You may have recently heard a\u00a0headline that OSHA is losing their right to cite you for something that happened more than six months ago. I\u2019ve heard a disturbing amount of people tell me that this means that many PSM issues can be ignored, because – as long as they \u201cget away\u201d 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.<\/p>\n
That said, let’s set aside SAFETY for a second, and look at where this idea comes from:<\/p>\n
The Occupational Safety & Health Act of 1970<\/a> states in 29USC658(c) that \u201cNo citation may be issued under this section after the expiration of six months following the occurrence of any violation.\u201d<\/p>\n Years ago, however, OSHA proposed and published a rule stating that \u201congoing obligations\u201d required some records to be kept longer \u2013 specifically injury and illness records. They stated<\/a>, in part: \u201cThe OSH Act\u2019s statute of limitations does not define OSHA violations, or address when violations occur, nor does the language\u2026preclude continuing recordkeeping violations.\u201d 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.<\/p>\n OSHA lost several court cases with this “ongoing violation” issue. The House recently passed a CRA resolution<\/a> 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.\u00a0This 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 <\/em>true, the reality<\/strong> is that they will still be citable as long as OSHA does the legwork to write the citations correctly.<\/p>\n For my example, let me use one of the most common problems I see in Compliance Audits<\/a>: 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.<\/p>\n 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.<\/p>\n Super. Congratulations…\u00a0But,<\/strong> if OSHA could cite you for not following up on the recommendation, then it\u2019s likely because the pipe is still<\/em> showing signs of corrosion. That being the case, they CAN<\/strong> cite you for a 1910.119(j)(5) deficiency because the pipe IS<\/em> rusted during the inspection.<\/p>\n Put a simpler way \u2013 they can use the violation from the past\u00a0to lead them to a violation occurring in-the-moment. Nearly ALL PSM citations can be rewritten to in-the-moment violations.<\/p>\n 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.<\/p>\n Worse yet, most EPA violations are only subject to the 28USC2462 five-year statute of limitations. It\u2019s not like an OSHA CSHO or AD can\u2019t pick up a phone and call the local EPA office.<\/p>\n TLDR: The end result of OSHA losing their ability to cite for something in PSM that happened over six months ago: Nothing, really.<\/p>\n","protected":false},"excerpt":{"rendered":" You may have recently heard a\u00a0headline that OSHA is losing their right to cite you for something that happened more than six months ago. I\u2019ve heard a disturbing amount of people tell me that this means that many PSM issues … Continue reading