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The Hidden Danger of OSHA’s PSM Interpretive Guidance (Part I)

Assessing the Threat

Matt Traister,

My previous Insights article, Changes to OSHA’s Process Safety Management Standard and USEPA’s Risk Management Program, announced that in March 2016, USEPA proposed significant revisions to its accidental release prevention requirements, often referred to as the Risk Management Program (RMP) (40 CFR Part 68). As we await finalization of these revisions, which are expected by the end of 2016, it is worth noting that OSHA is likely to make similar changes in 2017 to its corresponding Process Safety Management (PSM) standard (29 CFR Part 1910 Section 119).

While facilities currently affected by RMP and/or PSM are watching these regulatory developments closely, there’s another universe of facilities that may be unaware of recent regulatory interpretations by OSHA[1],[2] that may substantially change both the scope of the standard, as well as the design requirements of affected process equipment. This article addresses the first of these regulatory interpretations. 

Expanding the Reach of RAGAGEP
The June 5, 2015 guidance was notable because it significantly expanded OSHA’s interpretation as to what constitutes “recognized and generally accepted good engineering practices” (RAGAGEP), even though the term is only used in two places within the PSM standard:

  • Employers shall document that equipment complies with RAGAGEP
  • Inspection and testing procedures shall follow RAGAGEP

The original PSM standard was designed to be a flexible, performance-based regulation. In its newest guidance, however, OSHA is encouraging its inspectors to consider the concept more holistically, stating that RAGAGEP applies to “process equipment design and maintenance, inspection and test practices and inspection and test frequencies”. Clearly, the newest guidance expands the applicability of RAGAGEP to more aspects of a covered process than before.

Examples of RAGAGEP
OSHA has indicated that RAGAGEP typically falls into one of four categories:

  • Widely adopted codes (e.g., National Fire Protection Association’s NFPA 101 – Life Safety)
  • Consensus documents (e.g., International Institute of Ammonia Refrigeration’s IIAR 2-2008 – Equipment, Design, and Installation of Closed-Circuit Ammonia Mechanical Refrigerating Systems)
  • Non-consensus documents (e.g., the Chlorine Institute’s pamphlets on chlorine safety)
  • Internal corporate standards

While OSHA indicates that these examples are not “intended to reflect a hierarchy of RAGAGEP”, it is interesting to note that the guidance suggests that OSHA will accept widely adopted codes, consensus documents, and widely adopted non-consensus documents as RAGAGEP “where applicable and appropriate”, while also putting the onus on employers to document that internal standards represent RAGAGEP.

Distinguishing Between “Shall” and Should”
OSHA has clarified that it will enforce, as mandatory, statements published in consensus standards that contain the descriptor “shall”. In contrast, OSHA considers statements that contain the word “should” as an “acceptable and preferred approach (to controlling a recognized hazard) and, if the statement is applicable, OSHA presumes that if an employer deviates from it, a violation has occurred unless the employer can demonstrate that its alternative approach is at least as protective. In essence, an employer can no longer blindly consider a consensus standard’s “should” recommendation, but instead select an alternative approach that the employer believes is more appropriate for the process, unless it documents why the selection is more protective.

Updated RAGAGEP
Perhaps the most important issue raised in the new guidance is how employers need to address changing RAGAGEP. Although the PSM standard does not require that an employer document compliance with updated RAGAGEP, the standard does require that employers determine and document equipment designed and constructed in accordance with codes, standards or practices that are no longer in general use is designed, maintained, inspected, testing, and operating in a safe manner. The frequency with which employers must make this determination, however, is not clear. As a practical matter, most employers address this requirement during updates to the equipment’s process hazards analysis (PHA), which may only be performed once every five years.

The guidance indicates that inspectors are encouraged to report sources where “RAGAGEP appears to have changed to be less protective or that are being interpreted by employers in a manner that is less protective”, which may be the case when a new consensus standard, for instance, has been developed that affects the design and/or operation of the equipment in question. So, in good conscience, how can an employer document that equipment is designed, maintained, and operating in a safe manner when there may be some evidence that there’s now a “better mousetrap” for this process?

Summary
The new guidance expands the potential breadth of RAGAGEP and, in a worst-case situation, may trigger the need to install additional process safeguards. It will be important to follow how future enforcement actions and (undoubtedly) subsequent litigation affect the implementation of this newest regulatory guidance. In any case, it is clear that the tenor of the recent guidance puts even more responsibility on employers to continuously evaluate the safety of its covered equipment. 

Notes:
[1]  See OSHA May 11, 2016 Standard Interpretation Memo titled “RAGAGEP in Process Safety Management Enforcement” authored by Thomas Galassi, Director, Directorate of Enforcement Programs; https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=30785

[2] See OSHA July 18, 2016 Standard Interpretation Memo titled “Process Safety Management of Highly Hazardous Chemicals and Covered Concentrations of Listed Appendix A Chemicals”, authored by Thomas Galassi, Director, Directorate of Enforcement Programs;https://www.osha.gov/pls/oshaw...

About Matt Traister: Matthew Traister, PE is a vice president with OBG and the company’s subject matter expert in air quality. A leader of OBG’s National Compliance Practice, Matt has more than 27 years of environmental consulting experience involving air permitting, emission inventory development, and air and odor pollution control design projects. The author of more than 40 technical papers and publications, Matt routinely provides project management and technical oversight functions for complex regulatory compliance programs, including those under the Clean Air and Clean Water Acts, the Emergency Planning and Community Right-to-Know Act, and the Resource Conservation and Recovery Act (RCRA).

Contact:
Matt Traister
Matt.Traister@obg.com
(315) 569-7882



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