By R. Lee Vail, P.E., Ph.D., J.D.

Up-to-date Process Safety Information

When originally adopted in 1996, the Environmental Protection Agency (EPA) adopted

“the requirements of the OSHA PSM Standard, 29 CFR 1910.119(c) through (m) and (o), with minor changes to address statutory differences. This makes clear that one accident prevention program to protect workers, the general public, and the environment will satisfy both OSHA and EPA.” [1]

But do they?

On January 13, 2017, the EPA amended the Risk Management Program (RMP) requirements including changes to the incident investigation report requirement (located in §1910.119(m) of PSM) and other provisions previously aligned with OSHA PSM. Whereas the contents of the incident investigation report may be a minor change, one change was flatly contradicted by an Occupational Safety and Health Review Commission (OSHRC) decision in September of last year: whether documentation of process safety information (PSI) was a continuous obligation.

When revising the requirement for PSI (located in §1910.119(d) of PSM) the EPA said:

EPA is revising § 68.65(a) in order to remove irrelevant text regarding the timeframe for initial development of PSI and to more clearly demonstrate that PSI must be kept up-to-date. EPA is revising § 68.65(a) to remove the phrase “In accordance with the schedule set forth in § 68.67” and is adding the phrase: “and shall keep PSI up-to-date.” EPA expects that revising § 68.65(a) in this manner will help Program 3 facilities to better comply with PSI requirements and further clarifies the requirement that PSI must be completed prior to conducting a PHA.[2]

Apparent from this discussion, EPA intended merely to “clarify” that the obligation to update PSI was continuous. It is important that EPA did not discuss this change as a change in substance. It was EPA’s interpretation of an OSHA rule.

However, the OSHRC came to a different decision when it said

the obligation to document RAGAGEP compliance is not continual.” Paragraph (d)(3)(ii), using the verb form of “document,” directs the employer to take an action that naturally takes place at a particular point in time. That point in time is specified in paragraph (d), which contains the cited requirement as a subsidiary provision, specifically stating that written process safety information is to be completed “[i]n accordance with the schedule set forth in paragraph (e)(1)”— that is, every five years.17 29 C.F.R. § 1910.119(d), (e)(1), (e)(6). Therefore, on its face, the requirement to document compliance with RAGAGEP applies only every five years.[3]

Further, the OSHRC decision (which came after the EPA rule change), potentially has further implications. The OSHRC further opined, “because the duty imposed by the standard to discover non-RAGAGEP conditions is not continual, the duty to ensure RAGAGEP compliance must also not be continual.” Id. The OSHRC concluded that OSHA’s interpretation was unreasonable based on the regulatory history and would make another provision (§1910.119(j)(4)(iii)) superfluous.

This conclusion influenced another ORHRC opinion, that the “interim measures” provision of §1910.119(j)(5) effectively suspends the “comply with RAGAGEP” provisions of §1910.119(d)(3)(ii):

In sum, the only reasonable interpretation of (d)(3)(ii) is that (j)(5)’s interim measures option dictates the timing for when non-RAGAGEP equipment must be documented as RAGAGEP-compliant. In other words, if interim measures have been implemented and the deficiency is corrected “in a safe and timely manner,” an employer need not document that such equipment conforms to RAGAGEP until the deficiency has been corrected. Id.

It is highly possible, based on the statements made during the rulemaking process, that the OSHRC would have concluded anyway that “interim measures” would suspend the need to “document RAGAGEP.” But one thing is certain; OSHA’s opinion and EPA’s 2017 “clarification” of the OSHA rule (that PSI must be kept current) were rejected by the OSHRC in the BP Products/BP Husky case.

Now what?

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[1] 61 Fed. Reg. 31668, 31672 (June 20, 1996) [Emphasis Added].

[2] 82 Fed. Reg. 4594, 4675 (January 13, 2017) [Emphasis Added].

[3] Bp Prod. N. Am., Inc., 2018 O.S.H. Dec. (CCH) ¶ 33688 (04 National/Federal Sept. 27, 2018). [Emphasis Added.]