Washington Update: The case against the 'Safety Case'

The federal government has been working to improve chemical facility safety and security, but two concepts intended to further that improvement are seemingly being left behind: Inherently Safer Design and the Safety Case.

Both are used elsewhere in the world and have been supported to a degree by the Chemical Safety Board.

A Safety Case regulatory regime, according to CSB, consists of a company demonstrating to regulators that its use of specific activity-based actions and goal-setting has reduced operational risks to a level as low as reasonably practicable. Inherently Safer Design is the use of safer designs, equipment or chemicals to minimize risk.

Both concepts also had support from the federal government’s top workplace safety research arm, NIOSH. Until recently.

In a March 6 letter commenting on OSHA’s proposed rule on process safety management, Paul Schulte, director of NIOSH’s education and information division, wrote that the Safety Case approach could be used to increase worker safety. Regarding Inherently Safer Design, the letter states that employers should implement it as much as possible because designing out hazards is considered one of the best ways to prevent and control injuries, illnesses and deaths.

Three months later, however, Schulte requested that OSHA substitute his original comments with comments that included no reference to either the Safety Case or Inherently Safer Design. All that remained was a recommendation for a “qualified person” signing off on a plant’s process hazard analysis and preparation.

In an interview with Safety+Health, Schulte said the elimination of references to Safety Case and Inherently Safer Design stems from input NIOSH received from stakeholders.

After the first letter supporting the Safety Case was written, “various stakeholders representing a diverse range of opinions” raised issues with NIOSH that the agency hadn’t previously considered, Schulte said. This prompted NIOSH Director John Howard to have Schulte’s team review its comments to OSHA.

Despite its broad use in other nations, including Australia and the United Kingdom, NIOSH found no evidence of the Safety Case approach being any better than the U.S. regulatory system. To Schulte’s knowledge, the Safety Case has not been evaluated within the framework of those countries. “We haven’t seen a true review of the effectiveness of it,” he said. As such, NIOSH chose not to recommend the process to OSHA.

Public Employees for Environmental Responsibility, a Washington-based alliance of local, state and federal resource professionals, suggests that NIOSH’s action – as well a presidential-commissioned report on the 2013 West, TX, fertilizer disaster that rejected Safety Case regulation – is evidence of the Obama administration’s abandonment of proposals that could prevent industrial disasters.

“President Obama has pledged to act where Congress has not, but in the realm of regulations he has yet to get out of the starting gate,” PEER Executive Director Jeff Ruch said in a press release. “Despite its rhetoric, when it comes to health and safety, the Obama administration is guilty of the same regulatory neglect as its predecessor.”

Schulte declined to comment on whether industry or political pressure played a role in the decision to substitute his original comments. He said he understands why the Safety Case and Inherently Safer Design have supporters, but stressed that both present concerns. “While they have a variety of advocates and an intuitive appeal, there are many complexities in the implementation of them that could have unintended consequences or difficulties or cost, and these haven’t been evaluated,” Schulte said.

Such consequences, a term Schulte used in the broad sense, could include the ability of an employer to effectively implement the Safety Case and the means through which a regulatory body oversees the situation.

When asked if NIOSH is considering conducting research into the effectiveness of the Safety Case method, Schulte said the agency is interested in learning more but is not currently conducting any research into the matter.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.