Senators Want OSHA To Rescind OSHA Policies Issued As Guidance, Use Rulemaking Instead

The request could come in the next two weeks, and Lankford, who convened a hearing Wednesday (Sept. 23) to dissect issues related to agencies using guidance papers to implement policy, says several lawmakers are discussing how to proceed after the Labor Department strongly defended OSHA’s procedure for issuing the documents.

At issue are three recent OSHA policies described by the agency as interpreting the process safety management (PSM) standard, which a set of covered chemical facilities must meet as part of efforts to prevent explosions — though it is still unclear which specific ones the lawmakers will target in the request. Each came up at Wednesday’s hearing, however, and are already the subject of litigation from industry.

OSHA issued three documents earlier this year clarifying regulators’ enforcement positions with respect to PSM: one that tightened the exemption for retail employers in the standard; another that interpreted the rule’s requirements on chemical concentrations; and a third affecting “recognized and generally accepted good engineering practices” (RAGAGEP). Industry in one form or another objects to each of the new policies, and some senators question why the Labor Department and its solicitor’s office chose not to use a process requiring public input.

Of concern at Wednesday’s hearing, according to lawmakers, was not the substance of the interpretations but rather how DOL went about issuing them.

Lankford, chair of the regulatory affairs panel of the Homeland Security and Governmental Affairs Committee, called OSHA’s documents “problematic guidance” as they appeared to impose new burdens and in some cases expand legal obligations outside of a rulemaking process.

“I do believe that agencies may issue guidance documents with the best of intentions,” he said, adding that in many cases the interpretations are valid from a regulatory point of view, but not properly issued. Documents from the Education Department also came into view, and Lankford contended the issue crops up in many agencies’ procedures. “This is something that is a serious issue,” he said. “This is not picking on two agencies.”

Using guidance instead of rulemaking faced bipartisan criticism, with Sen. Heidi Heitkamp (ND), the subcommittee’s ranking Democrat, needling the Labor Department over the controversial PSM standard interpretations. “Guidance is not, and should not be, substantive rulemaking,” she said. But Heitkamp also cautioned that guidance documents act as an important conduit for informational exchange among regulated entities and the government, and “any work that we do here must not chill that exchange.”

“We must ensure that there are seats for all interested parties at the table,” she said, adding that agencies must ensure that guidance is accessible to the public. A concern voiced at the hearing was that members of the public without regular interaction with an agency are unsure how to find all of the regulatory guidance materials pertinent to them.

A senior DOL official, without going into the technical content of OSHA’s interpretations, insisted each was properly vetted for compliance with the Administrative Procedure Act and Office of Management and Budget policy with respect to issuing guidance as opposed to a formal rule.

Mary Beth Maxwell, the department’s principal deputy assistant secretary for policy, said DOL often seeks public input before issuing guidance. She cited the recent publication for comment of a planned guidance carrying out an executive order on fair and safe workplaces, which affects federal contractors.

Maxwell pointed out that OSHA also issues guidance documents that are not formal standards interpretations, but provide expertise to regulated entities, as occurred during last year’s Ebola scare in which OSHA and partners released several publications to prevent worker infections.

Recent interpretations on PSM have either imposed less flexibility on employers or expanded coverage of the rule, all without a notice-and-comment process, Lankford argued. He pointed specifically to OSHA’s June 5 guidance on enforcement of the PSM standard’s RAGAGEP requirements, including how to interpret “shall” and “should” language in technical materials, and on the use of internal employer documents as RAGAGEP. The agency says enforcement activity, including OSHA’s National Emphasis Program on process safety in petroleum refineries, along with requests for assistance from the field, “revealed the need for guidance” on the RAGAGEP provisions.

Lankford also questioned OSHA’s June 5 enforcement policy on the concentration of a chemical that must be present in a process to determine whether the chemical is at or above the threshold quantity listed in Appendix A of the standard. OSHA says the revision falls under President Obama’s August 2013 executive order on improving chemical facility safety and security.

Both of those interpretations are the subject of litigation by industry, with the American Chemistry Council among employer groups filing lawsuits in the D.C. Circuit Court of Appeals. Also, the broader issue of companies using RAGAGEP remains entangled in legal review.

Another document questioned by lawmakers, and challenged by industry, is OSHA’s stricter interpretation of the retail exemption contained in the PSM standard, a move directly tied to findings under the executive order aimed at improving chemical safety. OSHA in the July 22 document threw out the so-called “50 percent rule” regarding volume of chemical sales to end users in determining applicability of the exemption, with the probable effect of widely expanding the rule’s reach. Sen. Joni Ernst (R-IA) said many worried constituents have brought the change to her attention, and she criticized the lack of public notice and comment.

OSHA has given employers an additional six months to comply with the new enforcement policy, and in that period says it will “focus its resources on providing compliance assistance to affected employers, engage key industry stakeholders, and will inform its State On-Site Consultation Projects that during this period, requests from newly covered employers should be their highest priority for receiving an on-site visit.”

OSHA will also exercise enforcement discretion during that time but may consider enforcement action to address what it considers immediate and severe danger.

Maxwell pointed out that OSHA published a request for information on process safety after the West, TX, chemical explosion and subsequent executive order, before rolling out the policy. Ernst argued that issuing such a request only supports the reasoning behind conducting a full rulemaking process.

Sen. Lamar Alexander (R-TN), chair of the Senate Health, Education and Labor Committee, which oversees OSHA, visited the subcommittee with his own questions to the Labor Department — principally on whether the agency plans to tell field investigators to obtain data from employers as suggested by the Solicitor’s Office in determining businesses’ joint employer status. A draft solicitor’s memo on the subject came out just as the National Labor Relations Board angered the business community last month by issuing a split ruling that expanded the meaning of joint employer. Alexander and House Republicans are trying to peel back the board ruling.

Maxwell said the solicitor’s memo was not a guidance, such as those discussed earlier in the hearing, but rather a set of questions for investigators to determine who had actual control over safety and health protections at work sites. — Christopher Cole ()