgated the PSM standard in 1992. In the questions in this RFI, OSHA requests public comment on which chemicals, if any, the Agency should add to Appendix A through rulemaking. OSHA further seeks comment on methods for periodically updating Appendix A to ensure adequate protection of workers in PSM-covered facilities when new hazards are discovered and as technology and advancements in chemical science evolve. 6. Revising the PSM Standard To Require Additional Management-System Elements Executive Order 13650 requires OSHA to ‘‘identify issues related to modernizing the PSM standard.’’ 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 may now be recognized to be necessary to protect workers. In this RFI, OSHA seeks public comment on additional managementsystem elements that would increase worker protection if required under the PSM standard. The Center for Chemical Process Safety (CCPS) is an example of a safety organization that recommends additional management-system elements. CCPS specifies in its Risk Based Process Safety (RBPS) program 20 different management-system elements, a number of which are not included in VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 the PSM standard. One such RBPS element is ‘‘Measurement and Metrics,’’ described by CCPS as a system for establishing indicators to track the effectiveness of the management system.6 In this element, the employer typically uses metrics to track leading and lagging safety indicators, and to identify opportunities for improvement. Another RBPS element is ‘‘Management Review and Continuous Improvement,’’ which CCPS describes as ‘‘the ongoing ‘due diligence’ review by management that fills the gap between day-to-day work activities and periodic formal audits.’’ 7 A third RBPS element is ‘‘Process Safety Competency,’’ which CCPS explains ‘‘encompasses three interrelated actions: (1) Continuously improving of knowledge and competency, (2) ensuring that appropriate information is available to people who need it, and (3) consistently applying what has been learned.’’ 8 OSHA also is considering adopting management-system elements from safety standards that other federal agencies promulgated since 1992. For example, the Bureau of Safety and Environmental Enforcement’s (BSEE) Revisions to Safety and Environmental Management Systems (SEMS II) final rule (78 FR 20423; 04/05/2013), which revised a number of requirements in 30 CFR 250, Subpart S, contains management-system elements not included in the PSM standard. In its SEMS II Fact Sheet (April, 2013) 9, BSEE describes three of the main additional elements as follows: • Developing and implementing a stop work authority that creates procedures and authorizes any and all offshore industry personnel who witness an imminent risk or dangerous activity to stop work. • Developing and implementing an ultimate work authority that requires offshore industry operators to clearly define who has the ultimate work authority on a facility for operational safety and decision-making at any given time. • Requiring an employee participation plan that provides an environment that promotes participation by offshore industry employees as well as their management to eliminate or mitigate safety hazards. OSHA invites public comment on any additional management-system elements, or on expanding existing elements, including those elements discussed in this RFI to improve worker protection in facilities covered under the PSM standard. The Agency requests 6 Guidelines for Risk Based Process Safety, CCPS. http://www.aiche.org/ccps. 7 Ibid. 8 Ibid. 9 http://www.bsee.gov/BSEE-Newsroom/BSEEFact-Sheet/SEMS-II-Fact-Sheet.aspx. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 that commenters submit data and information on management-system elements from consensus standards, safety organizations, federal standards, or other sources that could increase worker safety if OSHA expanded the PSM standard to include the elements. 7. Amending Paragraph (d) of the PSM Standard To Require Evaluation of Updates to Applicable RAGAGEP Paragraph (d)(3)(ii) of § 1910.119 requires employers to document that covered equipment complies with RAGAGEP. ‘‘For existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use,’’ paragraph (d)(3)(iii) of § 1910.119 further requires employers to ‘‘determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.’’ However, the PSM standard does not require employers to evaluate updates to applicable RAGAGEP or to examine new RAGAGEP after evaluating and documenting compliance with either § 1910.119(d)(3)(ii) or (iii). Through extensive collaboration and evaluation of incidents, many safety organizations periodically update their standards to improve work practices and protect workers against newly identified hazards. Since the practices constituting RAGAGEP under the PSM standard are constantly changing as a result of this process, evaluating updates to applicable RAGAGEP ensures that employers base a facility’s PSM program on the most up-to-date and accurate safety information available. An accident that occurred at a Formosa Plastics facility in Point Comfort, Texas, on October 6, 2005, illustrates the importance of evaluating updates to applicable RAGAGEP. A trailer towed by a forklift became snagged and pulled a small drain valve out of a strainer in a liquid propylene system at the facility. Escaping propylene rapidly vaporized, causing a series of explosions and fires that injured 16 workers. According to the CSB’s investigation report on the incident (CSB Report No. 2006–01–I– TX), Formosa and the company that sold the plant design failed to evaluate updates to applicable RAGAGEP for fireproofing structural steel that supports critical safety systems. The CSB concluded in its report that had Formosa fireproofed the steel according to more recent RAGAGEP, then ‘‘the consequences of this incident would likely have been less severe.’’ OSHA invites public comment on the best approach to revising paragraph (d) of E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules the PSM standard to require employers to evaluate updates to applicable RAGAGEP could help prevent or mitigate accidents like the October 6, 2005, Formosa explosion, and increase worker protection in PSM-covered facilities. 8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP The term ‘‘recognized and generally accepted good engineering practices’’ (RAGAGEP) appears in paragraphs (d)(3)(ii) and (j)(4)(ii) of § 1910.119, but the PSM standard does not contain a definition for the term. For guidance purposes, OSHA’s Petroleum Refinery NEP directive (CPL 03–00–010) provides one example of a RAGAGEP definition from CCPS’s Guidelines for Mechanical Integrity Systems: maindgalligan on DSK5TPTVN1PROD with PROPOSALS Recognized And Generally Accepted Good Engineering Practices’’ (RAGAGEP)—are the basis for engineering, operation, or maintenance activities and are themselves based on established codes, standards, published technical reports or recommended practices (RP) or similar documents. RAGAGEPs detail generally approved ways to perform specific engineering, inspection or mechanical integrity activities, such as fabricating a vessel, inspecting a storage tank, or servicing a relief valve. Although the CCPS’s definition of RAGAGEP is not an official OSHA definition, it is consistent with OSHA’s intent when it promulgated the standard. In its PSM proposal, OSHA would have required employers to follow commonly accepted consensus standards and industry codes. 55 FR 29150, 29155 (July 17, 1990). In promulgating the final rule, OSHA changed the requirement that employers comply with applicable published codes to the requirement that they comply with ‘‘recognized and generally accepted good engineering practices.’’ In making this change, OSHA explained that RAGAGEP would include codes and standards published by organizations such as NFPA, ASTM, and ANSI, as well as ‘‘appropriate internal standards.’’ 57 FR at 6390–91. OSHA made the change in response to comments expressing a number of concerns about the proposed language. These included comments about employers’ difficulties in obtaining relevant codes and standards, potential confusion on which codes were required by OSHA in a given situation, the possibility that codes and standards could become outdated, and the inability of employers to use more stringent internal standards. OSHA believed it was clear from the context of this change that it intended ‘‘appropriate internal standards’’ to be VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 those employers developed when published codes and standards were unavailable or outdated, or that were more stringent than published standards. 57 FR at 6390–91. However, OSHA did not include a definition of RAGAGEP in the standard itself. In this RFI, OSHA invites public comment on whether the Agency should clarify the PSM standard by including an explicit definition of RAGAGEP in § 1910.119 to assist employers in complying. OSHA requests that commenters specify if the Agency should adopt the CCPS’s definition of RAGAGEP in § 1910.119, or any other appropriate definition, and whether inclusion of a definition would increase worker protection and enhance process safety. 9. Expanding the Scope of Paragraph (j) of the PSM Standard To Cover the Mechanical Integrity of Any SafetyCritical Equipment Paragraph (j) of § 1910.119 requires employers to implement an ongoing mechanical-integrity program with respect to their PSM-covered processes. For processing, storing, or handling highly hazardous chemicals, employers must use equipment designed, constructed, installed, and maintained to minimize the risk of an uncontrolled release. Elements of an effective mechanical-integrity program include: Identifying and categorizing equipment and instrumentation; inspecting and testing their frequency; maintaining procedures; training maintenance personnel; having criteria for acceptable test results; documenting test and inspection results; and documenting manufacturer recommendations for equipment and instrumentation. Paragraph (j)(1) states that the mechanical-integrity requirements of the PSM standard apply to: 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); and pumps. In the preamble to the PSM final rule, OSHA explained that ‘‘if an employer deems additional equipment to be critical to a particular process, that employer should consider that equipment to be covered by this paragraph and treat it accordingly’’ (57 FR 6389, February 24, 1992). In light of the limited list of covered equipment in paragraph (j)(1), OSHA addresses hazards associated with other types of safety-critical equipment through citations for violations of Section 5(a)(1) of the OSH Act. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 73761 Revising paragraph (j) to explicitly apply the mechanical-integrity requirements of the PSM standard to all equipment the employer identifies as critical to process safety-critical equipment, in addition to the equipment currently listed in the standard, would provide industry with proper notice regarding coverage of such equipment. OSHA invites comment on whether the addition of this provision to paragraph (j) will increase worker safety and whether any further clarifying revisions would be recommended to ease implementation. 10. Clarifying Paragraph (l) of the PSM Standard With an Explicit Requirement That Employers Manage Organizational Changes Paragraph (l) of § 1910.119 requires employers to establish and implement written procedures to manage change, including all modifications to equipment, technology, procedures, raw materials, and processing conditions other than replacements in kind. Temporary changes are subject to the management-of-change requirements of the standard. Employers must properly identify and review all PSM-covered changes before implementation. The existing standard does not explicitly state that employers must follow management-of-change procedures for organizational changes,10 such as changes in management structure, budget cuts, or personnel changes; however, as noted in a March 31, 2009, Memorandum for Regional Administrators from Richard Fairfax,11 it is OSHA’s position that paragraph (l) covers organizational changes if the changes have the potential to affect process safety. Since the original promulgation of the PSM rule, it has become well established in the safety community that organizational changes can have a profound impact on worker safety and, therefore, employers should evaluate organizational change like any other change. Illustrating the significant hazards that organizational changes can produce, the CSB identified a lack of organizational management of change as a significant factor behind the 2005 BP Texas City Refinery accident that killed 15 workers and injured over 170 others (CSB Report No. 2005–04–I–TX). OSHA invites comments on whether revising 10 CCPS provides the following examples of organizational changes: ‘‘a reduction in the number of operators on a shift, a change in the maintenance contractor for the site, changing from 5-day operation to 7-day operation, or rotation of plant managers.’’ Guidelines for the Management of Change for Process Safety, CCPS. 11 https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=INTERPRETATIONS&p_id=28628. E:\FR\FM\09DEP1.SGM 09DEP1 73762 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules paragraph (l) to clarify that the PSM standard’s organizational managementof-change requirements will increase worker safety. maindgalligan on DSK5TPTVN1PROD with PROPOSALS 11. Revising Paragraph (n) of the PSM Standard To Require Coordination of Emergency Planning With Local Emergency-Response Authorities Paragraph (n) of § 1910.119 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 paragraphs (a), (p), and (q) of § 1910.120, the Agency’s Hazardous Waste Operations and Emergency Response (HAZWOPER) standard. While some OSHA standards, such as § 1910.146, Permit-Required Confined Spaces, require employers to coordinate emergency planning with local emergency-response authorities, the existing PSM standard does not contain such a requirement. Existing §§ 1910.38 and 1910.120 do not require coordination of emergency planning with outside parties if the employer chooses to evacuate employees from the danger area when an emergency occurs that does not permit employees to assist in handling the emergency. When emergency responders and other workers do not have adequate information or employer coordination about hazardous chemicals in a facility, they are at elevated risk of death and serious injury. On April 17, 2013, an ammonium nitrate explosion at the West Fertilizer Company storage and distribution facility in West, Texas, killed at least 15 people—the majority of whom were firefighters responding to a fire at the facility—and injured over 160 others.12 OSHA believes that revising paragraph (n) of the PSM standard to require facilities to coordinate emergency planning with local emergency-response authorities could help prevent or mitigate similar accidents by allowing first responders to develop the appropriate strategies in advance of their arrival and seeks comment on the appropriate mechanism and corresponding language to incorporate such coordination requirements into paragraph (n). 12 Following the West, Texas facility explosion, OSHA and partner agencies EPA and ATF issued updated guidance on Ammonium Nitrate. See, Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate, EPA 550–S– 13–001, EPA, OSHA, and ATF, August, 2013. VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 12. Revising Paragraph (o) of the PSM Standard To Require Third-Party Compliance Audits Paragraph (o)(1) of § 1910.119 requires employers to audit the PSM program in their facilities for compliance every three years. Paragraph (o)(2) further requires that the audits ‘‘be conducted by at least one person knowledgeable in the process.’’ However, § 1910.119 does not require employers to use a third party in conducting the compliance audits. According to CCPS, ‘‘Third party auditors (typically, consulting companies who can provide experienced auditors) potentially provide the highest degree of objectivity.’’ 13 It is notable that BSEE’s Safety and Environmental Management Systems (SEMS) standard, 30 CFR 250, Subpart S, requires audits conducted by an independent third party, subject to approval by BSEE, or by designated and qualified personnel if the employer implements procedures to avoid conflicts of interest. In addition, BSEE’s SEMS II revisions to the standard require that, by June 4, 2015, the team lead for compliance audits must be independent and represent an accredited audit service provider. In the preamble to its SEMS II final rule, BSEE discussed its third-party-auditing requirements as follows: Consistent audits performed by well trained and experienced auditors are critical to ensuring that SEMS programs are successfully implemented and maintained on the OCS. As a result, we are adopting industry best practices related to SEMS audits and auditor qualifications. Industry is already voluntarily adopting these practices in many deepwater operations. We believe that the application of these requirements to all OCS operations will result in more robust and consistent SEMS audits. (78 FR 20430; 04/05/2013.) In its investigation report on the 2005 BP Texas City Refinery explosion, the CSB identified a lack of rigorous compliance audits as a contributing factor behind the accident. As the CSB noted in its report, the resulting settlement agreement 14 between OSHA and BP required BP to retain a thirdparty compliance auditor with PSM expertise, subject to approval by OSHA, to assess the company’s PSM program. OSHA is aware that third-party compliance auditors exist and are already utilized by some of the PSM regulated community. In the questions 13 Guidelines for Risk Based Process Safety, CCPS. http://www.aiche.org/ccps. 14 United States of America Occupational Safety and Health Administration, BP Products North America Inc. Settlement Agreement, September 21, 2005. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 in this RFI, OSHA seeks comment on whether revising paragraph (o) of the PSM standard to require employers to use a qualified third party for compliance audits would increase worker protection through a more rigorous and objective PSM auditing process. OSHA is also seeking comment on increasing the required frequency of compliance audits. In addition, the Agency is seeking comment on requiring specific timeframes for responding to deficiencies found in the compliance audit process. 13. Expanding the Requirements of § 1910.109 To Cover Dismantling and Disposal of Explosives, Blasting Agents, and Pyrotechnics Paragraph (k)(1) of § 1910.109 provides that the standard applies to ‘‘the manufacture, keeping, having, storage, sale, transportation, and use of explosives, blasting agents, and pyrotechnics,’’ and does not apply to the sale and use of fireworks or the use of explosives in the form prescribed by the U.S. Pharmacopeia.15 16 Although dismantling and disposing of explosives can be just as hazardous as the covered activities listed in paragraph (k), dismantling and disposal are not activities that the existing standard covers. On April 8, 2011, an accidental explosion in Waikele, Hawaii, killed five workers who were disposing of fireworks seized by the Federal Government as contraband. The workers, employed by contractor Donaldson Enterprises, Inc., were disassembling the firework tubes by hand and separating black powder and aerial shells into plastic-lined cardboard boxes, which they then soaked in diesel for burning. The CSB investigated the explosion and determined (CSB Report No. 2011–06–I–HI) that gaps in federal regulations—specifically with regard to dismantling and disposal of explosives—contributed to the accident. Hawaii administers its own state safety and health program approved under the OSH Act, and adopted the federal OSHA standards in their entirety. OSHA believes that expanding the scope of § 1910.109(k) to cover dismantling and disposal of explosives, blasting agents, and pyrotechnics, in the 15 The U.S. Pharmacopeial Convention (USP) is a scientific nonprofit organization that sets standards for the identity, strength, quality, and purity of medicines, food ingredients, and dietary supplements manufactured, distributed and consumed worldwide. http://www.usp.org/aboutusp. 16 OSHA has no data showing an increase in accidents with this activity and is not seeking comment on changing this exclusion. E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules workplace in addition to the activities covered under the existing standard, would prevent tragic accidents similar to the Hawaii accident. While the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives exercises jurisdiction over many aspects of the explosives industry through its Commerce in Explosives standard at 27 CFR Part 555, OSHA seeks comment on whether expanding the scope of 29 CFR 1910.109 to address hazards associated with dismantling and disposal of explosives would lead to increased worker protection and whether ATF’s current regulations would make any revisions to OSHA’s regulations duplicative. maindgalligan on DSK5TPTVN1PROD with PROPOSALS 14. Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus Standards OSHA is considering updating its Flammable Liquids standard and Spray Finishing standard. OSHA first published these standards in 1974 and based the requirements on NFPA consensus standards from the 1960s. The format and requirements of the standards are significantly out of date, and need updating based on the latest applicable consensus standards.17 OSHA seeks recommendations on updates that should be considered and comments on how such updates will lead to increased worker protection. 15. Updating the Regulations Addressing the Storage, Handling, and Management of Ammonium Nitrate Industry manufactures millions of tons of ammonium nitrate annually in the United States. Consumers commonly use high-density ammonium nitrate in fertilizer and use low-density ammonium nitrate in making explosives. The NFPA assigns a reactivity rating of 3 (in a range of 0–4) to ammonium nitrate, which means that it is capable of detonation, explosive decomposition, or explosive reaction; ignition requires a strong initiating source or heating the substance under confinement. Stored ammonium nitrate is generally stable, but explosions of ammonium nitrate can be severe and have resulted in many injuries and fatalities. OSHA’s requirements for storage of ammonium nitrate are contained in § 1910.109, and are based on a 1970 NFPA consensus standard. As discussed earlier in this RFI, on April 17, 2013, an ammonium nitrate explosion at the West Fertilizer Company storage and distribution facility in West, Texas, killed at least 15 17 Applicable consensus standards may include, but are not limited to: NFPA 30, NFPA 30A, NFPA 30B, NFPA 33. VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 people and injured over 160 others leading OSHA and its partner agencies EPA and ATF to issue an updated chemical advisory on the safe storage, handling, and management of ammonium nitrate.18 An ammonium nitrate explosion that occurred in Texas City, Texas, on April 16, 1947, was the deadliest industrial accident in United States history. In that case, the initial explosion of a ship carrying ammonium nitrate, and the subsequent chain reaction of fires and explosions in other ships and nearby oil-storage facilities, killed at least 581 people and injured thousands of others.19 In the questions in this RFI, OSHA invites comment on safe work practices for storing, handling, and managing ammonium nitrate. OSHA further seeks comment on how to update its regulatory requirements to improve its approach to preventing the hazards associated with ammonium nitrate. 16. Changing Enforcement Policy of the PSM Exemption for Retail Facilities The PSM standard contains an exemption from coverage for retail facilities at 29 CFR 1910.119(a)(2)(i). Although the term ‘‘retail facility’’ is not defined, the Preamble to the Final PSM standard noted that chemicals in retail facilities are generally in small packages, containers, and allotments, and gives the example of gasoline stations as a type of facility that would typically qualify for the exemption. 57 FR 6356, 6369 (February 24, 1992). Other Federal Government agencies have explicit definitions of retail facilities. In particular, the U.S. Department of Commerce, which is responsible for the development of the North American Industry Classification System (NAICS) that organizes businesses into specific industrial sectors for economic and statistical purposes, characterizes retail trade as follows: The Retail Trade sector comprises establishments engaged in retailing merchandise, generally without transformation, and rendering services incidental to the sale of merchandise. The retailing process is the final step in the distribution of merchandise; retailers are, therefore, organized to sell merchandise in small quantities to the general public. North American Industry Classification System Manual (‘‘NAICS Manual’’), Sector 44–45—Retail Trade. 18 Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate, EPA 550– S–13–001, published by EPA, OSHA, and ATF, August, 2013. 19 Texas City, Texas, Disaster, April 16, 17, 1947. Fire Prevention and Engineering Bureau of Texas, 1947. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 73763 OSHA has stated that this NAICS Manual definition applies in interpreting the retail exemption. In a November 8, 1995, memo from Enforcement Programs director Richard Fairfax to Acting Region 10 Administrator Richard S. Terrell, OSHA distinguished retail end users from wholesale end users: [T]he ‘‘retail facilities’’ exception is intended to apply to an establishment in the retail trade as delineated in the Standard Industrial Classification (SIC) Manual. With exceptions, retail trade establishments sell merchandise to the general public for personal or household consumption. On the other hand, wholesale trade establishments may sell similar merchandise for exclusive use by industry . . . Income derived from selling [merchandise] to industry may not be counted as ‘‘income obtained from direct sales to end users’’ for the purpose of qualifying for the ‘‘retail facilities’’ exception under paragraph 1910.119(a)(2)(i). Notwithstanding this general statement, OSHA has also issued letters saying that a facility that is primarily engaged in selling anhydrous ammonia product to farmers (a wholesale operation under the NAICS definition) could qualify for the § 1910.119(a)(2)(i) retail-facilities exemption. For example, the January 26, 2001 letter from Richard Fairfax to J.D. Varn III of Varnco, Inc. which states that a facility selling 75% of its anhydrous ammonia to farmers qualifies for the retail exemption because the farmers were the ‘‘end users’’ of the product. Applying the retail-facility exemption in this way is inconsistent with the normal meaning of ‘‘retail’’ and the preamble’s explanation of the purpose of the exemption. As stated in the preamble, OSHA chose to exclude retail facilities from PSM coverage because the limited container, package, or allotment sizes of the chemicals typically found at these facilities do not present the same safety hazards as those encountered at establishments working with large, bulk quantities of materials. Facilities selling large or bulk quantities of materials would typically fall into Sector 42—Wholesale Trade of the NAICS system, which includes facilities that sell or arrange the purchase or sale of raw and intermediate materials and supplies used in production. As a result of increased workplace hazards associated with large, bulk quantities of highly hazardous chemicals, OSHA believes that only retail-trade facilities listed in NAICS sectors 44 and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the general public qualify for the retail-facilities exemption in 29 CFR 1910.119(a)(2)(i). E:\FR\FM\09DEP1.SGM 09DEP1 73764 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules maindgalligan on DSK5TPTVN1PROD with PROPOSALS In light of OSHA’s inconsistent statements on the application of the retail exemption, the Agency is inviting comment on what the exemption should cover and whether OSHA’s current enforcement policy adequately addresses workplace hazards associated with these facilities. 17. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A of the PSM Standard Without Specific Concentrations Appendix A of the PSM standard lists highly hazardous chemicals and threshold quantities that must be met to establish PSM coverage. Although Appendix A provides specific concentrations for 11 of its listed chemicals, the standard is silent on concentrations for the remaining 126 listed chemicals. For example, Appendix A lists hydrogen peroxide at concentrations of 52% by weight or greater, but the appendix does not provide a specific concentration for hydroxylamine. OSHA has issued interpretation letters taking a variety of positions regarding coverage of chemicals that have no listed concentration. Under one such approach, OSHA considers PSM coverage to apply if threshold quantities of such chemicals are present at commercial grade. As noted in a 1994 Letter of Interpretation from Compliance Programs Deputy Direction H. Berrien Zettler to Mr. Luc Hamelin of IVACO, Inc., OSHA defined commercial grade to mean ‘‘a typical maximum concentration of the chemical that is commercially available and shipped.’’ The letter added that, to determine commercial grade concentrations, an employer may refer to any published catalogue of chemicals for commercial sales. In 1999, an explosion at Concept Sciences, Inc. in Allentown, Pennsylvania, killed five people as the company was attempting to produce concentrated hydroxylamine. A U.S. District Court dismissed a subsequent criminal indictment related to this incident based on inconsistencies in OSHA’s statements regarding coverage of hydroxylamine. The Court pointed out that the PSM standard is ambiguous with respect to concentrations of Appendix A chemicals. It concluded that in light of a series of OSHA letters that were themselves inconsistent, no reasonable person in the defendant’s position could determine how a chemical is covered by the standard. U.S. v. Ward, 21 BNA OSHC 1882, 1884 (2001). In light of this, OSHA believes it is important to issue a clear and authoritative statement about PSM VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 coverage of chemicals for which Appendix A does not include a specific concentration. With respect to the commercial grade approach, OSHA also realizes that it is difficult to determine the maximum commercial grade of many of the highly hazardous chemicals listed in Appendix A. In addition, the maximum commercial grade of a chemical may change over time due to technological innovation or changes in industry. Furthermore, even where the concentration of a PSM-listed highly hazardous chemical falls below the correctly determined maximum commercial grade, the chemical may still present a hazard because substances in a mixture retain their original properties. For example, a solution of any concentration of hydroxylamine can form pure hydroxylamine crystals, which can rapidly decompose and cause fires or explosions. An interpretative approach that is consistent with the regulatory language and that addresses this concern is the approach currently used by EPA under the Risk Management Program (RMP). Similar to OSHA’s list of highly hazardous chemicals in Appendix A of the PSM standard, the EPA RMP provides a list of toxic substances in 40 CFR 68, Appendix A—Table of Toxic Endpoints. However, in contrast to OSHA’s ‘‘commercial grade’’ policy for PSM-listed chemicals, EPA considers a mixture containing an RMP-listed substance to be covered if the concentration is greater than one percent and the calculated weight of the substance in the mixture is greater than the threshold quantity.20 With a few exceptions, this rule does not apply in cases where the operator can demonstrate that the partial pressure of the substance in the mixture is less than 10 mmHg. OSHA invites comment on whether it should adopt the EPA’s policy for RMPlisted substances as a simpler and more practical approach to addressing hazards associated with Appendix A chemicals that do not have listed concentrations. If OSHA adopts this policy, the Agency would consider a PSM-listed chemical in a mixture to be covered if the concentration of the chemical were greater than one percent and the calculated weight of the chemical in the mixture were greater than the threshold quantity. OSHA believes this represents a more practical, 20 General Guidance On Risk Management Programs For Chemical Accident Prevention (40 CFR Part 68); EPA 555–B–04–001; U.S. EPA; March 2009. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 consistent, and straightforward approach to coverage of Appendix A chemicals under the PSM standard. D. Effects of Possible Regulatory and Policy Changes As part of this RFI, the Agency is requesting data and information on the potential economic impacts of each option. OSHA requests that commenters discuss potential economic impacts, whenever possible, in terms of quantitative benefits (e.g., reductions in injuries, fatalities, and property damage), costs (e.g., compliance costs or decreases in production), and offsets to costs (e.g., less need for maintenance and repairs) when responding to the questions in this RFI. OSHA also requests that commenters provide data and information on economic effects that the options may have on market conditions or services (e.g., market structure and concentration). In addition, OSHA invites public comment on unintended consequences and consistencies or inconsistences with other policies or regulatory programs. OSHA requests that commenters discuss economic impacts in as specific terms as possible. For example, if a rulemaking or policy change would necessitate additional employee training, then helpful information would include the following: the training courses necessary; the types of employees who would receive the training; the length and frequency of the courses; topics covered; any retraining necessary; and the training costs if conducted by a third-party vendor or inhouse trainer. The Agency invites comment on the time and level of expertise required to implement potential changes discussed in this RFI, even if dollar-cost estimates are not available. For discussion of equipmentrelated costs, OSHA requests that commenters estimate relevant factors such as purchase price, cost of installation, cost of equipment maintenance, cost of training, and expected life of the equipment. E. Impacts on Small Entities The Agency would like to determine whether the options in this RFI will have a significant economic impact on a substantial number of small entities. If the options have such impacts, then under the Regulatory Flexibility Act, 5 U.S.C. §§ 601–612, OSHA must, if it engages in rulemaking, develop a regulatory flexibility analysis and assemble a Small Business Advocacy Review Panel before publishing a proposal. Regardless of the economic impacts, OSHA seeks ways of minimizing burdens on small entities E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules consistent with OSHA’s statutory and regulatory requirements and objectives. The Agency requests that, when responding to the questions in this RFI, commenters discuss any special circumstances related to small entities, such as potential market-structure disruptions or uniquely high costs that small entities may bear. II. Request for Data, Information, and Comments OSHA is providing the following questions to collect data, information, and comments on the options discussed in this RFI. The Agency invites the public to respond to any questions for which they have specific knowledge, data, or information, regardless of their involvement in PSM-covered operations. OSHA would appreciate detailed responses to the following questions. When responding, please reference the specific question number to which you are responding. maindgalligan on DSK5TPTVN1PROD with PROPOSALS A. General Information 1. To assist in classifying comments, please provide information on the workplace (or industry) about which you are commenting, including the type of facility, NAICS code (if available), number of employees, types and volumes of chemicals handled, when the facility began operation, and other relevant information. 2. If you are commenting about a specific workplace or industry, does the workplace or industry conduct operations covered by the PSM standard? Please explain. B. Clarifying the PSM Exemption for Atmospheric Storage Tanks 3. Does your facility have any atmospheric storage tanks that are exempt from PSM coverage under § 1910.119(a)(1)(ii)(B)? If so, what facts led you to conclude that the exemption applies, and do you treat the exempted tanks as if they were PSM-covered for safety or other reasons? Please explain. 4. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents related to flammable liquids stored in atmospheric tanks exempted from PSM coverage under § 1910.119(a)(1)(ii)(B). 5. Would limiting the § 1910.119(a)(1)(ii)(B) exemption to apply only to flammable liquids stored in terminals and tank farms prevent worker injuries and fatalities? What would be the economic impacts of limiting the exemption in this way (e.g., costs and benefits of extending PSM coverage to additional types of tanks)? VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 6. Should OSHA limit the § 1910.119(a)(1)(ii)(B) exemption to apply only to specific NAICS codes? If so, which NAICS codes should OSHA exempt? 7. Should the § 1910.119(a)(1)(ii)(B) exemption apply only to ‘‘storage tanks,’’ such that ‘‘process tanks’’ are explicitly covered under PSM? If so, how should OSHA define the terms ‘‘storage tanks’’ and ‘‘process tanks’’? What would be the economic impacts of limiting the exemption in this way? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 8. Are there any other options related to the § 1910.119(a)(1)(ii)(B) exemption of flammable liquids stored in atmospheric tanks that OSHA should consider to prevent worker injuries and fatalities? If so, what would be the economic impacts of the option(s), and are there any special circumstances involving small entities that OSHA should consider with respect to the option(s)? C. Oil- and Gas-Well Drilling and Servicing 9. Does your facility conduct oil- and gas-well drilling or servicing operations not covered under § 1910.119? If so, do you treat these activities as covered by the PSM standard for safety or other reasons? Are the activities covered under other federal or state regulations? Please explain. 10. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving oil-and gas-well drilling or servicing operations. 11. Would removing the § 1910.119(a)(2)(ii) exemption for oiland gas-well drilling and servicing operations prevent worker injuries and fatalities? What would be the economic impact of removing the exemption? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? D. Oil- and Gas-Production Facilities 12. Does your facility conduct oil- and gas-production operations for which OSHA is not currently enforcing PSM requirements? If so, do you follow PSM requirements for these operations for safety or other reasons? Are the activities covered under other federal or state regulations? Please explain. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 73765 13. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving oil- and gasproduction facilities. 14. What would be the economic impact of resuming enforcement of the PSM standard for oil- and gasproduction facilities? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? E. Expanding PSM Coverage and Requirements for Reactivity Hazards 15. What are the best criteria to use in classifying reactive hazards? What do you consider to be a reactive chemical? What do you consider to be a reactive mixture? 16. Do you consider some reactive hazards to be outside coverage of the existing PSM standard? If so, please describe these hazards. 17. Should OSHA add reactive chemicals to the list of PSM-covered chemicals in Appendix A of § 1910.119? If so, which reactive chemicals? 18. If your facility is in New Jersey and covered by the New Jersey TCPA, has the TCPA been effective in protecting New Jersey workers from reactive hazards? Please describe any economic impacts associated with TCPA coverage (e.g., costs and benefits, cost savings, shifts in usage of reactive chemicals, special circumstances involving small entities, etc.). 19. Should OSHA revise the PSM standard to use chemical functional groups similar to those in the TCPA 21 to define hazardous reactive mixtures? If so, which chemical functional groups should OSHA use? 20. Does your facility follow NFPA 400 for reactive hazards? If so, please describe the economic impacts associated with following NFPA 400 (e.g., cost of additional equipment, cost of additional training, benefits of quality management, special circumstances involving small entities, etc.). Is following NFPA 400 an effective way of protecting workers from reactive hazards? Please explain. 21. Has your facility implemented a reactive-hazards management program other than a program specified by the TCPA and NFPA 400? If so, please describe your facility’s program, whether it protects worker more or less than the TCPA and NFPA 400, any 21 The definition of ‘‘reactive hazard substance (RHS) mixture’’ in the TCPA references a list of chemical functional groups specified in N.J.A.C. 7:31–6.3(a), Table I, Part D, Group II. Whether any of the chemical functional groups are present determines, in part, coverage of an RHS mixture under the TCPA. E:\FR\FM\09DEP1.SGM 09DEP1 73766 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules economic impacts associated with the program, and any special circumstances involving small entities. 22. What specific regulatory approach, if any, should OSHA use to comprehensively address reactive hazards, what would be the economic impacts of this approach, and would there be any special circumstances involving small entities? Are there specific requirements that OSHA should add to the PSM standard to ensure that employers adequately manage reactive hazards? 23. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving reactive hazards not covered under the existing PSM standard. Would reactive-hazards management requirements in PSM have prevented the incidents? maindgalligan on DSK5TPTVN1PROD with PROPOSALS F. Updating the List of Highly Hazardous Chemicals in Appendix A of the PSM Standard 24. What chemicals, if any, should OSHA add to the list of highly hazardous chemicals in Appendix A of § 1910.119 to prevent worker injuries and fatalities? Please provide any sources, data, or incident examples related to the hazards associated with the chemicals. What would be the economic impacts of adding the chemicals to Appendix A? Are there any special circumstances involving small entities that OSHA should consider with respect to adding the chemicals to Appendix A? 25. How often should OSHA update the list of highly hazardous chemicals in Appendix A of § 1910.119? 26. Is there a method, other than periodically updating the list of highly hazardous chemicals in Appendix A of § 1910.119 through rulemaking, that OSHA should use to prevent worker injuries and fatalities? Please explain. G. Revising the PSM Standard To Require Additional Management-System Elements 27. Does your facility follow any management-system elements not required under § 1910.119 for PSMcovered operations? If so, please describe the additional managementsystem elements, the safety benefits, any economic impacts associated with following the elements, and any special circumstances involving small entities. 28. Would expanding the scope of the PSM standard to require additional management-system elements, or expanding the scope of existing PSM management-system elements, prevent worker injuries and fatalities? If so, please describe the elements, the safety VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 benefits, any economic impacts associated with expanding the scope of the PSM standard in this way, and any special circumstances involving small entities that OSHA should consider. 29. In systems using management and metrics, how do facilities develop useful leading indicators? Should the PSM standard require facilities to share these indicators with employees or OSHA? 30. Would expansion of the PSM standard’s employee participation provision to include requirements such as the SEMS stop-work authority, or other efforts to involve employees in all management-system elements, prevent worker injuries and fatalities? 31. Are there any other managementsystem elements in the existing PSM standard that OSHA should expand with additional requirements (e.g., a new requirement that employers perform a root-cause analysis for incidents under § 1910.119(m))? If so, please describe the additional requirements, the safety benefits, any economic impacts associated with expanding the PSM elements in this way, and any special circumstances involving small entities that OSHA should consider. 32. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents that the employer could have prevented by following managementsystem elements not required under the existing PSM standard. H. Amending Paragraph (d) of the PSM Standard To Require Evaluation of Updates to Applicable RAGAGEP 33. From what sources (e.g., codes, standards, published technical reports, consensus standards) does your facility select applicable RAGAGEP for operations covered under the PSM standard? 34. Does your facility evaluate updates to its selected RAGAGEP? If so, how does your facility monitor any updates, and how often do you evaluate them? 35. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving failure to evaluate updates to applicable RAGAGEP for PSM-covered operations. 36. What would be an appropriate time period in which to conduct this evaluation? Would such a requirement be more appropriate in another paragraph of the PSM standard? For example, should such a requirement become part of the Process Hazard Analysis revalidation requirements at 29 CFR 1910.119(e)(5)? PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 37. Would requiring employers to evaluate updates to applicable RAGAGEP prevent worker injuries and fatalities? Is there another approach that can be used to ensure the incorporation of RAGAGEP into facility operations that is tangible and documentable? What would be the economic impacts of this requirement? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? I. Clarifying the PSM Standard by Adding a Definition for RAGAGEP 38. What does your facility use as a definition for RAGAGEP? 39. Would adding a definition for RAGAGEP to the PSM standard improve understanding of PSM requirements and prevent worker injuries and fatalities? If so, what specific definition for RAGAGEP should OSHA add to the PSM standard? What would be the economic impacts of adding such a definition? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 40. What criteria does your facility use to develop appropriate internal standards? For instance, if there is an applicable consensus standard, what steps do you take to ensure that your internal standards are at least as protective as the applicable standard? J. Expanding the Scope of Paragraph (j) To Cover the Mechanical Integrity of Any Safety-Critical Equipment 41. Does your facility have any equipment not covered under § 1910.119(j) that is critical to process safety? If so, what type(s) of equipment? Did you identify the equipment as safety-critical through a PSM process hazard analysis? How did your facility determine that the equipment was safety-critical, and does your facility treat the equipment as if it were PSM covered for safety or other reasons? Please explain. 42. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents related to the mechanical integrity of safety-critical equipment not covered under § 1910.119(j). 43. Would expanding the scope of § 1910.119(j) to cover the mechanical integrity of all equipment the employer identifies as critical to process safety, in addition to the equipment listed in existing § 1910.119(j), prevent worker injuries and fatalities? What would be the economic impact of expanding the scope of § 1910.119(j) in this way? Are there any special circumstances involving small entities that OSHA E:\FR\FM\09DEP1.SGM 09DEP1 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules should consider with respect to this option? maindgalligan on DSK5TPTVN1PROD with PROPOSALS K. Clarifying Paragraph (l) of the PSM Standard With an Explicit Requirement That Employers Manage Organizational Changes 44. What do you consider to be an organizational change within the context of process safety management practices? For example, would you consider the following, or similar, changes to be organizational changes: reducing the number of operators in a shift; changing from 5-day to 7-day operations; changing from 8-hour to 12hour operator shifts; replacing a unit manager; relocating a technical group to a remote corporate location; or changing a supervisory or compensation structure? 45. If your facility has established and implemented written procedures for management of organizational changes, please describe any economic impacts associated with the procedures. 46. Would clarifying § 1910.119(l) with an explicit requirement that employers manage organizational changes prevent worker injuries and fatalities? What would be the economic impact of such a clarification? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 47. Please describe any organizational changes made in your facility or organization that have had the potential to affect process operations. Were management-of-change procedures followed before making the changes? 48. What do you consider to be the best safety practices concerning management of organizational change? 49. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving the failure to manage organizational change. Would following management-of-change procedures under § 1910.119(l) prevent these incidents? L. Revising Paragraph (n) of the PSM Standard To Require Coordination of Emergency Planning With Local Emergency-Response Authorities 50. Does your facility provide information to, or coordinate emergency planning with, local emergencyresponse authorities? If so, please explain any special circumstances that necessitated the information sharing or coordination of emergency planning. 51. If OSHA proposes a regulatory amendment to require coordination, what types of information should OSHA require PSM-covered facilities to provide to local emergency-response VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 authorities? For example, should OSHA require employers to provide safety data sheets for all on-site chemicals, list the quantities of chemicals, list the location of chemicals, provide block-flow diagrams, list fire-mitigation systems present, or report known fire and explosion risks in the facility? What would be the economic impact of requiring employers to provide such information? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? What would be the cost to emergency-response authorities of coordinating emergency planning with PSM-covered employers? 52. What, if any, steps should OSHA require PSM-covered facilities to take in coordinating emergency planning with local emergency-response authorities? What additional benefits would accrue from requiring training exercises in addition to information sharing? What would be the economic impact of such requirements, and would there be any special circumstances involving small entities or security concerns that OSHA should consider? 53. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents related to local emergency response authorities responding to a PSM-covered facility without adequate information on the chemicals present. M. Revising Paragraph (o) of the PSM Standard To Require Third-Party Compliance Audits 54. Does your facility use a third party for conducting compliance audits under § 1910.119(o) for safety or other reasons? Please explain. 55. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents that could have been prevented or minimized by more effective compliance audits conducted for operations covered under § 1910.119(o). Were the ineffective compliance audits conducted by inhouse staff or a third party? 56. Would revising § 1910.119(o) to require employers to use a third party for compliance audits prevent worker injuries and fatalities? What would be the economic impacts of revising § 1910.119(o) in this way (e.g., typical consultant fees, additional work hours required, special circumstances involving small entities, etc.)? 57. Should OSHA revise § 1910.119(o) to require employers to use compliance auditors (internal or third party) with certain minimum credentials or certifications? If so, what minimum credentials or certifications should the PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 73767 Agency require? What burden might this place on small businesses? 58. Should OSHA revise § 1910.119(o)(1) to require a compliance audit frequency less than every three years? 59. Would revising § 1910.119(o) to require employers to respond to deficiencies found in the compliance audit within certain timeframes prevent worker injuries and fatalities? What would you consider to be an appropriate timeframe? N. Expanding the Requirements of § 1910.109 To Cover Dismantling and Disposal of Explosives, Blasting Agents, and Pyrotechnics 60. Does your facility conduct explosives dismantling or disposal activities not covered under § 1910.109? If so, do you treat these activities as covered under § 1910.109 for safety or other reasons? Please explain. 61. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving dismantling or disposal of explosives, blasting agents, and pyrotechnics. Would coverage of these dismantling and disposal activities under § 1910.109 prevent such incidents from occurring? 62. Are your operations currently covered under regulations issued by ATF? Are there specific areas of workplace safety that are not covered by ATF that should be considered by OSHA? Is there overlap or inconsistencies between the Requirements of § 1910.109 and ATF regulations that would need to be addressed before an expansion would be recommended? 63. What would be the economic impacts if OSHA expanded the scope of § 1910.109 to cover the dismantling and disposal of explosives, blasting agents, and pyrotechnics? Are there any special circumstances involving small entities that OSHA should consider with respect to this option? O. Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus Standards 64. Is your facility covered by §§ 1910.106 or 1910.107? If so, what are the operations covered by the standard(s)? 65. Are there other federal, state, or local requirements that cover flammable liquids or spray finishing operations in your facility? If so, do the requirements protect workers more or less than §§ 1910.106 and 1910.107? Please explain. 66. Does your facility follow NFPA 30, 30A, or 30B for flammable liquids, E:\FR\FM\09DEP1.SGM 09DEP1 73768 Federal Register / Vol. 78, No. 236 / Monday, December 9, 2013 / Proposed Rules or NFPA 33 for spray-finishing operations? If so, which edition(s)? Are there any other consensus standards applicable to flammable liquids or spray-finishing operations that your facility follows? 67. On which standards (e.g., consensus, federal, state, local) were the design and operation of your facility primarily based? 68. Should OSHA replace §§ 1910.106 and 1910.107 with the latest editions of NFPA 30, 30A, 30B, and 33? If so, should OSHA replace §§ 1910.106 and 1910.107 entirely or only in part? What would be the economic impacts of these options (e.g., cost of additional equipment, cost of additional training, benefits of quality management, special circumstances involving small entities, etc.)? 69. Are there gaps in safety coverage in §§ 1910.106 or 1910.107? If so, what are the gaps, would NFPA 30, 30A, 30B, and 33 address the gaps, and what would be the economic impacts of addressing the gaps through rulemaking? Are there any special circumstances involving small entities that OSHA should consider with respect to addressing the gaps through rulemaking? 70. Are there any requirements in §§ 1910.106 and 1910.107 that prevent worker injuries and fatalities better than the safety practices in the latest editions of NFPA 30, 30A, 30B, and 33? If so, which requirements? 71. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving gaps in safety coverage in §§ 1910.106 or 1910.107. 72. Are the § 1910.106 provisions related to facility types (e.g., bulk plant, chemical plant, distillery) a useful classification system? If not, what type of a classification system should the standard use instead? Please explain. 73. If OSHA updates § 1910.106 and 1910.107 through rulemaking, what revisions to the scope and application of the standards would provide the best protection to workers? maindgalligan on DSK5TPTVN1PROD with PROPOSALS P. Updating the Regulations Addressing the Storage, Handling, and Management of Ammonium Nitrate 74. Does your facility store, handle, or manage ammonium nitrate? If so, in what form (e.g., solid, liquid) and in what grade (e.g., high density, low density) is the ammonium nitrate? Please explain. VerDate Mar<15>2010 15:53 Dec 06, 2013 Jkt 232001 75. Does your facility comply with § 1910.109(i) for the storage of ammonium nitrate? Are there any other standards, including consensus standards, applicable to ammonium nitrate storage, handling, and management that your facility follows? If so, which ones? 76. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving the storage, handling, and management of ammonium nitrate. 77. How can OSHA update its standards and improve its enforcement policy relating to the storage, handling, and management of ammonium nitrate to prevent worker injuries and fatalities? Please discuss the economic impacts associated with such improvement, including any special circumstances involving small entities that OSHA should consider. Q. Changing Enforcement Policy for the PSM Exemption for Retail Facilities 78. Does your facility qualify for the PSM exemption for ‘‘retail facilities’’ under OSHA’s current enforcement policy? If so, would changing OSHA’s enforcement policy to only exempt facilities in NAICS sectors 44 and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the general public result in PSM coverage for your facility? 79. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving highly hazardous chemicals at ‘‘retail facilities’’ exempt from PSM coverage under § 1910.119(a)(2)(i). 80. Please discuss any economic impacts that would result from changing OSHA’s retail-facilities policy to only exempt facilities in NAICS sectors 44 and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the general public. Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 81. Is there a definition of ‘‘retail facilities’’ that OSHA should use to protect workers under the PSM standard? Please discuss any economic impacts associated with your suggested definition. Are there any special circumstances involving small entities that OSHA should consider with respect to your or other definitions? PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 R. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A of the PSM Standard Without Specific Concentrations 82. Does your facility handle any chemicals excluded from PSM coverage on the basis that the concentration is below the ‘‘maximum commercial grade’’? If so, what are these chemicals and concentrations, and would OSHA adopting EPA’s policy for RMP-listed chemicals in mixtures as OSHA’s enforcement policy for PSM-listed chemicals without specific concentrations result in PSM coverage of the chemicals in your facility? 83. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving highly hazardous chemicals excluded from PSM coverage on the basis that that the concentration was below the ‘‘maximum commercial grade.’’ 84. Please discuss any economic impacts that would result from OSHA adopting EPA’s policy for RMP-listed chemicals in mixtures as OSHA’s enforcement policy for PSM-listed chemicals without specific concentrations. Are there any special circumstances involving small entities that OSHA should consider with respect to this option? 85. Is there a different enforcement policy that OSHA should use to protect workers from the hazards associated with the chemicals listed in Appendix A of the PSM standard without specific concentrations? Please discuss any economic impacts associated with your suggested enforcement policy. Are there any special circumstances involving small entities that OSHA should consider with respect to your suggested enforcement policy? Authority and Signature David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice pursuant to 29 U.S.C. 653, 655, and 657, Secretary’s Order 1–2012 (77 FR 3912; Jan. 25, 2012), and 29 CFR part 1911. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. [FR Doc. 2013–29197 Filed 12–6–13; 8:45 am] BILLING CODE 4510–26–P E:\FR\FM\09DEP1.SGM 09DEP1

Agencies

[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Proposed Rules]
[Pages 73756-73768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29197]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2013-0020]
RIN 1218-AC82


Process Safety Management and Prevention of Major Chemical 
Accidents

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Request for information.

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SUMMARY: In response to Executive Order 13650, OSHA requests comment on 
potential revisions to its Process Safety Management (PSM) standard and 
its Explosives and Blasting Agents standard, potential updates to its 
Flammable Liquids standard and Spray Finishing standard, and potential 
changes to PSM enforcement policies. In this Request for Information 
(RFI), the Agency asks for information and data on specific rulemaking 
and policy options, and the workplace hazards they address. OSHA will 
use the information received in response to this RFI to determine what 
action, if any, it may take.

DATES: Submit comments and additional material on this Request for 
Information March 10, 2014. All submissions must bear a postmark or 
provide other evidence of the submission date. The following section 
describes the available methods for making submissions.

ADDRESSES: Submit comments and additional materials by any of the 
following methods:
    Electronically: Submit comments and attachments electronically at 
http://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions online for making electronic submissions.
    Facsimile: OSHA allows facsimile transmission of comments and 
additional material that are 10 pages or fewer in length (including 
attachments). Send these documents to the OSHA Docket Office at (202) 
693-1648. OSHA does not require hard copies of these documents. Instead 
of transmitting facsimile copies of attachments that supplement these 
documents (for example, studies, journal articles), commenters must 
submit these attachments to the OSHA Docket Office, Technical Data 
Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution 
Ave. NW., Washington, DC 20210. These attachments must identify clearly 
the sender's name, the date, subject, and docket number (OSHA-2013-
0020) so that the Docket Office can attach them to the appropriate 
document.
    Regular mail, express mail, hand delivery, or messenger (courier) 
service: Submit comments and any additional material (for example, 
studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-
2013-0020 or RIN 1218-AC82, Technical Data Center, Room N-2625, OSHA, 
U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 
20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-
5627.) Contact the OSHA Docket Office for information about security 
procedures concerning delivery of materials by express mail, hand 
delivery, and messenger service. The hours of operation for the OSHA 
Docket Office are 8:15 a.m. to 4:45 p.m., e.t.
    Instructions: All submissions must include the Agency's name and 
the docket number for this Request for Information (that is, OSHA-2013-
0020). OSHA will place comments and other material, including any 
personal information, in the public docket without revision, and these 
materials will be available online at http://www.regulations.gov. 
Therefore, OSHA cautions commenters about submitting statements they do 
not want made available to the public and submitting comments that 
contain personal information (either about themselves or others) such 
as Social Security numbers, birth dates, and medical data.
    If you submit scientific or technical studies or other results of 
scientific research, OSHA requests (but is not requiring) that you also 
provide the following information where it is available: (1) 
Identification of the funding source(s) and sponsoring organization(s) 
of the research; (2) the extent to which the research findings were 
reviewed by a potentially affected party prior to publication or 
submission to the docket, and identification of any such parties; and 
(3) the nature of any financial relationships (e.g., consulting 
agreements, expert witness support, or research funding) between 
investigators who conducted the research and any organization(s) or 
entities having an interest in the rulemaking and policy

[[Page 73757]]

options discussed in this RFI. Disclosure of such information is 
intended to promote transparency and scientific integrity of data and 
technical information submitted to the record. This request is 
consistent with Executive Order 13563, issued on January 18, 2011, 
which instructs agencies to ensure the objectivity of any scientific 
and technological information used to support their regulatory actions. 
OSHA emphasizes that all material submitted to the record will be 
considered by the Agency if it engages in rulemaking.
    Docket: To read or download submissions or other material in the 
docket, go to http://www.regulations.gov or the OSHA Docket Office at 
the address above. The http://www.regulations.gov index lists all 
documents in the docket. However, some information (e.g., copyrighted 
material) is not available publicly to read or download through the Web 
site. All submissions, including copyrighted material, are available 
for inspection at the OSHA Docket Office. Contact the OSHA Docket 
Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Mr. Frank Meilinger, Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999; email: 
meilinger.francis2@dol.gov.
    General and technical information: Ms. Lisa Long, Director, Office 
of Engineering Safety, OSHA Directorate of Standards and Guidance, Room 
N-3609, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-2222; email: 
long.lisa@dol.gov.

SUPPLEMENTARY INFORMATION: 
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's Web page 
at http://www.osha.gov. Copies of this Federal Register notice also are 
available at http://www.regulations.gov.

I. Background

A. Executive Order 13650

    On August 1, 2013, President Obama signed Executive Order 13650, 
entitled Improving Chemical Facility Safety and Security. Section 
6(e)(ii) of the order requires OSHA to publish, within 90 days, an RFI 
designed to identify issues related to modernization of its PSM 
standard \1\ and related standards necessary to meet the goal of 
preventing major chemical accidents. In response to the Executive 
Order, OSHA is publishing this RFI to collect data and information on 
its PSM standard and related standards, as well as other regulatory 
issues involving hazardous chemicals.
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    \1\ https://www.osha.gov/SLTC/processsafetymanagement/.
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B. Process Safety Management of Highly Hazardous Chemicals

    OSHA originally promulgated the Sec.  1910.119 Process Safety 
Management (PSM) standard in 1992 in response to a number of 
catastrophic chemical-release incidents that occurred worldwide. The 
incidents spurred broad recognition in the safety community that 
accidental releases of highly hazardous chemicals can result in 
multiple worker injuries or fatalities. The main objective of the PSM 
standard is to prevent or minimize employee exposure to the hazards 
associated with uncontrolled releases of highly hazardous chemicals.
    The PSM standard is a comprehensive management program for highly 
hazardous chemicals that integrates technologies, procedures, and 
management practices to help assure safe and healthful workplaces. One 
of the key components of the PSM standard is the requirement that 
employers perform a process hazard analysis, which is a careful review 
of what could go wrong and what safeguards employers must implement to 
prevent uncontrolled releases. The PSM standard also mandates written 
operating procedures; employee training; prestartup safety reviews; 
evaluation of the mechanical integrity of critical equipment; and 
written procedures for managing change. In addition, the PSM standard 
specifies a permit system for hot work; investigation of incidents 
involving releases or near misses of covered chemicals; emergency-
action plans; compliance audits at least every three years; and trade-
secret protection.
    While the PSM standard has been effective in improving process 
safety in the United States and protecting workers from many of the 
hazards associated with uncontrolled releases of highly hazardous 
chemicals, major incidents have continued to occur.
    (1) On April 23, 2004, an explosion and fire at Formosa Plastics in 
Illiopolis, Illinois, killed five workers and severely injured three 
others. According to the U.S. Chemical Safety and Hazard Investigation 
Board's (CSB) report on the incident (CSB Report No, 2004-10-I-IL), 
while Formosa failed to properly implement many OSHA-required elements 
of its PSM program, modernization of the PSM standard to include 
several issues discussed below would likely have prevented or minimized 
the consequences of this incident. In 2005, OSHA reached a settlement 
agreement with Formosa with 48 citations, 31 of which were PSM 
citations, and fines totaling $300,000. The CSB report contains a 
detailed analysis of the root causes of this incident.
    (2) On March 23, 2005, 15 workers died and more than 170 others 
were injured at the BP Refinery in Texas City, Texas. As a result of 
the incident, OSHA issued over 300 citations and fined BP over $21 
million. Many of the citations were for PSM violations, including 
failing to properly implement mechanical integrity, training, and 
standard operating procedures. In a 2009 follow-up investigation, OSHA 
found numerous deficiencies at the BP Texas City Refinery and issued 
270 failure-to-abate notices. In a 2010 settlement agreement with OSHA, 
BP agreed to pay a penalty of $50.6 million to resolve the notices.
    (3) On April 2, 2010, an explosion and fire at the Tesoro refinery 
in Anacortes, Washington, killed seven workers. The incident occurred 
when a heat exchanger suddenly ruptured during maintenance, releasing a 
highly hazardous chemical that subsequently exploded. The company 
operated under the jurisdiction of the Washington State Department of 
Labor and Industries Division of Occupational Safety and Health (DOSH), 
which adopted OSHA's PSM standard into its state plan regulations at 
WAC 296-67. DOSH inspectors found that Tesoro failed to properly 
implement its PSM program by inadequately testing its equipment and 
continuing to operate failing equipment. As the result of the incident, 
DOSH issued 44 citations, 36 of which were PSM citations, to Tesoro, 
totaling $2.39 million. The root cause investigation is ongoing, 
however, modernization of the PSM standard to include several issues 
discussed below would likely have prevented or minimized the 
consequences of this incident.
    (4) On April 17, 2013, an ammonium nitrate explosion at the West 
Fertilizer Company storage and distribution facility in West, Texas, 
killed at least 15 people--the majority of whom were firefighters 
responding to a fire at the facility--and injured over 160 others. The 
West Fertilizer facility is not currently covered by PSM, however it is 
a stark example of how potential modernization of the PSM standard may 
include such facilities and prevent future catastrophe.

[[Page 73758]]

    In 2007, OSHA initiated its Petroleum Refinery PSM National 
Emphasis Program (NEP) to reduce or eliminate the workplace hazards 
associated with the catastrophic release of highly hazardous chemicals 
in petroleum refineries. The program outlined a new approach for 
inspecting PSM-covered facilities that allowed for a greater number of 
inspections using better allocation of OSHA resources. In 2009, OSHA 
built upon that inspection program by implementing a pilot PSM-Covered 
Chemical Facilities NEP, which it later expanded into a full NEP. Under 
both of the PSM NEPs, OSHA was able to increase the number of PSM-
covered facilities inspected and gained valuable inspection data.

C. Rulemaking and Enforcement Policy Change Options Under Consideration

    OSHA has determined that revisions to its PSM standard may be 
needed to address issues in coverage. As specified in Executive Order 
13650, the Agency is also considering related revisions to its 
Explosives and Blasting Agents standard to address potential issues in 
coverage; updates to its Flammable Liquids standard and Spray Finishing 
standard to better align with current versions of applicable consensus 
standards; and changes in its enforcement policies for these standards. 
OSHA identified a number of rulemaking and policy options through the 
Agency's PSM NEPs, its investigation of major accidents, and its review 
of recommendations from the safety community. OSHA identified the 
following topics as potential candidates for rulemaking or enforcement 
policy changes:
    1. Clarifying the PSM exemption for atmospheric storage tanks;
    2. Oil- and Gas-Well Drilling and Servicing;
    3. Oil- and Gas-Production Facilities;
    4. Expanding PSM Coverage and Requirements for Reactivity Hazards;
    5. Updating the List of Highly Hazardous Chemicals in Appendix A of 
the PSM Standard;
    6. Revising the PSM Standard to Require Additional Management-
System Elements;
    7. Amending Paragraph (d) of the PSM Standard to Require Evaluation 
of Updates to Applicable recognized and generally accepted good 
engineering practices (RAGAGEP);
    8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP;
    9. Expanding the Scope of Paragraph (j) of the PSM Standard to 
Cover the Mechanical Integrity of Any Safety-Critical Equipment;
    10. Clarifying Paragraph (l) of the PSM Standard with an Explicit 
Requirement that Employers Manage Organizational Changes;
    11. Revising Paragraph (n) of the PSM Standard to Require 
Coordination of Emergency Planning with Local Emergency-Response 
Authorities;
    12. Revising Paragraph (o) of the PSM Standard to Require Third-
Party Compliance Audits;
    13. Expanding the Requirements of Sec.  1910.109 to Cover 
Dismantling and Disposal of Explosives, Blasting Agents, and 
Pyrotechnics;
    14. Updating Sec. Sec.  1910.106 and 1910.107 Based on the Latest 
Applicable Consensus Standards;
    15. Updating the Regulations Addressing the Storage, Handling, and 
Management of Ammonium Nitrate;
    16. Changing Enforcement Policy of the PSM Exemption for Retail 
Facilities; and
    17. Changing Enforcement Policy for Highly Hazardous Chemicals 
Listed in Appendix A of the PSM Standard without Specific 
Concentrations.
    The subsections below discuss each of these potential rulemaking 
topics in greater detail.
1. Clarifying the PSM Exemption for Atmospheric Storage Tanks
    Pursuant to paragraph (a)(1)(ii) of Sec.  1910.119, the PSM 
standard applies to processes involving a flammable liquid or gas on 
site in one location in a quantity of 10,000 pounds or more. However, 
paragraph (a)(1)(ii)(B) contains an exemption for ``[f]lammable liquids 
stored in atmospheric tanks or transferred which are kept below their 
normal boiling point without benefit of chilling or refrigeration.''
    In Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 
95-0341), an administrative law judge ruled that PSM coverage does not 
extend to flammables stored in atmospheric tanks, even if the tanks are 
connected to a process. As a result, employers can exclude the amount 
of flammable liquid contained in an atmospheric storage tank, or in 
transfer to or from storage, from the quantity contained in the process 
when determining whether a process meets the 10,000-pound threshold 
quantity. The Meer decision was contrary to OSHA's earlier 
interpretation \2\ of paragraph (a)(1)(ii)(B), which was that the 
standard covered all stored flammables when connected to, or in close 
proximity to, a process.
---------------------------------------------------------------------------

    \2\ https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9760.
---------------------------------------------------------------------------

    OSHA believes that revising paragraph (a)(1)(ii)(B) to include 
flammable liquids in atmospheric storage tanks within or connected to a 
PSM covered processes would improve the safety of workers by remedying 
the issue in PSM enforcement that has existed since the Meer decision. 
In the questions in this RFI, the Agency requests comment on revising 
paragraph (a)(1)(ii)(B) to clarify that the PSM standard covers all 
stored flammables when connected to, or in close proximity to, a 
process.
2. Oil- and Gas-Well Drilling and Servicing
    Paragraph (a)(2)(ii) of Sec.  1910.119 exempts oil- and gas-well 
drilling and servicing operations from PSM coverage. The preamble to 
the PSM final rule explained that OSHA excluded these operations 
because it had begun a separate rulemaking for oil and gas well 
drilling and servicing operations (48 FR 57202). However, the Agency 
subsequently removed the oil and gas well drilling and servicing 
operations rulemaking from its regulatory agenda and never promulgated 
a final rule for these operations. In light of this history, OSHA 
requests public comment on whether to retain or remove the Sec.  
1910.119(a)(2)(ii) exemption.
3. Oil- and Gas-Production Facilities
    On March 4, 1998, a catastrophic vessel failure and fire killed 
four workers at an oil- and gas-production facility near Pitkin, 
Louisiana, owned by Sonat Exploration Company. Sonat was using well 
fluid to purge air from a two-mile pipeline that connected a separation 
facility to a production well when the separation vessel failed. In its 
investigation report on the incident (Report No. 1998-002-I-LA), the 
CSB stated that ``[t]wo elements of the PSM standard, process hazard 
analyses and written operating procedures, are particularly relevant to 
the Sonat incident.'' The CSB further concluded that ``[t]he incident 
would likely have been prevented if process safety management 
principles or good engineering practice had been followed more 
effectively at the facility.''
    The exemption in Sec.  1910.119(a)(2)(ii) does not extend to oil- 
and gas-well production operations such as the Sonat facility noted in 
the previous paragraph. A December 20, 1999, memo from Compliance 
Programs director Richard Fairfax to OSHA regional administrators, 
entitled PSM Applicability to Oil/Gas Production Facilities, explained 
that ``production

[[Page 73759]]

facilities . . . were always intended to be covered under PSM.'' The 
memo described covered production operations as follows:

    Production, as recognized by the petroleum industry, is a phase 
of well operations that deals with bringing well fluids to the 
surface, separating them, and then storing, gauging and otherwise 
preparing the product for the pipeline. This production phase occurs 
after a well has been drilled, completed, and placed into operation, 
or after it has been returned to operation following workover or 
servicing. A completed well includes a ``Christmas tree'' (control 
valves, pressure gauges and choke assemblies to control the flow of 
oil and gas) which is attached at the top of the well where pressure 
is expected. It is at this point, the top of the well, where the 
covered PSM process begins. The distance between separation 
equipment and the well is not a factor when determining PSM 
applicability for production facilities.

    The American Petroleum Institute (API) objected to the December 20, 
1999, memo, asserting that PSM coverage of oil- and gas-production 
facilities was invalid because OSHA did not conduct an economic 
analysis during the original PSM rulemaking proceedings addressing such 
coverage. In a March 7, 2000, letter to API, OSHA conceded that the 
original economic analysis for the PSM standard did not include oil- 
and gas-production operations, and stated further that the Agency would 
suspend enforcement of the PSM standard for oil- and gas-production 
operations until it performed the analysis. OSHA is considering 
completing this analysis so that it can resume enforcement of the PSM 
standard for oil- and gas-production facilities.
    OSHA believes that implementation of an effective PSM program in 
accordance with the requirements in Sec.  1910.119 by oil and gas 
production facilities could prevent or mitigate accidents like the 
Sonat explosion. In the questions in this RFI, the Agency requests 
public comment on completing an economic analysis and possibly resuming 
enforcement for PSM-covered oil- and gas-production facilities. OSHA 
will review the comments received to determine what action, if any, the 
Agency will take.
4. Expanding PSM Coverage and Requirements for Reactivity Hazards
    Paragraph (a) of Sec.  1910.119 states that the standard applies to 
any ``process which involves a chemical at or above the specified 
threshold quantities listed in Appendix A,'' and to any ``process which 
involves a Category 1 flammable gas (as defined in 1910.1200(c)) or a 
flammable liquid with a flashpoint below 100[emsp14][deg]F (37.8 
[deg]C) on site in one location, in a quantity of 10,000 pounds (4535.9 
kg),'' unless the process meets one of the exceptions in Sec.  
1910.119(a)(1)(ii)(A) and (B). Appendix A of Sec.  1910.119 contains a 
list of 137 highly hazardous chemicals that present a potential for a 
catastrophic event at or above the listed threshold quantities. A 
number of the chemicals listed in Appendix A are highly reactive 
chemicals based on a variety of metrics, including consensus standard 
sources, but the list does not cover all highly reactive chemicals.
    OSHA has long been aware of the need to update the PSM standard to 
address hazards associated with reactive chemicals. In response to a 
1995 chemical explosion that killed five workers at Napp Technologies, 
Inc., in Lodi, New Jersey, OSHA received a petition to revise its PSM 
standard to address reactivity hazards. OSHA and the U.S. Environmental 
Protection Agency (EPA) investigated the Napp Technologies accident and 
concluded in a jointly issued 1997 report (EPA-550-R-97-002) that the 
explosion was most likely triggered by an uncontrolled chemical 
reaction of water, sodium hydrosulfite, and aluminum powder. Aluminum 
powder and sodium hydrosulfate are relatively stable chemicals, with 
instability/reactivity ratings \3\ of one \4\ and two,\5\ respectively. 
However, when both of these chemicals are mixed with water the reaction 
is extremely hazardous. In 2000, OSHA added an advance notice of 
proposed rulemaking (ANPRM) for reactive chemicals (RIN 1218-AB63) to 
its regulatory agenda. However, OSHA removed the item from its 
regulatory agenda in 2002 and never published the ANPRM. In 2003, the 
labor unions re-filed their petition for OSHA to revise its PSM 
standard to address reactivity hazards.
---------------------------------------------------------------------------

    \3\ Instability/reactivity ratings listed are set by the 
National Fire Protection Association's Standard System for the 
Identification of the Hazards of Materials for Emergency Response 
(NFPA 704).
    \4\ NFPA 704 instability/reactivity of one: ``normally stable, 
but can become unstable at elevated temperatures and pressures.''
    \5\ NFPA 704 instability/reactivity of two: ``undergoes violent 
chemical change at elevated temperatures and pressures.''
---------------------------------------------------------------------------

    The CSB has also made a number of recommendations to OSHA on how 
the PSM standard could be amended to more comprehensively control 
reactive hazards. In a 2002 report, the CSB broadly recommended that 
OSHA extend PSM coverage to chemicals based on a class of highly 
reactive properties, similar to the way the existing PSM standard 
defines a class of flammable liquids or gases. The CSB explained that a 
performance-based approach to evaluating reactive hazards would allow 
for both a comprehensive analysis and flexibility in implementation, 
but it cautioned that a proper hazard analysis of reactive hazards 
would require expertise in reactivity hazards.
    One approach to regulating reactive hazards is the New Jersey Toxic 
Catastrophe Prevention Act (TCPA). Enacted in 1986, the TCPA is a New 
Jersey statute that contains many process safety elements similar to 
the PSM standard, but the TCPA differs from PSM by explicitly covering 
reactive hazards, including reactive mixtures. Unlike the PSM standard, 
which contains only one list of covered hazardous chemicals in Appendix 
A, the TCPA contains multiple lists. This includes the List of 
Individual Reactive Hazardous Substances, as well as a list of Reactive 
Hazard Substances Mixture Functional Groups. N.J.A.C. 7:31-6.3(a), 
Table I, Part D, Group I, N.J.A.C. 7:31-6.3(a), Table I, Part D, Group 
II. These functional groups include certain molecular structures that 
have been identified as highly reactive, based on scientific research 
and accident history. Under the TCPA, covered facilities must determine 
if any of the chemicals they are intentionally mixing include 
components on the Functional Group list. If so, then the facility must 
determine the heat of the reaction and the corresponding threshold 
quantity for TCPA coverage. This approach takes into account not only 
certain specific chemicals, but also their overall reactivity in 
determining the level of coverage.
    In the questions in this RFI, OSHA invites comment on different 
regulatory approaches to covering reactive hazards, including the 
approach used in the TCPA.
5. Updating the List of Highly Hazardous Chemicals in Appendix A of the 
PSM Standard
    Appendix A of Sec.  1910.119 contains a list of 137 highly 
hazardous chemicals that present a potential for a catastrophic event 
at or above the threshold quantity of the standard. OSHA compiled the 
Appendix A list of chemicals from multiple sources, including:
     New Jersey's Toxic Chemical Prevention Act;
     Delaware's Extremely Hazardous Substances Risk Management 
Act;
     The World Bank's Manual of Industrial Hazard Assessment 
Techniques;
     U.S. Environmental Protection Agency's List of Extremely 
Hazardous Substances;

[[Page 73760]]

     U.S. Department of Transportation's Emergency Response 
Guidebook;
     Council of the European Communities' Council Directive of 
June 24, 1982, on the Major Accident Hazards of Certain Industrial 
Activities (82/501/EEC);
     United Kingdom Health and Safety Executive's A guide to 
the Control of Major Accident Hazards Regulations 1999 (as amended);
     API's Recommended Practice 750--Management of Process 
Hazards;
     National Fire Protection Association's (NFPA) NFPA 49--
Hazardous Chemicals Data; and
     Organization Resources Counselors, Inc.'s Recommendations 
for Process Hazards Management of Substances with Catastrophic 
Potential.
    Every chemical listed in Appendix A appeared in at least one of 
these sources as warranting a high degree of management control due to 
its extremely hazardous properties; most of the chemicals appeared in 
several of the sources.
    Appendix A has remained unchanged since OSHA promulgated the PSM 
standard in 1992. In the questions in this RFI, OSHA requests public 
comment on which chemicals, if any, the Agency should add to Appendix A 
through rulemaking. OSHA further seeks comment on methods for 
periodically updating Appendix A to ensure adequate protection of 
workers in PSM-covered facilities when new hazards are discovered and 
as technology and advancements in chemical science evolve.
6. Revising the PSM Standard To Require Additional Management-System 
Elements
    Executive Order 13650 requires OSHA to ``identify issues related to 
modernizing the PSM standard.'' 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 may now be recognized to be necessary to protect workers. In 
this RFI, OSHA seeks public comment on additional management-system 
elements that would increase worker protection if required under the 
PSM standard.
    The Center for Chemical Process Safety (CCPS) is an example of a 
safety organization that recommends additional management-system 
elements. CCPS specifies in its Risk Based Process Safety (RBPS) 
program 20 different management-system elements, a number of which are 
not included in the PSM standard. One such RBPS element is 
``Measurement and Metrics,'' described by CCPS as a system for 
establishing indicators to track the effectiveness of the management 
system.\6\ In this element, the employer typically uses metrics to 
track leading and lagging safety indicators, and to identify 
opportunities for improvement. Another RBPS element is ``Management 
Review and Continuous Improvement,'' which CCPS describes as ``the 
ongoing `due diligence' review by management that fills the gap between 
day-to-day work activities and periodic formal audits.'' \7\ A third 
RBPS element is ``Process Safety Competency,'' which CCPS explains 
``encompasses three interrelated actions: (1) Continuously improving of 
knowledge and competency, (2) ensuring that appropriate information is 
available to people who need it, and (3) consistently applying what has 
been learned.'' \8\
---------------------------------------------------------------------------

    \6\ Guidelines for Risk Based Process Safety, CCPS. http://www.aiche.org/ccps.
    \7\ Ibid.
    \8\ Ibid.
---------------------------------------------------------------------------

    OSHA also is considering adopting management-system elements from 
safety standards that other federal agencies promulgated since 1992. 
For example, the Bureau of Safety and Environmental Enforcement's 
(BSEE) Revisions to Safety and Environmental Management Systems (SEMS 
II) final rule (78 FR 20423; 04/05/2013), which revised a number of 
requirements in 30 CFR 250, Subpart S, contains management-system 
elements not included in the PSM standard. In its SEMS II Fact Sheet 
(April, 2013) \9\, BSEE describes three of the main additional elements 
as follows:
---------------------------------------------------------------------------

    \9\ http://www.bsee.gov/BSEE-Newsroom/BSEE-Fact-Sheet/SEMS-II-Fact-Sheet.aspx.

     Developing and implementing a stop work authority that 
creates procedures and authorizes any and all offshore industry 
personnel who witness an imminent risk or dangerous activity to stop 
work.
     Developing and implementing an ultimate work authority 
that requires offshore industry operators to clearly define who has 
the ultimate work authority on a facility for operational safety and 
decision-making at any given time.
     Requiring an employee participation plan that provides 
an environment that promotes participation by offshore industry 
employees as well as their management to eliminate or mitigate 
safety hazards.

    OSHA invites public comment on any additional management-system 
elements, or on expanding existing elements, including those elements 
discussed in this RFI to improve worker protection in facilities 
covered under the PSM standard. The Agency requests that commenters 
submit data and information on management-system elements from 
consensus standards, safety organizations, federal standards, or other 
sources that could increase worker safety if OSHA expanded the PSM 
standard to include the elements.
7. Amending Paragraph (d) of the PSM Standard To Require Evaluation of 
Updates to Applicable RAGAGEP
    Paragraph (d)(3)(ii) of Sec.  1910.119 requires employers to 
document that covered equipment complies with RAGAGEP. ``For existing 
equipment designed and constructed in accordance with codes, standards, 
or practices that are no longer in general use,'' paragraph (d)(3)(iii) 
of Sec.  1910.119 further requires employers to ``determine and 
document that the equipment is designed, maintained, inspected, tested, 
and operating in a safe manner.'' However, the PSM standard does not 
require employers to evaluate updates to applicable RAGAGEP or to 
examine new RAGAGEP after evaluating and documenting compliance with 
either Sec.  1910.119(d)(3)(ii) or (iii).
    Through extensive collaboration and evaluation of incidents, many 
safety organizations periodically update their standards to improve 
work practices and protect workers against newly identified hazards. 
Since the practices constituting RAGAGEP under the PSM standard are 
constantly changing as a result of this process, evaluating updates to 
applicable RAGAGEP ensures that employers base a facility's PSM program 
on the most up-to-date and accurate safety information available.
    An accident that occurred at a Formosa Plastics facility in Point 
Comfort, Texas, on October 6, 2005, illustrates the importance of 
evaluating updates to applicable RAGAGEP. A trailer towed by a forklift 
became snagged and pulled a small drain valve out of a strainer in a 
liquid propylene system at the facility. Escaping propylene rapidly 
vaporized, causing a series of explosions and fires that injured 16 
workers. According to the CSB's investigation report on the incident 
(CSB Report No. 2006-01-I-TX), Formosa and the company that sold the 
plant design failed to evaluate updates to applicable RAGAGEP for 
fireproofing structural steel that supports critical safety systems. 
The CSB concluded in its report that had Formosa fireproofed the steel 
according to more recent RAGAGEP, then ``the consequences of this 
incident would likely have been less severe.'' OSHA invites public 
comment on the best approach to revising paragraph (d) of

[[Page 73761]]

the PSM standard to require employers to evaluate updates to applicable 
RAGAGEP could help prevent or mitigate accidents like the October 6, 
2005, Formosa explosion, and increase worker protection in PSM-covered 
facilities.
8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP
    The term ``recognized and generally accepted good engineering 
practices'' (RAGAGEP) appears in paragraphs (d)(3)(ii) and (j)(4)(ii) 
of Sec.  1910.119, but the PSM standard does not contain a definition 
for the term. For guidance purposes, OSHA's Petroleum Refinery NEP 
directive (CPL 03-00-010) provides one example of a RAGAGEP definition 
from CCPS's Guidelines for Mechanical Integrity Systems:

    Recognized And Generally Accepted Good Engineering Practices'' 
(RAGAGEP)--are the basis for engineering, operation, or maintenance 
activities and are themselves based on established codes, standards, 
published technical reports or recommended practices (RP) or similar 
documents. RAGAGEPs detail generally approved ways to perform 
specific engineering, inspection or mechanical integrity activities, 
such as fabricating a vessel, inspecting a storage tank, or 
servicing a relief valve.

    Although the CCPS's definition of RAGAGEP is not an official OSHA 
definition, it is consistent with OSHA's intent when it promulgated the 
standard. In its PSM proposal, OSHA would have required employers to 
follow commonly accepted consensus standards and industry codes. 55 FR 
29150, 29155 (July 17, 1990). In promulgating the final rule, OSHA 
changed the requirement that employers comply with applicable published 
codes to the requirement that they comply with ``recognized and 
generally accepted good engineering practices.'' In making this change, 
OSHA explained that RAGAGEP would include codes and standards published 
by organizations such as NFPA, ASTM, and ANSI, as well as ``appropriate 
internal standards.'' 57 FR at 6390-91. OSHA made the change in 
response to comments expressing a number of concerns about the proposed 
language. These included comments about employers' difficulties in 
obtaining relevant codes and standards, potential confusion on which 
codes were required by OSHA in a given situation, the possibility that 
codes and standards could become outdated, and the inability of 
employers to use more stringent internal standards. OSHA believed it 
was clear from the context of this change that it intended 
``appropriate internal standards'' to be those employers developed when 
published codes and standards were unavailable or outdated, or that 
were more stringent than published standards. 57 FR at 6390-91. 
However, OSHA did not include a definition of RAGAGEP in the standard 
itself.
    In this RFI, OSHA invites public comment on whether the Agency 
should clarify the PSM standard by including an explicit definition of 
RAGAGEP in Sec.  1910.119 to assist employers in complying. OSHA 
requests that commenters specify if the Agency should adopt the CCPS's 
definition of RAGAGEP in Sec.  1910.119, or any other appropriate 
definition, and whether inclusion of a definition would increase worker 
protection and enhance process safety.
9. Expanding the Scope of Paragraph (j) of the PSM Standard To Cover 
the Mechanical Integrity of Any Safety-Critical Equipment
    Paragraph (j) of Sec.  1910.119 requires employers to implement an 
ongoing mechanical-integrity program with respect to their PSM-covered 
processes. For processing, storing, or handling highly hazardous 
chemicals, employers must use equipment designed, constructed, 
installed, and maintained to minimize the risk of an uncontrolled 
release. Elements of an effective mechanical-integrity program include: 
Identifying and categorizing equipment and instrumentation; inspecting 
and testing their frequency; maintaining procedures; training 
maintenance personnel; having criteria for acceptable test results; 
documenting test and inspection results; and documenting manufacturer 
recommendations for equipment and instrumentation.
    Paragraph (j)(1) states that the mechanical-integrity requirements 
of the PSM standard apply to: 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); and 
pumps. In the preamble to the PSM final rule, OSHA explained that ``if 
an employer deems additional equipment to be critical to a particular 
process, that employer should consider that equipment to be covered by 
this paragraph and treat it accordingly'' (57 FR 6389, February 24, 
1992). In light of the limited list of covered equipment in paragraph 
(j)(1), OSHA addresses hazards associated with other types of safety-
critical equipment through citations for violations of Section 5(a)(1) 
of the OSH Act.
    Revising paragraph (j) to explicitly apply the mechanical-integrity 
requirements of the PSM standard to all equipment the employer 
identifies as critical to process safety-critical equipment, in 
addition to the equipment currently listed in the standard, would 
provide industry with proper notice regarding coverage of such 
equipment. OSHA invites comment on whether the addition of this 
provision to paragraph (j) will increase worker safety and whether any 
further clarifying revisions would be recommended to ease 
implementation.
10. Clarifying Paragraph (l) of the PSM Standard With an Explicit 
Requirement That Employers Manage Organizational Changes
    Paragraph (l) of Sec.  1910.119 requires employers to establish and 
implement written procedures to manage change, including all 
modifications to equipment, technology, procedures, raw materials, and 
processing conditions other than replacements in kind. Temporary 
changes are subject to the management-of-change requirements of the 
standard. Employers must properly identify and review all PSM-covered 
changes before implementation.
    The existing standard does not explicitly state that employers must 
follow management-of-change procedures for organizational changes,\10\ 
such as changes in management structure, budget cuts, or personnel 
changes; however, as noted in a March 31, 2009, Memorandum for Regional 
Administrators from Richard Fairfax,\11\ it is OSHA's position that 
paragraph (l) covers organizational changes if the changes have the 
potential to affect process safety. Since the original promulgation of 
the PSM rule, it has become well established in the safety community 
that organizational changes can have a profound impact on worker safety 
and, therefore, employers should evaluate organizational change like 
any other change. Illustrating the significant hazards that 
organizational changes can produce, the CSB identified a lack of 
organizational management of change as a significant factor behind the 
2005 BP Texas City Refinery accident that killed 15 workers and injured 
over 170 others (CSB Report No. 2005-04-I-TX). OSHA invites comments on 
whether revising

[[Page 73762]]

paragraph (l) to clarify that the PSM standard's organizational 
management-of-change requirements will increase worker safety.
---------------------------------------------------------------------------

    \10\ CCPS provides the following examples of organizational 
changes: ``a reduction in the number of operators on a shift, a 
change in the maintenance contractor for the site, changing from 5-
day operation to 7-day operation, or rotation of plant managers.'' 
Guidelines for the Management of Change for Process Safety, CCPS.
    \11\ https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28628.
---------------------------------------------------------------------------

11. Revising Paragraph (n) of the PSM Standard To Require Coordination 
of Emergency Planning With Local Emergency-Response Authorities
    Paragraph (n) of Sec.  1910.119 requires employers to establish and 
implement an emergency-action plan in accordance with Sec.  1910.38, 
OSHA's Emergency Action Plans (EAP) standard, and to meet applicable 
requirements in paragraphs (a), (p), and (q) of Sec.  1910.120, the 
Agency's Hazardous Waste Operations and Emergency Response (HAZWOPER) 
standard. While some OSHA standards, such as Sec.  1910.146, Permit-
Required Confined Spaces, require employers to coordinate emergency 
planning with local emergency-response authorities, the existing PSM 
standard does not contain such a requirement. Existing Sec. Sec.  
1910.38 and 1910.120 do not require coordination of emergency planning 
with outside parties if the employer chooses to evacuate employees from 
the danger area when an emergency occurs that does not permit employees 
to assist in handling the emergency.
    When emergency responders and other workers do not have adequate 
information or employer coordination about hazardous chemicals in a 
facility, they are at elevated risk of death and serious injury. On 
April 17, 2013, an ammonium nitrate explosion at the West Fertilizer 
Company storage and distribution facility in West, Texas, killed at 
least 15 people--the majority of whom were firefighters responding to a 
fire at the facility--and injured over 160 others.\12\ OSHA believes 
that revising paragraph (n) of the PSM standard to require facilities 
to coordinate emergency planning with local emergency-response 
authorities could help prevent or mitigate similar accidents by 
allowing first responders to develop the appropriate strategies in 
advance of their arrival and seeks comment on the appropriate mechanism 
and corresponding language to incorporate such coordination 
requirements into paragraph (n).
---------------------------------------------------------------------------

    \12\ Following the West, Texas facility explosion, OSHA and 
partner agencies EPA and ATF issued updated guidance on Ammonium 
Nitrate. See, Chemical Advisory: Safe Storage, Handling, and 
Management of Ammonium Nitrate, EPA 550-S-13-001, EPA, OSHA, and 
ATF, August, 2013.
---------------------------------------------------------------------------

12. Revising Paragraph (o) of the PSM Standard To Require Third-Party 
Compliance Audits
    Paragraph (o)(1) of Sec.  1910.119 requires employers to audit the 
PSM program in their facilities for compliance every three years. 
Paragraph (o)(2) further requires that the audits ``be conducted by at 
least one person knowledgeable in the process.'' However, Sec.  
1910.119 does not require employers to use a third party in conducting 
the compliance audits. According to CCPS, ``Third party auditors 
(typically, consulting companies who can provide experienced auditors) 
potentially provide the highest degree of objectivity.'' \13\
---------------------------------------------------------------------------

    \13\ Guidelines for Risk Based Process Safety, CCPS. http://www.aiche.org/ccps.
---------------------------------------------------------------------------

    It is notable that BSEE's Safety and Environmental Management 
Systems (SEMS) standard, 30 CFR 250, Subpart S, requires audits 
conducted by an independent third party, subject to approval by BSEE, 
or by designated and qualified personnel if the employer implements 
procedures to avoid conflicts of interest. In addition, BSEE's SEMS II 
revisions to the standard require that, by June 4, 2015, the team lead 
for compliance audits must be independent and represent an accredited 
audit service provider. In the preamble to its SEMS II final rule, BSEE 
discussed its third-party-auditing requirements as follows:

    Consistent audits performed by well trained and experienced 
auditors are critical to ensuring that SEMS programs are 
successfully implemented and maintained on the OCS. As a result, we 
are adopting industry best practices related to SEMS audits and 
auditor qualifications. Industry is already voluntarily adopting 
these practices in many deepwater operations. We believe that the 
application of these requirements to all OCS operations will result 
in more robust and consistent SEMS audits. (78 FR 20430; 04/05/
2013.)

    In its investigation report on the 2005 BP Texas City Refinery 
explosion, the CSB identified a lack of rigorous compliance audits as a 
contributing factor behind the accident. As the CSB noted in its 
report, the resulting settlement agreement \14\ between OSHA and BP 
required BP to retain a third-party compliance auditor with PSM 
expertise, subject to approval by OSHA, to assess the company's PSM 
program. OSHA is aware that third-party compliance auditors exist and 
are already utilized by some of the PSM regulated community. In the 
questions in this RFI, OSHA seeks comment on whether revising paragraph 
(o) of the PSM standard to require employers to use a qualified third 
party for compliance audits would increase worker protection through a 
more rigorous and objective PSM auditing process.
---------------------------------------------------------------------------

    \14\ United States of America Occupational Safety and Health 
Administration, BP Products North America Inc. Settlement Agreement, 
September 21, 2005.
---------------------------------------------------------------------------

    OSHA is also seeking comment on increasing the required frequency 
of compliance audits. In addition, the Agency is seeking comment on 
requiring specific timeframes for responding to deficiencies found in 
the compliance audit process.
13. Expanding the Requirements of Sec.  1910.109 To Cover Dismantling 
and Disposal of Explosives, Blasting Agents, and Pyrotechnics
    Paragraph (k)(1) of Sec.  1910.109 provides that the standard 
applies to ``the manufacture, keeping, having, storage, sale, 
transportation, and use of explosives, blasting agents, and 
pyrotechnics,'' and does not apply to the sale and use of fireworks or 
the use of explosives in the form prescribed by the U.S. 
Pharmacopeia.15 16 Although dismantling and 
disposing of explosives can be just as hazardous as the covered 
activities listed in paragraph (k), dismantling and disposal are not 
activities that the existing standard covers.
---------------------------------------------------------------------------

    \15\ The U.S. Pharmacopeial Convention (USP) is a scientific 
nonprofit organization that sets standards for the identity, 
strength, quality, and purity of medicines, food ingredients, and 
dietary supplements manufactured, distributed and consumed 
worldwide. http://www.usp.org/about-usp.
    \16\ OSHA has no data showing an increase in accidents with this 
activity and is not seeking comment on changing this exclusion.
---------------------------------------------------------------------------

    On April 8, 2011, an accidental explosion in Waikele, Hawaii, 
killed five workers who were disposing of fireworks seized by the 
Federal Government as contraband. The workers, employed by contractor 
Donaldson Enterprises, Inc., were disassembling the firework tubes by 
hand and separating black powder and aerial shells into plastic-lined 
cardboard boxes, which they then soaked in diesel for burning. The CSB 
investigated the explosion and determined (CSB Report No. 2011-06-I-HI) 
that gaps in federal regulations--specifically with regard to 
dismantling and disposal of explosives--contributed to the accident. 
Hawaii administers its own state safety and health program approved 
under the OSH Act, and adopted the federal OSHA standards in their 
entirety.
    OSHA believes that expanding the scope of Sec.  1910.109(k) to 
cover dismantling and disposal of explosives, blasting agents, and 
pyrotechnics, in the

[[Page 73763]]

workplace in addition to the activities covered under the existing 
standard, would prevent tragic accidents similar to the Hawaii 
accident. While the U.S. Bureau of Alcohol, Tobacco, Firearms and 
Explosives exercises jurisdiction over many aspects of the explosives 
industry through its Commerce in Explosives standard at 27 CFR Part 
555, OSHA seeks comment on whether expanding the scope of 29 CFR 
1910.109 to address hazards associated with dismantling and disposal of 
explosives would lead to increased worker protection and whether ATF's 
current regulations would make any revisions to OSHA's regulations 
duplicative.
14. Updating Sec. Sec.  1910.106 and 1910.107 Based on the Latest 
Applicable Consensus Standards
    OSHA is considering updating its Flammable Liquids standard and 
Spray Finishing standard. OSHA first published these standards in 1974 
and based the requirements on NFPA consensus standards from the 1960s. 
The format and requirements of the standards are significantly out of 
date, and need updating based on the latest applicable consensus 
standards.\17\ OSHA seeks recommendations on updates that should be 
considered and comments on how such updates will lead to increased 
worker protection.
---------------------------------------------------------------------------

    \17\ Applicable consensus standards may include, but are not 
limited to: NFPA 30, NFPA 30A, NFPA 30B, NFPA 33.
---------------------------------------------------------------------------

15. Updating the Regulations Addressing the Storage, Handling, and 
Management of Ammonium Nitrate
    Industry manufactures millions of tons of ammonium nitrate annually 
in the United States. Consumers commonly use high-density ammonium 
nitrate in fertilizer and use low-density ammonium nitrate in making 
explosives. The NFPA assigns a reactivity rating of 3 (in a range of 0-
4) to ammonium nitrate, which means that it is capable of detonation, 
explosive decomposition, or explosive reaction; ignition requires a 
strong initiating source or heating the substance under confinement. 
Stored ammonium nitrate is generally stable, but explosions of ammonium 
nitrate can be severe and have resulted in many injuries and 
fatalities. OSHA's requirements for storage of ammonium nitrate are 
contained in Sec.  1910.109, and are based on a 1970 NFPA consensus 
standard.
    As discussed earlier in this RFI, on April 17, 2013, an ammonium 
nitrate explosion at the West Fertilizer Company storage and 
distribution facility in West, Texas, killed at least 15 people and 
injured over 160 others leading OSHA and its partner agencies EPA and 
ATF to issue an updated chemical advisory on the safe storage, 
handling, and management of ammonium nitrate.\18\ An ammonium nitrate 
explosion that occurred in Texas City, Texas, on April 16, 1947, was 
the deadliest industrial accident in United States history. In that 
case, the initial explosion of a ship carrying ammonium nitrate, and 
the subsequent chain reaction of fires and explosions in other ships 
and nearby oil-storage facilities, killed at least 581 people and 
injured thousands of others.\19\
---------------------------------------------------------------------------

    \18\ Chemical Advisory: Safe Storage, Handling, and Management 
of Ammonium Nitrate, EPA 550-S-13-001, published by EPA, OSHA, and 
ATF, August, 2013.
    \19\ Texas City, Texas, Disaster, April 16, 17, 1947. Fire 
Prevention and Engineering Bureau of Texas, 1947.
---------------------------------------------------------------------------

    In the questions in this RFI, OSHA invites comment on safe work 
practices for storing, handling, and managing ammonium nitrate. OSHA 
further seeks comment on how to update its regulatory requirements to 
improve its approach to preventing the hazards associated with ammonium 
nitrate.
16. Changing Enforcement Policy of the PSM Exemption for Retail 
Facilities
    The PSM standard contains an exemption from coverage for retail 
facilities at 29 CFR 1910.119(a)(2)(i). Although the term ``retail 
facility'' is not defined, the Preamble to the Final PSM standard noted 
that chemicals in retail facilities are generally in small packages, 
containers, and allotments, and gives the example of gasoline stations 
as a type of facility that would typically qualify for the exemption. 
57 FR 6356, 6369 (February 24, 1992).
    Other Federal Government agencies have explicit definitions of 
retail facilities. In particular, the U.S. Department of Commerce, 
which is responsible for the development of the North American Industry 
Classification System (NAICS) that organizes businesses into specific 
industrial sectors for economic and statistical purposes, characterizes 
retail trade as follows:

    The Retail Trade sector comprises establishments engaged in 
retailing merchandise, generally without transformation, and 
rendering services incidental to the sale of merchandise. The 
retailing process is the final step in the distribution of 
merchandise; retailers are, therefore, organized to sell merchandise 
in small quantities to the general public.

North American Industry Classification System Manual (``NAICS 
Manual''), Sector 44-45--Retail Trade.

    OSHA has stated that this NAICS Manual definition applies in 
interpreting the retail exemption. In a November 8, 1995, memo from 
Enforcement Programs director Richard Fairfax to Acting Region 10 
Administrator Richard S. Terrell, OSHA distinguished retail end users 
from wholesale end users:

    [T]he ``retail facilities'' exception is intended to apply to an 
establishment in the retail trade as delineated in the Standard 
Industrial Classification (SIC) Manual. With exceptions, retail 
trade establishments sell merchandise to the general public for 
personal or household consumption. On the other hand, wholesale 
trade establishments may sell similar merchandise for exclusive use 
by industry . . . Income derived from selling [merchandise] to 
industry may not be counted as ``income obtained from direct sales 
to end users'' for the purpose of qualifying for the ``retail 
facilities'' exception under paragraph 1910.119(a)(2)(i).

    Notwithstanding this general statement, OSHA has also issued 
letters saying that a facility that is primarily engaged in selling 
anhydrous ammonia product to farmers (a wholesale operation under the 
NAICS definition) could qualify for the Sec.  1910.119(a)(2)(i) retail-
facilities exemption. For example, the January 26, 2001 letter from 
Richard Fairfax to J.D. Varn III of Varnco, Inc. which states that a 
facility selling 75% of its anhydrous ammonia to farmers qualifies for 
the retail exemption because the farmers were the ``end users'' of the 
product.
    Applying the retail-facility exemption in this way is inconsistent 
with the normal meaning of ``retail'' and the preamble's explanation of 
the purpose of the exemption. As stated in the preamble, OSHA chose to 
exclude retail facilities from PSM coverage because the limited 
container, package, or allotment sizes of the chemicals typically found 
at these facilities do not present the same safety hazards as those 
encountered at establishments working with large, bulk quantities of 
materials. Facilities selling large or bulk quantities of materials 
would typically fall into Sector 42--Wholesale Trade of the NAICS 
system, which includes facilities that sell or arrange the purchase or 
sale of raw and intermediate materials and supplies used in production. 
As a result of increased workplace hazards associated with large, bulk 
quantities of highly hazardous chemicals, OSHA believes that only 
retail-trade facilities listed in NAICS sectors 44 and 45 that sell 
highly hazardous chemicals in small containers, packages, or allotments 
to the general public qualify for the retail-facilities exemption in 29 
CFR 1910.119(a)(2)(i).

[[Page 73764]]

    In light of OSHA's inconsistent statements on the application of 
the retail exemption, the Agency is inviting comment on what the 
exemption should cover and whether OSHA's current enforcement policy 
adequately addresses workplace hazards associated with these 
facilities.
17. Changing Enforcement Policy for Highly Hazardous Chemicals Listed 
in Appendix A of the PSM Standard Without Specific Concentrations
    Appendix A of the PSM standard lists highly hazardous chemicals and 
threshold quantities that must be met to establish PSM coverage. 
Although Appendix A provides specific concentrations for 11 of its 
listed chemicals, the standard is silent on concentrations for the 
remaining 126 listed chemicals. For example, Appendix A lists hydrogen 
peroxide at concentrations of 52% by weight or greater, but the 
appendix does not provide a specific concentration for hydroxylamine. 
OSHA has issued interpretation letters taking a variety of positions 
regarding coverage of chemicals that have no listed concentration. 
Under one such approach, OSHA considers PSM coverage to apply if 
threshold quantities of such chemicals are present at commercial grade. 
As noted in a 1994 Letter of Interpretation from Compliance Programs 
Deputy Direction H. Berrien Zettler to Mr. Luc Hamelin of IVACO, Inc., 
OSHA defined commercial grade to mean ``a typical maximum concentration 
of the chemical that is commercially available and shipped.'' The 
letter added that, to determine commercial grade concentrations, an 
employer may refer to any published catalogue of chemicals for 
commercial sales.
    In 1999, an explosion at Concept Sciences, Inc. in Allentown, 
Pennsylvania, killed five people as the company was attempting to 
produce concentrated hydroxylamine. A U.S. District Court dismissed a 
subsequent criminal indictment related to this incident based on 
inconsistencies in OSHA's statements regarding coverage of 
hydroxylamine. The Court pointed out that the PSM standard is ambiguous 
with respect to concentrations of Appendix A chemicals. It concluded 
that in light of a series of OSHA letters that were themselves 
inconsistent, no reasonable person in the defendant's position could 
determine how a chemical is covered by the standard. U.S. v. Ward, 21 
BNA OSHC 1882, 1884 (2001). In light of this, OSHA believes it is 
important to issue a clear and authoritative statement about PSM 
coverage of chemicals for which Appendix A does not include a specific 
concentration.
    With respect to the commercial grade approach, OSHA also realizes 
that it is difficult to determine the maximum commercial grade of many 
of the highly hazardous chemicals listed in Appendix A. In addition, 
the maximum commercial grade of a chemical may change over time due to 
technological innovation or changes in industry. Furthermore, even 
where the concentration of a PSM-listed highly hazardous chemical falls 
below the correctly determined maximum commercial grade, the chemical 
may still present a hazard because substances in a mixture retain their 
original properties. For example, a solution of any concentration of 
hydroxylamine can form pure hydroxylamine crystals, which can rapidly 
decompose and cause fires or explosions.
    An interpretative approach that is consistent with the regulatory 
language and that addresses this concern is the approach currently used 
by EPA under the Risk Management Program (RMP). Similar to OSHA's list 
of highly hazardous chemicals in Appendix A of the PSM standard, the 
EPA RMP provides a list of toxic substances in 40 CFR 68, Appendix A--
Table of Toxic Endpoints. However, in contrast to OSHA's ``commercial 
grade'' policy for PSM-listed chemicals, EPA considers a mixture 
containing an RMP-listed substance to be covered if the concentration 
is greater than one percent and the calculated weight of the substance 
in the mixture is greater than the threshold quantity.\20\ With a few 
exceptions, this rule does not apply in cases where the operator can 
demonstrate that the partial pressure of the substance in the mixture 
is less than 10 mmHg.
---------------------------------------------------------------------------

    \20\ General Guidance On Risk Management Programs For Chemical 
Accident Prevention (40 CFR Part 68); EPA 555-B-04-001; U.S. EPA; 
March 2009.
---------------------------------------------------------------------------

    OSHA invites comment on whether it should adopt the EPA's policy 
for RMP-listed substances as a simpler and more practical approach to 
addressing hazards associated with Appendix A chemicals that do not 
have listed concentrations. If OSHA adopts this policy, the Agency 
would consider a PSM-listed chemical in a mixture to be covered if the 
concentration of the chemical were greater than one percent and the 
calculated weight of the chemical in the mixture were greater than the 
threshold quantity. OSHA believes this represents a more practical, 
consistent, and straightforward approach to coverage of Appendix A 
chemicals under the PSM standard.

D. Effects of Possible Regulatory and Policy Changes

    As part of this RFI, the Agency is requesting data and information 
on the potential economic impacts of each option. OSHA requests that 
commenters discuss potential economic impacts, whenever possible, in 
terms of quantitative benefits (e.g., reductions in injuries, 
fatalities, and property damage), costs (e.g., compliance costs or 
decreases in production), and offsets to costs (e.g., less need for 
maintenance and repairs) when responding to the questions in this RFI. 
OSHA also requests that commenters provide data and information on 
economic effects that the options may have on market conditions or 
services (e.g., market structure and concentration). In addition, OSHA 
invites public comment on unintended consequences and consistencies or 
inconsistences with other policies or regulatory programs.
    OSHA requests that commenters discuss economic impacts in as 
specific terms as possible. For example, if a rulemaking or policy 
change would necessitate additional employee training, then helpful 
information would include the following: the training courses 
necessary; the types of employees who would receive the training; the 
length and frequency of the courses; topics covered; any retraining 
necessary; and the training costs if conducted by a third-party vendor 
or in-house trainer. The Agency invites comment on the time and level 
of expertise required to implement potential changes discussed in this 
RFI, even if dollar-cost estimates are not available. For discussion of 
equipment-related costs, OSHA requests that commenters estimate 
relevant factors such as purchase price, cost of installation, cost of 
equipment maintenance, cost of training, and expected life of the 
equipment.

E. Impacts on Small Entities

    The Agency would like to determine whether the options in this RFI 
will have a significant economic impact on a substantial number of 
small entities. If the options have such impacts, then under the 
Regulatory Flexibility Act, 5 U.S.C. Sec. Sec.  601-612, OSHA must, if 
it engages in rulemaking, develop a regulatory flexibility analysis and 
assemble a Small Business Advocacy Review Panel before publishing a 
proposal. Regardless of the economic impacts, OSHA seeks ways of 
minimizing burdens on small entities

[[Page 73765]]

consistent with OSHA's statutory and regulatory requirements and 
objectives. The Agency requests that, when responding to the questions 
in this RFI, commenters discuss any special circumstances related to 
small entities, such as potential market-structure disruptions or 
uniquely high costs that small entities may bear.

II. Request for Data, Information, and Comments

    OSHA is providing the following questions to collect data, 
information, and comments on the options discussed in this RFI. The 
Agency invites the public to respond to any questions for which they 
have specific knowledge, data, or information, regardless of their 
involvement in PSM-covered operations.
    OSHA would appreciate detailed responses to the following 
questions. When responding, please reference the specific question 
number to which you are responding.

A. General Information

    1. To assist in classifying comments, please provide information on 
the workplace (or industry) about which you are commenting, including 
the type of facility, NAICS code (if available), number of employees, 
types and volumes of chemicals handled, when the facility began 
operation, and other relevant information.
    2. If you are commenting about a specific workplace or industry, 
does the workplace or industry conduct operations covered by the PSM 
standard? Please explain.

B. Clarifying the PSM Exemption for Atmospheric Storage Tanks

    3. Does your facility have any atmospheric storage tanks that are 
exempt from PSM coverage under Sec.  1910.119(a)(1)(ii)(B)? If so, what 
facts led you to conclude that the exemption applies, and do you treat 
the exempted tanks as if they were PSM-covered for safety or other 
reasons? Please explain.
    4. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents related to flammable 
liquids stored in atmospheric tanks exempted from PSM coverage under 
Sec.  1910.119(a)(1)(ii)(B).
    5. Would limiting the Sec.  1910.119(a)(1)(ii)(B) exemption to 
apply only to flammable liquids stored in terminals and tank farms 
prevent worker injuries and fatalities? What would be the economic 
impacts of limiting the exemption in this way (e.g., costs and benefits 
of extending PSM coverage to additional types of tanks)? Are there any 
special circumstances involving small entities that OSHA should 
consider with respect to this option?
    6. Should OSHA limit the Sec.  1910.119(a)(1)(ii)(B) exemption to 
apply only to specific NAICS codes? If so, which NAICS codes should 
OSHA exempt?
    7. Should the Sec.  1910.119(a)(1)(ii)(B) exemption apply only to 
``storage tanks,'' such that ``process tanks'' are explicitly covered 
under PSM? If so, how should OSHA define the terms ``storage tanks'' 
and ``process tanks''? What would be the economic impacts of limiting 
the exemption in this way? Are there any special circumstances 
involving small entities that OSHA should consider with respect to this 
option?
    8. Are there any other options related to the Sec.  
1910.119(a)(1)(ii)(B) exemption of flammable liquids stored in 
atmospheric tanks that OSHA should consider to prevent worker injuries 
and fatalities? If so, what would be the economic impacts of the 
option(s), and are there any special circumstances involving small 
entities that OSHA should consider with respect to the option(s)?

C. Oil- and Gas-Well Drilling and Servicing

    9. Does your facility conduct oil- and gas-well drilling or 
servicing operations not covered under Sec.  1910.119? If so, do you 
treat these activities as covered by the PSM standard for safety or 
other reasons? Are the activities covered under other federal or state 
regulations? Please explain.
    10. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving oil-and gas-
well drilling or servicing operations.
    11. Would removing the Sec.  1910.119(a)(2)(ii) exemption for oil- 
and gas-well drilling and servicing operations prevent worker injuries 
and fatalities? What would be the economic impact of removing the 
exemption? Are there any special circumstances involving small entities 
that OSHA should consider with respect to this option?

D. Oil- and Gas-Production Facilities

    12. Does your facility conduct oil- and gas-production operations 
for which OSHA is not currently enforcing PSM requirements? If so, do 
you follow PSM requirements for these operations for safety or other 
reasons? Are the activities covered under other federal or state 
regulations? Please explain.
    13. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving oil- and gas-
production facilities.
    14. What would be the economic impact of resuming enforcement of 
the PSM standard for oil- and gas-production facilities? Are there any 
special circumstances involving small entities that OSHA should 
consider with respect to this option?

E. Expanding PSM Coverage and Requirements for Reactivity Hazards

    15. What are the best criteria to use in classifying reactive 
hazards? What do you consider to be a reactive chemical? What do you 
consider to be a reactive mixture?
    16. Do you consider some reactive hazards to be outside coverage of 
the existing PSM standard? If so, please describe these hazards.
    17. Should OSHA add reactive chemicals to the list of PSM-covered 
chemicals in Appendix A of Sec.  1910.119? If so, which reactive 
chemicals?
    18. If your facility is in New Jersey and covered by the New Jersey 
TCPA, has the TCPA been effective in protecting New Jersey workers from 
reactive hazards? Please describe any economic impacts associated with 
TCPA coverage (e.g., costs and benefits, cost savings, shifts in usage 
of reactive chemicals, special circumstances involving small entities, 
etc.).
    19. Should OSHA revise the PSM standard to use chemical functional 
groups similar to those in the TCPA \21\ to define hazardous reactive 
mixtures? If so, which chemical functional groups should OSHA use?
---------------------------------------------------------------------------

    \21\ The definition of ``reactive hazard substance (RHS) 
mixture'' in the TCPA references a list of chemical functional 
groups specified in N.J.A.C. 7:31-6.3(a), Table I, Part D, Group II. 
Whether any of the chemical functional groups are present 
determines, in part, coverage of an RHS mixture under the TCPA.
---------------------------------------------------------------------------

    20. Does your facility follow NFPA 400 for reactive hazards? If so, 
please describe the economic impacts associated with following NFPA 400 
(e.g., cost of additional equipment, cost of additional training, 
benefits of quality management, special circumstances involving small 
entities, etc.). Is following NFPA 400 an effective way of protecting 
workers from reactive hazards? Please explain.
    21. Has your facility implemented a reactive-hazards management 
program other than a program specified by the TCPA and NFPA 400? If so, 
please describe your facility's program, whether it protects worker 
more or less than the TCPA and NFPA 400, any

[[Page 73766]]

economic impacts associated with the program, and any special 
circumstances involving small entities.
    22. What specific regulatory approach, if any, should OSHA use to 
comprehensively address reactive hazards, what would be the economic 
impacts of this approach, and would there be any special circumstances 
involving small entities? Are there specific requirements that OSHA 
should add to the PSM standard to ensure that employers adequately 
manage reactive hazards?
    23. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving reactive 
hazards not covered under the existing PSM standard. Would reactive-
hazards management requirements in PSM have prevented the incidents?

F. Updating the List of Highly Hazardous Chemicals in Appendix A of the 
PSM Standard

    24. What chemicals, if any, should OSHA add to the list of highly 
hazardous chemicals in Appendix A of Sec.  1910.119 to prevent worker 
injuries and fatalities? Please provide any sources, data, or incident 
examples related to the hazards associated with the chemicals. What 
would be the economic impacts of adding the chemicals to Appendix A? 
Are there any special circumstances involving small entities that OSHA 
should consider with respect to adding the chemicals to Appendix A?
    25. How often should OSHA update the list of highly hazardous 
chemicals in Appendix A of Sec.  1910.119?
    26. Is there a method, other than periodically updating the list of 
highly hazardous chemicals in Appendix A of Sec.  1910.119 through 
rulemaking, that OSHA should use to prevent worker injuries and 
fatalities? Please explain.

G. Revising the PSM Standard To Require Additional Management-System 
Elements

    27. Does your facility follow any management-system elements not 
required under Sec.  1910.119 for PSM-covered operations? If so, please 
describe the additional management-system elements, the safety 
benefits, any economic impacts associated with following the elements, 
and any special circumstances involving small entities.
    28. Would expanding the scope of the PSM standard to require 
additional management-system elements, or expanding the scope of 
existing PSM management-system elements, prevent worker injuries and 
fatalities? If so, please describe the elements, the safety benefits, 
any economic impacts associated with expanding the scope of the PSM 
standard in this way, and any special circumstances involving small 
entities that OSHA should consider.
    29. In systems using management and metrics, how do facilities 
develop useful leading indicators? Should the PSM standard require 
facilities to share these indicators with employees or OSHA?
    30. Would expansion of the PSM standard's employee participation 
provision to include requirements such as the SEMS stop-work authority, 
or other efforts to involve employees in all management-system 
elements, prevent worker injuries and fatalities?
    31. Are there any other management-system elements in the existing 
PSM standard that OSHA should expand with additional requirements 
(e.g., a new requirement that employers perform a root-cause analysis 
for incidents under Sec.  1910.119(m))? If so, please describe the 
additional requirements, the safety benefits, any economic impacts 
associated with expanding the PSM elements in this way, and any special 
circumstances involving small entities that OSHA should consider.
    32. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents that the employer could 
have prevented by following management-system elements not required 
under the existing PSM standard.

H. Amending Paragraph (d) of the PSM Standard To Require Evaluation of 
Updates to Applicable RAGAGEP

    33. From what sources (e.g., codes, standards, published technical 
reports, consensus standards) does your facility select applicable 
RAGAGEP for operations covered under the PSM standard?
    34. Does your facility evaluate updates to its selected RAGAGEP? If 
so, how does your facility monitor any updates, and how often do you 
evaluate them?
    35. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving failure to 
evaluate updates to applicable RAGAGEP for PSM-covered operations.
    36. What would be an appropriate time period in which to conduct 
this evaluation? Would such a requirement be more appropriate in 
another paragraph of the PSM standard? For example, should such a 
requirement become part of the Process Hazard Analysis revalidation 
requirements at 29 CFR 1910.119(e)(5)?
    37. Would requiring employers to evaluate updates to applicable 
RAGAGEP prevent worker injuries and fatalities? Is there another 
approach that can be used to ensure the incorporation of RAGAGEP into 
facility operations that is tangible and documentable? What would be 
the economic impacts of this requirement? Are there any special 
circumstances involving small entities that OSHA should consider with 
respect to this option?

I. Clarifying the PSM Standard by Adding a Definition for RAGAGEP

    38. What does your facility use as a definition for RAGAGEP?
    39. Would adding a definition for RAGAGEP to the PSM standard 
improve understanding of PSM requirements and prevent worker injuries 
and fatalities? If so, what specific definition for RAGAGEP should OSHA 
add to the PSM standard? What would be the economic impacts of adding 
such a definition? Are there any special circumstances involving small 
entities that OSHA should consider with respect to this option?
    40. What criteria does your facility use to develop appropriate 
internal standards? For instance, if there is an applicable consensus 
standard, what steps do you take to ensure that your internal standards 
are at least as protective as the applicable standard?

J. Expanding the Scope of Paragraph (j) To Cover the Mechanical 
Integrity of Any Safety-Critical Equipment

    41. Does your facility have any equipment not covered under Sec.  
1910.119(j) that is critical to process safety? If so, what type(s) of 
equipment? Did you identify the equipment as safety-critical through a 
PSM process hazard analysis? How did your facility determine that the 
equipment was safety-critical, and does your facility treat the 
equipment as if it were PSM covered for safety or other reasons? Please 
explain.
    42. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents related to the 
mechanical integrity of safety-critical equipment not covered under 
Sec.  1910.119(j).
    43. Would expanding the scope of Sec.  1910.119(j) to cover the 
mechanical integrity of all equipment the employer identifies as 
critical to process safety, in addition to the equipment listed in 
existing Sec.  1910.119(j), prevent worker injuries and fatalities? 
What would be the economic impact of expanding the scope of Sec.  
1910.119(j) in this way? Are there any special circumstances involving 
small entities that OSHA

[[Page 73767]]

should consider with respect to this option?

K. Clarifying Paragraph (l) of the PSM Standard With an Explicit 
Requirement That Employers Manage Organizational Changes

    44. What do you consider to be an organizational change within the 
context of process safety management practices? For example, would you 
consider the following, or similar, changes to be organizational 
changes: reducing the number of operators in a shift; changing from 5-
day to 7-day operations; changing from 8-hour to 12-hour operator 
shifts; replacing a unit manager; relocating a technical group to a 
remote corporate location; or changing a supervisory or compensation 
structure?
    45. If your facility has established and implemented written 
procedures for management of organizational changes, please describe 
any economic impacts associated with the procedures.
    46. Would clarifying Sec.  1910.119(l) with an explicit requirement 
that employers manage organizational changes prevent worker injuries 
and fatalities? What would be the economic impact of such a 
clarification? Are there any special circumstances involving small 
entities that OSHA should consider with respect to this option?
    47. Please describe any organizational changes made in your 
facility or organization that have had the potential to affect process 
operations. Were management-of-change procedures followed before making 
the changes?
    48. What do you consider to be the best safety practices concerning 
management of organizational change?
    49. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving the failure to 
manage organizational change. Would following management-of-change 
procedures under Sec.  1910.119(l) prevent these incidents?

L. Revising Paragraph (n) of the PSM Standard To Require Coordination 
of Emergency Planning With Local Emergency-Response Authorities

    50. Does your facility provide information to, or coordinate 
emergency planning with, local emergency-response authorities? If so, 
please explain any special circumstances that necessitated the 
information sharing or coordination of emergency planning.
    51. If OSHA proposes a regulatory amendment to require 
coordination, what types of information should OSHA require PSM-covered 
facilities to provide to local emergency-response authorities? For 
example, should OSHA require employers to provide safety data sheets 
for all on-site chemicals, list the quantities of chemicals, list the 
location of chemicals, provide block-flow diagrams, list fire-
mitigation systems present, or report known fire and explosion risks in 
the facility? What would be the economic impact of requiring employers 
to provide such information? Are there any special circumstances 
involving small entities that OSHA should consider with respect to this 
option? What would be the cost to emergency-response authorities of 
coordinating emergency planning with PSM-covered employers?
    52. What, if any, steps should OSHA require PSM-covered facilities 
to take in coordinating emergency planning with local emergency-
response authorities? What additional benefits would accrue from 
requiring training exercises in addition to information sharing? What 
would be the economic impact of such requirements, and would there be 
any special circumstances involving small entities or security concerns 
that OSHA should consider?
    53. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents related to local 
emergency response authorities responding to a PSM-covered facility 
without adequate information on the chemicals present.

M. Revising Paragraph (o) of the PSM Standard To Require Third-Party 
Compliance Audits

    54. Does your facility use a third party for conducting compliance 
audits under Sec.  1910.119(o) for safety or other reasons? Please 
explain.
    55. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents that could have been 
prevented or minimized by more effective compliance audits conducted 
for operations covered under Sec.  1910.119(o). Were the ineffective 
compliance audits conducted by in-house staff or a third party?
    56. Would revising Sec.  1910.119(o) to require employers to use a 
third party for compliance audits prevent worker injuries and 
fatalities? What would be the economic impacts of revising Sec.  
1910.119(o) in this way (e.g., typical consultant fees, additional work 
hours required, special circumstances involving small entities, etc.)?
    57. Should OSHA revise Sec.  1910.119(o) to require employers to 
use compliance auditors (internal or third party) with certain minimum 
credentials or certifications? If so, what minimum credentials or 
certifications should the Agency require? What burden might this place 
on small businesses?
    58. Should OSHA revise Sec.  1910.119(o)(1) to require a compliance 
audit frequency less than every three years?
    59. Would revising Sec.  1910.119(o) to require employers to 
respond to deficiencies found in the compliance audit within certain 
timeframes prevent worker injuries and fatalities? What would you 
consider to be an appropriate timeframe?

N. Expanding the Requirements of Sec.  1910.109 To Cover Dismantling 
and Disposal of Explosives, Blasting Agents, and Pyrotechnics

    60. Does your facility conduct explosives dismantling or disposal 
activities not covered under Sec.  1910.109? If so, do you treat these 
activities as covered under Sec.  1910.109 for safety or other reasons? 
Please explain.
    61. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving dismantling or 
disposal of explosives, blasting agents, and pyrotechnics. Would 
coverage of these dismantling and disposal activities under Sec.  
1910.109 prevent such incidents from occurring?
    62. Are your operations currently covered under regulations issued 
by ATF? Are there specific areas of workplace safety that are not 
covered by ATF that should be considered by OSHA? Is there overlap or 
inconsistencies between the Requirements of Sec.  1910.109 and ATF 
regulations that would need to be addressed before an expansion would 
be recommended?
    63. What would be the economic impacts if OSHA expanded the scope 
of Sec.  1910.109 to cover the dismantling and disposal of explosives, 
blasting agents, and pyrotechnics? Are there any special circumstances 
involving small entities that OSHA should consider with respect to this 
option?

O. Updating Sec. Sec.  1910.106 and 1910.107 Based on the Latest 
Applicable Consensus Standards

    64. Is your facility covered by Sec. Sec.  1910.106 or 1910.107? If 
so, what are the operations covered by the standard(s)?
    65. Are there other federal, state, or local requirements that 
cover flammable liquids or spray finishing operations in your facility? 
If so, do the requirements protect workers more or less than Sec. Sec.  
1910.106 and 1910.107? Please explain.
    66. Does your facility follow NFPA 30, 30A, or 30B for flammable 
liquids,

[[Page 73768]]

or NFPA 33 for spray-finishing operations? If so, which edition(s)? Are 
there any other consensus standards applicable to flammable liquids or 
spray-finishing operations that your facility follows?
    67. On which standards (e.g., consensus, federal, state, local) 
were the design and operation of your facility primarily based?
    68. Should OSHA replace Sec. Sec.  1910.106 and 1910.107 with the 
latest editions of NFPA 30, 30A, 30B, and 33? If so, should OSHA 
replace Sec. Sec.  1910.106 and 1910.107 entirely or only in part? What 
would be the economic impacts of these options (e.g., cost of 
additional equipment, cost of additional training, benefits of quality 
management, special circumstances involving small entities, etc.)?
    69. Are there gaps in safety coverage in Sec. Sec.  1910.106 or 
1910.107? If so, what are the gaps, would NFPA 30, 30A, 30B, and 33 
address the gaps, and what would be the economic impacts of addressing 
the gaps through rulemaking? Are there any special circumstances 
involving small entities that OSHA should consider with respect to 
addressing the gaps through rulemaking?
    70. Are there any requirements in Sec. Sec.  1910.106 and 1910.107 
that prevent worker injuries and fatalities better than the safety 
practices in the latest editions of NFPA 30, 30A, 30B, and 33? If so, 
which requirements?
    71. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving gaps in safety 
coverage in Sec. Sec.  1910.106 or 1910.107.
    72. Are the Sec.  1910.106 provisions related to facility types 
(e.g., bulk plant, chemical plant, distillery) a useful classification 
system? If not, what type of a classification system should the 
standard use instead? Please explain.
    73. If OSHA updates Sec.  1910.106 and 1910.107 through rulemaking, 
what revisions to the scope and application of the standards would 
provide the best protection to workers?

P. Updating the Regulations Addressing the Storage, Handling, and 
Management of Ammonium Nitrate

    74. Does your facility store, handle, or manage ammonium nitrate? 
If so, in what form (e.g., solid, liquid) and in what grade (e.g., high 
density, low density) is the ammonium nitrate? Please explain.
    75. Does your facility comply with Sec.  1910.109(i) for the 
storage of ammonium nitrate? Are there any other standards, including 
consensus standards, applicable to ammonium nitrate storage, handling, 
and management that your facility follows? If so, which ones?
    76. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving the storage, 
handling, and management of ammonium nitrate.
    77. How can OSHA update its standards and improve its enforcement 
policy relating to the storage, handling, and management of ammonium 
nitrate to prevent worker injuries and fatalities? Please discuss the 
economic impacts associated with such improvement, including any 
special circumstances involving small entities that OSHA should 
consider.

Q. Changing Enforcement Policy for the PSM Exemption for Retail 
Facilities

    78. Does your facility qualify for the PSM exemption for ``retail 
facilities'' under OSHA's current enforcement policy? If so, would 
changing OSHA's enforcement policy to only exempt facilities in NAICS 
sectors 44 and 45 that sell highly hazardous chemicals in small 
containers, packages, or allotments to the general public result in PSM 
coverage for your facility?
    79. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving highly 
hazardous chemicals at ``retail facilities'' exempt from PSM coverage 
under Sec.  1910.119(a)(2)(i).
    80. Please discuss any economic impacts that would result from 
changing OSHA's retail-facilities policy to only exempt facilities in 
NAICS sectors 44 and 45 that sell highly hazardous chemicals in small 
containers, packages, or allotments to the general public. Are there 
any special circumstances involving small entities that OSHA should 
consider with respect to this option?
    81. Is there a definition of ``retail facilities'' that OSHA should 
use to protect workers under the PSM standard? Please discuss any 
economic impacts associated with your suggested definition. Are there 
any special circumstances involving small entities that OSHA should 
consider with respect to your or other definitions?

R. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in 
Appendix A of the PSM Standard Without Specific Concentrations

    82. Does your facility handle any chemicals excluded from PSM 
coverage on the basis that the concentration is below the ``maximum 
commercial grade''? If so, what are these chemicals and concentrations, 
and would OSHA adopting EPA's policy for RMP-listed chemicals in 
mixtures as OSHA's enforcement policy for PSM-listed chemicals without 
specific concentrations result in PSM coverage of the chemicals in your 
facility?
    83. Please provide any data or information on workplace accidents, 
near misses, or other safety-related incidents involving highly 
hazardous chemicals excluded from PSM coverage on the basis that that 
the concentration was below the ``maximum commercial grade.''
    84. Please discuss any economic impacts that would result from OSHA 
adopting EPA's policy for RMP-listed chemicals in mixtures as OSHA's 
enforcement policy for PSM-listed chemicals without specific 
concentrations. Are there any special circumstances involving small 
entities that OSHA should consider with respect to this option?
    85. Is there a different enforcement policy that OSHA should use to 
protect workers from the hazards associated with the chemicals listed 
in Appendix A of the PSM standard without specific concentrations? 
Please discuss any economic impacts associated with your suggested 
enforcement policy. Are there any special circumstances involving small 
entities that OSHA should consider with respect to your suggested 
enforcement policy?

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, authorized the preparation of this 
notice pursuant to 29 U.S.C. 653, 655, and 657, Secretary's Order 1-
2012 (77 FR 3912; Jan. 25, 2012), and 29 CFR part 1911.

David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2013-29197 Filed 12-6-13; 8:45 am]
BILLING CODE 4510-26-P