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.

RAGAGEP Interpretation

As I promised in an earlier blog post today I would like to take a look at the recently published RAGAEGP ( Recognized and Generally Accepted Good Engineering Practices) interpretation memo from OSHA. Procedurally this is a tad bit different than the concentrations guidance I discussed earlier in that it is not a change in guidance but rather a new guidance being published by OSHA.

First off, let’s clarify that these memos are not supposed to be new regulations or requirements being placed upon facilities. These are supposed to be guidance to inspection and enforcement personnel to ensure that everyone is working on the same sheet of music and what is acceptable in one region or State or even facility is not different than what is acceptable in another. Facilities are, of course, free to use this guidance to try to avoid inspection or enforcement issues.

RAGAEGP and PSM

The Memo begins by admitting that RAGAEGP is not specifically defined in the PSM Standard (29 CFR 119). It does, however, mention that it is specifically reference or implied in the standard in three places.

The first one mention is in the requirement for the employer to “document that all equipment in PSM-covered processes complies with RAGAGEP” in §119(d)(3)(ii). That paragraph applies to information pertaining to equipment in the covered process and reads:

“The employer shall document that equipment complies with recognized and generally accepted good engineering practices.”

The second mention is in the requirement to ensure that inspections and tests are “performed on process equipment subject to the standard’s mechanical integrity requirements in accordance with RAGAGEP” in §119(j)(4)(ii). That paragraph reads:

“Inspection and testing procedures shall follow recognized and generally accepted good engineering practices.”

And the third mention deals with the frequency of the inspections and testing required above in §119(j)(4)(iii). That paragraph reads:

“The frequency of inspections and tests of process equipment shall be consistent with applicable manufacturers’ recommendations [emphasis added] and good engineering practices, and more frequently if determined to be necessary by prior operating experience.”

So, two of the three referenced RAGAGEP requirements are fairly clearly stated in the standard. The implication of a RAGAGEP standard is less clear in the third instance and is clearly modified by a requirement to follow the equipment manufacturer’s recommendations for inspections and testing where those recommendations exist.

There is a fourth RAGAGEP instance mentioned in the Memo. It references §119(d)(3)(iii) in referring to existing equipment that was designed and constructed under codes that no longer considered current. That section reads:

“For existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use, the employer shall determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.”

There is clearly no reference to RAGAGEP in this requirement.

What Standards Apply

Since the PSM standard does not specify what constitutes RAGAGEP, the Memo tries to establish some clarity around that subject. First it notes that the employer is free to select whichever RAGAGEP standard they want to apply to their process. It then goes on to describe the various types of external standards that exist:

∙ Published and widely adopted codes;

∙ Published consensus documents; and

∙ Published non-consensus documents

OSHA recognizes that there are enough unique chemical manufacturing situations that external standards may not apply in full or even in part to all facilities. Acknowledging this, the Memo makes it clear that documented internal standards that “meet or exceed the protective requirements of published RAGAGEP where such RAGAGEP exist” may effectively be used where they:

∙ Translate the requirements of published RAGAGEP into detailed corporate or facility implementation programs and/or procedures;

∙ Set design, installation, maintenance, inspection, and testing requirements for unique processes, equipment, and hazards for which no published RAGAGEP exists;

∙ Supplement (or augmenting) published RAGAGEP that only partially or inadequately address the employer’s processes, occupancies, conditions, and hazards. In this situation OSHA (and often the publisher) expect employers/users to supplement the published RAGAGEP with their own applicable practices, protocols, and procedures to control hazards;

∙ Control hazards more effectively than the available codes, standards, or practices; or

∙ Address hazards when the codes and standards used for existing equipment are outdated and no longer describe good engineering practice.

Interpreting RAGAGEP

The Memo includes a brief English language discussion about some common terms that can be found in published RAGAGEP. It stresses that mandating language (words like ‘shall’, ‘must’ and the overlooked ‘will’) mean that not complying with the subsequently described actions will constitute a presumption of a PSM violation. There is, however, no discussion of what a facility might have to do to overcome that presumption if they have found that instance of the RAGAGEP to be unsafe in their specific application or the facility has found a safer way to accomplish the same objective.

Interestingly, the discussion of the term ‘should’ does provide for a possible determination that an alternative method provides a better solution to situation. It does require an employer to properly document the reasoning and then note that it is up to an investigator’s or inspector’s judgement to accept that reasoning.

Writing Violations

Under the heading of ‘enforcement consideration’ is a list of 16 instructions that are clearly written to help inspectors ‘properly’ cite offenders of the RAGAGEP provisions of the PSM Standard. Most of these appear to be written to ensure that violations are properly documented so that they stand up under administrative or legal review. Even so, they should be carefully read by anyone involve in PSM program management at the facility level.

Commentary

This new PSM interpretation memo is clearly different in effect than the previously discussed concentration guidance. It does not change an existing guidance history, rather it clarifies what the current OSHA management sees as the intent of the regulation as written.

What is disappointing is the lack of guidance on how to deal with situations where existing equipment was designed under RAGAGEP that is no longer recognized as current. While the situation is mentioned in the .Background’ section of the Memo, there is no further discussion about how to tie current RAGAGEP to such equipment.

The only place where this is addressed is in enforcement consideration #10. And that simply restates the requirements of §119(d)(3)(iii) when it says:

“Older covered equipment may not have been designed and constructed under an applicable RAGAGEP because none existed at the time of design and construction. Alternatively, the equipment may have been designed and constructed under provisions of codes, standards, or practices that are no longer in general use.  In such cases, 29 CFR 1910.119(d)(3)(iii) requires employers to determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.  Failure to do so may be cited under 1910.119(d)(3)(iii).”

Apparently a document that states that the equipment predates the existing RAGAGEP and that an engineering review has been conducted and it has been found that “the equipment is designed, maintained, inspected, tested, and operating in a safe manner” is all that the PSM Standard requires. There is no discussion of any sort of requirements to document how that finding was made.

Also missing is any discussion of how, moving forward, a facility will deal with future changes in the various RAGAGEP that are developed. Based upon the (d)(3)(iii) discussion above, simply documenting the date of the original version of RAGAGEP that was used would not be sufficient.

It appears, but it is certainly not stated in the Memo, that anytime a RAGAGEP used by a facility is updated, modified or changed, that a facility could change all existing PSM documents to reflect that an older version was used for the setting design, maintenance and inspection standards for that equipment and that an engineering review had established that the equipment “is designed, maintained, inspected, tested, and operating in a safe manner”. The discussion in enforcement consideration #10 would then seem to preclude any other RAGAGEP findings about that equipment.

This hole in the guidance memo is one of the reason that things of this sort really should be put through the publication and comment process. It provides for a more complete understanding on the part of both the regulator and the regulated community. I am really surprised that OSHA did not take the initiative and do this given the concerns that were expressed by industry about the RAGAGEP portion of the standard in the PSM RFI.