OSHA Updates RAGAGEP Enforcement Guidance

This week the Occupational Safety and Health Administration (OSHA) updated their enforcement guidance document that addresses the Recognized and Generally Accepted Good Engineering Practices (RAGAGEP) requirements of the Process Safety Management (PSM) program. The original memorandum was published in June of last year.

SNARKY Comment

I’m going to start of this post with a very snarky comment, but it is one of my pet peeves so please bear with me.

For an agency that is very big on enforcing management of change policies in regulated environments they do a piss poor job of following those requirements in their own activities. This is a revision of an existing document but there is no summary of the changes made to the document, no explanation as to why the changes have been made and there is no clear statement as to when the changes take effect. Come on people, cut your employees and the regulated industries a little slack here.

Apparently Minor Changes

There are a number of wording changes that would appear to be relatively minor and inconsequential except for the fact that they are made throughout the document. For example, the word ‘published’ is removed as an adjective extensively throughout the whole document. We see this first in the first section of the document (now entitled ‘Examples of RAGAGEP’ where it was called ‘Primary Sources of RAGAGEP’) where ‘Published and widely adopted codes’ was changed to ‘Widely adopted codes’ and similar changes were made to the next two paragraph headings.

The word ‘publish’ and its variants were removed from the discussion in each of those three paragraphs as well. Does this mean that covered facilities can reference RAGAGEP standards that have not been published? And if they have not been published, how can an OSHA inspector determine if the facility is in compliance with those RAGAGEP? Or was this word removed to avoid confusion between publishing in the form of printed documents versus being published only in electronic format? Or was this just a change because the author of the new memorandum just has a thing about the word ‘publish’? This is an area where the appropriate use of management of change processes could provide some clarity.

Other Uses of RAGAGEP

The original memo included a section on other uses of RAGAGEP materials in PSM. It stated:

“Only the three sections of 1910.119 referenced above require compliance with RAGAGEP. However, RAGAGEP can also provide useful background and context, and can help CSHOs identify and document hazards and feasible means of abatement when reviewing other aspects of the employer’s PSM program and covered equipment.”

 This section is not included in the new version published this week. I would assume (because OSHA does not explain the change I am allowed to make assumptions) that this is because some OSHA inspectors were using RAGAGEP as justification for violations that had nothing to do with the RAGAGEP requirements of 1910.119. That would clearly be regulatory overreach and that would put OSHA in a bad light when complaints were brought before an administrative law judge.

Updated RAGAGEP

In the ‘Enforcement Considerations’ section of the memorandum there is another unexplained exorcise of a paragraph in consideration #12. That consideration deals with appropriate process mitigations when changes to RAGAGEP have been made. The original memo closed out the discussion with the following paragraph that is not in the newer version:

“This can be accomplished through a variety of approaches, such as but not limited to the PHA revalidation and management of change (MOC) processes, or through corporate monitoring and review of published standards. Citations for 29 CFR 1910.119(d)(3)(iii), either stand-alone or grouped with, for example, (e)(3) or (l)(1), may be appropriate if the employer fails to address the issues (see item 8 above).”

 While that original paragraph was not very clear on how these ‘approaches’ would be used to “address issues raised by or identified in the updated RAGAGEP”, it did at least point the OSHA inspector (and the covered facility) in the direction of looking in these areas to see if the RAGAGEP changes had been appropriately dealt with. I have no idea (or even wild assumption) about why this was removed from the guidance document.

Commentary

Remembering that this is a guidance document for OSHA inspectors I am disappointed that the changes made in this revision do nothing to clarify matters relating to the weakest point of the guidance; how to deal with revisions to RAGAGEP in an actual covered chemical process. If anything, the removal of the paragraph from item #12 actually muddies the water somewhat.

Covered facilities should also be able to use these memoranda to help them understand how inspectors are supposed to be looking at their PSM programs. This should help facilities to craft their programs in a way that is not only safe but compliant with current requirements. While compliance certainly does ensure safety, it is certainly in the best interest of facility management that they understand the compliance requirements.

Making changes to enforcement guidance is making changes to compliance requirements, even if (maybe most importantly, especially if) there are no changes being made to the regulations. Thus it is important to both inspectors and facility process safety managers to understand the true scope and reasons for changes to that guidance. Making changes to that guidance without an appropriate management of change does a disservice to both the inspectors and the regulated community.

OSHA PSM Enforcement

Thanks to the President’s Executive Order on Improving Chemical Safety and Security (EO 13650) there are a couple of efforts underway to improve the OSHA Process Safety Management (PSV) program. There are a number of different suggestions under discussion that would expand various parts of that program. Unfortunately, the expansion of the PSM program will do little to increase industrial safety because of the enforcement model being used by both PSM and the EPA’s Risk Management Program; they are both reactive rather than pro-active enforcement programs.

Infrequent Inspections

One of the things that most major industrial accidents, certainly the ones that have made the biggest splashes in the news, have in common is that in describing the incidents the news media almost always reports that it has been years since an OSHA inspector was in the facility. The simple reason for this is that there are simply way too few inspectors available (in both the Federal and the affiliated State programs) to be able to make more frequent inspections possible.

So OSHA inspectors show up after serious accidents, do their inspections/investigations and record numerous shortcomings. While many of the shortcomings reported have little to do with the incident at hand, invariably there are some that would have apparently prevented the accident if they had been corrected earlier. And in hindsight, these problems would have been pretty easy to spot.

The easy way to make the OSHA PSM program more effective would be to increase the inspection force so that every covered facility gets inspected at some reasonable frequency. Of course, there is no way that Congress will fund a hundred fold increase in the size of the OSHA inspection force. An adequately sized inspection force is not an option.

So we need to find a way to make the current inspection force more effective. And I think that we can turn to the DHS Chemical Facility Anti-terrorism Standards (CFATS) program for a potential solution.

CFATS Program

The CFATS program has its own problems, but lack of inspector contact with the facilities is not one of them. Now the inspection force to facility ratio is better at ISCD than with either OSHA PSM or EPA RMP, but those programs do not require either agency to approve the respective plans prior to their enforcement. But neither do the OSHA or EPA inspections typically require the same level of detail as do the CFATS visits which typically involve 3 to 5 inspectors at a time.

Still, the amount of detail involved in a CFATS pre-approval inspection requires that when an inspection team arrives at a facility that they already have a good understanding of the issues involved at that facility and they come prepared to look for specific information. The Chemical Security Inspectors are aided in this by the information that the facilities are required to provide via the Chemical Security Assessment Tool (CSAT), a secure on-line tool that requires facilities to provide information about the facility, the chemicals it has on site, and the security measures in place to protect those chemicals from terrorist attack.

The information provided and the analysis of that information by the ISCD headquarters staff and their contractors allows the inspectors to arrive at the facility with a pretty good understanding of the situation on the ground and the potential shortcomings that the facility has in its security program. This allows the CSI to quickly identify program problems and to work with the facility to develop a corrective action plan.

Require PSM Data Submission

A similar model could be used by the PSM (and RMP) program. OSHA could develop a PSAT (Process Safety Assessment Tool) based upon the CSAT model. It would be a secure on-line application that provided tools for facilities to:

• Register as potentially covered PSM sites (Register);

• Provide initial information about chemicals stored on site (PSM Screen);

• Provide information about the facility PSM program (PSM Plan); and

• Provide information about facility changes to PSM program (PSM Change).

The Register tool would provide facilities a way to provide point of contact information to OSHA and allow OSHA to provide passwords for selected individuals at the facility to access the PSAT.

The PSM Screen tool would be used by any facility that had PSM covered chemicals on site at greater than the PSM covered quantity to report that information to OSHA. OSHA would use this preliminary information to determine if the facility was actually covered under PSM and to establish a risk tier ranking based upon the number of employees potentially affected and the degree of risk posed by that particular combination of covered chemicals. Higher risk facilities would get more frequent and closer scrutiny.

All PSM covered facilities would be required to provide information on their program to OSHA via the PSM Plan tool. The amount of detail provided would depend on the assigned risk tier ranking. Lower risk facilities would be required to just answer a series of questions about their plan. Higher risk facilities would provide more detailed information. OSHA would be able to tailor the details required based upon the data provided in the PSM Screen submission.

Finally, facilities would use the PSM Change tool to provide OSHA with information about changes made to the PSM program. These changes could be driven by either process changes made at the facility or by inspection results.

PSM Data Analysis

The PSAT data would allow OSHA to have a better understanding of how various facilities were implementing the PSM program. This would, of course, require OSHA to have some additional data analysis capability.

A certain amount of this data analysis could be strictly computer based. Initial computer screening of PSM Screen data would provide OSHA with a much more complete picture of the use of hazardous chemicals in industry. This would enable OSHA to work with industry groups to better enhance both their PSM enforcement activities and work with industry to upgrade process safety capabilities.

Computer based analysis of PSM Plan and PSM Change information would allow OSHA to identify obvious plan shortcomings and administratively request that the submitting organizations provide additional data on specific requirements. This alone may help those organizations improve their PSM programs without the need for inspector visits.

More detailed analysis of the PSM Plan and PSM Change information will require analysis by subject matter experts (SME). OSHA would be able to contract out most of this analysis, increasing the agency efficiency without raising personnel overhead costs. This would also allow OSHA to expand and contract its base of SME as required.

This off-line analysis of PSM data would allow OSHA to gain a better understanding of the processes and programs under its regulatory purview. Data shortcomings would be communicated to facilities, again allowing for PMS improvements without the need for involving government inspectors. Severe shortcomings or particularly dangerous situations could be identified early allowing for proactive regulatory visits rather than waiting for accidents and incidents to occur before an inspection team arrives at the facility.

The PSM Change tool would then become a particularly effective way for OSHA to track the responses to inspection discovered deficiencies. Adequate responses would not require inspector re-checks and clearly inadequate responses could be dealt with quickly. Most responses would fall somewhere in between and could be addressed by requests for additional information. Inspection team efficiency would be greatly increased.

Finally, this data analysis would ensure that an OSHA inspector headed to a facility would have a great deal of readily available information available before entering the facility. It would also allow for prioritizing the areas requiring detailed looks by that inspector. It could also allow for assigning an inspector with a particular area of expertise, again increasing the efficacy of the inspection program.

Increasing OSHA Efficiency

It is increasingly obvious to even the most uneducated observer that the current OSHA inspection program is woefully inadequate. It is also apparent that this is not due to poor inspection force, but rather to an inadequate inspection force. Since Congress is extremely unlikely to significantly expand the force, OSHA needs to take significant efforts to increase the efficiency of the inspection force particularly if there are going to be any major expansions of the coverage or requirements of the PSM program.

One way of increasing the efficiency is to provide more information to the PSM program, allow for better analysis of the available information, and to better target the inspection activities of the existing inspection force. The establishment of a PSAT program would provide OSHA with the tools to do all three.