On Monday June 30, 2014, the Supreme Court ruled that requiring family owned corporations to pay for insurance coverage for contraception under the Affordable Care Act (“ACA”) violated a federal law protecting religious freedom. As noted in my previous entry, the contraception coverage requirement was challenged by corporations whose owners claimed that they run their businesses according to their faith-based beliefs. The parties to the case engaged in heated oral arguments before the Court in late March of this year. The Court’s ruling in favor of Hobby Lobby signifies an important shift in corporate rights. As Justice Ruth Bader Ginsburg asserted in the dissent, this ruling could apply to numerous commercial enterprises and countless laws. Questions abound as companies try to make sense of this sensationalized decision.

What does this ruling mean in plain English?

The court held that the requirement that the companies provide contraception coverage imposed a substantial burden on the companies’ religious liberties. Put simply, the ACA mandate hindered the companies’ religious freedom. This ruling extends the religious rights of corporations, classifying them as “persons” under the Religious Freedom Restoration Act (“RFRA”).

Does the ruling really apply to all corporations?

According to the majority decision, the ruling does not apply to all corporations. The opinion states that the decision only applies to closely held, for profit corporations run on religious principles. Justice Samuel Alito also emphasized that these types of corporations are not necessarily likely to prevail if they object to complying with other laws on religious grounds.

Why is this ruling relevant to corporations other than Hobby Lobby?

This decision of “startling breadth” may have opened the door to challenges from other corporations. Essentially, despite the limited scope of the ruling, nothing would stop similar corporations from arguing that other laws that burden their religious liberty are unconstitutional. These companies may then seek exemptions from the requirements of these laws. Prior to the decision, Hobby Lobby faced annual fines of hundreds of millions of dollars if it failed to comply with the ACA mandate.

What are the legal implications moving forward?

The Court will one day have to decide clearly whether publicly traded companies and other corporate forms are also protected under RFRA. The ACA mandate has been challenged in at least 50 other cases. Hobby Lobby Stores Inc. is a family owned chain of 500 craft stores with 13,000 employees. This large company made substantial, formal commitments to run the stores according to religious principles years prior to signing on to the lawsuit and winning before the high court. The question remains: will other large corporations try to jump on the proverbial Hobby Lobby bandwagon?

If you wish to view the full Supreme Court opinion, you may do so at the link here.

Process safety information (“PSI”) is the foundation on which the rest of the PSM and RMP elements are built. Process safety information is that information that is needed to make sound safety decisions and it includes descriptions of the hazardous chemicals, the technology of the process, and the equipment in the process. Both regulations contain a detailed list of required PSI. See 29 CFR 1910.119(d) and 40 CFR 68.65. PSI must be gathered and documented prior to initiating a process hazard analysis (“PHA”).

The two rules have been in effect for over two decades and initial PHAs have long been performed on existing units. “The process hazard analysis shall be appropriate to the complexity of the process and shall identify, evaluate, and control the hazards involved in the process.” 40 CFR 68.67(a). Every five years, a facility must update and revalidate the PHA. 40 CFR 68.67(f). Employers, through their PHA teams, must perform a PHA on new process units or must go through the management of change (MOC), where a change is made to an existing unit.

The dependence of a PHA on the quality of PSI is critical to the evaluation. For example, the PSI will indicate the metallurgy of a section of pipe in the facility and codes addressing the safe operating limits will be addressed in codes. Also included in the PSI are the consequences of deviation of operating outside of those limits are considered PSI. The PHA team takes the next step and identifies and evaluates the hazard involved in the process, and where appropriate suggest further controls. In response to identifying a hazard, the PHA team may make a recommendation (or action items) to control or mitigate the hazard. The facility must have a system in place to promptly address the team’s findings. Prior to introduction of regulated substances into a Program 3 process units, the employer must go under a Pre-startup review to make sure that recommendations have been resolved or implemented, that construction was done in accordance with the design, and that procedures are in place and training performed.

Both PSM and RMP require that the employer create and follow a schedule for maintenances and inspection of equipment on a set frequency. These requirements are found under the Mechanical Integrity requirements. See 29 CFR 1910.119(j) and 40 CFR 68.56 (for Program 2) or 40 CFR 68.73 (for Program 3). Often, frequency and methods are available via industry codes and standards. These codes and standards are generally considered to be factors in defining recognized and generally accepted good engineering practices (“RAGAGEP”). PSM and RMP also require operating procedures and training for the facilities. Sometimes, the recommendation from a PHA could be to create a procedure or increase training as a method of reducing risk.

In conclusion, both PSM and RMP have a common mechanism to reduce risk from covered processes. The first step is to gather information (PSI) related to the process in anticipation of performing a PHA or MOC. A team of appropriate employees considers the information, given their knowledge, and where appropriate makes recommendations to enhance safety. This team may recommend physical changes, changes in chemicals, added layers of controls, new or modified procedures and increased training, etc. Prior to startup of the unit, the recommendation must be resolved or implemented. Facilities must also have ongoing maintenance programs to assure regular testing and inspection of equipment.

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On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an updated “Enforcement Guidance on Pregnancy Discrimination and Related Issues” (Notice No. 915.003), along with a question and answer document about the guidance and a fact sheet for small businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on the EEOC’s web site.

This is the first comprehensive update of the EEOC’s guidance on the subject of pregnancy discrimination since 1983. The guidance addresses the requirements of the Pregnancy Discrimination Act (“PDA”) and the application of the Americans with Disabilities Act (“ADA”) to individuals who have pregnancy-related disabilities.

The fact that the guidance addresses both the PDA and the ADA is significant. The EEOC has made it clear that employer compliance with the recently amended ADA is a priority. To this point, EEOC Chair Jacqueline A. Berrien has commented that the guidance is intended to “aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.” The updated guidance is also a response to the increase in pregnancy discrimination complaints. The latest EEOC data shows a 46 percent increase in pregnancy-related complaints from 1997 to 2011.

The guidance is largely an update of longstanding EEOC policy regarding pregnancy and related conditions. It sets forth the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s expanded definition of “disability” might apply to workers with impairments related to pregnancy.

Several of the key issues discussed in the guidance include:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant
  • Lactation as a covered pregnancy-related medical condition
  • The circumstances under which employers may be required to provide light duty for pregnant workers
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy
  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave
  • The requirement that parental leave (which is different from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms
  • When employers may be required to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

The guidance is the product of a February 2012 public meeting where the EEOC solicited stories about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities. The materials from that meeting, including testimony and transcripts, are available here.

The new guidance, like all EEOC guidelines, is not controlling law. It will ultimately be up to the Courts to interpret and enforce the PDA and ADA. However, the guidance serves as a good indication of how the EEOC will address the issue of pregnancy discrimination. Employers should review their policies regarding pregnancy, including any light-duty policies, to confirm compliance with both the PDA and the ADA.

On the recommendation of the Louisiana Law Institute, the Louisiana Legislature passed Act 281 (the “Act”). The Act concerns amendments to the Louisiana Civil Code relative to security, pledge and recordation. Civil Code art. 3133 et seq. concerning pledge have been deleted in their entirety and replaced with general articles on the liability of an obligor for his obligations and the relationship of creditors vis-à-vis the obligor and other creditors. The articles concerning pledge have moved to Civil Code art. 3141 et seq. although the substance of the pledge articles has also changed.

Civil Code art. 3136 defines security as “an accessory right established by legislation or contract over property, or an obligation undertaken by a person other than the principal obligor to secure performance of an obligation.” The article is new, but the concept is not. It broadens the scope of security beyond simply an obligation created by contract. The new Civil Code art. 3133 et seq. are consistent with previous articles from the 1984 Civil Code Revision. The latest revision seeks to align the civil code articles on security rights with the Louisiana Uniform Commercial Code in Title 10.

Importantly, new Civil Code art. 3346 provides that a pledge of the lessor’s rights in the lease of an immovable and its rents is recorded in the mortgage records of the parish in which the immovable is located. Note that new Civil Code art. 3169 provides that the pledge of the lessor’s rights in the lease of an immovable is not effective as to third parties until the contract is recorded. This represents a change in the law, which formerly required recordation in the conveyance records. For transitional rules applicable to the continued effectiveness of assignments of leases and rents filed in the conveyance records in accordance with former R.S. 9:4401 prior to January 1, 2015, as well as rules that apply to the reinscription, release, transfer, amendment, or other modification of those assignments, see R.S. 9:4403.

For a complete text of the Bill, click here.

Starting January 1, 2015, all employers subject to the Affordable Care Act must track, on a month-to-month basis, each full-time employee (generally any employee who averages 30+ hours of service per week per month) and the employee’s share of the lowest cost monthly premium for self-only coverage (if any) by calendar month, among other information. These employers will also have to track the total number of full-time employees for each calendar month. This information will be reported to the IRS annually on a new form (IRS Form 1095-C, which has yet to be released), and employers will be required to file separate 1095-Cs for every person who was a full-time employee in any given month the preceding year (even if that person has since died or is no longer employed).

Anyone whose information is reported has to be furnished with a copy of their individual 1095-C by January 31st of each year starting in 2016 for the 2015 reporting year (the same due date for W-2s). The IRS will use the information reported on the 1095-Cs to determine whether a penalty may be assessed against the employer, and whether an employee is eligible for premium tax credits if the employee tries to purchase coverage on the public insurance exchange.

These reporting requirements affect every “large” employer subject to the ACA, even if the transition relief rules do not require your company to begin offering affordable group health coverage until later in 2015 or 2016 in order to avoid the employer penalties. For example, if you are an employer who has between 50-99 full-time employees/full-time equivalents and you are not subject to the employer penalties until the first day of your plan year in 2016, you still must track and report this data for calendar year 2015.

The scope and detail of the Form 1095-Cs will make reporting a significant burden for most companies. It will require employers to integrate and reconcile data from their payroll vendors, third party administrators and human resource personnel. There are alternative, streamlined reporting methods for full-time employees who receive a “qualifying offer” of coverage for all 12 months of the year. A “qualifying offer” is an offer of coverage to the employee, the employee’s spouse and dependents that meets the ACA’s minimum value standard and the employee’s annual premium cost for self-only coverage does not exceed 9.5% of the federal single poverty level (for 2014, a premium of $1,109 or less). For 2015 only, there are also reduced reporting obligations if your company provided qualifying offers to 95% or more of your full-time employees.

The only employers who need not worry about identifying and reporting full-time employees for each calendar month are those companies that offer at least 98% of all employees (including part-time and temporary employees) the option to purchase group health coverage.

The penalty for failure to file returns for your full-time employees will be $100 per missing or incorrect return, subject to certain monetary caps. All applicable large employers should make certain that they have systems in place to track this data beginning next January so you are not facing a mad scramble to gather everything needed to complete the new forms in January 2016.

The United States District Court, Northern District of California, offered some additional guidance regarding what a party must do, and by when, in terms of its preservation obligation. Commenting that Judge Scheindlin “woke up the legal world from its electronic discovery slumber in the Zubulake series,” and that most parties have gotten the basic message concerning when the duty to preserve begins, the court explained that exactly what a party must do to preserve and by when is less understood.

The issue before the court was whether the destruction of evidence on a former employee’s computer was sanctionable conduct. A matter of days before the plaintiff filed the lawsuit in AMC Technology, LLC, v. Cisco Systems, Inc., 2013 WL 3733390 (N.D. Cal.2013), a project manager for the defendant retired. Approximately one month later, the defendant wiped the project manager’s computer pursuant to its records retention policy. When the defendant could not produce the data from the project manager’s computer during the course of discovery, plaintiff filed a motion for sanctions.

The court found that the project manager’s involvement with the matter in dispute was merely tangential. Although the company knew of the lawsuit before destroying the computer, the court found the company could not have known that the project manager’s data would be relevant because he was not a key player. The court then reiterated sound advice, explaining that “requiring a litigant to preserve all documents, regardless of their relevance, would cripple parties who are often involved in litigation or are under the threat of litigation.”

Safe upper and lower limits are intended to relate to the equipment itself. For example, a process circuit will have multiple pieces of equipment within the circuit with varying design maximum pressure ratings. Whereas each piece of equipment will have different pressure rating, the safe upper limit for the circuit should be something less than the maximum working pressure of the lowest rated equipment or component in the circuit. For example, if “Vessel A” has a maximum rating of 250 psi, its safe upper limit is something less than 250 psi. Likewise If “Vessel B” has a maximum rating of 275 psi, its safe upper limit is something less than 275 psi. However, if “Vessel A” and “Vessel B” and in fluid communication with each other and are part of a common circuit, the effective safe upper limit of equipment with that circuit may be controlled by the vessel/component with the lowest rating. Sources of safe operating limits may be manufactures designs (e.g., information in a U-1 form for a pressure vessel), or codes or specifications.

Often operators will confuse the concept of operability limits with safe upper and lower limits. An operator of the circuit discussed above may never intend to operate above 175 psi and “establish” a safe operating limit of 180 psi. That operator may reason, since my equipment is rated well above my operations limit, it is extra safe. Although the logic is sound, the operator’s action does not match OSHA’s and EPA’s intent. Safe upper and lower limits are a component of process safety information.

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Appendix A to §1910.119—List of Highly Hazardous Chemicals, Toxics and Reactives (Mandatory)

This appendix contains a listing of toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity.

CHEMICAL   name

CAS*

TQ**
Acetaldehyde

75-07-0

2500
Acrolein (2-Propenal)

107-02-8

150
Acrylyl Chloride

814-68-6

250
Allyl Chloride

107-05-1

1000
Allylamine

107-11-9

1000
Alkylaluminums

Varies

5000
Ammonia, Anhydrous

7664-41-7

10000
Ammonia solutions (>44% ammonia   by weight)

7664-41-7

15000
Ammonium Perchlorate

7790-98-9

7500
Ammonium Permanganate

7787-36-2

7500
Arsine (also called Arsenic   Hydride)

7784-42-1

100
Bis(Chloromethyl) Ether

542-88-1

100
Boron Trichloride

10294-34-5

2500
Boron Trifluoride

7637-07-2

250
Bromine

7726-95-6

1500
Bromine Chloride

13863-41-7

1500
Bromine Pentafluoride

7789-30-2

2500
Bromine Trifluoride

7787-71-5

15000
3-Bromopropyne (also called   Propargyl Bromide)

106-96-7

100
Butyl Hydroperoxide (Tertiary)

75-91-2

5000
Butyl Perbenzoate (Tertiary)

614-45-9

7500
Carbonyl Chloride (see Phosgene)

75-44-5

100
Carbonyl Fluoride

353-50-4

2500
Cellulose Nitrate (concentration   >12.6% nitrogen

9004-70-0

2500
Chlorine

7782-50-5

1500
Chlorine Dioxide

10049-04-4

1000
Chlorine Pentrafluoride

13637-63-3

1000
Chlorine Trifluoride

7790-91-2

1000
Chlorodiethylaluminum (also called   Diethylaluminum Chloride)

96-10-6

5000
1-Chloro-2,4-Dinitrobenzene

97-00-7

5000
Chloromethyl Methyl Ether

107-30-2

500
Chloropicrin

76-06-2

500
Chloropicrin and Methyl Bromide   mixture

None

1500
Chloropicrin and Methyl Chloride   mixture

None

1500
Cumene Hydroperoxide

80-15-9

5000
Cyanogen

460-19-5

2500
Cyanogen Chloride

506-77-4

500
Cyanuric Fluoride

675-14-9

100
Diacetyl Peroxide (Concentration   >70%)

110-22-5

5000
Diazomethane

334-88-3

500
Dibenzoyl Peroxide

94-36-0

7500
Diborane

19287-45-7

100
Dibutyl Peroxide (Tertiary)

110-05-4

5000
Dichloro Acetylene

7572-29-4

250
Dichlorosilane

4109-96-0

2500
Diethylzinc

557-20-0

10000
Diisopropyl Peroxydicarbonate

105-64-6

7500
Dilaluroyl Peroxide

105-74-8

7500
Dimethyldichlorosilane

75-78-5

1000
Dimethylhydrazine, 1,1-

57-14-7

1000
Dimethylamine, Anhydrous

124-40-3

2500
2,4-Dinitroaniline

97-02-9

5000
Ethyl Methyl Ketone Peroxide (also   Methyl Ethyl Ketone Peroxide; concentration >60%)

1338-23-4

5000
Ethyl Nitrite

109-95-5

5000
Ethylamine

75-04-7

7500
Ethylene Fluorohydrin

371-62-0

100
Ethylene Oxide

75-21-8

5000
Ethyleneimine

151-56-4

1000
Fluorine

7782-41-4

1000
Formaldehyde (Formalin)

50-00-0

1000
Furan

110-00-9

500
Hexafluoroacetone

684-16-2

5000
Hydrochloric Acid, Anhydrous

7647-01-0

5000
Hydrofluoric Acid, Anhydrous

7664-39-3

1000
Hydrogen Bromide

10035-10-6

5000
Hydrogen Chloride

7647-01-0

5000
Hydrogen Cyanide, Anhydrous

74-90-8

1000
Hydrogen Fluoride

7664-39-3

1000
Hydrogen Peroxide (52% by weight   or greater)

7722-84-1

7500
Hydrogen Selenide

7783-07-5

150
Hydrogen Sulfide

7783-06-4

1500
Hydroxylamine

7803-49-8

2500
Iron, Pentacarbonyl

13463-40-6

250
Isopropylamine

75-31-0

5000
Ketene

463-51-4

100
Methacrylaldehyde

78-85-3

1000
Methacryloyl Chloride

920-46-7

150
Methacryloyloxyethyl Isocyanate

30674-80-7

100
Methyl Acrylonitrile

126-98-7

250
Methylamine, Anhydrous

74-89-5

1000
Methyl Bromide

74-83-9

2500
Methyl Chloride

74-87-3

15000
Methyl Chloroformate

79-22-1

500
Methyl Ethyl Ketone Peroxide   (concentration >60%)

1338-23-4

5000
Methyl Fluoroacetate

453-18-9

100
Methyl Fluorosulfate

421-20-5

100
Methyl Hydrazine

60-34-4

100
Methyl Iodide

74-88-4

7500
Methyl Isocyanate

624-83-9

250
Methyl Mercaptan

74-93-1

5000
Methyl Vinyl Ketone

79-84-4

100
Methyltrichlorosilane

75-79-6

500
Nickel Carbonly (Nickel   Tetracarbonyl)

13463-39-3

150
Nitric Acid (94.5% by weight or   greater)

7697-37-2

500
Nitric Oxide

10102-43-9

250
Nitroaniline (para Nitroaniline

100-01-6

5000
Nitromethane

75-52-5

2500
Nitrogen Dioxide

10102-44-0

250
Nitrogen Oxides (NO; NO2;   N204; N203)

10102-44-0

250
Nitrogen Tetroxide (also called   Nitrogen Peroxide)

10544-72-6

250
Nitrogen Trifluoride

7783-54-2

5000
Nitrogen Trioxide

10544-73-7

250
Oleum (65% to 80% by weight; also   called Fuming Sulfuric Acid)

8014-95-7

1,000
Osmium Tetroxide

20816-12-0

100
Oxygen Difluoride (Fluorine   Monoxide)

7783-41-7

100
Ozone

10028-15-6

100
Pentaborane

19624-22-7

100
Peracetic Acid (concentration   >60% Acetic Acid; also called Peroxyacetic Acid)

79-21-0

1000
Perchloric Acid (concentration   >60% by weight)

7601-90-3

5000
Perchloromethyl Mercaptan

594-42-3

150
Perchloryl Fluoride

7616-94-6

5000
Peroxyacetic Acid (concentration   >60% Acetic Acid; also called Peracetic Acid)

79-21-0

1000
Phosgene (also called Carbonyl   Chloride)

75-44-5

100
Phosphine (Hydrogen Phosphide)

7803-51-2

100
Phosphorus Oxychloride (also   called Phosphoryl Chloride)

10025-87-3

1000
Phosphorus Trichloride

7719-12-2

1000
Phosphoryl Chloride (also called   Phosphorus Oxychloride)

10025-87-3

1000
Propargyl Bromide

106-96-7

100
Propyl Nitrate

627-3-4

2500
Sarin

107-44-8

100
Selenium Hexafluoride

7783-79-1

1000
Stibine (Antimony Hydride)

7803-52-3

500
Sulfur Dioxide (liquid)

7446-09-5

1000
Sulfur Pentafluoride

5714-22-7

250
Sulfur Tetrafluoride

7783-60-0

250
Sulfur Trioxide (also called   Sulfuric Anhydride)

7446-11-9

1000
Sulfuric Anhydride (also called   Sulfur Trioxide)

7446-11-9

1000
Tellurium Hexafluoride

7783-80-4

250
Tetrafluoroethylene

116-14-3

5000
Tetrafluorohydrazine

10036-47-2

5000
Tetramethyl Lead

75-74-1

1000
Thionyl Chloride

7719-09-7

250
Trichloro (chloromethyl) Silane

1558-25-4

100
Trichloro (dichlorophenyl) Silane

27137-85-5

2500
Trichlorosilane

10025-78-2

5000
Trifluorochloroethylene

79-38-9

10000
Trimethyoxysilane

2487-90-3

1500
  • *Chemical Abstract Service Number.
  • **Threshold Quantity in Pounds (Amount necessary to be covered by this standard).

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Both PSM and RMP require that the owner or operator have a system in place to promptly address the team’s PHA findings and recommendations to assure they are resolved in a timely matter. See 29 CFR 1910.119(e)(5) and 40 CFR 68.67(e). In accordance with Pre-startup review requirements, these PHA recommendations must be resolved or implemented prior to startup. See CFR 1910.119(i)(2)(iii) and 40 CFR 68.77(b)(3). When is a recommendation resolved?

According to OSHA, a recommendation can be resolved in one of three ways: rejection, accepting with modifications, and acceptance. See 57 Fed. Reg. 6356, 6379 (Feb. 24, 1992). However the recommendation is resolved, that resolution must be documented.

It is very important to understand that resolution and implementation are two distinct steps. Usually the “system in place” includes a management team meeting, sometime after completing the PHA, to address the recommendations. If that management team goes through the recommendations and either accepts, accepts with modifications, or rejects the recommendation, the regulatory requirements to resolve in a timely manner have been met, even though the solution is not in place.

Often management will assign an item to a staff member to investigate. Has this recommendation been resolved? Well, maybe. If management’s intent was to accept this recommendation and assign it to someone to begin a more thorough investigation, it may have been resolved. On the other hand, if management assigned the item to someone to investigate further, saving the Go / No Go decision for later, the recommendation probably has not been resolved.

Management may also send a recommendation back to the team for further consideration. This in itself is not resolution, however it could certainly be part of a system that assures that recommendations are resolved in a timely manner. Upon review by the team, they may change their mind or address managements concern and return the recommendation. Whatever the team does and any subsequent decision made by management must be documented.

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RAGAGEP is an acronym for the term “Recognized and Generally Accepted Good Engineering Practice.” Although this term is not defined in the PSM or RMP regulations, it is found within the Process Safety Information (PSI) and Mechanical Integrity sections. Significant controversy exists around the term and its meaning resulting, in part, in recent Request for Information (RFI) published by OSHA and EPA. See 78 Fed. Reg. 73756 (Dec. 9, 2013). At this time, EPA’s RFI is pending publication. Both RFI’s ask the public to comment whether the agencies should create a definition.

Generally speaking, existing industry codes and standards make up the bulk of information comprising RAGAGEP. These codes and standards contain mandatory and non-mandatory requirements. The issue with RAGAGEP is whether these industry codes and standards are strictly enforceable by OSHA and EPA.

This question was central to citations issued by OSHA and the subsequent administrative decision involving BP Products North America, Inc., (“BPP”) and BP-Husky Refining, LLC for the alleged failure to document compliance with RAGAGEP. Please note that this case is not a final order of the Review Commission and it is pending Commission review. The employer in this case had an internal standard for the allowable pressure drop across the inlet of a relief valve; that standard was 5-7%. The employer believed that their internal standard was well reasoned and justified. Conversely, the consensus of various codes and standards would limit the drop to no more than 3%. OSHA’s position (which was vacated) was in effect that the employer should not be allowed to develop its own standard when so many industry standards already existed. However the PSM Standard is a performance standard and the administrative law judge held that OSHA had impermissively imposed a prescriptive requirement on a performance standard. See Secretary of Labor vs. BP Products North America., & BP-Husky Refining, LLC., See pp 13-21.

In considering the case against BPP and BP-Husky, one must remember that they had defined RAGAGEP as something other than the consensus codes and standards. Often, many employers will develop policies that adopts these codes and standards without further comment. Some of these employers see the codes and standards more as guidelines rather than strictly enforceable. They should not take comfort in the BPP/BP-Husky decision as the decision upheld the employer’s right to define RAGAGEP as something different, not any perceived right to use the industry standards and codes as suggestions without without an analysis justifying an alternate position.

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