OSH

by Lee Vail

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. This is the seventh article in a series of articles concerning these potential rulemaking actions.

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).

On June 5, 2015, OSHA issued an interpretation letter that addresses the issue of RAGAGEP. Apparently, OSHA decided that it was unnecessary to define RAGAGEP through rulemaking and instead decided to define the term as a policy matter.  Interestingly, the interpretation letter neither refers to the RFI nor any of comments received pursuant to such.

On June 19, 2015, OSHA, the EPA, and the Department of Homeland Security held a webinar to provide an update to agency actions in response to Executive Order 13650 titled “Improving Chemical Facility Safety and Security.” In response to questions, OSHA stated that the definition of RAGAGEP was an enforcement issue and not an issue for rulemaking. “OSHA has not written a lot about RAGAGEP or the four sections in PSM where it is either directly referenced or implied. This was a first attempt to take a bite at that apple.” Furthermore OSHA intends to begin testing the adequacy of the “new definition” and may change it again in the future if necessary.

The new policy based RAGAGEP definition contains several new concepts that are not supported by prior rulemaking. First, OSHA now says that for an internal procedure to be “appropriate” it must “meet or exceed the protective requirements of published RAGAGEP where such RAGAGEPs exist.” Such is internally inconsistent with the policy itself which allows an employer to choose between similar codes and standards as long as the one chosen is “protective.” OSHA’s policy would be more consistent by saying that internal procedures must be likewise protective.

Second, OSHA indicated that the term “should” as used in industry standards really essentially means “shall” by putting the burden of proof on an employer to justify an alternative. The interpretation letter requires that the employer determine and document if an employer chooses to use an alternative approach to an action designated within a published industry standard as a recommendation using the word “should.” Such is counter to the language in the codes and standards themselves. According to API-520 (Eighth edition, 2008), “as used in a standard, ‘should’ denotes a recommendation or that which is advised but not required in order to conform to the specification.” (Emphasis added.)

Third, as equipment is constructed to the code or standard (i.e., RAGAGEP) in place at the time of construction, an employer is required to show that the equipment meets that version of the code or standard, and that its operation is safe where those codes and standards are no longer in general use. According to the new policy, where updates contain provisions that explicitly require retroactive application, the employer must “upgrade their equipment, facilities, or practices to meet current version of their selected RAGAGEP.” That said, during the June 19, 2015 Webinar, OSHA confirmed that further changes to the rule, as it applied to updates of RAGAGEPs, were being considered as part of rulemaking.

In conclusion, OSHA appears to believe that the term RAGAGEP is so undefined that it is permissible for the agency to define it, without rulemaking, after twenty years of application. OSHA further believes that they can change the definition again in the future (presumably without rule making).