EPA RMP update “Delay” rule vacated by DC District Court

EPA retains authority under Section 7412(r)(7) to substantively amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise its effective and compliance dates, subject to arbitrary and capricious review.

. . . the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational explanation of the facts found and the choice made.” When an agency reverses itself, it “must show that there are good reasons for the new policy,” but it need not show that “the reasons for the new policy are better than the reasons for the old one.” However, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” it must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.”

What does it mean? 

The district court said they could have made a new rule which struck down the Obama-era updated rule, but they can’t delay that Obama-era rule longer than the 90 days in the CAA statute. So, the EPA has a few options here:

  1. Appeal the decision
  2. Follow the statutory rule-making process  and delay the rule for a period they can defend.
  3. Follow the statutory rule-making process and remove / modify the requirements of the Obama-era updated rule effectively replacing it with a Trump-era one.
  4. Implement the Obama era rule (This isn’t quite possible as some of the compliance dates have passed or are very close.)

My guess is that it’s a combination of the first 3 options.

You can read the court’s ruling in its entirety online.

The following is my opinion, and you are welcome to skip over it: I have a hobby of reading court rulings and was a bit surprised that the wording the court used. In my opinion, they make a strong case on the law, but have really fluffed it up their ruling with a lot of dramatic language that’s unnecessary.

You almost get the impression they believe that the Obama-era updated rule is going to have a dramatic positive impact on the safety of the chemical industry. If implemented, I believe it will have a dramatic positive impact on the process safety consulting industry but might actually have a negative impact on process safety as it requires people to spend a LOT of time and money on things that haven’t been shown to significantly affect process safety.

Furthermore, there is very little evidence that the changes in the Obama-era updated rule would have prevented or significantly mitigated any of the accidents the court discusses. Just one example is West Texas, which the court discusses but the chemicals involved in the the explosion are not regulated under the RMP rule. The entirety of the updates seems to be more “process safety theatre” than an actual improvement to the regulation.

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Properly Addressing Findings / Recommendations

Process Safety managers are often buried under a torrent of Findings and Recommendations from PSM/RMP elements such as Employee Participation (EP), Process Hazard Analysis (PHA), Pre-Startup Safety Review (PSSR), Incident Investigations (II), and Compliance Audits (CA).

In compliance audits over the past decade the single most likely deficiency I find is failing to properly “address” these Findings / Recommendations. Note: a Finding / Recommendation is considered “addressed” when you either accept & implement it, or justifiably delay the implementation while assuring safe operation. The most common problems are:

  • Failing to respond to the Finding / Recommendation.
  • Failing to document the response to a Finding / Recommendation even if it was addressed.
  • Planning to accept a Recommendation (or proposing a solution to a Finding) in the future (usually through CapEx) while not either:
    • Assuring the situation is safe in the interim.
    • Implementing an interim solution to ensure the process is safe during the delay.

Let’s look at each of these and discuss how Process Safety manager typically fail, and what YOU can do to avoid common failures.


Failing to respond to a Finding / Recommendation

Failing to respond to known issues is all too common. There are many reasons this happens, but in my experience, here are the most common problems:

Not understanding the issue.

Solution: Ask questions about the reason for the Finding / Recommendation. Don’t let someone tell you that something has to be done a certain way without an adequate explanation. Many unnecessary Findings / Recommendations  can be avoided or solved simply by asking the person making it to provide their actual reasons for it. This isn’t about feelings. Ask for the specific hazard, regulation, code, standard, etc. You can’t judge a Finding / Recommendation without understanding it, and neither can management. In the case of legitimate Findings / Recommendations, understanding the issues behind the Finding / Recommendation will help you gain momentum to address the problem.

Assuming the solution won’t be approved

Solution: Don’t prejudge. That isn’t your role. Your role as the Responsible Person is to bring these issues to the people that are in charge of the process. Ask the right questions and present the necessary information to management. THEY are responsible for their decisions after that. Your role is to document their responses and remind them if you haven’t received adequate direction on the disposition of the Finding / Recommendation.

Losing Track of the Finding / Recommendation

Solution: Implement a robust tracking method. Personally, I’ve always liked tracking sheets, but electronic software can work too. Whatever your method, you need a *system* to promptly address and resolve Findings / Recommendations. Once you’ve established this system, use it to set the agenda of your regularly scheduled Process Safety meetings. A tracking system should document:

Where the Finding / Recommendation came from.

Why the recommendation was made and the the actual text of the Finding / Recommendation.

When the Finding / Recommendation was made. When the Finding / Recommendation (and any interim measures) are to be completed by. When activities on it occur and, ultimately, when it is marked as fully addressed.

Who is Responsible for it.

What has been done, is being done, and is planned to be done.


Failing to document the Response

If you’ve implemented a system to track Findings / Recommendations, then this shouldn’t be an issue. Where most people fail here is not documenting what they are told. An example: you bring up a recommendation during a conversation with management and they give you an answer, but you don’t document that verbal answer in your tracking system. Even better, when you are given verbal answers to a Finding / Recommendation, either document that answer in the meeting notes or in a follow-up email to the person that gave you the verbal answer.

Even when you actually addressed the Finding / Recommendation, failing to document it can come back and bite you. I’ve witnessed a situation where a recommendation to paint a valve group was implemented but not documented. A few years later, during an OSHA inspection, the facility was cited for not documenting that they did the work – even though the CSHO agreed that the valve group appeared to have been painted. Remember, there are explicit requirements in the PSM rule that you document Finding / Recommendation resolutions: PHA e(5) “the resolution is documented; document what actions are to be taken…” Incident Investigation m(5) “…Resolutions and corrective actions shall be documented.” Compliance Audit o(4) “…determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.”


Assured Interim Safety or Interim Measures

When you receive a Finding / Recommendation, it’s best to work with the j(5) standard: “… correct deficiencies…before further use or in a safe and timely manner when necessary means are taken to assure safe operation.”

Put simply: Either shut it down or ensure it’s safe to operate while you are planning & implementing your response.

Let’s use the example of a valve group that has been identified as “rusty.”

First, we need to evaluate the condition of the valve station. Is it so bad that you don’t know if it’s safe? If so, shut it down until you can evaluate it further. Document this decision and the reasons for it.

Is it mild surface rust such that it just needs cleaning and a fresh coat of paint? Either clean and paint it right away or document why it’s safe to operate until when you plan on cleaning and painting it.


Bonus: What a flowchart of a SYSTEM for Finding / Recommendation resolution can look like:

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What can we learn from the Fernie Ammonia fatalities?

The October 17th, 2017 Ammonia release in Fernie, BC resulted in three fatalities:

On October 16, 2017, the curling brine chiller at the Fernie Memorial Arena was put back into operation after a seasonal shutdown. During the shutdown and seasonal maintenance, ammonia had been detected in the curling brine system, indicating that the curling brine chiller was leaking… A total of three people were found deceased in the mechanical room: the director of leisure services, the refrigeration operator, and a refrigeration contractor mechanic.


Three people died in a completely avoidable incident. If you want to know the particulars of the incident, I’d recommend you go read the Incident Report itself. While we can’t go back in time and avoid this particular incident, we can extract some valuable lessons from it to prevent a similar incident in the future.

There’s a lot that went wrong, but we’re going to focus on a few key failures in Mechanical Integrity, Process Safety, and Release / Incident Response. We’ll briefly discuss each failure and provide ten opportunities for improving your current Process Safety system.

Note: While this incident occurred in Canada, which does not have robust Process Safety regulation, we’re going to provide our analysis as if it was a PSM/RMP plant. Even if this incident had occurred in the US, the total system inventory was estimated at less than 1,000 pounds, placing it in the General Duty category. Most operators of these General Duty systems do not choose to implement a PSM system – hopefully this incident will cause them to re-evaluate that choice.


Equipment Age and installation: In 2011, the facility received a recommendation from their mechanical contractor to replace the chiller due to its age. It had been in service for about 24 years and had a life expectancy of 20-25yrs. (At the time of failure the chiller was in service for approximately 31yrs.) The facility actually budgeted for this replacement, deferred it, and then dropped the idea altogether. The report (and appendices) detail this decision making and indicates that the people making these decisions didn’t understand the underlying safety issues or the possible repercussions of these decisions. In part this was due to management turnover – the people who received the initial recommendation no longer worked at the facility when those recommendations were due to be implemented. Additionally, post-release, it was determined that the failed coupling was not properly supported.

Possible PSM citations: 1910.119(d)(3)(ii) for not installing the coupling per the manufacturers recommendations. 1910.119(d)(3)(ii) for equipment operating outside manufacturer’s recommended lifespan. 1910.119(e)(1) for the PHA not analyzing the hazards associated with operating outside the manufacturer’s recommended lifespan. 1910.119(j)(5) for operating the equipment with a known (service life) deficiency without assuring safe operation. 1910.119(m)(5) for not addressing and resolving a recommendation. (if the recommendation was made due to an indication of NH3 in the brine)

Opportunity #1: When a piece of equipment has a stated service life, you need to either replace the equipment per the recommendation or support your decision to keep it in service with a suitable engineering rationale.

Opportunity #2: When operators & contractors make recommendations, they need to provide CLEAR and defensible reasons for those recommendations.

Opportunity #3: When recommendations are delayed, deferred, or not completed, the operators & contractors need to ensure that the decision makers understand the implications of their decisions.

Opportunity #4: A Pre-Startup Safety Review (PSSR) and ongoing MI tasks need to ensure that equipment is installed correctly and maintained in a safe manner / arrangement.


Signs of Failure and Deficiency Response: The facility detected NH3 in the brine (by scent) in April of 2017 and then followed it up with a lab test of the brine showing over 3,000ppm of NH3 in June. The facility decided to continue operating the chiller and “monitor” it. A second test in August showed an NH3 concentration near 2,000ppm. Again, the facility decided to keep “monitoring” the situation. The report indicated that the personnel performing the tests and receiving the results didn’t understand the safety implications of them. Even after receiving the tests showing the chiller had failed, the facility decided to keep operating it. According to the report, there was no evidence the facility understood the hazards associated with a leaking chiller.

Furthermore, due to a miscommunication, the contractor believed the facility had taken the chiller out-of-service and they were preparing a bid to replace the leaking unit. The contractor’s recommendation to “monitor” the unit was likely meant to monitor it to see if the valves were leaking by, but the facility interpreted it as a go-ahead to continue operating the defective chiller until it could be replaced as long as they “monitored” it.

The contractor had no policy or procedure in place to deal with a failed chiller outside the usual troubleshooting, repair and replace activities. The investigators concluded that none of the people involved with the decision to continue operating the chiller had training or qualifications involving condition/risk assessment.

Possible PSM citations: 1910.119(j)(5) for operating the equipment with a known (integrity) deficiency without assuring safe operation. 1910.119(m)(5) for not addressing and resolving a recommendation. 1910.119(g)(1)(i) for not training personnel of the hazards associated with a leaking chiller.

Opportunity #5: Personnel reviewing test results need to understand the meaning of the test results and the safety implication of those test results.

Opportunity #6: When test results are provided to decision-makers, these results need to provide adequate information so that the decision-makers understand them and their safety implications.

Opportunity #7: When contractors are called to deal with deficient equipment, they will almost always provide guidance / estimates on how to repair / replace the equipment, but facilities should demand a risk assessment on continued operation of the equipment if they intend to continue its operation while planning and preparing for the repair / replacement.

From Appendix V of the report: “In the majority of instances, owner/operators relied heavily on the refrigeration contractor’s assessment of the equipment and evaluation of the NH3 indication in the brine samples. The owner is accountable for the safe condition and operation of the equipment but in some instances, deferment to the refrigeration contractor’s assessment and recommendations for the equipment was observed.”

Opportunity #8: When a facility outsources maintenance work, they often erroneously think that they are outsourcing the responsibility as well. It is important for a facility to understand that this remains their process and their responsibility. Ask tough questions of your contractors to ensure that you understand the condition of your system.


Facility and Contractor Incident Release Response: On the day of the release at 03:53 the machine room NH3 alarm registered 300ppm. Responding facility personnel observed the brine expansion tank shaking and spilling brine. At 04:30, the facility personnel shutdown the system and closed the chiller suction valve, observing that the shaking in the brine tank stopped. This should have indicated to the facility personnel that the separation between the brine and NH3 sides was completely compromised and that the brine loop was now full of ammonia. At 05:18 the facility personnel called the contractor to come in and re-configure the system to operate without the brine chiller.

At some point during the work, the personnel isolated the brine chiller, trapping the ammonia-laden brine in the chiller with no outlet available for it. As this ammonia-laden brine warmed up, the pressure inside the brine chiller rose and, at an estimated pressure of 30-150psig, a coupling on the brine-side of the brine chiller failed releasing the contents into the machine room and onto the personnel in the room. The estimated total NH3 release was 22 pounds (9lbs immediately vaporizing) resulting in an immediate concentration in the area of 20,000ppm which dissipated to about 5,000ppm over a period of 5 minutes.

The report uses electricity demand to conclude that the personnel did not attempt a pump-out of the brine chiller. Unlike a CSB report, the report does not go into the fatalities. We have no idea where the personnel were positioned in the room, or what – if any – PPE they were wearing at the time of the release. It can reasonably be surmised that they weren’t wearing any respiratory PPE at all.

Possible PSM citations: 1910.119(g)(1)(i) for not training personnel of the hazards associated with NH3 contaminated brine and the hazards of trapping it. 1910.119(h)(3)(ii) for the contractor not being trained in the hazards associated with NH3 contaminated brine and 1910.119(h)(2)(v) for the facility not ensuring this training occurred. 1910.119(n) for not providing “procedures to handle small releases.” 1910.119(f)(1)(i)(D) for not providing an emergency shutdown procedure. 1910.119(f)(1)(i)(E) for not providing an emergency operations procedure.

Opportunity #9: While we often train on the dangers associated with trapping NH3, the dangers of trapping NH3 contamination in a secondary loop is rarely discussed. Operator training in facilities that utilize secondary cooling loops must address contamination and its possible safety implications.

Opportunity #10: While it’s not possible to know for sure, it is extremely likely that all three of these fatalities could have been avoided if the personnel were wearing full-face APRs at the time of release. Note: They would have to have been wearing them, not have them “near-by.” APR’s aren’t magic.

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Is a condenser change a Replacement in Kind?

The Question:

Imagine a project where you are going to replace an existing condenser with a newer model. Does this “change” trigger the MOC element or does it fall into the Replacement in Kind exemption to the MOC requirement?

This question comes up from a customer several times a year.


The Short answer:

The answer – if you are short on time – is: An equipment change rarely qualifies as a Replacement in Kind


The LONG answer:

First, let’s look at the relevant text of the PSM MOC requirement:

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. (The RMP text is essentially the same, so we’re just going to focus on the PSM text)

This text is about the scope of the MOC requirement; or to put it another way: What triggers the requirement?

This proposed condenser change is obviously a change to equipment that has the potential to affect a covered process so it could be covered. In theory, if the new condenser does not affect a covered process we could classify it as a Replacement in Kind. Unfortunately, we don’t actually know if the new condenser will affect the process until we investigate the change. Some questions we’ll need to ask include (but are not limited to):

1) Are there piping / valving changes?

2) Is the overpressure protection the same?

3) Does the new equipment require any changes to the inventory calculation, relief calculation, equipment schedule, etc?

4) Are there any changes to the electrical requirements and controls?

5) Does the new equipment require any changes to existing SOP(s) and MIP(s)?

6) Does the new equipment require any changes to the existing MI schedule?

7) Does the new equipment require any changes to the existing Operator Training?

8) Does the new equipment require any change to the existing Process Hazard Analysis to ensure it properly identifies, evaluates and controls the hazards of the new equipment?

9) Are there any other ways that this new equipment could affect safety and health?

That’s a lot of questions to ask and it’s really just the beginning of them. To even consider this new equipment a Replacement in Kind, we’d have to ask all these questions (and more) and answer them with “No, there are no changes required”.

You know a great way to ensure that you ask these types of questions and properly document your answers? THE MOC ELEMENT. It is literally a written program to Manage Changes.

While it’s not very likely that you will go through the entire MOC procedure and find there are no required changes to the PSM program, if you did so, then you could properly quantify the replacement as a Replacement in Kind and you would have your written questions and answers to defend that judgement.


Where does the confusion come from?

Why do so many people think that these types of equipment changes are not covered by the MOC requirement? Often it’s as simple as getting bad advice from consultants or refrigeration “schools.” I think part of the confusion on the issue stems from legacy industry guidance. For the vast majority of Ammonia PSM practitioners, the IIAR is our go-to guidance on design, construction, startup, decommissioning, maintenance, etc., so it’s natural to refer to them for PSM guidance.

Here’s a section from the IIAR’s  1994  Guide to the Implementation of Process Safety Management for Ammonia Refrigeration:


Here’s the same section from the IIAR’s 2012 updated Process Safety Management and Risk Management Program Guidelines:


Some quick thoughts on that guidance:

1) The term “Like for like” does not exist in the text of the PSM or RMP rule(s) and only leads to more confusion.

2) The first bullet of the 1994 guidance muddles the issue with assumptions. In the legal realm this is referred to as “Assuming facts not in evidence” meaning that the argument is relying on data that hasn’t been provided. We don’t know if the “piping, specifications, connections, instrumentation, and controls” are identical until we actually perform the MOC or something A LOT like it.

3) The second bullet of the 1994 guidance and the revised 2012 guidance are clearer, but they suffer from the same problem with assumptions.

Note: The IIAR is currently updating the Process Safety Management and Risk Management Program Guidelines and I expect the new version to significantly alter this guidance.


Why does this matter?

Misclassifying a covered change as a Replacement in Kind often allows the facility to circumvent the Management of Change procedure.

Let me offer a real-world example: During a client visit it was discovered that they were having a replacement condenser installed and that they were classifying it as a Replacement in Kind. They explained that they were doing this because they treated a previous condenser replacement as a Replacement in Kind due to advice from a class one of their employees had attended. We started asking some questions and in under an hour found the following:

1) The relief valves had been removed from both condensers and replaced with hand valves and pipe stubs. (Presumably to allow manual purging)

2) The new stubs did not have caps installed and were therefore open to the atmosphere.

3) The P&IDs no longer reflected the as-built condition of the facility for either of the condensers.

4) The SOPs still referred to the OLD models, not the current ones.

5) The SOPs still referenced the removed relief valves.

6) The PHA section covering condensers still listed relief valves as a safeguard and therefore did not properly identify, evaluate and control the hazards of the condensers.

ALL the above issues would have been avoided with a properly conducted Management of Change procedure.

Original Post: RCE-Chill

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IIAR 6 Public Review #3

Make your opinion known BEFORE the changes go final!

IIAR 6 continues its development. This document will replace IIAR Bulletin 110 (among others) and will be very important. The current review only lists changes since Public Review #2.

To: IIAR Members
Re: Third (3rd) Public Review of Standard BSR/IIAR 6-201x, Standard for Inspection, Testing, and Maintenance of Closed-Circuit Ammonia Refrigeration Systems.
A third (3rd) public review of draft standard BSR/IIAR 6-201x, Standard for Inspection, Testing, and Maintenance of 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 6-201x, specifies the minimum requirements for inspection, testing, and maintenance applicable to stationary closed-circuit ammonia refrigeration systems. It presupposes that the persons who use the document have a working knowledge of the functionality of ammonia refrigeration system(s) and basic ammonia refrigeration practices and principles. This standard is intended for those who inspect, test, and maintain stationary 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 6-201x. 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 third (3rd) public review of BSR/IIAR 6-201x. 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 6-201x 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 July 6th, 2018 through August 20th, 2018. Comments are due no later than 5:00 pm Eastern Standard Time (EST) on August 20th, 2018.

Thank you for your interest in the public review of BSR/IIAR 6-201x, Standard for Inspection, Testing, and Maintenance of Closed-Circuit Ammonia Refrigeration Systems.

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Worksite Posters

Head on over to RCE-Chill to see our latest worksite posters.

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Yet another update on the RMP Updates!

Today, EPA’s Administrator, E. Scott Pruitt, signed a new proposed rule, further changing the Obama-era EPA’s proposed changes and the EPA is submitting that for publication in the Federal Register (FR).

Basically, it outlines two proposals for the Obama-era EPA’s proposed changes:

  • Repeal nearly ALL of the Obama-era EPA’s proposed changes essentially returning the RMP rule back to its 2004 condition.
  • Repeal about 90% of the Obama-era EPA’s proposed changes and alter/replace the remainder with some more flexible options for compliance.

While there is a lot of information to digest, the basic arguments for the changes the Trump-era EPA is making are:

  • The EPA wants to maintain its historic consistency with OSHA’s PSM standard as mandated by the Clean Air Act which established the requirement for the PSM/RMP rules. The EPA believes it may update the rule further if OSHA moves forward with its (currently stalled) update process but that it will do so in a coordinated fashion with OSHA to minimize divergence.
  • Address Security Concerns raised by many commenters.
  • Address BATF finding on West Fertilizer incident.
  • Reduce unnecessary regulations and regulatory costs in response to three Executive Orders that require Agencies to place greater emphasis on reducing regulatory costs and burdens.
  • Revise compliance dates to provide necessary time for program changes.

As always, stay tuned for further information. We’re still years away from a change at this rate!

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Learning from Failure

“Failure is only opportunity to begin again. Only this time, more wisely.” –Henry Ford

We often push PSM practitioners to perform Incident Investigations for fairly minor events in the hopes that the lessons learned from those minor incidents will stop the larger incidents from happening. This is, in part, due to CCPS (Center for Chemical Process Safety) guidance that, for every single catastrophic accident, there are typically nearly 9,900 minor issues / process upsets and 99 near misses.

So, if you only investigate the catastrophic incidents, then you are only acting on 0.010% of the opportunities available to you to improve your control over the process.

OSHA has promoted this idea as far back as a decade ago…

OSHA and industry have found that when major incidents have occurred, most of these incidents have included precursor incidents. Additionally, OSHA and industry (See CCPS [Ref. 41], Section 5, “Reporting and Investigating Near Misses” have concluded based on past investigations, that if employers had properly responded to precursor incidents, later major incidents might not have occurred. Consequently, anytime an employer has an “opportunity” to investigate a near-miss/precursor incident (i.e., an incident that could reasonably have resulted in a catastrophic release) it is important that the required investigation is conducted and that the findings and recommendations are resolved, communicated, and integrated into other PSM elements/systems so a later major incident at the facility is prevented. …It is RAGAGEP to investigate incidents involving system upsets or abnormal operations which result in operating parameters which exceed operating limits or when layers of protection have been activated such as relief valves. (An example RAGAGEP for investigating incidents, including near-miss incidents is CCPS [Guidelines for Investigating Chemical Process Incidents, 2nd Ed.], this document presents some common examples of near-miss incidents). (OSHA, Refinery PSM NEP, 2007)

Going a step further, it’s often true that you can learn something about managing complex operations from businesses in entirely different fields. One field that I like to follow – in part because it’s endlessly re-inventing itself – is information technology.

Google recently published an article on their Post-Mortem culture, with a farcical worked-example that includes the movie “Back to the Future” and a newly discovered sonnet by Shakespeare. The practice of learning from their failures is actually part of their Sight Reliability Engineer handbook and you can read the entire chapter if it appeals to you.

“Failures are an inevitable part of innovation and can provide great data to make products, services, and organizations better. Google uses ‘postmortems’ to capture and share the lessons of failure…

… For us, it’s not about pointing fingers at any given person or team, but about using what we’ve learned to build resilience and prepare for future issues that may arise along the way. By discussing our failures in public and working together to investigate their root causes, everyone gets the opportunity to learn from each incident and to be involved with any next steps. Documentation of this process provides our team and future teams with a lasting resource that they can turn to whenever necessary.

And while our team has used postmortems primarily to understand engineering problems, organizations everywhere — tech and non-tech — can benefit from postmortems as a critical analysis tool after any event, crisis, or launch. We believe a postmortem’s influence extends beyond that of any document and singular team, and into the organization’s culture itself.”

Google’s Pre-Mortem Tool – Anticipating what can go wrong.

Google’s Post-Mortem Tool – Dealing with what actually went wrong.

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What you need to know about Repeat Citations

First, what is a Repeat Citation? Here’s what OSHA has to say about it in their Field Operations Manual or FOM:

An employer may be cited for a repeated violation if that employer has been cited previously for the same or a substantially similar condition or hazard and the citation has become a final order of the Occupational Safety and Health Review Commission (OSHRC). A citation may become a final order by operation of law when an employer does not contest the citation, or pursuant to court decision or settlement. The underlying citation which the repeated violation will be based on must have become a final order before the occurrence or observation of the second substantially similar violation. (OSHA FOM Chapter 4, Section VII(A)(1). Pg. 4-21&4-22)

A Repeat violation is essentially exposing your employees to the same (or substantially similar) conditions or hazards after your company has previously been cited for the same (or substantially similar) conditions or hazards. Note that this is about your company and not your facility. If you are working for Billy Bob’s Cold Storage and they have four facilities, you may well be subject to a Repeat citation based on a citation issued at one of the other facilities. For Federal OSHA, the citation must have been made by Federal OSHA, not a state plan:

Federal Repeat Citations cannot be based on prior citations from State Plans (OSHA FOM Chapter 4, Section VII(A)(2). Pg. 4-22)


OSHA needs to establish three things to establish a Repeat violation:

  • That the underlying condition or hazard is the same or substantially similar to one used as the basis for a previous citation.
  • That the previous citation has been finalized – it can not be used to establish a Repeat violation if it is still being contested.
  • That you actually came into compliance after the original citation.


Condition Substantially Similar:

They are issued based on similar conditions or hazards, not based on identical OSHA standard (OSHA FOM Chapter 4, Section VII(B) & VII(B) Pg. 4-22)

They CAN be issued for General Duty Citations (OSHA FOM Chapter 4, Section III(E). Pg. 4-18)

The key to understanding this is that it is NOT based on the particular OSHA Standard or Rule, it is based on the conditions / hazards. This is particularly important under PSM because a single condition or hazard may be cited under several different portions of the PSM Standard or Rule. As an example, let’s say that you were previously cited under PSM 29CFR1910.119(l)(5) for lacking an SOP for a new piece of equipment that was installed. The condition or hazard is not providing an SOP for a piece of equipment that operators are expected to operate. However, it’s important to note that the same condition or hazard could have been cited under 29CFR1910.119(e)(1), 29CFR1910.119(e)(3)(i), 29CFR1910.119(f), 29CFR1910.119(f)(2), 29CFR1910.119(f)(3), 29CFR1910.119(g)(1)(i), 29CFR1910.119(l)(2)(iii), 29CFR1910.119(i)(2)(ii), etc. Remember, it’s about the condition or hazard, not the individual OSHA rule.


Previous Citation is Final:

… the citation has become a final order of the Occupational Safety and Health Review Commission (hereafter,OS&H Review Commission). A citation may become a final order by operation of law when an employer does not contest the citation, or pursuant to court decision or settlement. The underlying citation which the repeated violation will be based on must have become a final order before the occurrence or observation of the second substantially similar violation. (OSHA FOM Chapter 4, Section VII(A)(1). Pg. 4-21&4-22)

While that seems like a minor legalistic issue, it’s one of extreme importance if you have been cited for an OSHA violation. Let’s imagine a situation where your facility is cited for a training issue. While you certainly want to address that issue as soon as possible, it may be wise to delay the settlement of the OSHA violation until you can address the same issue in your sister facilities as well. Settling quickly with OSHA may expose those sister facilities to Repeat violations.


You actually came into compliance after the first citation:

They are different from “Failure to Abate” citations. If an employer never came into compliance after an initial OSHA’s initial inspection / citation, that is a “Failure to Abate.” If the violation was corrected, and then later reoccurs, that is a Repeated violation. (OSHA FOM Chapter 4, Section VII(F) Pg. 4-23)

This is only really a matter of the associated fine. If the citation is Repeat, the fine is capped at about $129k. If the citation is actually a Failure to Abate, the fine is capped at $12.9k a day for up to 30 days or $387k.


Why are we seeing more Repeat citations?

Inspectors are being told to specifically look for these issues:

During inspections, CSHO’s must pay particular attention to identifying instances of Repeated violations from season to season or past occupancy. (OSHA FOM Chapter 12, Section II(F)(3) Pg. 12-3)

During the course of the ChemNEP inspection, the CSHO shall review abatement for all PSM citations issued within the previous six years to determine whether the hazard still exists. (OSHA CPL 03-00-021, Section XI(E)(10) Pg. 31)


What are the ramifications of a Repeat citation?

The fines can be up to $129,336 for each Repeated citation. (OSHA Act of 1970, Section 17) (OSHA Website on Penalties)

A single Repeat citation involving a fatality can place you in the Severe Violator Enforcement Program (SVEP). Two or more Repeat citations can place you in the SVEP if you have a “High Emphasis Hazard” as outlined in CPL 02-00-149 (which includes PSM facilities) (OSHA FOM Chapter 11, Section II(M)(2)(a) Pg. 11-13)

SVEP cases often spread to the entire region or even the entire country if the facility has sister facilities in other areas. OSHA may choose to inspect those other facilities or issue an abatement demand for ALL the sister facilities based on conditions found at SOME of them. Furthermore, OSHA “shall consider going beyond the subject of the citations to include additional safety and health program enhancements,” even for items that were not cited during the inspection. (CPL 02-00-152)

No reduction shall be given for repeated violations. If a repeated violation is found, no reduction for good faith can be applied to ANY of the violations found during the same inspection. (OSHA FOM Chapter 6, Section III(B)(3)(a) Pg. 6-7)

Each repeated violation is evaluated as serious or other-than-serious, based on current workplace conditions, and not on hazards found in the prior case. (OSHA FOM Chapter 6, Section V(A)(1) Pg. 6-11)

Repeat violations can be the basis of 11B enforcement action where the US Court of Appeals is asked to enforce the order. (OSHA FOM Chapter 15, Section XIV(B)(3) Pg. 15-14)

Obviously, there’s a lot of dollar signs involved, but that’s just the start of the possibilities. The real damage can come from becoming enrolled in the Severe Violator Enforcement Program or SVEP.  The SVEP program is a nightmare that you want to avoid. I really can’t summarize it better than Eric Cohn did at OSHA Defense Report.

An employer is entered into SVEP at the outset of an OSHA case, prior to an opportunity to defend itself and prove wrong OSHA’s alleged violations. Notwithstanding this end run around Constitutional Due Process, once in the program, SVEP employers are immediately subject to:

  • Public shaming by OSHA through both an inflammatory, embarrassing, and one-sided press release detailing the alleged violations and by posting the employer’s name on a Severe Violator list on OSHA’s public website;Severe Violator Image
  • Mandatory follow-up inspections at that cited facility and up to ten sister facilities within the organization; and
  • More expansive settlement terms than ever before, including corporate-wide requirements.


How far back can OSHA look for a previous citation to use as the basis for a Repeat?

Short answer – As long as they want. Long answer:

Although there are no statutory limitations on the length of time that a previously issued citation can be used as a basis for a repeated violation, it is OSHA policy that they are only to be issued withing five years of the final order date of the previous citation or within five years of the final abatement date, whichever is later, or five years from the issue of a final order from the OS&H Review Commision or final mandate from the US Court of Appeals. (OSHA FOM Chapter 4, Section VII(E)(1) Pg. 4-23)

  • Recent Court rulings have shown that since there are no statutory limitations on the Look-Back period, OSHA could issue Repeat citations based on citations older than five years. (OSHRC Triumph Construction)

  • Under OSHA Commission precedent, the “time between violations does not bear on whether a violation is repeated.” (OSHRC Hackensack Steel)

This long reach means that you need to know your history – and the history of your sister facilities.


Sources: OSHA FOM, CPL 02-00-149 (SVEP), CPL 02-00-152, CPL 03-00-021, OSHA Act of 1970 (Judicial Review), OSHA Website on Penalties, OSHRC Triump Construction, OSHRC Hackensack Steel.

Posted in Compliance, General Duty, General Information, NEP, OSHA | Tagged , , , | Leave a comment

General Duty vs. PSM/RMP: Is there a benefit to dropping below the 10,000lb threshold?

Several times a year I get a phone call or an email from a client that wants to lower the NH3 inventory below the federal 10,000lb threshold so they are no longer subject to the PSM/RMP rules. It’s a conversation I’ve had nearly a hundred times over my career, so I thought it would be worth writing down my thoughts on this subject for posterity. The factors break down into three categories: Logistical, Regulatory and Safety.

Logistical: If you’re close to the 10,000lb threshold, you may be able to reduce the NH3 inventory below the regulatory line of 10,000lbs., but there are some things worth considering:

Is it safe? A system operating below the level it was designed to operate is often called starved. Starved systems can be unsafe due to the increased rates of vapor propelled slugging and low vessel levels causing pumps to cavitate. This isn’t something you want to do without consulting a design engineer.

Can I keep it at this level? If we dropped our system inventory to 9,900lbs., we are going to have to ensure it stays below the 10,000lb threshold or we can end up in a regulatory nightmare. Future charges (to replace losses) will require careful calculation to ensure that we stay on the right side of the threshold. This can be done through a good inventory management program, but it’s something you’re going to want to plan for.

Regulatory: If we drop below the 10,000lb threshold, we can remove ourselves from the federal RMP & DHS registries, but we will still have to meet the OSHA and EPA General Duty requirements for our NH3 refrigeration system.

To quote OSHA:

“Employers can be cited for violating the General Duty Clause if there is a recognized hazard and they do not take reasonable steps to prevent or abate the hazard.”

When we discuss things like “recognized hazard” we are discussing the things that are outlined in appropriate RAGAGEP. What would be RAGAGEP for an NH3 refrigeration system below 10,000lbs? At a minimum, ALL the IIAR standards & bulletins as well as the IIAR ARM (Ammonia Refrigeration Management) program. What does that mean?

  • The system design still has to comply with IIAR 2 Standard for Safe Design of Closed-Circuit Ammonia Refrigeration Systems
  • The installation still has to comply with IIAR 4 Installation of Closed-Circuit Ammonia Refrigeration Systems
  • The startup and commissioning still has to comply with IIAR 5 Start-up and Commissioning of Closed-Circuit Ammonia Refrigeration Systems
  • The process safety information and maintenance program still has to comply with IIAR
    • Bulletin 108 Guidelines for: Water Contamination in Ammonia Refrigeration Systems
    • Bulletin 109 Minimum Safety Criteria for a Safe Ammonia Refrigeration System
    • Bulletin 110 Guidelines for: Start-Up, Inspection and Maintenance of Ammonia Mechanical Refrigerating Systems
    • Bulletin 114 Guidelines for: Identification of Ammonia Refrigeration Piping and System Components
    • Bulletin 116 Guidelines for: Avoiding Component Failure in Industrial Refrigeration Systems Caused by Abnormal Pressure or Shock
    • The upcoming IIAR Standard 6 Inspection, Testing, and Maintenance of Closed-Circuit Ammonia Refrigeration Systems which will replace all the above bulletins
  • The operating procedures still has to comply with IIAR 7 Developing Operating Procedures for Closed-Circuit Ammonia Mechanical Refrigerating Systems
  • The overall system safety management program will have to comply with the IIAR ARM program which is about 90% of the paperwork burden of a full PSM/RMP program.

If you are looking at that list and thinking “There’s almost no benefit to dropping below the 10,000lbs mark from a regulatory standpoint” you aren’t wrong. There is ONE and it’s fairly minor: Generally speaking, your potential fines for violating OSHA’s or EPA’s General Duty clause are smaller than those for violating PSM/RMP. I say generally, because that’s not always the case. As an example, here’s a consent agreement for a $185,000 fine under the EPA’s General Duty clause.

Let me summarize the regulatory situation of a General Duty NH3 refrigeration facility in a single sentence: A General Duty NH3 refrigeration system is going to have 95% of the regulatory burden of a PSM/RMP facility (and thus have to do the same things as a PSM/RMP facility would) but you won’t have the well-understood PSM/RMP structure to help manage that regulatory burden.

Safety: In theory, any inventory reduction provides some small measure of reduced risk. In practical terms, though, there is usually very little effect. Often, due to the way our systems are designed (and the way the RMP scenarios are calculated) there is no change at all in the calculated area of effect of a release scenario*. Also, it’s important to keep in mind that very small amounts of NH3 can pose a danger to your personnel – it doesn’t matter that you’ve reduced your inventory from 11,000lbs to 9,900lbs when a release of 5lbs can pose mortal danger to a technician.

In my experience though, the real danger of reducing your inventory below the threshold is that facilities that do so almost always give their General Duty compliance a lower priority than they gave to their PSM/RMP compliance. These facilities become less safe because they believe that they are less exposed to OSHA and the EPA.

Conclusion: Yes, lowering your inventory can produce a slight increase in inherent safety and a lower regulatory exposure, but in practice, it usually does very little other than give the facility an excuse to de-prioritize safety and compliance.

I work with many companies with National and International brands. Nearly ALL of these companies treat their General Duty facilities as if they have over the 10,000lb threshold, for the same reason: Brand protection – You never want to be in a position where you are making the argument that you didn’t provide the highest level of safety to your employees and your community because you didn’t have to by law!

* No, Worst-Case and Alternate release scenarios are not required by General Duty plants, but I always calculate and map them so the facility understands the possible ramifications of a release on their community.

Posted in Community Involvement, Compliance, General Duty, Good Engineering Practices | Tagged , , , , | Leave a comment