First, let me state that this construction standard has never been cited. This is based on my personal knowledge and the OSHA database; however, it is still in effect and could be cited. Last year, OSHA revised their standards and they simply did away with the duplicate language in 1926.64 and said to follow the requirements in 29 CFR 1910.119. But the bigger question to ask is when would a construction company fall under the PSM standard? Well earlier this year, I finally came across the situation where the contractor who built the process, also received the first delivery of the HHC, and during this delivery, there was a release of the HHC and this brought both OSHA and EPA to the site. Here is what went down and how OSHA and EPA viewed this situation…
UPDATE: I have also seen this scenario play out with NH3 in the power generation industry where NH3 was used in an SCR process and the build contractor received the first shipment of NH3 and ran the process for several weeks before the official “hand-over” to the host.
The HHC was anhydrous ammonia and the process was a refrigeration process. This arrangement was common between these two companies and the contractor is very experienced in both constructing and operating a refrigeration process. The owner, who would eventually take control of the process, is an international company who has seen a dramatic expansion in their business and engaged this contractor to build several cold storage facilities. The “hand-over” between these two was odd to me, but as I asked around, this is fairly common in ammonia refrigeration; where the contractor actually receives the ammonia and performs the “initial start-up” of the process. In fact, in this event, there was not even a representative from the host owner present during the initial start-up.
So when the release occurred, the driver and one of the contractor’s employees were transported to the hospital for some minor injuries. The release was just shy of 200 pounds, but was not reported in a “timely manner”; in fact, the local FD was notified by a neighbor who heard all the commotion and smelled the ammonia. This did not make EPA happy, but they seemed to be only interested in the failure to report the release, as well as not having the RMP on file before the delivery of the ammonia.
What I found interesting is that OSHA is actually issuing citations using 1926.64, since the owner of the process at the time of the inspection and accident was a contractor. I am not sure what the citations will look like, as 1926.64 is merely a place holder and all the content is in 1910.119. But this contractor is preparing for a fight as they do not believe the receiving of the ammonia (greater than 10,000 pounds) activated PSM since they are a contractor.
They also have an argument that the truck had just started unloading the ammonia when the release occurred, so technically – not counting the inventory on the truck, the process was not yet over 10,000 pounds. The problem is, the truck finished the offload after the FD left, and when OSHA and EPA arrived the process was over 10K pounds.
But OSHA did not take kindly to the fact that a PSSR had not been done nor was there an “initial Start-up” SOP and none of the contractor’s employees had been trained on the unloading procedure the driver was using (which had not been annually certified). The two organizations had plans to do the PSSR at the time the process was to be handed over to the owner. But it was the contractor’s job, as stated in the scope of work/contract to start the process and get the building to temperature for 7 days before the hand-over would take place. Both organizations misunderstood the role of the Pre-Start Up Safety Review (PSSR).
Another interesting aspect of this inspection was that the two organizations did just one PHA on the “design” before the first building was built. They then just stick a copy of the PHA in a file to count for each process. But each building is not the exact same layout, size, or complexity as the PHA depicts. Not even the PSI would be the same as some processes have larger/smaller machinery rooms and in this particular building the new machinery room is on a mezzanine due to a change in the office occupancies (e.g. this one will house some regional management team members).
But now we have a scenario as to when 1926.64 would apply!
NOTE: this was a fictitious inspection, but the event did happen. The article is from a report I was asked to write for a client providing a scenario as to when 1926.64 would apply. The scenario is one that I see regularly in ammonia refrigeration, especially cold storage construction. One such occasion, a client had a release, rather their contractor had the release!!! One day OSHA and EPA will have a field day on this scenario and I am sure there will be plenty of pain for everyone involved.