In January and October 2014, we reported on several changes OSHA and EPA were contemplating for the process safety management (PSM) standard and risk management plan (RMP) regulation. These changes were being considered to address the Working Group’s priority to modernize the PSM and RMP regulations in response to President Obama’s Executive Order No. 13650, issued in August 2013.
OSHA and EPA have since issued requests for information on the proposed changes, and interested stakeholders have provided their comments. In June 2015, the Working Group published a fact sheet that describes its progress over the past year; OSHA and EPA issued a safety alert on safer technology and alternatives; and OSHA released enforcement memoranda on recognized and generally accepted and good engineering practices (RAGAGEP) and how to determine the threshold quantities of chemical mixtures that are subject to PSM coverage.
Working Group Fact Sheet
The Working Group’s fact sheet provides an update on its action plan. Most notably, the Working Group states that in June 2015, OSHA created a Small Business Regulatory Flexibility Review Act panel to elicit feedback from small businesses on potential changes to the PSM standard. According to the Working Group, rulemaking and changes to the standards, especially to PSM, remain in the distant future.
OSHA/EPA Safety Alert
We previously reported that OSHA and EPA are considering requirements for the use of safer technology and alternatives. Although a specific mandate may be a few years away, as an interim measure, the two agencies issued a joint safety alert in June 2015 promoting the use of safer technology and alternatives. It includes information on industry best practices and provides a framework for developing safer technology and alternatives in advance of another guidance document that will be issued later offering practical details and examples. The safety alert introduces the safer technology concept, describes the hierarchy of controls (inherent, passive, active, procedural) and provides general approaches for a risk management framework. The alert is a guidance document only, not an EPA or OSHA standard, and does not mandate any specific technology, design or process selection for chemical facility owners and operators.
Several in the industry have opposed mandating inherently safer technology (IST), commenting that:
- Companies regularly consider ways to make their processes safer (for example, as part of the process hazard analysis (PHA) process).
- IST is complicated and unsuitable to regulation or a consensus standard.
- One size does not fit all when it comes to IST.
- Small businesses will be adversely affected by IST.
Although additional guidance on safer technology and alternatives is expected from OSHA and EPA, a new standard on IST also is not in the immediate future.
OSHA RAGAGEP Enforcement Memorandum
We previously reported that OSHA and EPA are considering adding a definition of RAGAGEP to the regulations and requiring employers to continuously evaluate and update RAGAGEP. The lack of a definition frequently results in differing interpretations and inconsistent enforcement. Although many in the industry would welcome a clearer definition of RAGAGEP, they are concerned that a definition that refers to specific standards may be too restrictive and difficult for employers to comply with reasonably. They also comment that the definition should be flexible so companies can explain why they have, or have not, adopted certain standards. Moreover, they believe that continual updates are unnecessary because companies reevaluate RAGAGEP and update where necessary when they prepare their PHAs every five years.
In June 2015, OSHA issued a guidance memorandum on RAGAGEP enforcement without defining RAGAGEP specifically. The memorandum provides a blueprint for compliance officers to follow when evaluating and citing employers for RAGAGEP compliance. OSHA reminds compliance officers that the PSM standard requires employers to follow RAGAGEP in three circumstances:
- (d)(3)(ii): To document that all equipment in the PSM-covered process complies with RAGAGEP.
- (j)(4)(ii): To inspect and test process equipment under the PSM standard’s mechanical integrity requirement in accordance with RAGAGEP.
- (j)(4)(iii): To inspect and test equipment at intervals required by the manufacturer’s recommendations and good engineering practice, and more frequently if indicated by operating experience.
Next, OSHA raises several key points on the subject of RAGAGEP enforcement:
- RAGAGEP constitutes published and widely accepted codes (such as NFPA and NEC codes); published consensus documents (such as ANSI standards); and published non-consensus documents (such as Chlorine Institute pamphlets, CCPS guide books, peer-reviewed technical articles and manufacturer recommendations).
- Although “appropriate internal standards are acceptable RAGAGEP,” employers cannot disregard other RAGAGEP. An employer’s internal standards must represent recognized and generally good engineering practices and meet or exceed the protective requirements of published RAGAGEP where such RAGAGEP exists.
- Whenever the word “shall” is used in published RAGAGEP, it imposes a mandatory minimum requirement; if that requirement is not met, OSHA will presume a violation. Whenever the word “should” is used in published RAGAGEP, it imposes a generally recommended practice; if that recommendation is not met, employers must be able to explain why they failed to do so.
OSHA also outlines 16 considerations for compliance officers to follow in determining RAGAGEP compliance and emphasizes documentation. Compliance officers are instructed to issue citations if employers do not document:
- Equipment compliance with RAGAGEP.
- Use of internal standards instead of published RAGAGEP.
- Inspection and testing of equipment according to RAGAGEP.
- Conclusions that published RAGAGEP (standards and codes) are no longer acceptable or applicable to their processes.
Chemical companies should review OSHA’s guidance memorandum to ensure that they comply with the specific PSM requirements relating to RAGAGEP.
OSHA Appendix A Chemicals Enforcement Memorandum
Another regulatory change OSHA has contemplated is whether the threshold quantities for Appendix A chemicals without listed concentrations should apply only to those chemicals in their undiluted (pure) form or to mixtures in which the chemicals are present in some concentration. OSHA’s prior interpretation letters suggested threshold levels applied only to pure or “commercial grade” chemicals (unless stated in the Appendix), which represented the typical maximum concentration of the chemical that was commercially available and shipped.
Because the maximum commercial grade policy in its interpretation letters was ambiguous and often led to inconsistent enforcement, in June 2015 OSHA issued another enforcement memorandum seeking to clarify the policy and assure consistency with the standard’s protective purpose. It was concerned that the policy did not adequately account for the potential that the chemicals listed in Appendix A without concentrations may retain their hazardous characteristics even in typically low concentrations.
In its enforcement memorandum, OSHA dropped the commercial or pure chemical grade test and adopted the 1 percent concentration rule that EPA adopted in implementing the Clean Air Act amendments and in its RMP approach. As with the EPA rule, OSHA will employ a 1 percent concentration cutoff for concentrations that must be present in a mixture before threshold quantities may be determined. OSHA’s new enforcement policy is as follows:
In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:
(a) the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and
(b) with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of 1% or greater.
However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm HG). The employer shall document this partial pressure determination.
In determining the weight of a chemical present in a mixture, only the weight of the chemical itself, exclusive of any solvent, solution, or carrier is counted.
OSHA’s enforcement memorandum also provides compliance officers with detailed questions and answers and examples of calculations to assist them in determining whether the threshold quantities are met for certain chemicals and concentrations.
Chemical companies also should review the new enforcement policy and 1 percent rule to determine whether their chemicals and mixtures meet the threshold quantities in Appendix A of the PSM standard.