OSHRC Dramatically Expands Interpretation of “Interconnected” for PSM-Coverage

By Eric J. Conn and Micah Smith

On March 28, 2019, the OSH Review Commission released its decision in Sec’y of Labor v. Wynnewood Refining, OSHRC, Nos. 13-0644 & 13-0791.  In a fairly brief opinion, the Commission affirmed the decision of the ALJ on two significant issues:

  1. the PSM standard applied to a utilities boiler; and
  2. OSHA inappropriately relied upon the citation history of a prior owner in characterizing citations as Repeat.

Expanding PSM Coverage

With regard to PSM applicability, the decision is framed as a response to the arguments raised in the refinery’s brief, but it does not directly address the arguments raised by the amicus brief filed by AFPM and API.  The Commission began its discussion of PSM applicability by evaluating the meaning of the definition of “process,” in particular how to interpret this phrase:

“For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical (HHC) could be involved in a potential release shall be considered a single process.”

The Commission held that, in order to prove a group of vessels qualify as a process, OSHA may prove either that a) the group of vessels are interconnected or b) separate vessels are located such that an HHC could be involved in a potential release.  With surprisingly little analysis, the Commission held that this was the plain meaning of the terms of the standard, and the Commission did not evaluate at all whether OSHA’s interpretation deserved deference.  (Note:  Chairwoman MacDougall disagreed that this was the plain meaning of the terms, but she agreed that OSHA’s interpretation of the definition deserved deference.)

This decision gave no credence to the arguments made by the refinery and the amici, which both urged the Commission to find that interconnected vessels be considered a single process only if there is a reasonable probability that an event such as an explosion would affect the interconnected vessels. Continue reading

Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?

This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.

Continue reading

D.C. Circuit’s “Inadvertently Issued” Mandate puts RMP Amendments into Effect for a Weekend

By Eric Conn, Micah Smith, and Beeta Lashkari

Late last Friday, August 31, 2018, the D.C. Circuit unexpectedly granted Petitioners’ request to expedite the issuance of the Court’s mandate to strike down the delay of EPA’s 2017 RMP Amendments.  RMP DecisionAs we previously reported, the D.C. Circuit held on August 17, 2018, that EPA acted improperly when it issued a final rule delaying the effective date of a certain set of amendments made to EPA’s RMP Rule (the “Delay Rule”).  Providing for a full rehearing petition period, and absent any action from the Court, the mandate for this decision would have issued at the earliest on October 8, 2017.  On August 24, 2018, however, Petitioners filed a motion to expedite, asking that it issue no later than September 7, 2018.

Petitioners’ arguments focus on the public’s “strong interest” in the prompt issuance of the mandate due to “the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” and they point to the 14 months of delay that has already occurred as evidence of the need for expedited relief.

And in a nod to current events, Petitioners claim that time is now of the essence because of the impending hurricane season, specifically mentioning the OIG’s investigation of EPA’s preparedness and response efforts to Hurricane Harvey in 2017.

Under the Federal Rules of Appellate Procedure, EPA and the Intervenors are afforded 10 days to file oppositions to Petitioners’ Motion, so those oppositions had not yet been filed on August 31.

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After the Court issued the mandate late on Friday, August 31, several motions for reconsideration were filed by EPA and Intervenors, but the Court’s closure over the 3-day weekend left all the parties in suspense, anxiously trying to determine the implications of the decision.

After a long weekend of suspense, the Court ordered EPA to return the mandate on September 4, noting that the responses to Petitioners’ Motion were not yet due.  The Court also briefly noted that it appeared “that the court’s mandate inadvertently issued” the previous Friday.  EPA returned the mandate on the same day.

But now that EPA and the Intervenors have filed oppositions to Petitioners’ Motion to expedite the issuance of the mandate, what comes next?  Continue reading

Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule [Webinar Recording]

On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.” 

Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers.  In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule.  The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.

Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.

Participants in this webinar learned:

Continue reading

OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

On December 12, 2017, Eric J. Conn and Micah Smith of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s PSM Standard & EPA’s RMP Rule.”

Following the tragic West Fertilizer explosion in 2013, then-Pres. Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” how the government regulates chemical manufacturing.  In response, OSHA and EPA took sweeping actions, from rulemaking and interpretation letters to overhaul the PSM and RMP regulatory landscape, to new enforcement initiatives, like a the Chemical Facilities and Petroleum Refineries PSM National Emphasis Program.  When Pres. Trump took office, several key process safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined.  This webinar will review the status and likely future of OSHA’s PSM and EPA’s RMP regulatory programs.

During this webinar, participants learned:

Continue reading

OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State” [Webinar Recording]

On August 15, 2017, Kathryn M. McMahon, Amanda Strainis-Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State”

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed much of Trump’s agenda with the phrase, “deconstruction of the administrative state,” meaning the system of regulations and taxes that the president says have stymied economic growth.  OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape.  This webinar will take a deep dive into the actions taken by the Trump Administration in conjunction with the Republican Congress to roll-back OSHA regulations or otherwise lessen the punitive influence of OSHA on our nation’s employers.  From the repeal of several Obama-era midnight rules, to a budget proposal that could gut OSHA’s enforcement efforts, to a series of Executive Orders that shift to a business friendly regulatory agenda.

This webinar addressed:

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OSHA’s Slips, Trips and Falls Rule Gets a Facelift [Webinar Recording]

On February 8, 2017, Kate M. McMahon and Micah Smith, from Conn Maciel Carey’s national OSHA Practice Group, delivered a webinar entitled: “OSHA’s Slips, Trips and Falls Rule Gets a Facelift.”wws-cover-slide

Only a few decades in the making, OSHA has finally updated its Walking / Working Surfaces Standard, the regulation that governs slips, trips and fall hazards in general industry.  Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S.  The new final rule attempts to modernize OSHA’s regulations to prevent fall hazards based on advances in fall protection technologies and methods.

Participants in this webinar learned:
  • The new requirements for managing slip, trip and fall hazards in general industry
  • New criteria for fall protection equipment and ladder safety
  • Effective dates for the new Walking / Working Surfaces Standard
This was the second webinar in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars. Continue reading

Post-OSHA Citation – The Contest Process, Settlement Goals and Strategy – [Webinar Recording]

On September 7, 2016, Eric J. Conn and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the Post-OSHA Citation (The Contest Process, Settlement Goals and Strategy).

You just received a set of OSHA citations in the mail.  What now?  Should we accept the citations and pay the penalty?  Should we participate in an Informal Settlement Conference with the OSHA Area Office?  Should we contest the citations?  What does a good settlement look like and how can we achieve those goals?  This webinar will explain the post-citation process, and provide tips and strategies for resolving OSHA citations in a manner that mitigates the potential for Repeat violations, reduces the proposed penalty, prevents the citations from impacting a personal injury or wrongful death civil suit, and helps you avoid or extricate you from the Severe Violator Enforcement Program.

Participants in this webinar learned: Continue reading

Nationally Recognized OSHA Attorney Micah Smith Joins Conn Maciel Carey’s OSHA Practice

Last week, Micah Smith, a prominent Washington, D.C. OSHA defense attorney, joined Conn Maciel Carey as Of Counsel with the national OSHA • Workplace Safety Practice Group.  Mr. Smith focuses his practice on occupational safety and health law.  He has extensive experience and expertise in handling complex OSHA matters, from Micah's head shotrulemakings to the full range of enforcement-related matters, such as fatality investigations and litigation of contested OSHA citations.

In welcoming Micah to the firm, the Chair of Conn Maciel Carey’s OSHA Practice, Eric J. Conn, said:

“Our national OSHA Practice Group continues to represent employers and associations in the most complex, high-profile OSHA matters of the day, so adding to our team an attorney of Micah’s caliber, experience, and record of extraordinary success for employers will be invaluable. Micah is known nationally for his handling of complex, process safety management inspections and litigation.  As OSHA embarks on a major rulemaking to reform the Process Safety Management Standard (and EPA advances an updated Risk Management Plan rule), we are even better positioned to help employers in this area with Micah now a part of our team.”

In describing his own practice philosophy, Micah explained:

“What I am most excited about in joining Conn Maciel Carey is that the attorneys here share my focus on working with employers to identify safety and health strategies that both increase employee safety and improve business performance.  I love advising clients on safety and health issues because this work matters.  Companies with good safety and health programs improve the lives of their employees every day, and I take great pride in helping my clients in this mission.  Whether helping a client improve a great program or helping a company that has experienced a tragic mishap, I always get to work toward making workplaces better.  And one exciting part of this is watching my clients improve their business performance as a direct result of improving their safety programs.

“I am also delighted to join such a strong bench of OSHA specialist attorneys here at Conn Maciel Carey.  There are so few true OSHA specialists in the country, so to have the opportunity to support this tremendous group will make practice in this field all the more enjoyable.”

Check out Micah’s full bio.