Most of the letters of interpretation issued by OSHA over the years have dealt with PSM applicability issues. However, this newsletter will focus on several interpretations dealing with management of change. Management of change is a highly vital element in any process safety program. Many of the catastrophic accidents over the past few decades can be traced, in large part, to a management of change system that was not in place or was not functional (e.g., Flixborough, Bhopal).

Interpretations of PSM Standard With Respect to Employee Participation
 

·              Question:  Can a company compel participation by it’s employees in PSM programs, including use of disciplinary action when participation is not achieved? 

Answer:  The employee participation standard at §1910.119(c) is intended to provide for a cooperative participatory environment and necessary flow of information from management to employees and from employees to management on process safety to eliminate or mitigate the consequences of catastrophic releases of highly hazardous chemicals in the workplace.  Paragraph §1910.119(c)(2) contains language taken from the Clean Air Act Amendments (CAAA) of 1990.  As prescribed by the CAAA, the standard at §1910.119(c)(3) requires that PSM information developed by the employer be made available to employees and their representatives.  By OSHA interpretation, CAAA requirements also demand that an employer carefully consider and structure the plant's approach to employee involvement in the PSM program.  The plan action standard at §1910.119(c)(1) is intended to address this issue to ensure that the employer actively considers the appropriate method of employee participation in the implementation of the PSM Program in the workplace. [OSHA letter on 1/8/93]  Editor’s Note:  Although OSHA did not answer the question in a direct “Yes” or “No” fashion, they certainly stated that they considered the employee participation program to be a “cooperative” endeavor. 

·              Question:  When must employer’s consult with contractors to the same extent that they consult with their own employees?

Answer:  Host employers must consult with contractor employees to the same extent they would consult with direct-hire employees if the contractor employee:

–        functions as a process operator on covered processes

–        routinely utilizes the host employers MOC program

–        participates in activities related to mechanical integrity

–        has unique experience or knowledge concerning the operation, maintenance, or safe performance of any portion of a covered process

–        routinely interfaces with the host employer's safe work practices

[OSHA Instruction CPL 2-2.45A CH-1 9-13-94]  Editor’s note:  This provision of the PSM Compliance Directive has been applied, in practical terms, to contractors that are resident at the site.  For example, a contractor-provided maintenance crew where the same people report to the site each workday and function, for all intents and purposes, like the host employer’s maintenance workforce.

 
·              Question:  What does consultation mean?

Answer:  Consultation will mean a two-way dialogue between employer and the employees.  The employer will be expected to establish a mechanism by which it will respond orally or in writing to employee concerns.  [OSHA Instruction CPL 2-2.45A CH-1 9-13-94]

·              Question:  Do contractors have the same access to PSM-related information as employees?

Answer:  Equal Access to PSM Information:  Employees of covered contractors must have the same access as direct-hire employees - contractor employers share this responsibility.  [OSHA Instruction CPL 2-2.45A CH-1 9-13-94]

 Although verbal interpretations have no official standing and federal employees rarely speak for attribution, there have been a number forums following the adoption of the PSM Standard where OSHA representatives have made themselves available to speak about PSM and to answer questions.  These verbal interpretations contain some interesting information on OSHA’s thinking (or at least the thinking of the person answering the question).  Also, OSHA has published guidance on PSM issues in OSHA Publication 3133 (the “purple booklet”).  This guidance is also unofficial and is not mandatory.   

·               OSHA wants active participation - suggestion boxes and simple policy statements by management are not enough

·               Minutes of meeting is an acceptable employee participation documentation method where applicable.

·               Safety committees can help meet participation obligations if employees and management are represented

·               OSHA will be looking for patterns in interviews with employees regarding participation

 To see a specific letter or other interpretive document published by OSHA, visit OSHA’s website at www.osha-slc.gov/OshDoc/toc_interps.html.  As a service to our clients and readers, Acutech has included many of these documents, including the letters of interpretation discussed above, in a continuous MS Word® file.  This file allows for easier searching for keywords that might be of interest and makes it easier to determine if an interpretative document has been published on a particular topic or if any of them address a specific PSM-related issue. 

 In the next issue of the Acusafe newsletter, we will include a discussion of interpretations related to compliance audits. 

If you have an interpretation that you would like to share with AcuSafe or feedback about this feature, please email us at editor@acusafe.com.  To go back to the OSHA Interpretations Feature Index, click here or go back to AcuSafe.