IIAR 7 update now open for Public Review

November 10th, 2017
To: IIAR Members
Re: First (1st) Public Review of Standard BSR/IIAR 7-201x, Developing Operating Procedures for Closed-Circuit Ammonia Refrigeration Systems.
A first (1st) public review of draft standard BSR/IIAR 7-201x, Developing Operating Procedures for Closed-Circuit Ammonia Refrigeration Systems is now open. The International Institute of Ammonia Refrigeration (IIAR) invites you to make comments on the draft standard. Substantive changes resulting from this public review will also be provided for comment in a future public review if necessary.

BSR/IIAR 7-201x, defines the minimum requirements for developing operating procedures applicable to closed-circuit ammonia refrigeration systems. It presupposes that the persons who use the document have a working knowledge of the functionality of an ammonia refrigeration system(s) and basic ammonia refrigeration practices and principles. This standard is intended for those who develop, define, or review operating procedures, or a combination thereof, for closed-circuit ammonia refrigeration systems. This standard shall apply only to stationary closed-circuit refrigeration systems utilizing ammonia as the refrigerant. It supplements existing general refrigeration standards issued by IIAR and other organizations such as ASHRAE, ASME, and ANSI. It is not intended to supplant existing safety codes (e.g., model mechanical or fire codes).

IIAR has designated the draft standard as BSR/IIAR 7-201x. Upon approval by the ANSI Board of Standards Review, the standard will receive a different name that reflects this approval date.

We invite you to participate in the first (1st) public review of BSR/IIAR 7-201x. IIAR will use the American National Standards Institute (ANSI) procedures to develop evidence of consensus among affected parties. ANSI’s role in the revision process is to establish and enforce standards of openness, balance, due process, and harmonization with other American and International Standards. IIAR is the ANSI-accredited standards developer for BSR/IIAR 7-201x, and is responsible for the technical content of the standard.

This site includes links to the following attachments:

The 45-day public review period will be from November 10th, 2017 through December 26th, 2017. Comments are due no later than 5:00 pm Eastern Standard Time (EST) on December 26th, 2017.

A quick review of the update shows no significant changes are necessary to the current stock templates.

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RAGAGEP Hierarchy in Application – A worked example

RAGAGEP (Recognized and Generally Accepted Good Engineering Practices/Principles) is extremely important to our Process Safety programs as it helps define the boundaries of what is (and isn’t) acceptable in our processes and our management of them. There seems to be some confusion in a significant portion of the industry as to how to practically apply RAGAGEP* so I thought a brief discussion (and worked example) might be useful.

Let’s say that we have multiple possible RAGAGEP’s for a single item – such as relief valve replacement schedule. Those multiple RAGAGEP’s may well have differing requirements so we will need to rank them to understand what we actually need to do. Here’s an example RAGAGEP listing from OSHA:

  1. Codes adopted by the AHJ (Authority Having Jurisdiction) such as IMC/UMC
  2. Consensus Standards such as IIAR or ASHRAE
  3. Non-consensus documents such as Pamphlets / Bulletins from industry organizations
  4. Internal Standards such as your corporate policy

What isn’t on that list is manufacturer’s recommendations and there’s a reason why. The things listed above set the RAGAGEP and the manufacturer’s recommendations can modify it.**

There are generally two ways to modify something: make it more or less restrictive.

More: In the event that the manufacturer gives you a recommendation that is more restrictive (conservative) than the RAGAGEP, you must*** accept that more restrictive recommendation.

Less: If the manufacturer gives you a recommendation that is less restrictive than the RAGAGEP, you can accept that less restrictive recommendation, but you will need to document why you believe that the manufacturer’s recommendation is superior to the existing RAGAGEP.

In a recent article on RCE-Chill, we discussed the replacement schedule for a relief valve that relieves back into the system. The codes reference the consensus standards, which in turn reference some non-consensus bulletins. The bulletin in question, IIAR B110 says that these valves are not subject to the 5yr changeout frequency that other relief valves are. Yet, we have an email from Cyrus Shank’s engineering department that still recommends the 5yr changeout schedule.

In this case, we have a disagreement between the non-consensus bulletin and the manufacturer’s recommendation. Put another way, we have a generic recommendation on relief valve changeout versus a manufacturer specific recommendation. Obviously, the manufacturer’s specific recommendation on their valves overrides the generic recommendation about all relief valves. Therefore, as long as we are going to use these specific valves, we need to follow the manufacturer’s recommendation. ***

*It’s important to understand that we’re talking about what RAGAGEP decision is the most defensible during an inspection / audit.

** In 1910.119(j)(4)(iii) manufacturer’s recommendations are explicitly called out in conjunction with good engineering practices to set inspection/testing frequency, but the point still holds true.

*** It’s theoretically possible that you can make the engineering case that you know more about the manufacturer’s equipment as it operates in your process than they do, so you can override their recommendation. One method that’s routinely used is to choose an alternative way to achieve the same goals – one where you can show the engineering rationale to prove your alternative is as safe or safer. A common example of that would be replacing the oil based on regular oil analysis rather than changing it out at a specific hour interval. Of course, such a change would have to be thoroughly documented through your Management of Change procedure.

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PHA Worksheets Template updated

The Template What-If / Checklist worksheet used to guide PHA Studies has been modified.

  1. The Identification and Review of Past Incidents section has been renumbered with some new questions concerning the performance of the Incident Investigation element added before the example / industry What-If incident questions.
  2.  We’ve added a new 57-question Revalidation Considerations Checklist to the current list of What-If questions. This new section is to be used as an additional check on PHA revalidations.

These changes are available immediately to anyone using the Google Shared Drive.

Note: These additions are partially based on an EPA-provided example of typical questions asked during a PHA revalidation. It has always been our practice to FULLY revalidate the PHA by reviewing all the previous answers; however, during a revalidation, this new section should help highlight areas of the existing PHA study that demand extra attention.

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Why we changed our element “Guidelines” to be called “Written Plans”

In mid-february we changed every reference to Guideline in the example templates to Written Plan. This change was made to the Google Drive and logged on 2/3/17.

Although I have used guideline for a very long time, it was really just out of habit – it’s not an accurate reflection of the intent of those documents.

First: Where did this Guideline idea come from?

Well, it all started back in the Employee Participation element which requires you to have a document that explains how you intend to comply with certain requirements.

1910.119(c)(1) – Employers shall develop a written plan of action regarding the implementation of the employee participation required by this paragraph.

Over time we realized that these written plans of action were very useful and wrote them for every single PSM/RMP element. For whatever reason, the very first program I ever worked on called this the “Guideline for Employee Participation” and I just stuck with that wording for well over a decade.

Ok, so why call it a Written Plan rather than a Guideline? 

Well, let’s look at definitions:

A dictionary definition of guideline is:

“General rule, or piece of advice”

The word plan defined in that same dictionary:

“a detailed proposal for doing or achieving something;” 

“an intention or decision about what one is going to do.” 

The word plan is really what we are going for: A decision about what the facility is going to do. The intent of these documents, whether they are called Written Plan or Guidelines, was always to document the detailed plan that the facility intended to follow in achieving compliance.

Anything else?

Actually, yes. Over the years we had to explain the above to several different inspectors: our Guidelines were actually our written plans. Frankly, it just got annoying explaining the same concept over and over again – especially when they had a point: Rightly understood the documents really are the written plan and general guidance usually used the guidelines terminology such as the IIAR Compliance Guidelines and the CCPS Guidelines for Safe Process Operations and Maintenance.

Do I have to change my documents if I use the templates?

Well, no you never really have to update your program to reflect our changes. That said, Should you? Yes, you should make the change whenever you update your program to the latest templates.

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What training does my refrigeration operator need?

Note: this article focuses only on the PSM/RMP training burden that is unique to PSM/RMP. Furthermore, it does not address the requirements of training documentation.

Understanding the requirements of PSM/RMP training for Operators

The Training element in PSM (1910.119(g)) and RMP (40CFR68.71) requires that your process operators involved in operating a process receive certain training. For me, the key word for our understanding is Operator which means to control the functioning of a machine, process or system. If they turn valves, operate physical or electrical controls, etc. they are likely Process Operators. It is important to remember that the term Process Operator is not a title – it is a function. A management employee that turns refrigeration valves, or restarts equipment after a power failure is a Process Operator by function even if their title is “Director of Warehousing.” This concept is so important, that it is one of our PSM Golden Rules:

8. Treat people by their function within the process, not their title.

This means that in facilities where Contractors are actually the Process Operators, this Operator Training section must apply to them – just as it would a similarly situated direct-hire employee. OSHA made this clear in 1992:

…should a contract employer provide employees to operate a process, then those employees would obviously have to be trained to the same extent as the directed hire employees “involved in operating a process” under paragraph (g) of the final standard.

Generally speaking, all OSHA standards cover all employees including contract employees. In something of a break with tradition, the process safety management rule has separate provisions covering the training of contract employees. This was done primarily for emphasis since contract employees make up a significant portion of some segments of industries covered by the final rule. This is not to say, however, that paragraph (h) is the only section of the process safety rule that applies to contractors. As already indicated, under appropriate circumstances, all of the provisions of the standard may apply to a contractor (i.e., a contractor operated facility). After all, employees of an independent contractor are still employees in the broadest sense of the word and they and their employers must not only follow the process safety management rule, but they must also take care that they do nothing to endanger the safety of those working nearby who work for another employer. Moreover, the fact that this rule has a separate section that specifically lays out the duty of contractors on the job site does not mean that other OSHA standards, lacking a similar section, do not apply to contract employers. (OSHA, PSM Preamble, 1992)

Training in this element that training is broken into two categories: Initial and Refresher.

Initial Training

Initial training is 1910.119(g)(1)(i) – “Each employee presently involved in operating a process, and each employee before being involved in operating a newly assigned process, shall be trained in an overview of the process and in the operating procedures as specified in paragraph (f) of this section. The training shall include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the employee’s job tasks

Initial Training is meant to cover the things Process Operators need to know to be involved in the covered process. It needs to cover an Overview of the Process as well as any specific Operating Procedures that the Process Operator is expected to perform.

One component of the Overview of the Process. Overview of the Process is simply how the covered process works. This understanding can be very basic or in-depth based on how much the Process Operator needs to know to safely perform the tasks assigned to them. This is the only component of the operator training requirements that is addressed by attending 3rd party classes (usually titled Refrigeration Operator) at a one-week school. I’m not discounting their value – I’m just pointing out that these schools do nothing to meet the other requirements of the training element. (Any honest school offering these classes will tell you this!)

This operator training must include a focus on:

  • Specific Safety and Health Hazards of the process and work on the process.
  • Emergency Operations and Shutdown.
  • Safe Work Practices (Like LEO & LO/TO) applicable to the employee’s job tasks.

It’s important to emphasize that this training is conducted before the operator actually performs these tasks independently. For a typical Ammonia Refrigeration Process Operator, these requirements would lead us to train, at a minimum, in the following areas:

  • Routine refrigeration system operation; an overview of the process.
  • Ammonia properties, safety and health hazards
  • SOP awareness including the requirement to follow written SOPs
  • Specific training in any SOP they are expected to perform such as the Overall System Operation SOP(s), which includes emergency and normal refrigeration system operation procedures.
  • Their individual role in the emergency response plan

In many programs, this is a level of Process Operator called Entry Level. Due to the increased use of Contractors in most Ammonia Refrigeration processes, many, if not most, Process Operators are never trained to reach higher levels of operator classification.

Refresher Training

1910.119(g)(2) – “Refresher training shall be provided at least every three years, and more often if necessary, to each employee involved in operating a process to assure that the employee understands and adheres to the current operating procedures of the process. The employer, in consultation with the employees involved in operating the process, shall determine the appropriate frequency of refresher training.” Note that this training is meant to reinforce the earlier emphasis on SOPs.

Refresher or Ongoing Training is a collection of activities designed to reach a certain Performance-Based goal: …To assure that the employee understands and adheres to the current operating procedures of the process.

The “understands” portion of the performance basis should have been handled by our Initial Training. The real question then is how we ensure Process Operators adhere to current operating procedures of the process. This is called Operational Discipline. Much of what we call Refresher Training is just reminding Process Operators about the importance of this Operational Discipline. An example Refresher Training schedule is below:

In addition to the above regularly scheduled and event-driven training, there should be some sort of verification that process tasks are being completed in accordance with the written procedures of the process. On a regular basis (usually at least annually) the Responsible Person should verify that qualified operators are adhering to the SOPs. This verification usually takes the form of observations while the operator performs their assigned work. These observations should be done without prior notification of the operator being evaluated.

While there is a requirement that Refresher Training occur at least every three years, and that the frequency of the training be decided in consultation with the Process Operators, an effective PSM/RMP Program is continuously Training and seeking consultation.

Employers, in consultation with employees, shall determine the appropriate frequency, which may be based on consideration of such factors as deviations from standard operating procedures, recent incidents, or apparent deficiencies in training. (OSHA, CPL 2-2.45A, 1994)

Mechanical Integrity (Maintenance) Training

1910.119(j)(3) – “Training for process maintenance activities. The employer shall train each employee involved in maintaining the on-going integrity of process equipment in an overview of that process and its hazards and in the procedures applicable to the employee’s job tasks to assure that the employee can perform the job tasks in a safe manner.”

In this section they are referring not to the SOPs so much as the written procedures required in 1910.119(j)(2) – “Written procedures. The employer shall establish and implement written procedures to maintain the on-going integrity of process equipment.”

The rule requires that there be written procedures on maintaining the integrity of the covered process and that the personnel performing these procedures be trained in those procedures. Most chemical and petroleum plants have one set of personnel to operate the plant and another to maintain it. Nearly all Ammonia Refrigeration systems have the same personnel operate and maintain the process, so most plants in our position combine these training requirements with the Operator Training requirements.

As OSHA indicated in the preamble, paragraph (j)(3) requires that employers provide maintenance employees with “on-going” or “continual” training adequate “to assure that they can perform their jobs in a safe manner.” In this regard, the paragraph clearly contemplates that new maintenance employees be trained before beginning work at the site, and all maintenance employees receive additional training appropriate to their constantly changing job tasks. (OSHA, CPL 2-2.45A, 1994)

Appendix C to the rule notes that the “employer needs to develop procedures to ensure that tests and inspections are conducted properly and that consistency is maintained even where different employees may be involved. Appropriate training is to be provided to maintenance personnel to ensure that they understand the preventive maintenance program procedures, safe practices, and the proper use and application of special equipment or unique tools that may be required. This training is part of the overall training program called for in the standard.” (OSHA, 29CFR1910.119, 1992)

Note that this includes contractors that are performing MI tasks on the covered process:

This training requirement applies to both host employer’s and contractor employer’s employees performing MI procedures. CPL 02-02-045, Appendix B, pg. B-27, states, “If contract employees are involved in…maintaining the on-going integrity of process equipment, then they must receive training in accordance with specific training requirements set forth in paragraphs (g) and (h), respectively”). (OSHA, Refinery PSM NEP, 2007)

What does a successful training program look like?

A successful Operator Training element will be one that:

  • Ensures the operators are aware of the procedures and will consistently apply those written procedures resulting in fewer process deviations.
  • Ensures the operators understand the process and the procedures so they are able to quickly correct those few deviations that do occur.

“An effective training program significantly reduces the number and severity of incidents arising from process operations, and can be instrumental in preventing small problems from leading to a catastrophic release.” (OSHA, CPL 2-2.45A, 1994)

 

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Management Of Change (MOC) for Personnel

In response to a recent LinkedIn forum post, here’s a short discussion on why MOC should be implemented for some personnel changes.

1910.119(l)(1)

The employer shall establish and implement written procedures to manage changes (except for “replacements in kind”) to process chemicals, technology, equipment, and procedures; and, changes to facilities that affect a covered process.

Certainly, a change to certain personnel can be a change that affects a covered process and OSHA has cited this before when key players have changed such as the PSM coordinator, Maintenance Manager or Safety Director.

To make life simpler, I use the “Management System” rule of thumb. If the person is listed as a “Responsible Person” in the RMP Management System then they are covered in the MOC procedure.

Here are my MOC/PSSR Written Plan (a.k.a. Guideline) section for MOC regarding personnel.

Note that Operators that have no other role in the Management System are not covered under this procedure as they are already covered in the Training element. Here is the form the above procedure is referencing:

Every program I’ve written and PSM class I’ve taught over the last five years uses some variation of this procedure/form.

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Outsourcing your Contractor Selection Process – Can it be done?

Over the past few years we’ve seen an increase in the number of companies that use a 3rd party service to qualify their contractors. Often, these services screen the prospective contractor for their safety record / programs, insurance history / coverage, and financial stability. It’s common to see facilities believe that these contractor qualification services are covering their PSM/RMP Contractor obligations, but this is rarely the case. Let’s review the PSM/RMP requirements regarding Contactors – starting with the facility obligations – to see why:

1910.119(h) Contractors.

1910.119(h)(1) Application. This paragraph applies to contractors performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, delivery or other supply services.

This section covers which contractors are covered under the PSM/RMP rules. Since nearly all of these Contractor Qualification services cover all contractors, you are usually well covered here.

1910.119(h)(2) Employer responsibilities.

1910.119(h)(2)(i) The employer, when selecting a contractor, shall obtain and evaluate information regarding the contract employer’s safety performance and programs.

Every Contractor Qualification service we’ve seen covers this area quite well – in fact, it’s the reason these services exist. 1910.119(h)(2)(ii) The employer shall inform contract employers of the known potential fire, explosion, or toxic release hazards related to the contractor’s work and the process.

1910.119(h)(2)(iii) The employer shall explain to contract employers the applicable provisions of the emergency action plan required by paragraph (n) of this section.

Here we get our first compliance issue. Contractor Qualification services do not possess this information and cannot provide it to the contractor. Let me quote the 2009 Petroleum NEP to show you why this MUST be done by the facility itself:

Compliance Guidance: To assist in determining the applicable known potential fire, explosion or toxic release hazards that the host employer must inform the contract employers about, CSHOs should examine the host employer’s PHA. The PHA must identify the hazards of the process – 1910.119(e)(1) and (e)(3)(i). At a minimum, the hazards identified in the employer’s PHA which are applicable to the contractor’s work must be passed (“informed”) from the host employer to the contract employer – 1910.119(h)(2)(ii). In turn, the contract employer must then instruct its employees on the known potential fire, explosion or toxic release hazards of the process (1910.119(h)(3)(ii)), including, at a minimum, those hazards identified in the host employer’s PHA which are applicable to the contractor’s work.

As you can see, this requires a deliberate and thoughtful analysis of the work the contractor will do and the hazards present by that work – and the area of the process they will be working on. A cookie-cutter Contractor Qualification service cannot provide this service so you need to make sure your program does.

1910.119(h)(2)(iv) The employer shall develop and implement safe work practices consistent with paragraph (f)(4) of this section, to control the entrance, presence and exit of contract employers and contract employees in covered process areas.

Again, a Contractor Qualification service cannot provide this service – this is a facility level requirement that establishes and implements the procedures required under the Operating Procedures element.

1910.119(h)(2)(v) The employer shall periodically evaluate the performance of contract employers in fulfilling their obligations as specified in paragraph (h)(3) of this section.

1910.119(h)(2)(vi) The employer shall maintain a contract employee injury and illness log related to the contractor’s work in process areas.

While a Contractor Qualification service can maintain some general information on the contractor in general such as injury rate and accident history, it will not know about the specific performance of a contractor at your facility – at least not as well as your own people will.

Next, we move on to the PSM/RMP responsibilities of the Contractor…

1910.119(h)(3) Contract employer responsibilities.

1910.119(h)(3)(i) The contract employer shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job.

1910.119(h)(3)(ii) The contract employer shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan.

1910.119(h)(3)(iii) The contract employer shall document that each contract employee has received and understood the training required by this paragraph. The contract employer shall prepare a record which contains the identity of the contract employee, the date of training, and the means used to verify that the employee understood the training.

While a Contractor Qualification service can certainly request this documentation, what’s usually acceptable to the Contractor Qualification service is a generic “statement” on training, not the very specific training required based on the information provided under 1910.119(h)(2)(ii-iii).

1910.119(h)(3)(iv) The contract employer shall assure that each contract employee follows the safety rules of the facility including the safe work practices required by paragraph (f)(4) of this section.

A Contractor Qualification service can certainly ask the contractor to provide a pledge that they will follow the safety rules / practices at the facility, but this can only really be proven through direct on-site examination of the contractor on a regular basis.

1910.119(h)(3)(v) The contract employer shall advise the employer of any unique hazards presented by the contract employer’s work, or of any hazards found by the contract employer’s work.

A Contractor Qualification service will ask the contractor to provide this information, but very often the nature of the work (and the tools used to perform it) change during the project. Again, only direct on-site examination of the contractor on a regular basis can ensure that the contractor is compliant with this requirement.

I hope this review has helped you understand how Contractor Qualification services can be useful to meet some PSM/RMP obligations, while showing you how they cannot replace your entire PSM/RMP Contractor element.

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Updated RMP Rule likely delayed until at least 2019!

I’ve delayed updating the templates that reflect the proposed EPA RMP changes for several reasons. Our patience has been well-rewarded:

The EPA has proposed to further delay the effective date to February 19, 2019. This action would allow the Agency time to consider petitions for reconsideration of this final rule and take further regulatory action, which could include proposing and finalizing a rule to revise the Risk Management Program amendments. This action would allow the Agency time to consider petitions for reconsideration of this final rule and take further regulatory action, which could include proposing and finalizing a rule to revise the Risk Management Program amendments.

DATES:

Comments. Written comments must be received by May 19, 2017.

Public Hearing. The EPA will hold a public hearing on this proposed rule on April 19, 2017 in Washington, DC.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OEM-2015-0725, at http://www.regulations.gov.

As always, I’ll keep you up to date on any changes to the PSM/RMP rules AND appropriate RAGAGEP.

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Why OSHA’s Statute of Limitations doesn’t really matter in PSM/RMP

You may have recently heard a headline that OSHA is losing their right to cite you for something that happened more than six months ago. I’ve heard a disturbing amount of people tell me that this means that many PSM issues can be ignored, because – as long as they “get away” with it for six months – they are uncitable. From the vantage point of safety, this is absurd thinking. Taking such a risk, simply because you are unlikely to be caught, would be the equivalent of not wearing your seatbelt because you aren’t particularly likely to get in a car accident in any given drive. The difference is that when things go wrong in Process Safety, the results are usually far worse than the average car accident.

That said, let’s set aside SAFETY for a second, and look at where this idea comes from:

The Occupational Safety & Health Act of 1970 states in 29USC658(c) that “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”

Years ago, however, OSHA proposed and published a rule stating that “ongoing obligations” required some records to be kept longer – specifically injury and illness records. They stated, in part: “The OSH Act’s statute of limitations does not define OSHA violations, or address when violations occur, nor does the language…preclude continuing recordkeeping violations.” OSHA has actually issued several citations for items that were past the six month statute of limitations, in once case for an ongoing MOC violation that occurred over twelve years ago.

OSHA lost several court cases with this “ongoing violation” issue. The House recently passed a CRA resolution to throw out this rule. Assuming the CRA continues, OSHA will not only continue to lose in court, but they will be barred from issuing a “substantially similar” rule in the future. This has led to a widespread belief that PSM violations that occurred over six months ago will no longer be citable. While that may be technically true, the reality is that they will still be citable as long as OSHA does the legwork to write the citations correctly.

For my example, let me use one of the most common problems I see in Compliance Audits: A recommendation (from PHA or former Compliance Audit) from well over a year ago regarding the identification of surface corrosion on ammonia piping that recommends an increased frequency of inspections and/or remediation of the protective coating.

If that recommendation was unaddressed, in the past OSHA would often cite the PHA or Compliance Audit element from which the recommendation came. Assuming that they are now limited to six months, and the recommendation is older than that, OSHA can NO LONGER cite you for that violation.

Super. Congratulations… But, if OSHA could cite you for not following up on the recommendation, then it’s likely because the pipe is still showing signs of corrosion. That being the case, they CAN cite you for a 1910.119(j)(5) deficiency because the pipe IS rusted during the inspection.

Put a simpler way – they can use the violation from the past to lead them to a violation occurring in-the-moment. Nearly ALL PSM citations can be rewritten to in-the-moment violations.

Furthermore, although the old recommendation can’t be used for a citatable situation directly, it is PROOF POSITIVE that the employer was AWARE of the hazard.

Worse yet, most EPA violations are only subject to the 28USC2462 five-year statute of limitations. It’s not like an OSHA CSHO or AD can’t pick up a phone and call the local EPA office.

TLDR: The end result of OSHA losing their ability to cite for something in PSM that happened over six months ago: Nothing, really.

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How to get Willful OSHA Citations & Fines

The incident we are discussing today is from a recent ruling in the United States Court of Appeals, Seventh Circuit where they recently denied a petition for review in the case of “DANA CONTAINER, INC. v. SECRETARY OF LABOR.” While this particular citation concerns “Permit Required Confined Spaces,” the lessons are applicable to all OSHA rules.

The case arose after toxic fumes in a large container knocked out a man who was working inside it. From the ruling:

In the cold early morning hours of January 28, 2009, one of Dana’s supervisors, Bobby Fox, was on the third shift along with former employee Cesar Jaimes. Fox was working on a trailer and encountered a problem with a clogged valve just as he was about to begin the mechanical cleaning process. Disregarding the safety rules, he entered the tank prior to cleaning it, without attaching himself to the retrieval device or following the entry permit procedures. After a short while, Jaimes looked inside, saw Fox unconscious in a pool of chemical sludge, and called the Summit Fire Department. The firefighters hoisted him out, rinsed off the chemical residue, and transported him to the hospital. Fox was diagnosed with “Syncope and Collapse, Toxic Effect of Unspecified Gas, Fume, or Vapor” (i.e., fainting).

While the employee was rescued by the local fire department, his employer, Dana Container, was cited for Willful violations by OSHA and has been fighting those citations – through an Administrative Law Judge (ALJ), then the OSHA Review Commission and now through the Circuit Court.

Here is a proven three-step plan to get Willful OSHA citations

1)  Have a supervisor break the rules: The employer tried to prove that the unsafe actions were “unpreventable employee misconduct” such that the employer was unaware of the issue. OSHA is required to prove that the employer knew about the problem.

In this case, the supervisor’s knowledge can be imputed to the employer… This path for imputing knowledge is common in employment law. When an employee is acting within the scope of her employment, her knowledge is typically imputed to the employer… Conduct is “within the scope of employment when [it is] ‘actuated, at least in part, by a purpose to serve the [employer],’ even if it is forbidden by the employer.” Here, Fox knew that he was violating the rules when he entered the dirty tank in order to kick loose a stuck valve so that he could then drain the tank. His act was in furtherance of Dana’s tank cleaning business.

2) Have a track-record of failing to follow your own safety programs: OSHA was able to show that the employer should have been able to foresee the supervisor misconduct because they knew (or should have known) there were long-standing issues with their program:

There was evidence showing that nearly all of the tank entry permits at Dana’s Summit facility contained errors or omissions. Some indicated that the entries had exceeded the maximum duration of 20 minutes by over an hour. Others had other flaws: for example, they lacked the requisite air monitoring results; they failed to show the duration for which the permit was valid; they indicated that employees had not reviewed material safety data sheets (or had no information about review); and they failed to name either the entrant or the entry attendant. Whether these errors and omissions occurred because the employees were violating entry procedures or if they reflected only recording problems, there is no evidence that the Facility Manager followed up on the deficiencies. The Commission was therefore justified in concluding that there was a failure to enforce Dana’s safety program… The Commission was entitled to find that the uncorrected permit violations exhibited a pattern of disregard for the rules at Dana. Even in the face of a robust written program, lax disregard of the rules can send a message to employees that a company does not make safety a priority. In such an environment, conduct such as Fox’s is reasonably foreseeable… Dana’s effort to persuade us that the Commission erred by rejecting the “unpreventable employee misconduct” defense also falls short. To use the defense an employer must show that it took steps to discover violations of its safety rules and that it effectively enforced the rules when violations were discovered.

3) Have a shaky track record on enforcement of your own policies: Dana cited a OSHA Review Commission case holding that an employer can demonstrate that the willful conduct of its supervisory personnel should not be imputed to the employer if the employer can demonstrate a good faith effort to comply with the standard.

The Commission…found that although, on the one hand, Dana had work rules that were communicated to its employees and had submitted evidence of three instances of disciplinary action, on the other hand the facility manager had never disciplined an employee for improperly completing permits or for the violations apparent on the face of the permits. The Commission concluded that Dana had therefore failed to take action when violations of safety rules were plain, as would have been required in a good faith effort.

Working backwards, you can avoid willful citations by:

  1. Establishing clear, compliant policies on OSHA rules.
  2. Requiring Supervisors to be responsible for the implementation of our policies, the enforcement of those policies and the documentation of our adherence to those policies.
  3. Requiring the Safety Department to periodically audit the compliance to our policies of field supervisors and personnel.

P.S. Bonus: It’s never a good idea to get in the news:

“A local TV news crew broadcast the rescue that morning, and OSHA inspector Jami Bachus happened to see it before heading to work. She volunteered to inspect Dana’s facility and did so, arriving at the Summit station within three hours of the accident.”

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