This 2019 OSHRC decision is without a doubt the worst excuse for process safety I have seen since I have been involved with process safety (27 years). This case fails to meet the most fundamental basis of how OSHA’s wrote the standard. Employers get to pick their RAGAGEPs, but when they state the “codes and standards employed” those become the basis for their process design, construction, operation, and maintenance of their process. These arguments are not just flawed, they are shameful and any practicing process safety professional/engineer who agrees with these “games” are a problem rather than a solution.
Argument #1 – Company stated in their PSI that their RAGAGEP of choice was ASHRAE 15 and yet they convinced the ALJ that they did not have to follow ASHRAE 15 requirement for ammonia detectors in the engine room, and it was the IMC that they were required to follow and that the IMC did not require detectors in the engine room. And the judge bought both arguments and vacated the citation for not having detectors inside an engine room for a process with 80,000 pounds of NH3. Granted the judge completely misunderstands the IMC and its exceptions, but he had help in his confusion! On the other hand, I hope this case sets a precedent that IMC and IFC are RAGAGEP’s, as this was set forth in their arguments.
Argument #2 – Engine Room does need not be tight fitting as stated in ASHRAE 15 because “doors” do not fall under the PSM standard. This one, the judge did all on his own. OSHA failed to explain that the engine room design is that of a “secondary containment system” to prevent the spread of ammonia and to ensure the ammonia is discharged to a safe location, thus the tight-fitting doors are a critical aspect of controlling a release of NH3.
Argument #3 – P&IDs do not have to be accurate as there is no RAGAGEP stating they have to show each line in the process and where it originates and ends. The company also successfully argued with the help of their “experts” that the block flow/simplified process flow diagrams were all that was required or needed to fully understand the process flows. And an operator at the facility said he never used the P&IDs, instead, he used the block flow diagrams to determine where the lines originate and end.
Argument #4 – the MII said 70,000 pounds and the ventilation documentation stated 80,000 pounds, but that’s OK because this engineering error does not place employees in harm’s way. This one made me think that maybe we would finish strong with a rational argument, as I agreed with the company’s position at first; but then the experts blew up all rationale in their argument about MII and its use in PSM.
If you are a practicing process safety professional/engineer, read the testimony of the employees and company experts and you will be amazed that in 2019 these arguments are put forth and are successful. Sadly, if this case stands, it will become the argument for every NH3 refrigeration citation from this day forth and process safety in an industry that is already struggling will only get worse rather than better!
The one citation that the OSHRC upheld was lack of written maintenance procedures.
Here are the arguments:
(emphasis added by me)
On January 11, 2017, OSHA began a Process Safety Management (PSM) inspection of a chicken processing facility pursuant to OSHA’s National Emphasis Program. As a result of alleged deficiencies discovered during the inspection, OSHA issued a six-item citation on June 16, 2017 alleging violations of OSHA’s Process Safety Management of Highly Hazardous Chemicals (“PSM”) standard, 29 C.F.R. §1910.119, with proposed penalties totaling $70,618.00. The action is now before the Court on the Secretary’s complaint seeking an order affirming the citation and proposed penalty and the company’s answer denying the alleged violations and appropriateness of the penalties and abatement and asserting the affirmative defense of unpreventable employee misconduct.