Jun 25, 2015

OSHA and EPA Issue Chemical Safety Alert Regarding Employer Implementation of Safer Technology and Alternatives

The Occupational Safety and Health Administration (“OSHA”) and the Environmental Protection Agency (“EPA”) issued a joint Chemical Safety Alert titled Safer Technology and Alternatives (the “Alert”) that was prompted by President Obama’s Executive Order 13650 – Improving Chemical Facility Safety and Security.  The Alert provides employers with methods for integrating safer technologies along with several examples of implementation. Employers who own chemical facilities should review the Alert and look for an upcoming guidance and potential rule on the topic to avoid any potential OSHA violations.

The Alert begins explaining that “safer technology and alternatives” means “the integration of a variety of risk reduction or risk management strategies that work toward making a facility and its chemical processes as safe as possible.”  The agencies explain that these strategies must apply from the inception of facility design all the way through full operation. Specifically, employers should look to tools that help them discover chemical and process hazards. Finally, the agencies explain that employers should use Inherently Safer Technology (“IST”) and Inherently Safer Design (“ISD”) to manage the hazards and risks they can encounter with chemicals.

After providing a general description of what employers should implement at their facilities, the Alert provides a series of more detailed guidelines and examples for employers to follow. First, employers should consider using “process hazard analysis tools” as described in the EPA’s Risk Management Program rule and OSHA’s Process Safety Management Standard. Next, employers should implement the utilization of a “Hierarchy of Controls” (“HOC”).  The HOC controls are broken down into: (1) Inherent controls: “the first preference is to avoid hazards by using non- or less-hazardous substances or materials . . . , minimizing the quantity of hazardous substances, or simplifying or moderating process conditions to eliminate or reduce the likelihood or severity of incidents”; (2) Passive controls: “protective hardware or structures added on to a process that provide a risk reduction benefit with no action required by personnel and no motive power or energy source required” (for example, secondary containment); (3) Active controls: “safety features or engineering controls added on to a process that require active operation of equipment to prevent or mitigate safety hazards” (for example, flow control valves or pressure sensors), and (4) Procedural controls: “administrative systems that mandate maintaining safe process conditions, operating procedures defining safe operating modes and the steps to be followed to maintain those modes, training, emergency response procedures, emergency warning and evacuation procedures.”

The remainder of the Alert provides flow-charts and tables that help employers identify and implement IST and ISD at their facilities. Although the Alert is not binding, employers should recognize that OSHA’s power under the General Duty Clause allows for citations if an employer does not provide employment that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Therefore, it would be wise for employers to become familiar with the Alert and any upcoming rules to avoid a General Duty clause violation.

The Alert can be found here.

If you have any questions regarding these issues, please contact your  OSHA counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.

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