Author Archives: Jonathan Moore

New Regulations for Explosives/Pyrotechnics Industries (Part 2)



OSHA is currently accepting comments for proposed rulemaking. The proposal is for new Process Safety Management rules for the Explosives and Pyrotechnics Industries and comments will be accepted until September 23rd!

You might ask, “What is ‘Process Safety Management’?”  That is a great question answered in Part 1 of this post click HERE to check it out!

The proposed regulations are expansive and, along with those items mentioned in Part 1, require that employers develop PHAs, SOPs, and Mechanical Integrity Plans.  So welcome to Part 2 let’s get started.

Process Hazard Analyses (PHAs)

Among the proposed regulations is the requirement that all employers perform PHAs.  OSHA defines PHAs as – “A systematic effort designed to identify and analyze hazards associated with the processing or handling of highly hazardous materials; and a method to provide information which will help workers and employers in making decisions that will improve safety.”

At its heart PHAs ares nothing more than identifying processes and identifying what hazards are present. OSHA states that PHAs “attempt[] to determine: the failure points, methods of operations, and other factors that potentially lead to accidents.”

Beyond that, OSHA’s best guidance on the subject was developed by The New Jersey Work Environment Council (WEC) under grant of OSHA. That document is 31 pages long and can be downloaded HERE.  Most businesses have (at a minimum) dozens of processes.  If you fail to identify a hazard within a process, that is a violation.  If you fail to identify a process and the hazards it contains – violation. If you fail to document everything in accordance with those 31 pages of ‘guidance’ – violation.

Seven Steps to PHA Success

Here is a hypothetical – Fictional Enterprises makes Pyrotechnics. The manufacturing is complicated involving over 75 operations.  – Each of these involves one process for purposes of a PHA. Operation 34 states – Technician will mix 3mL of Chemical X with 25cc of Explosive. Technician must then place the mixture in Centrifuge, spinning mixture for exactly 5 minutes at exactly 120 rpm. Fictional Enterprises wants to perform a PHA on Operation 34.

Step 1 – assembling the right team. OSHA stipulates that to perform a PHA your team, “should include engineers, operators, supervisors and other workers who have knowledge of the standards, codes, specifications…which apply to the process….” You assemble Mr. Engineer, Mrs. Supervisor, Ms. Technician, and Homer the technician who performs Operation 34. Your team proceeds to…

Step 2 – develop checklists of applicable regulations and safety standards. Your team examines Operation 34, finding 3 fire safety codes, 5 electrical ordinances, 9 chemical safety standards, and 122 other regulations which may be applicable to Operation 34. Developing the checklist was performed efficiently and only required 42 man hours to complete. The team moves to…

Step 3 – examine those regulations and determine the steps needed to ensure compliance with (or alternatively the non-applicability of) the standards.  All of this must be documented and included in your PHA. Your team continues their efficiency requiring 115 man hours to finish. The team now begins…

Step 4 – performing “What If” evaluations. OSHA defines this as having, “a relatively loose structure” and “only [being] as effective as the quality of questions asked and the answers given.” Even with that precision guidance your team spends 100 man hours in brainstorming the possible “what ifs.” The team now moves to…

Step 5 – Hazard and Operability Study (HazOp). OSHA defines this as “a structured, systematic review that identifies equipment that is being used in a way that it was not designed to be, and which might create hazards or operational problems.”  OSHA notes that this may require an additional “multi-skilled team.” This team must be familiar with, “piping and instrument diagrams” and have a competent understanding of “certain limitations and deviations in flow, temperatures, and pressures…” for your equipment.

Your team enlists the help of Supplier Engineer, Equipment Designer, and Senior Chemist. The team is efficient and prepared documentation for your PHA in only one week.  The Team moves to…

Step 6 – Failure Mode and Effect Analysis (FMEA). OSHA defines this process as a “systematic study of the consequences of failure (breakdown) of certain operational hardware….” This is the only guidance provided and results in your team spending an additional week attempting to figure out the FMEA.  The team moves to…

Step 7 – Fault-Tree Analysis. OSHA describes this as, “draw[ing] a picture (model) that shows what undesirable outcomes might result from a specific initiating event….” Or you make a flow chart of Operation 34, INCLUDING flow routes for if things go wrong.  So instead of just having “Homer runs centrifuge for 5 minutes” you should also include what happens if Homer gets distracted by a certain round raspberry confection and lets the centrifuge spin for 19 minutes.

The team is fortunate to have Homer with them and subsequently maps out all the possible faults in only 97 man hours.  Bringing your total time in completing the PHA for Operation 34 to over 800 man hours.

What’s wrong with this picture?

 The first thing you probably noticed was just how many man hours it takes to complete the PHA for one operation. Good thing your company only has 74 more that need to be evaluated…

The next thing that creates a problem is the FMEA.  OSHA provides very little guidance on FMEAs. This could mean they want you to use RAGAGEP but this is never stated. Given that OSHA is explicit in the other sections where they want RAGAGEP it might mean they have some specific standard in mind.  However, if it exists, it is not provided.

Worse still would be if RAGAGEP is to be used –With Aerospace you must often perform FMEAs before you are certified to conduct business.  The American Society for Quality (ASQ) has an excellent write up on their preferred methods for performing FMEAs.  This method is one I am familiar with and find to be successful.  Their write up can be found HERE.  Interestingly, you will note that the ASQ methodology for FMEAs is very similar in description to what OSHA requires for the entire PHA.

This should be of significant concern to business owners because it muddies what OSHA wants.  If they want you to refer to RAGAGEP the ASQ standard is undoubtedly one of the most thorough in the business.  However, if you follow the ASQ methodology you will essentially have a PHA within a PHA. Alternatively, if OSHA wants you to use a specific standard – they do not provide it. In short the FMEA requirement’s lack of clarity puts employers in a catch 22.

Some readers may note that the PHA steps listed above are exactly what is already available in the above referenced guidance document.  This is true and the next problem – the proposed regulations merely create an additional standard which can be cited as requiring employers to be compliant.  So what was before a violation of one PHA requirement can now be a violation of two.

My final gripe before we continue is that OSHA expressly states their reason for promulgating these new regulations are several incidents which could have been prevented had PHAs or other measures been taken.  These new requirements do not assist employers in being better able to conduct PHAs. Neither do they require employers who were previously unregulated to conform.

To the contrary, these new regulations will only serve to confuse businesses by telling them to comply with multiple but un-specified RAGAGEP standards. Confusing and redundant standards do not promote worker safety. They create a culture where employers who are unable to understand what OSHA wants merely give up. OSHA’s response continues to be “just fine them again” rather than actually finding ways to create safety standards that are clear, concise, and focused on the functional application of safe work practices.

In addition to the PHAs employers are also going to be re-required to create Standard Operating Procedures (SOPs) and create Mechanical Integrity Plans.

SOPs, in brief (I promise).

Again, OSHA is only reiterating already promulgated rules on operating procedures. The only new provision is a couple of vague examples encouraging those in the explosive and pyrotechnics industries to look to RAGAGEP for particulars of their industry.  It is also worth noting that as required by several other standards this standard would once again require employees be trained in the procedures and that employers document this training. However, the general requirements for procedures remain the same:

  1. Procedures must be written.
  2. must be clear
  3. must be available to all operators.
  4. must specify steps for
    1. normal operation.
    2. upset conditions
    3. temporary operations
    4. start-up
    5. emergency shutdown
  5. must include Basic Safety Information
  6. must be certified annually for current-ness an adequacy.
    1. Recommended that they be reviewed before each use to verify the current version is in use.

Mechanical Integrity Plans (MIPs)

OSHA’s requirements for Mechanical Integrity Plans are essentially PHAs used to evaluate equipment rather than processes.  So instead of focusing on what an operator is doing you focus on how our example Centrifuge works, in great detail.

OSHA decided to also include an explicit RAGAGEP provision. So in addition to the extreme scrutiny that must be given within the PHA styled process, they also require “employers [to] identify the subset of RAGAGEP most appropriate for their process equipment, document in the MIP which protocols are to be followed, and ensure that inspection and testing is performed accordingly.”  So stated in English, OSHA’s new standard is requiring employers to (1) figure out which standards apply to them; (2) write up how they decided this and how they are complying; and (3) ensure they are complying in the appropriate manner to the standards which the employer had to find themselves.

OSHA states, “employers are completely unfamiliar with [] RAGAGEP references, consultation with a professional [] is advised.” This can be roughly translated as OSHA saying, “Good luck complying!”

Closing Remarks (and the people rejoice)

This whole section of proposed regulation is a farce.  It is an attempt by OSHA to satisfy an executive order by promulgating a new rule that says nothing more than “do our existing rules” and “find what rules apply and then follow them.”  I cannot reiterate enough that this does not promote worker safety.  No sane person wants their employees to be endangered.  However, no employer can commit to thousands of man hours just to guess at whether they are being compliant with an OSHA Standard.

If your business is in the explosives or pyrotechnics industry I implore you to consider submitting an official comment to OSHA.  OSHA is accepting comments through THIS FRIDAY, September the 23rd.  Click HERE to submit a comment or download the proposed regulations. Comments made to these proposed rules really can affect OSHA’s actions!

Whether you are in the Explosives industry and would like to submit an official comment or you just want to make sure your business is compliant with existing OSHA requirements Prince Law Offices is happy to be of assistance.  Just call 888-313-0416 to schedule an appointment.

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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New Regulations for the Explosives/Pyrotechnics Industry (Part 1)



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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OSHA Inspector’s Warrant Request DENIED


One of the most common questions asked about OSHA Inspections is, “Do I have to let them in my business?” My short answer has always been – No you do not, but it is often advisable that you do so.

It is within your rights as a business owner to require that OSHA inspectors present a Warrant to enter your premises. However, history shows that OSHA is almost always granted a warrant. Furthermore, requiring a warrant usually only serves to alienate you from the inspectors and heighten their suspicion that you are hiding something.

A Magistrate Judge from the Georgia’s Northern District has decided that this is not necessarily an acceptable practice.  Magistrate Judge J. Clay Fuller held that OSHA needed to establish “probable cause” before they could obtain an expanded warrant to search a poultry plant.  The case arose when OSHA responded to a worker complaint and injury report at a poultry plant. OSHA has an obligation to respond to injury reports and this obligation is expressed to the extent that if an OSHA inspector is driving by a business and sees an ambulance in the parking lot they are expected to stop and at least briefly investigate the reason for the ambulance. Traditionally however, once an OSHA inspector is on site they will begin an inspection that far exceeds the area and scope of the injury or complaint that brought them there.

What does that mean exactly? An example – Business A reports an employee was injured by a garage door that fell and broke the leg of an employee while shooting a commercial.  OSHA shows up to investigate but rather than just inspect the area where the accident happens they inspect every corner of the facility, questioning employees who were not present or involved in the reported incident.  The OSHA inspector finds that the employer was not at fault for the injury that was reported, but fines the employer $40,000 for violations that are unrelated and which had resulted in no injuries.

The folks at the Mar-Jac Poultry Company objected to exactly this expansive practice.  When OSHA arrived they showed the OSHA inspector where the incident occurred, but declined to allow the OSHA inspector to begin an unrestricted inspection of their facility without a warrant.

OSHA applied for a warrant stating that they had a Special Emphasis Program which instructed them to investigate multiple aspects of Poultry related businesses, many of these aspects are unrelated to the reported injury at the company in question.  Magistrate Judge Fuller has held that merely having a program targeting a group does not create probable cause to come and inspect that organization.  Judge Fuller stated that if OSHA did not have to show probable cause then, “[these inspections could] become tools of harassment.” Judge Fuller acknowledged that the injury which was reported did provide probable cause for OSHA to investigate some aspects of the business which were related to the incident but recommended that a warrant to justify an inspection beyond that point should be denied.

A particularly interesting point is that Judge Fuller stated that a worker complaint was not sufficient justification for an OSHA inspector to receive a warrant to just waltz in and perform a wall to wall and top to bottom inspection. This makes sense as in criminal cases warrants have to be very specifically tailored and generally judges frown on signing warrants for “fishing expeditions.” Yet, OSHA has historically been able to say to a Judge, “Look an employee complained so we need access to inspect every corner of the employer’s facility” and Judges have generally said, “Okay, have at it.”

This decision by Judge Fuller is a major win for Business owners and those concerned with an ever expansive government bureaucracy. However, the case is now before the Federal District Court for the Northern District of Georgia who have the power to overturn Judge Fuller’s decision. We will provide updates as they become available.

If your business has had problems with OSHA or would like to know what you can do to protect yourself from OSHA inspections please contact our office at 888-313-0416.

Jonathan Moore is Prince Law Office’s in-house OSHA Consultant. He served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He now attends law school at the Pennsylvania State University School of Law while working for Prince Law Offices.

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