RMP

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  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined.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.

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Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

Eric J. Conn Leave a comment

Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions.  The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.

Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.

Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country.  Our experience shows a much different take on process safety.  We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action.  We watch how lessons are being learned and applied from incidents and experience.  We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident.  And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.

More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading →

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

Micah Smith Leave a comment

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 →

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 →

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:

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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 →