Quick Hits

  • OSHA recently issued Instruction CPL 02-01-065, updated enforcement guidance related to the Process Safety Management of Highly Hazardous Chemicals standard.
  • The updated guidance—reorganized and presented in a question-and-answer format with links to applicable resources, including letters of interpretation issued by OSHA since the PSM standard was promulgated in February 1992—supersedes OSHA Instruction CPL 02-02-045A (REVISED) (September 13, 1994).
  • Within sixty days of the directive’s effective date (January 26, 2024), a State Plan must submit a notice of intent indicating that it will adopt the directive or that it “already has in place policies and procedures that are identical to or different from the federal program.” OSHA has instructed that “[s]tate adoption, either identical or different, should be accomplished within six months.”

The policy set forth in OSHA Instruction CPL 02-01-065 is geared toward a wide range of facilities that handle large quantities of highly hazardous chemicals. The instruction also supersedes OSHA Instruction CPL 02-02-045A (REVISED), which was issued in September 1994. Interestingly, the new instruction also includes a disclaimer that may create confusion about OSHA’s intentions:

This instruction is not a standard, regulation, or any other type of substantive rule. No statement in this instruction should be construed to require the regulated community to adopt any practices, means, methods, operations, or processes beyond those which are already required by the OSH Act [Occupational Safety and Health Act] or standards and regulations promulgated under the OSH Act

CPL 02-01-065 makes two substantive changes. The first is the removal of the Appendix A PQV Audit Checklist; the other is the “[i]ncorporation of existing OSHA PSM enforcement policies into a question and answer format.” The new instruction does not contain new guidance or mandates, but instead compiles prior guidance documents, instructions, standard interpretations and other materials into a section-by-section index tied to the section of the standard to which they apply. The stated purpose of the instruction is to “further OSHA’s goal of uniform enforcement of these standards.”

This 103-page guidance, which is primarily a collection of hyperlinks to standard interpretations dating back to 1992, reiterates OSHA’s commitment to a national emphasis program (NEP) introduced in the final days of the Obama administration in early 2017 for inspecting facilities with highly hazardous chemicals. With certain exceptions, the NEP applies to facilities that handle flammable gases or liquids at quantities of 10,000 pounds or more, though the threshold for certain chemicals is as low as one hundred pounds.

The PSM standard, codified at 29 C.F.R. § 1910.119, was promulgated in 1992 “in response to numerous catastrophic chemical manufacturing incidents that occurred worldwide,” OSHA stated in the new instruction.

OSHA Instruction CPL 02-01-065 refers heavily to OSHA Standards 29 C.F.R. 1926.64 and 1910.109—both of which detail the process safety management of highly hazardous chemicals. The instruction is designed to assist “OSHA enforcement personnel on the agency’s interpretations of those standards.” As such, it will have application to a number of different industries.

The impact of the instruction will not only be felt by all federal OSHA states but also by all twenty-two states with their own OSHA-approved plans. Those twenty-two states are required, within sixty days of the January 26, 2024, effective date, to submit a notice of intent to adopt the directive or demonstrate that they have in place “policies and procedures that are identical to or different from the federal program.” OSHA has instructed that “[s]tate adoption, either identical or different, should be accomplished within six months.”

The instruction will also assuredly impact training requirements. For example, the Hazardous Waste Operations and Emergency Response (HAZWOPER) instruction, CPL-02-02-073—which details hazardous chemical management training—may be subject to some fine-tuning in light of this instruction.

Interestingly, no news release from OSHA formally announcing the instruction has been published to date.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will publish updates on the Workplace Safety and Health blog as additional information becomes available.

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