Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA



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

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

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

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


OSHA Intends to Use Rulemaking to Undo D.C. Circuit’s Decision to Limit Recordkeeping Statute of Limitations

On July 3, 2013, the Obama administration released its spring 2013 regulatory agenda, which includes new deadlines for significant OSHA rulemaking.  One of those new items includes OSHA’s proposed recordkeeping rule change, titled “Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses.”  The proposed rule is to be unveiled by November of this year.

Under the new rule OSHA will attempt to clarify that: (1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place.  This is consistent with OSHA’s original interpretation of the OSH Act’s statute of limitations for injury and illness recordkeeping before the District of Columbia Circuit Court of Appeals rejected it in 2012.


Update on Lawsuit Challenging Combustible Dust Provisions of New HAZCOM Standard

On May 24, 2012, the American Chemistry Council (ACC), the National Grain and Feed Association (NGFA), the National Oilseed Processors Association (NOPA), and the Renewable Fuels Association (RFA) filed a petition in the US Court of Appeals for the DC Circuit challenging the provisions of the new hazard communication standard that relate to combustible dust. On November 2, 2012, the court stayed the case pending further settlement discussions between OSHA and the other parties involved. At the end of last month, movement in the lawsuit picked up again.


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