Senator to Perez: OSHA is ignoring congressional intent on process safety

Washington – Secretary of Labor Thomas Perez faced sharp scrutiny during a recent Senate subcommittee hearing over accusations that OSHA ignored “congressional intent” regarding the agency’s enforcement policy for retail establishments under the Process Safety Management Standard.

Last July, OSHA issued a memorandum revising an interpretation that had previously exempted retail facilities from certain PSM requirements. OSHA said the revised interpretation was a correction to the exemption, which was intended for establishments such as gas stations that sell small quantities of hazardous chemicals – including anhydrous ammonia – but had been applied to establishments that handle thousands of pounds of chemicals and earn more than 50 percent of their income from direct sales of such chemicals to end users.

However, some members of Congress regard the memo as a means to bypass the rulemaking process. The recent appropriations bill included a provision barring OSHA from enforcing its new PSM interpretation during fiscal year 2016 unless the agency formally promulgates a new rule. In response, OSHA issued a second memo stating that it will not enforce the new interpretation until after Sept. 30 – when the federal government’s fiscal year ends. During the March 17 Senate Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing, Sen. Roy Blunt (R-MO) questioned Perez on the move.

“OSHA issued a notice that it would start enforcing the memo on the first day of 2017. No rulemaking, no other language, nothing happening there,” Blunt said. “Why would OSHA ignore the clear congressional intent here that you have to go through a rulemaking process to make this change?”

Perez said the department was following congressional intent and the language of the appropriations bill. “You instructed us in the appropriations rider not to enforce this in this fiscal year,” he told Blunt. “And our memo said, ‘We will not enforce this in this fiscal year.’”

Perez admitted that OSHA is not going through a formal rulemaking process to make the change, but argued that President Barack Obama’s directive to improve chemical facility safety and the need to prevent a disaster similar to the deadly 2013 explosion in West, TX, makes quick action necessary. He added that the agency solicited stakeholder feedback prior to issuing the enforcement interpretation.

Blunt agreed on the importance of preventing future disasters, but noted that anhydrous ammonia was not the source of the disaster in West, TX. He claimed that the new interpretation will add a “substantial cost penalty” to small retail establishments, and reiterated his stance that OSHA must move forward “properly” by proposing a new rule.

OSHA administrator David Michaels faced criticism similar to Perez last October when he testified before a subcommittee of the House Education and the Workforce Committee.