By Lee Vail, J.D., P.E., Ph.D.
The Occupational Safety and Health Administration (“OSHA”) published a Request for Information (“RFI”) on December 9, 2013 concerning possible changes to the Process Safety Management (“PSM”) program codified at 29 C.F.R. 1910.119. See 78 Fed. Reg. 73756 (Dec. 9, 2013). Likewise, the Environmental Protection Agency (“EPA”) published an RFI on July 31, 2014 relating to possible changes to the similar Risk Management Program (“RMP”) rules codified at 40 C.F.R. Part 68. See 79 Fed. Reg. 44604 (July 31, 2014). At the time of this writing, the respective comment periods have closed and we are waiting to see new proposed regulations.
OSHA requested information concerning the wisdom of updating the rule as it relates to application of recommended and generally acceptable good engineering practices (“RAGAGEP”). Both PSM and RMP rules require use of RAGAGEP in relationship to equipment construction, inspection, and testing. See 29 C.F.R 1910.119(d)(3)(ii) and (j)(4)(ii) and 40 C.F.R 68.65(d)(2) and 68.73(d)(2). However, neither the PSM nor the RMP programs define RAGAGEP. Specifically, OSHA and the EPA requested comment as to whether RAGAGEP should be defined and whether the facility should be compelled to consider new codes and standards (when applied to existing equipment). Although many comments addressed adding clarity by defining RAGAGEP, comments from three organizations make for an interesting comparative exercise: the United Steelworkers, the American Petroleum Institute (“API”), and the Mary Kay O’Conner Process Safety Center (“MKOPSC”) at the Texas A&M Engineering Experimental Station.
The crux of OSHA’s concern is whether it is appropriate for RAGAGEP to include “appropriate internal standards.” In the RFI, OSHA stated that it has always believed that reliance on internal standards should be limited to situations where “published codes and standards were unavailable or outdated, or that they were more stringent than published standards.” 78 Fed. Reg. at 73761. This position was rejected by an administrative judge in Secretary of Labor v. BP Products North America & BP-Husky Refining, LLC. (2013) (OSHRC Docket No. 10-0637). In the RFI (and elsewhere), OSHA references a definition developed by the Center for Chemical Process Safety (“CCPS”) for RAGAGEP. This definition includes the concept that RAGAGEPs are “based on established codes, standards, publish technical reports or recommended practices (RP) or similar documents.” 78 Fed. Reg. at 73761. Not explicitly included in this definition is that RAGAGEPs could be based on internal standards. By inference, it is assumed that the agencies’ intent in defining RAGAGEP is to clarify that internal standards cannot be RAGAGEP if a comparable standard or code exists, unless the internal standard is stricter than available codes and standards. Comments received by OSHA and the EPA requests were similar in nature.
Most comments supporting the elimination of internal standards were unsupported by any rationale and merely formulaically agreed that internal standards should not be considered RAGAGEP. The United Steelworkers provided support for their opinion based on parsing the words in the term RAGAGEP:
A practice that is “recognized,” “generally accepted,” and a “good engineering practice” should give that practice some definition. For a standard to meet this definition, it would be recognized or practiced outside of a single or even handful of facilities. Generally accepted would imply at least a majority of facilities follow the practice. A recognized practice is typically one set in place by a recognized authority or leader in the industry; a recognized practice setter or trade association. A good engineering practice defined by good engineering (having an engineering study qualifying a practice).
United Steelworkers comments to OSHA, March 31, 2014, pp. 3-4.
The MKOPSC disagreed with the carte blanche elimination of internal standards, stating that situations exist where internal standards are needed:
There may be circumstances where a facility may not fit well within the scope of intent of a published RAGAGEP and therefore an internal standard that sets some requirements that may or may not be more stringent than the published standard, but that well address the hazard of the facility should be considered acceptable internal standards.
MKOPSC comments, March 31, 2014, p. 32.
The API is the type of organization that the Steelworkers would consider to be a recognized authority or practice setter. Although the API produces a large number of Standards and Recommended Practices, according to the API, “RAGAGEPs should remain a flexible concept that allows employers to tailor PSM activities to the hazard and complexity of their particular facilities.” Further, API’s comments stated:
API believes that the company/site can determine its own RAGAGEPs based on its assessment of factors including:
- Type of specific hazard
- Local circumstances
- Industry documents or site development documents based on operating experience and engineering judgment.
API comments, March 31, 2014, p. 10
RAGAGEP has always been a performance-oriented standard. See 57 Fed. Reg. at 6390. Interestingly the Chemical Safety Board (“CSB”) did not directly comment on the RAGAGEP definition question and instead just commented on the question of using updated RAGAGEPs. The CSB argues that RAGAGEPs should be updated because they are performance based standards. CSB comment to OSHA, p. 18 and CSB comment to EPA, p.22-23. That said, if RAGAGEP is a performance-oriented standard, it may be inconsistent to argue that the definition of RAGAGEP should be prescriptive.
Although OSHA may ultimately use the CCPS definition to exclude some (or all) internal standards from the definition of RAGAGEP, adding the CCPS definition by itself does not eliminate problems associated defining RAGAGEP. The concept of RAGAGEP may be too amorphous to define precisely; it is far easier to opine what it is not. In addition, confusion could be an issue as multiple codes and standards may apply to specific pieces of equipment. Commenters to the original rule stated that there would be difficulty to “decide which standard the agency intended for them to use” and “that some of the standards may conflict with each other.” 57 Fed. Reg. 6356, 6390 (Feb. 24, 1992). Adoption of the CCPS definition by itself would not address these original concerns.
If OSHA defines RAGAGEP as being specific codes, standards, or recommended practices, the question will always remain, as to whether it is appropriate to apply a code in a specific circumstance. For example API Recommended Practice 553 applies to “Refinery Valves and Accessories for Control and Safety Instrumented Systems.” Is such RAGAGEP applicable to gas plants and compressor stations? Further, some portions of codes and standards are non-mandatory. Considering the mandatory nature of the PSM rule, if OSHA specifically defines a code or standard as RAGAGEP, is compliance with non-mandatory language required?
In conclusion, comments from the API’s and MKOPSC state that facilities need flexibility to develop programs to meet their specific circumstances: one size does not fit all. Conversely, the United Steelworkers parse the phrase “RAGAGEP” to conclude that one size must fit all. OSHA and EPA should soon propose regulations that will address these widely divergent viewpoints.
 For example, the “owner shall document that equipment complies with recognized and generally acceptable good engineering practices.” 29 C.F.R. 1910.119(d)(3)(ii). The CSB raised this as in issue in their response to EPA’s RFI, however the CSB’s comment did not explain how this concern should be addressed. CSB Comments to EPA, Oct. 29, 2014, p.23.