PSM

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

Theresa Green Leave a comment

ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES

As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.

​Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by OSHA-specialist attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.

2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021 Forecast

Thursday, January 14th
Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th
Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26th
What to Expect from DOL Under
a Biden Administration

Wednesday, June 16th
What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11th
Mid-Year Review of OSHA Developments

Thursday, July 22nd
COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18th
OSHA VPP and other Cooperative Programs

Tuesday, August 24th
Update About the
Chemical Safety Board

Tuesday, March 16th
Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8th
Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23rd
OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7th
COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20th
Updates about OSHA’s PSM
Standard EPA’s RMP Rule

Tuesday, November 16th
Recap of Year One of the Biden Administration

Tuesday, December 14th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

Continue reading →

3rd Annual (Virtual) Process Safety Summit – December 8-9, 2020

Theresa Green Leave a comment

Register today for the 3rd Annual (Virtual) Process Safety Summit on December 8-9, 2020.

Like so many other aspects of our lives, our Annual Process Safety Summit in Washington, DC will look a little different in the year of COVID-19.  Rather than gathering together in person in our Nation’s Capital for two full days in October, the 3rd Annual Process Safety Summit will be a virtual event, and it will take place in shorter segments on December 8-9, 2020.

But what will not change is the Summit’s one-of-a-kind opportunity to convene safety and legal professionals from chemical manufacturing, petroleum refining, paper, and other process industries with the senior government officials responsible for regulating process safety.  Check out our working agenda and register today.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event, typically based in our nation’s Capital.  The 2nd Annual Summit last Fall welcomed more than 175 safety, process safety, and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries, and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration and into a Biden Administration, best practices, and other key process safety regulatory issues impacting Industry.

​This Summit fills an important gap for employers operating the process safety regulatory environment.

Continue reading →

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

Theresa Green Leave a comment

On November 17, 2020, Eric J. Conn, Micah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

We are pleased to share links to a copy of the slides and a recording of the webinar.  Continue reading →

[Webinar] Process Safety Update: The Latest with OSHA PSM & EPA RMP

Theresa Green Leave a comment

On Tuesday, November 17th at 1 PM Eastern, join Eric J. Conn, Micah Smith and Beeta Lashkari for a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

Click here to register for the November 17th webinar. Continue reading →

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

Eric J. Conn 3 Comments

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd
All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd
OSHA Settlement
Tips And Strategies

Tuesday, February 25th
Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th
Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th
Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd
Annual Cal/OSHA Update

Thursday, April 16th
Impact of the Election on OSHA

Thursday, October 22nd
E-Recordkeeping and
Injury Reporting Update

Wednesday, May 20th
Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th
OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th
Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event. Continue reading →

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

Eric J. Conn Leave a comment

On Tuesday, November 19, 2019 at 1:00 PM Eastern, join Eric J. Conn, Amanda Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice for a complimentary webinar regarding “Process Safety Update: The Latest with OSHA’s PSM Standard and EPA’s RMP Rule.”

​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 process safety. OSHA and EPA took (or at least initiated) sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

When President Trump took office with a de-regulatory agenda, the regulated community was left wondering what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle.

This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

Specifically, participants in this webinar will learn about: Continue reading →

2nd Annual Process Safety Summit in Washington, DC – October 15-16, 2019

Eric J. Conn Leave a comment

Register today for the 2nd Annual Process Safety Summit in Washington, DC on October 15-16, 2019.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event in our nation’s Capital.  The Inaugural Summit last Fall welcomed more than 175 safety and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration, best practices, and other key process safety regulatory issues impacting Industry.

The Agenda and format for the 2nd Annual Process Safety Summit in Washington, DC will include one-of-a-kind line-up of speakers and panels of senior government officials and industry experts, as well as moderated round table sessions.  The event is broken into two parts:

  1. A half-day of confidential breakout sessions with Industry stakeholders and a networking cocktail reception on October 15th; followed by
  2. A full-day of panels and speakers from OSHA, EPA, the OSH Review Commission, Former Heads of OSHA, the CSB, and others on October 16th.

​This Summit Continue reading →

EPA Sends Final RMP Rollback Rule to OMB for Review

Beeta B. Lashkari Leave a comment

By Micah Smith, Eric J. Conn and Beeta Lashkari

Last week, on September 12, 2019, EPA sent its Final RMP Rollback Rule to the White House Office of Management & Budget (OMB) for pre-publication review.  The rule is expected to roll back many of the Obama-era RMP Amendment Rule that added to and enhanced numerous RMP requirements, which was finalized and published in the Federal Register three days before President Trump’s Inauguration.  

This new near-final RMP Rollback Rule comes after a long and tortured rulemaking and litigation history in which President Obama’s EPA rushed out the RMP Amendments Rule, President Trump’s EPA attempted to delay the RMP Amendments Rule, those attempts were defeated in federal court, and then EPA quickly finalized the current rulemaking with anticipated roll-backs.  Here is a quick summary of that history: Continue reading →

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

Micah Smith 2 Comments

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 →

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

Eric J. Conn Leave a comment

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.

2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th
Tips to Survive an OSHA Inspection

Tuesday, July 23rd
Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th
Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th
OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th
OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th
Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th
What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd
New Cal/OSHA Enforcement Issues

Tuesday, May 28th
 OSHA PSM and EPA RMP Update

Tuesday, November 19th
The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th
Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading →

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

Eric J. Conn Leave a comment

On November 13, 2018, Eric J. Conn, Micah Smith, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule.”PSM Webinar Slide

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 Strikes Down the Trump EPA Delay of Obama EPA’s Overhaul of the Risk Management Program Rule

Eric J. Conn Leave a comment

By Micah Smith, Eric J. Conn, and Beeta Lashkari

Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard).  Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration. 

This ruling creates significant concern for the regulated community.  The Amendments require major overhauls to they way covered employers implement their risk management plans.  But EPA is still advancing a rulemaking to rescind and narrow those Amendments.  Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.

Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions.  The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:

“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”

While the Court criticized the agency for Continue reading →

Inaugural Process Safety Summit in Washington, DC – October 22-23, 2018

Eric J. Conn Leave a comment

Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.

The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape.  The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.

This Process Safety Summit fills an important gap in Washington, DC.  Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.

The format and agenda will include Continue reading →

Announcing Conn Maciel Carey’s 2018 OSHA Webinar Series

Eric J. Conn 1 Comment

The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books.  We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit.  Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies.  Accordingly, it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2018 OSHA Webinar Series, presented by the firm’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this period of flux.

To register for an individual webinar, click the link below the program description.  To register for the entire 2018 series, click here to send us an email request, and we will register you.  If you missed any programs from prior years, here is a link to an archive of recordings of those webinars.

OSHA’s 2017 in Review & 2018 Forecast

Tuesday, January 16th
New Cal/OSHA Enforcement Issues

Tuesday, July 10th
Unlock the Mysteries of OSHA’s Lockout/Tagout Standard

Tuesday, February 20th
Future of OSHA’s Policy
of Public Shaming

Tuesday, August 21st
OSHA’s New Leadership Team

Tuesday, March 20th
Walking/Working Surfaces Update

Tuesday, September 18th
OSHA’s New Silica & Beryllium Rules

Tuesday, April 17th
Repeat, Willful & Egregious CiTations

Tuesday, October 16th
OSHA’s New E-Recordkeeping
and Anti-Retaliation Rule

Tuesday, May 5th
 Process Safety Update:
OSHA PSM and EPA RMP

Tuesday, November 13th
Joint- and Multi-Employers,
Contractors and Temps

Tuesday, June 5th
OSHA and the ADA: How Two
Labor Laws Align and Diverge

Tuesday, December 4th
See below for descriptions of the webinars and registration links

Continue reading →

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

Amanda Strainis-Walker Leave a comment

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 Settles Legal Challenge to Process Safety Management Chemical Mixtures Enforcement Memo

Eric J. Conn Leave a comment

By Eric J. Conn, Amanda R. Strainis-Walker, and Bryan A. Carey

In March 2015, the U.S. Supreme Court issued its decision in the closely watched Perez v. Mortgage Bankers. The Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to federal agency rules, even if the changes are “interpretive” in nature, must go through Administrative Procedure Act public notice-and-comment.Mortgage Bankers Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

In the post-Mortgage Bankers world, the Occupational Safety and Health Administration (“OSHA”) has a powerful new tool for backdoor rulemaking, and OSHA wasted no time taking advantage of this new legal doctrine. OSHA’s first efforts to utilize the new authority were seen in changes to its Process Safety Management of Highly Hazardous Chemicals standard (29 CFR 1910.119), which detail the requirements for operating and maintaining processes that use highly hazardous chemicals.  Less than three months after the Supreme Court issued the Mortgage Bankers decision, OSHA issued three separate interpretation letters to amend the PSM Standard:

  1. Narrowing the long-standing “Retail Exemption” from PSM-coverage;
  2. Defining and enforcing the application of “Recognized and Generally Accepted Good Engineering Practices” (“RAGAGEP”); and
  3. Expanding the scope of chemical mixtures covered by the PSM Standard.

Read our earlier article about these three enforcement memorandum and the resolution by settlement of a legal challenge to the RAGAGEP interpretation.

The Chemical Mixture Interpretation

On June 5, 2015, OSHA issued an enforcement memorandum regarding PSM and Covered Concentrations of Appendix A Chemicals, which substantially revised OSHA’s policy on the concentrations of components of chemical mixtures that trigger the coverage under the PSM Standard.  Appendix A of the PSM Standard lists the “highly hazardous chemicals” that are Continue reading →

OSHA Engages in Backdoor Rulemaking — Courtesy of the Supreme Court

Eric J. Conn 2 Comments

By Eric J. Conn

OSHA is attempting to reap the policy-making benefits of a Supreme Court decision that lets regulatory agencies offer new (even contradictory) interpretations of existing rules without following the Administrative Procedure Act’s (“APA”) notice-and-comment rulemaking process, with the most immediate and serious impacts seen in the regulatory landscape of chemical process safety. OSHA policymakers have shown they are eager to exercise new-found authority to unilaterally change the meaning or application of existing regulations to suit their current agenda (i.e., without soliciting stakeholder input and otherwise flouting the traditional checks on agency rulemaking afforded by the APA, such as economic and feasibility analyses).

Perez v. Mortgage Bankers

That is the reality following the high court’s 2015 decision in the closely watched Perez v. Mortgage Bankers case. The Supreme Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to agency rules, even if the changes are “interpretive” in nature, must go through APA public notice-and-comment.Mortgage Bankers Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

The effect of the Supreme Court’s new precedence is to free regulators, like OSHA, to change, though internal fiat, long-held positions regarding how its rules must be followed and enforced, and (if recent efforts by OSHA testing its new authority stand) even to whom its rules apply. In the post-Mortgage Bankers world, OSHA has a powerful new tool for backdoor rulemaking, an already favorite route for OSHA to end-run the burdensome standard-setting process imposed by Congress.

OSHA Impact of Mortgage Bankers

OSHA wasted no time taking this new legal doctrine out for a spin. OSHA’s first efforts to utilize the new authority were seen in Continue reading →

EPA Poised To Make Sweeping Changes to the Risk Management Program Rule

Eric J. Conn 1 Comment

By Eric J. Conn

Chemical manufacturers and petroleum refiners are closely tracking the latest activities of a high-level agency working group formed pursuant to President Obama’s Executive Order (13,650) responding to the West, Texas, fertilizer plant explosion in 2013. The President and the public cried out for a higher level of scrutiny of workplaces that store and process hazardous chemicals following the explosion. The working group responsible to carry-out the President’s Order is comprised of EPA, the Occupational Safety and Health Administration, Department of Homeland Security, Department of Justice, Department of Agriculture and Department of Transportation.Chem Safety EO

The present focus of this collection of agencies is to seek regulatory changes, including amendments to EPA’s Risk Management Program (RMP) rule (RIN 2050-AG82). In a series of progress reports to the President, the working group pledged, among many other actions, that EPA would propose regulatory amendments to its Risk Management Program in 2015 and publish a final rule in 2016. Now, as a result of two years of intensive discussions by representatives of the agencies regarding how they could make both internal policy changes and regulatory changes, EPA completed a small business regulatory review process and published in the Federal Register for public comment a proposed rule to revise the RMP requirements. At the same time OSHA plans to soon commence a small business review of proposed changes to its Process Safety Management standard, which provides overlapping regulatory requirements.

Among the numerous significant changes proposed to the RMP rule, Continue reading →

“OSHA’s PSM Standard & EPA’s RMP Rule: Rulemaking, ‘Interpretations’ and Enforcement” [Webinar Recording]

Amanda Strainis-Walker 1 Comment

On March 16th, Eric J. Conn and Amanda Strainis-Walker of Conn Maciel Carey’s national OSHA Practice Group delivered a webinar regarding “OSHA’s PSM Standard & EPA’s RMP Rule: Rulemaking, ‘Interpretations’ and Enforcement” as part of the Firm’s 2016 OSHA Webinar Series.

Following the tragic West Fertilizer explosion in 2013, President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the manner in which the government regulates chemical manufacturing processes. OSHA and EPA are taking sweeping actions in response to this Executive Order, from enforcement initiatives to rulemaking efforts to overhaul the PSM and RMP regulations, as well as some controversial rulemaking by interpretation letter. This webinar dove deep into the changes we have already seen, and those making their way through the rulemaking process.

Participants learned about: Continue reading →