After the team makes a recommendation, the first step is to resolve the team’s finding. If the resolution is to accept the recommendation, the employer must complete the actions as soon as possible. See 29 CFR 1910.119(e)(5).

OSHA expects that accepted recommendation be completed as soon as possible which usually means with one to two years. OSHA however “notes that in unusual circumstances, longer completion periods may be necessary. 57 Fed. Reg at 6379. According to OSHA guidance:

As soon as possible means that the employer shall proceed with all due speed, considering the complexity of the recommendation and the difficulty of implementation. OSHA expects employers to develop a schedule for completion of corrective actions, to document what actions have been taken, and to document the completion of those actions as they occur.

Process Safety Management of Highly Hazardous Chemicals – Compliance Guidelines and Enforcement Procedures, CPL 02-02-045

Furthermore, OSHA added:

Certainly, all of the recommendations from a process hazard analysis needs to be addressed or resolved, but it may not be necessary in every case to complete all of the recommendations prior to startup.

57 Fed. Reg. at 6388.

OSHA took the position that “as soon as possible” meant one-two year test in supporting citations issued to BP Products North America (“BPP”) and BP-Husky and the subsequent administrative law case. Please note that this case is not a final order of the Review Commission and it is pending Commission review. In that case, the employer had set in motion a multi-year plan to fully address facility siting issues applying an “inside-out” strategy (addressing the highest risk areas closest to the process first). At the time of the inspection, the employer had substantially implemented their program, however it was not complete. OSHA’s citation was vacated based on the employer’s ability to show progress on a long term solution, where the employer focused on the highest risk areas and was moving toward the lower risk sites. Secretary of Labor vs. BP Products North America., & BP-Husky Refining, LLC., See pp 41-46.

When an agency believes that implementation has not been on a sufficiently enough fast-track, they will often cite a provision in the mechanical integrity section. Following is the OSHA requirement; the EPA requirement is the same except it references §68.65.

The employer shall correct deficiencies in equipment that are outside acceptable limits (defined by the process safety information in paragraph (d) of this section) before further use or in a safe and timely manner when necessary means are taken to assure safe operation.

29 CFR 1910.119(j)(5) and 40 CFR 68.73(e).

When proposed, this provision simply said correct the deficiency before further use. Commenters expressed concern, stating that such would in all cases cause a shutdown of the process. In response, OSHA replied:

The purpose of this proposed requirement was to require equipment deficiencies to be corrected promptly if the equipment was outside the acceptable limits specified in the process safety information. The comments have convinced OSHA that there may be many situations where it may not be necessary that the deficiencies be corrected “before further use” as long as the deficiencies are corrected in a safe and timely manner when necessary means are taken to assure safe operation.

57 Fed. Reg. at 6391

Thus, at the time of rulemaking, OSHA recognized that interim measures may be taken which allow for the continued use until such time that the deficiency can be corrected. OSHA took a different position within citations issued to BPP and BP-Husky. Both BPP and BP-Husky conceded that a couple of facility relief valves were under-sized and a citation was upheld for the failure to document RAGAGEP. However, the “further use” citation was vacated as they put in place interim controls pending permanent solution by car-sealing open adjacent process valves (to allow relief to other locations). See Secretary of Labor vs. BP Products North America., & BP-Husky Refining, LLC., See pp 22-25.

For more information, contact Lee Vail.

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