09/09/2016
On August 23rd OSHA initiated the comment period for proposed rule-making. The proposal is for new Process Safety Management rules for the Explosives and Pyrotechnics Industries. You might ask, “What is ‘Process Safety Management’?” and “Why on earth should I care?” Both are fair questions.
What is Process Safety Management (PSM)?
Process Safety Management includes the preventative safety planning aspects of business. This includes things like planning out business processes and identifying risks and hazards and ways to mitigate those, once identified. If that sounds simple just take a look at your scroll bar and realize this exceedingly long post is Part 1 of 2.
Why do I care?
Money! – A company I worked with required engineers be consulted about the aspects of components and equipment, supervisors be interviewed about short cuts used to streamline production, and suppliers be contacted and questioned to confirm characteristics of their products. The process took months and cost the company significantly in time lost let alone capital expended. All of that was for a “low risk” business that produced a non-hazardous product using largely low hazard processes, equipment, and chemicals.
The proposed rules apply to what is considered a high risk industry – explosives and pyrotechnics. Subsequently, they are expansive and implementation will cost companies significantly. Even more importantly, failure to comply with the complex regulations will result in significant fines which were increased by almost 80% on August 1st.
Okay, okay tell me about the proposal.
These new regulations are being proposed based on a number of fatalities that occurred within the industry and which OSHA identified as resulting from failures of the Process Safety Management process at those facilities. While well intended, the proposed rules present many new problems which should be addressed before the rules are enacted!
The new requirements contain many of the same aspects as general PSM requirements. The first prong is employers compiling information. The information needed will be on Highly Hazardous Chemicals, Process Technology, and Process Equipment. Second, employers will have to complete Process Hazard Analyses (PHAs) for each of their processes. Third, employers will need to develop carefully defined Standard Operating Procedures (SOPs). Fourth, employers will have to meet the training requirements. Finally, employers need to develop ‘Mechanical Integrity Programs’. The remainder of this post focuses on the first prong.
Highly Hazardous Chemicals – Employers will need to have data on: toxicity, permissible exposure limits, physical data, reactivity data, corrosivity data, thermal and chemical stability data, and any harmful effects associated with inadvertent mixing of such chemicals that could occur.
This is important because while OSHA already mandates, under its Hazard Communication Standard (HazCom), that Safety Data Sheets (SDSs) be made available, these SDSs might not contain all the information required under the new rule. This means that employers may have to reach out to suppliers to obtain exact specifications and information needed to comply with the new rules. Also of note, is that different suppliers may report different data regarding what is ostensibly the same chemical. This necessitates retrieving information about every chemical you obtain, from every supplier from which you obtain it.
Process Technology – Employers must also have detailed information about the technology used in their operational processes. This information must include: (1) Diagrams or Flow Charts showing the processes; (2) Information on Process Chemistry; (3) Maximum intended inventory; (4) the safe upper and lower limits for things like temperatures, pressures, humidity, etc.; and (5) “an evaluation of the consequences of deviations….”
This list is full of issues, but two are of particular note. First, while OSHA does not have a specific requirement for explosive inventory the proposed rules defer to a NASA standard (Safety Standard for Explosives, Propellants, and Pyrotechnics) to guide employers [and subsequently OSHA inspectors] in the way to determine what is a reasonable maximum inventory. The NASA standard is not of itself problematic, and probably constitutes the most thoroughly constructed set of regulations on the subject, but it is important for employers to realize that if these proposed rules are enacted they will now have to defer to yet another set of government regulations just to make sure they comply with OSHA’s proposed rules.
Second, the final item on the list – “an evaluation of the consequences of deviations including those affecting the safety and health of employees that could occur if operating beyond the established process limits.” I find this language problematic because the proposed rules do not define what this means. Therefore, it has the makings of being a snare for the unwary.
By way of example – Fictional Enterprises (FicEnt), is getting into the fireworks business. They want to be compliant with all regulations and prepare a detailed evaluation hundreds of pages long. However, FicEnt fails to evaluate what would happen if an employee mixed “Chemical X” with “Cleaner B” and wouldn’t you know the new guy mixed the two. FicEnt would now be liable for violating this evaluation provision because they failed to foresee this very unlikely possibility.
This greatly increases the potential cost of enacting these regulations. Furthermore, it increases the likelihood that your business may be found out of compliance despite doing everything in your power to comply.
This section also has the possibility of infringing on Trade Secrets issues but that’s a matter for another time.
Process Equipment – This section will vary in its applicability depending on how a particular business operates. However, the long and short is that if you use equipment in your business processes you need to document that equipment including diagrams of any piping and or instrumentation systems throughout your facility and process. OSHA is even kind enough to make RAGAGEP the measure of being in compliance with this section.
RAGAGE-WHAT? – If you don’t know what RAGAGEP is, well don’t worry OSHA is vague on that subject too. The acronym stands for, Recognized and Generally Accepted Good Engineering Practices. OSHA has a memo on RAGAGEP which they encourage employers to review but then note that there are numerous sources of RAGAGEP which may be used. This is problematic to say the least.
While the proposed rules list a few sources of RAGAGEP it acknowledges that the list is far from complete. This is a problem because saying “just use the accepted standards” is the same as “good luck guessing which standard we will apply.”
Another example – Fictional Enterprises uses NFPA 70 National Electrical Code to determine what specs their electrical equipment should be at. An accident occurs and OSHA decides that NFPA 77, Recommended Practice on Static Electricity is the more appropriate standard and subsequently fines FicEnt.
Nothing in the proposed rules guides employers on how they choose which RAGAGEP to apply. Neither does it provide guidance on which varieties of RAGAGEP supersede any other. Regulations are numerous and burdensome enough without regulators saying “Comply with this regulation oh and by the way the definition of comply is now up to an unlisted and potentially innumerable list of other regulations.”
OSHA’s failure to be clear and concise does not promote worker safety! Rather, it puts employers in the unenviable position of having to spend time guessing rather than being able to implement effective solutions to Process Safety Management.
If you made it this far I applaud your commitment to understanding OSHA regulations! If your business would like to submit an official comment to these proposed rules be advised the deadline is September the 23rd, and industry comments really can make a difference! We here at Prince Law Offices are more than happy to assist you in this process. Just call 818-313-0416.
Tune in next week for the exciting sequel! Part 2 – “PHAs, SOPs, and Mechanical Integrity Plans, OH MY!”
Jonathan Moore served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He now serves as Prince Law Offices in-house OSHA Consultant while attending law school at the Pennsylvania State University School of Law.
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