RAGAGEP and PSM Enforcement

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OSHA‚ Directorate of Enforcement Programs recently issued enforcement guidance on the application of the PSM standard (29 CFR 1910.119) requirements regarding Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). These good engineering practices are most often found in published industry consensus standards (e.g. ANSI/IIAR 2-2008 Ammonia Refrigeration Systems) and codes (e.g. NFPA 70 National Electric Codes). Under certain circumstances RAGAGEP can include a facility‚ internal standards.

There are three provisions of 29 CFR 1910.119 which reference RAGAGEP:

  • (d)(3)(ii): Employers must document that all equipment in PSM-covered processes complies with RAGAGEP
  • (j)(4)(ii): Inspection and tests on process equipment subject to the mechanical integrity requirements must be conducted in accordance with RAGAGEP
  • (j)(4(iii): Frequency of tests and inspections must follow manufacturer‚ recommendations and RAGAGEP.

In short, under the PSM Standard, RAGAGEP applies to the following components of covered process equipment:

  • Installation
  • Operation
  • Maintenance
  • Inspection and test practices
  • Inspection and test frequencies

 

Shall’ and Should in RAGAGEP

In this memorandum OSHA sets forth its view that the use of shall, must or similar language in published RAGAGEP establishes that the practice is mandatory, and if an employer deviates from shall or shall not requirements in the applicable RAGAGEP, a violation will be presumed.

OSHA contends that the use of should or similar language in the RAGAGEP reflects an acceptable or preferred approach to controlling a recognized hazard. If the employer complies with the RAGAGEP recommended approach, OSHA will presume that such an approach to the hazard is acceptable.

However, if an employer chooses an approach other than the one the RAGAGEP says should apply, OSHA inspectors (CSHOs) are instructed to evaluate whether the employer‚ alternate approach is at least as protective as the RAGAGEP suggested approach.

CSHO‚ are given additional guidance in evaluating an employer‚ RAGAGEP compliance and are instructed to:

  1. Evaluate whether multiple RAGAGEP apply to a specific process.
  2. Remember that employers do not need to comply with a RAGAGEP provision that is not applicable to its specific worksite conditions, situations or applications.
  3. Evaluate whether an employer is using a RAGAGEP outside of its intended application (e.g., applying ammonia refrigeration standards in a chemical plant or refinery). Use of inapplicable RAGAGEP is grounds for a citation.
  4. If a RAGAGEP does not fully apply, the employer‚ internal standards are expected to address the process hazards; the adequacy of these internal standards is to be addressed on a case-by-case basis.
  5. An employer‚ internal standards may be more stringent that the relevant RAGAGEP (to control hazards unique to the process). Under these circumstances, if an employer meets RAGAGEP requirements, but fails to comply with its own internal standards, it may be grounds for a citation.
  6. Selectively applying individual provisions from multiple RAGAGEP addressing similar hazards may be inappropriate, and may lead to citations (to be evaluated on a case-by-case basis).
  7. Failure to document that the inspection and testing of equipment complies with RAGAGEP (1910.119 (j)(4)(ii) and (iii)) constitutes a violation.
  8. Employers must document that the covered process equipment complies with RAGAGEP. Failure to document compliance (and any deviation from compliance) with RAGAGEP is a violation.
  9. Equipment covered under PSM‚ Mechanical Integrity provision (1910.119(j)) that is outside acceptable limits as defined by the Process Safety Information (with reference to RAGAGEP) is a violation.
  10. Older equipment may not be subject to a RAGAGEP (because none existed at the time of design and construction, or the design and construction was done pursuant to codes and standards no longer in use). In such cases, employers are required to document that the equipment is designed and operating in a safe manner.
  11. If an updated RAGAGEP explicitly provides that the new requirements are retroactive, OSHA expects employers to conform to the new requirements. If the update is not retroactive, OSHA still expects employers to confirm that the process equipment is designed, maintained, inspected, tested and operated in a safe manner, through use of Process Hazard Analysis (PHA) revalidation, management of change (MOC) process, or corporate monitoring and review of published standards.

 

OSHA has shifted its enforcement emphasis to longer, more thorough inspections, and PSM inspections rank as one of OSHA‚ enforcement priorities. This new enforcement guidance addresses potential citations related to the application of RAGAGEP to covered processes. Citations for RAGAGEP related violations are often seen with respect to Process Safety Information (identifying the applicable RAGAGEP), Mechanical Integrity, and Testing and Inspections. Employers are well served to regularly review the RAGAGEP which apply to their processes.

source: www.osha.gov

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OSHA Conducted 21 Inspections at Poultry Worksites in September

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OSHA, including both state plans and the federal agency, conducted twenty-one (21) inspections
at worksites related to the poultry industry during the month of September 2014.

California led the way with six (6) inspections, with two (2) each in Alabama, North Carolina,
New Jersey, and New Mexico. Nine (9) of the 21 inspections were conducted as the result of a
complaint, with only three (3) inspections taking place as part of an OSHA emphasis program.
Twelve (12) inspections were defined by OSHA as safety inspections, with the balance of the
inspections being health related. A spreadsheet showing further detail relating to these
inspections is attached hereto.

In September, the Department of Labor reported the following inspections at poultry-related worksites:

Total inspections: 21

Source of Authority:

Complaint Based: 9
Programmed/Planned: 3
Referral Based: 3
Follow-up: 0
Other: 6

Geographic Location:

Alabama- 2
California- 6
Florida- 1
Indiana- 1
Kentucky- 1
Nevada- 1
New Jersey- 2
New Mexico- 2
North Carolina- 2
Ohio- 1
South Carolina- 1
Texas- 1

Scope of Inspection:

Partial: 17
Comprehensive/Complete: 4
Other: 0

Nature of Inspection:

Health: 9
Safety: 12

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.

The following NAICS/SIC codes were used in gathering the data set forth above:

NAICS codes:

311119 Other Animal Food Manufacturing
311615 Poultry Processing
311999 All Other Miscellaneous Food Manufacturing
424440 Poultry and Poultry Product Merchant Wholesalers

SIC codes:

2011 Meat Packing Plants
2015 Poultry Slaughtering and Processing
2048 Prepared Feed and Feed Ingredients for Animals and Fowls, Except Dogs and Cats
2099 Food Preparations, Not Elsewhere Classified
5144 Poultry and Poultry Products

OSHA (or its state equivalent) may inspect a worksite under various sources of authority,
including inspections conducted as the result of a complaint- generally lodged by an employee
who reports purportedly unsafe working conditions to OSHA; as the result of a referral-
generally from the media due to reports of an incident (e.g, accident involving injuries)
taking place at the worksite; or as part of a local, regional, or national emphasis program
(CHEMNEP, fall protection, etc); these inspections take place because the employer appears
on a list created by OSHA relating to an emphasis program it has undertaken.

OSHA will generally issue citations from any given inspection within six (6) months
from the beginning of the inspection. In federal OSHA plan states, an employer has only 15
working days to contest the citation, including the proposed penalties and abatement periods
set forth therein, from once it is received. If an employer participates in an informal settlement
conference, this participation may not toll the time in which it must issue a notice of contest.
If a timely notice of contest is not provided, the employer may lose its right to contest the
proposed citations, including the attendant penalties and abatement periods. Once a notice of
contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the
proposed OSHA citations by filing a complaint against the employer.

Source: www.osha.gov

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Mid-Atlantic OSHA Inspection Report – June 2014

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Black and White Shot of construction plans and tools

Each month, oshawlawfirm.com will keep you informed regarding OSHA inspection activity in the Mid-Atlantic States. We welcome you to visit our site to learn if OSHA is active in your state.

During June 2014, the Department of Labor reported at total of 259 OSHA inspections taking place in the Commonwealth of Virginia, with 18 of those inspections originating from the Norfolk office, and 241 originating in other offices. By way of comparison, only five (5) inspections originating in the Norfolk office took place during June 2013, with 297 inspections originating from other Virginia offices taking place during that time.

Reported OSHA inspections occurring in other Mid-Atlantic States included the following:

West Virginia (federal OSHA plan): 24 inspections
Maryland (state plan): 12 inspections
North Carolina (state plan): 185 inspections
South Carolina (state plan): 60 inspections
Tennessee (state plan): 69 inspections
Pennsylvania (federal OSHA plan): 301 inspections

Please note that not all OSHA inspections are reported on OSHA’s inspection database website.

OSHA may inspect a worksite under various sources of authority, including inspections conducted as the result of a complaint- generally lodged by an employee who reports purportedly unsafe working conditions to OSHA; as the result of a referral- generally from the media due to reports of an incident (e.g, accident involving injuries) taking place at the worksite; as part of an OSHA program (programmed inspection)- these inspections take place because the employer appears on a list created by OSHA relating to an emphasis program it has undertaken, including National Emphasis Programs (e.g., fall protection, chemical issues (PSM-related processes)); or self-reported fatalities or injuries taking place at the facility (e.g., employer contacts OSHA pursuant to regulations mandating reporting certain incidents).

If your worksite is inspected, feel free to contact our firm with any questions you may have regarding the OSHA citation defense process. OSHA will issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company.

Source: www.osha.gov.

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OSHA’s Multi-Employer Doctrine

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Two construction workers pouring concrete

On multi-employer work sites (in both the general and construction sectors), more than one employer may be cited for a hazardous condition that violates an OSHA regulation. The Multi-Employer Doctrine allows the Secretary of Labor to cite an employer for the violation of an OSHA regulation even for a regulatory breach by a non-employee working on a site controlled by the employer. OSHA generally will use a two-step process to determine whether it will cite more than one employer at a work site. OSHA first will determine whether the employer is a creating, exposing, correcting, or controlling employer. These terms, as defined by OSHA, are set forth below:

A. The Creating Employer

Employer that caused a hazardous condition that violates an OSHA regulation.

B. The Exposing Employer

Employer whose own employees are exposed to the hazard.

C. The Correcting Employer

Employer that is engaged in a common enterprise with the exposing employer and is responsible for correcting the hazard. This may arise where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices on a worksite.

D. The Controlling Employer

Employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

E. Multiple Roles

A creating, correcting or controlling employer will often also be an exposing employer. Exposing, creating and controlling employers can also be correcting employers if they are authorized to correct the hazard.

If the employer falls into one of these categories, it has obligations with respect to OSHA requirements. After determining that the employer meets one of the above definitions, OSHA will determine if the employer’s actions were sufficient to meet those obligations. If not, OSHA may cite both the employer whose employees committed the safety violation, and a second employer who falls into one of the above categories.

Example: Company A hires Contractor X to replace a grain distributor at Company A‚ facility. Contractor X informs Company A that it will conduct all of the work, and provide its employees with training and personal protective equipment for the work required. Company A requires Contractor X to certify that it will comply with all applicable OSHA regulations, including those established by Company A for contractors at its site. Contractor X agrees to do so.

Contractor X oversees the work of its own employees. Contractor X‚ employees fail to use fall protection when installing the distributor, which is located 100 feet above the ground. An OSHA inspector drives by and notices the lack of safety equipment. An employee of Company A arrives at the work site around the same time to check on the work. After confirming that fall protection was not being utilized, OSHA cites both Contractor X and Company A for a violation of OSHA‚ fall protection regulations. OSHA claims that Company A was a controlling employer on the work site and thus was responsible for ensuring the safety of the persons working thereon, even non-employees of Company A.

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What are State and Federal OSHA Plans?

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Construction Worksite with equipment and concrete columns

[ABs_h type=”2″]”Federal” Plans[/ABs_h]

Federal government oversees enforcement of OSHA Act in 28 states, including West Virginia, Georgia, Florida, Texas, Alabama and Pennsylvania.

[ABs_h type=”2″]”State” Plans[/ABs_h]

Twenty-two (22) states enforce the OSHA Act (or its revisions thereto) under federally approved “state” plans, including Virginia, Maryland, North Carolina, and South Carolina (Kansas just applied to be a State Plan).

Va. Code Section 40.1-22; Virginia’s state plan “must be at least as stringent as standard promulgated by” Federal OSHA.

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Fundamental Requirements Under the OSHA Act

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Workers climbing on a rebar framework

There are certain fundamental requirements under the OSHA Act that are crucial for employers to remember:

  • An employer must report a fatality or catastrophic event (3 or more employees admitted to hospital) to OSHA within eight (8) hours of the incident (including fatal heart attacks if work related)
  • An employer must record most work-related deaths, injuries or illnesses on the OSHA 300 Log
  • Section 11(c) of the Act prohibits an employer from discharging, retaliating, or discriminating against an employee who has complained to OSHA, participated in an OSHA inspection, or participated or testified in any OSHA-related proceeding
  • Employees Can Now File Whistleblower Complaints Online
  • When you receive an OSHA Citation, you must post it (or a copy of it) at or near the place where each violation occurred to make employees awareof the hazards to which they may be exposed. The OSHA Citation must remain posted for 3 working days or until the hazard is abated, whichever is longer. (Saturdays, Sundays and Federal holidays are not counted as working days).
  • Most States have adopted largely verbatim Federal version of the Act
  • Secretary must file a Federal OSHA Complaint within 21 days of your notice of contest
  • States have varying times in which their complaint can be filed, if any at all
  • (e.g., Virginia ‚Äî immediately refer to Commonwealth‚ attorney and file complaint)
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