OSHA Update—RAGAGEP Standard Interpretation

24 May 2016 Labor & Employment Law Perspectives Blog
Authors: Taylor Eric White

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a Standard Interpretation on the topic of Recognized and Generally Accepted Good Engineering Practices (“RAGAGEP”) in Process Safety Management (“PSM”) Enforcement.  This new interpretation replaces an interpretation of the same title dated June 5, 2015.  In replacing it though, OSHA does not make any substantive changes to the PSM regulatory requirements; standard interpretations cannot do so.

OSHA’s PSM regulations generally contain requirements for managing hazards associated with processes for highly hazardous chemicals.  A “process” is any activity involving highly hazardous chemicals, including using, storing, manufacturing, handling, and/or on-site moving.  29 C.F.R. § 1910.119(b).  PSM requirements apply to certain toxic and reactive chemicals at or above threshold levels and certain flammable gases and liquids.  29 C.F.R. § 1910.119(a)(1).

The PSM standard is multifaceted.  At a high level, it requires employers, among other things, to compile written process safety information, conduct process hazard analyses, develop and implement operating procedures with appropriate employee participation, train employees on the processes, maintain the mechanical integrity of equipment, manage changes in the processes, and plan for emergencies.   See, e.g., 29 C.F.R. § 1910.119(c)(1) (employee participation), (d) (process safety information), (e) (process hazard analyses), (f) (operating procedures), (g) (training), (j) (mechanical integrity), (l) (management of change).  Throughout the requirements regarding process equipment, OSHA has incorporated the concept of RAGAGEP.  See, e.g., 29 C.F.R. §§ 1910.119(d)(3)(ii), (d)(3)(iii), (j)(4)(ii), (j)(4)(iii) (standards associated with the documentation, inspection, testing, design, and construction of equipment used in employer processes).

OSHA purports to accept various potential sources of RAGAGEP.  The most relevant for employers are consensus and non-consensus standards.  Consensus standards are “widely accepted codes,” including, but not necessarily limited to, those published by the National Fire Protection Association (NFPA) or the American Society of Mechanical Engineers (ASME), which follows the due process requirements of the American National Standards Institute (ANSI).  Non-consensus documents, such as manufacturer’s recommendations, are likewise possible sources of RAGAGEP but may not have been published following the ANSI due process protocol.

The third source of RAGAGEP OSHA purports to accept is the employer’s own “internal procedures.”  This acceptance implicitly recognizes that employers are often, themselves, experts in and masters of their own unique processes and the associated hazards.  As a result, this may allow employers some limited flexibility in compliance with the PSM standards.

That said, “internal procedures” will perhaps prove the most controversial potential RAGAGEP source for employers.  For example, if an employer relies on its own internal procedures as RAGAGEP, OSHA will still assess those procedures on a case-by-case basis to determine whether they actually represent RAGAGEP.  This circular logic leaves employers in a predicament to ensure they have properly documented that the particular procedure constitutes RAGAGEP—by referencing, for example, particular consensus and non-consensus standards and then specifying their inapplicability or inadequacy or justifying any deviation.

This problem is particularly troubling in light of OSHA’s enforcement guidance to its compliance health and safety officers (“CSHO”) on RAGAGEP.  OSHA recognizes that multiple sets of RAGAGEP may apply to a particular process.  If an employer establishes an internal procedure and then fails to follow it, OSHA instructs its CSHOs to issue appropriate violations.  See, e.g., 29 C.F.R. §§ 1910.119(e), (j)(2), (j)(5), (l), (m).  And it is no defense for the employer to say that its conduct met a lesser stringent applicable RAGAGEP source that could have applied in the first place.

To make matters more difficult in this regard, OSHA will closely review the language used in the selected RAGAGEP, whether a consensus standard developed by a third-party or an internal procedure prepared by an employer.  The words “shall,” “shall not,” “must,” or “must not” denote requirements, the deviation from which will lead OSHA to presume a violation which the employer must then disprove.  On the other hand, the words “should” or “should not” denote recommendations, the deviation from which will lead to further evaluation of whether the deviation reflects RAGAGEP.

For these reasons, employers need to ensure they have both documented, on the front end, the particular RAGAGEP for the equipment used in the process and documented, on the back end, any deviation from a RAGAGEP source and/or that another source does not apply or does not address all hazards.  That is, internal procedures need to be vetted thoroughly before implementation or revision.  Failure to document in this manner—or, indeed, a failure to prepare documentation or internal procedures carefully when an eye towards the potential issues addressed above—could mean that the employer is cited not only for lack of RAGAGEP, but also for the lack of adequate documentation.

The full Standard Interpretation is available here.

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