A Guide to the Legal Framework of the PSM Standard for Engineers

A Guide to the Legal Framework

of the Process Safety Management Standard

for Engineers

By Christopher J. Cunio, Esq. and Georges A. Melhem, Ph.D.

The Process Safety Management (PSM) Standard is a U.S. regulation that was issued by the Secretary of Labor in 1992 following a series of chemical disasters in the 1980s and early 1990s. Its primary purpose is to prevent or minimize the consequences of release of highly hazardous chemicals into locations that could expose people to serious bodily injury and death. To achieve its purpose, the Standard requires regulated facilities to implement a ?PSM program,? which must contain 14 ?elements.? The broad scope and highly technical nature of these 14 elements make compliance challenging even for the most sophisticated operators.

This article focuses on three elements of the PSM program: process safety information, process hazard analysis, and mechanical integrity. These have resulted in the majority of OSHA citations under the Petroleum Refinery (>50%) and Chemical (>60%) PSM National Emphasis Programs. The goal of this article is to provide in-house engineers with guidance on how to comply with these elements.

Performance Based

The PSM Standard is ?performance-based,? which means that the Secretary of Labor directs ?what to do? and the operators determine ?how to do it.? A site's PSM program can be a single document or series of documents, but it must contain all 14 elements.

As one recent decision explains, OSHA may require an operator to comply with its PSM program even if that program is more stringent than industry practice. Sec'y of Labor v. Wynnewood (2009). This article provides insight on how to draft a PSM program to avoid the Wynnewood dilemma.

PSM Coverage

The threshold inquiry for PSM compliance is to determine what areas of a facility must be covered by a PSM program. Under the PSM Standard, a PSM program must cover any ?process? that involves ?highly hazardous chemicals.? Under the broad definitions of these terms, all equipment that is involved in or could have an impact on any activity related to highly hazardous chemicals must be covered by the PSM program, absent an exception.

OSHA has recently issued citations for improper delineation of the boundaries of PSM coverage. See, e.g., Sec'y v. Delek Refining, Ltd. (2011). This article provides guidance on how to properly delineate PSM boundaries in light of the Delek decision.

Process Safety Information

Process safety information (PSI) is critical data regarding the highly hazardous chemicals, technology, and equipment involved in the chemical process. The PSI element of the PSM Standard requires the operator to have the following types of PSI in a complete, accurate, up-to-date, and accessible format: (1) information on chemical hazards; (2) information on technology; and (3) information on equipment. Compliant PSI is essential to the safe operation of a facility.

OSHA has recently issued citations for incomplete and inaccurate PSI. See, e.g., Sec'y of Labor v. Cargill Meat Solutions Co. (2011). This article expounds on the significance of compliant PSI in lieu of the Cargill Meat Solutions decision.

Process Hazard Analysis

Process hazard analysis (PHA) is a set of assessments that identify and analyze the significance of potential hazards in the processing or handling of highly hazardous chemicals. PHAs help facilities determine how to control such hazards. The PHA element of the PSM Standard requires that an operator regularly conduct PHAs using a team of experts and employing one of the several generally accepted methodologies. Completed PHAs may contain recommendations that must be resolved (accepted, rejected, or withdrawn) in ?a timely manner.? This corrective action must be completed ?as soon as possible.? Although the PSM Standard does not define these terms, government publications indicate, for example, that OSHA expects employers to complete corrective action within one or two years absent unusual circumstances.

OSHA has recently issued citations for failure to properly conduct PHAs (see, e.g. Sec'y of Labor v. Westlake Vinyls Co. (2012)) and for failure to address recommendations within an appropriate time (see, e.g., Sec'y of Labor v. Heritage-WTI, Inc. (2012)). This article provides guidance on how to comply with the PHA element and, in particular, the timing requirement related to corrective action.

Mechanical Integrity

Mechanical Integrity (MI) is the system of assuring that process equipment is in satisfactory condition to safely and reliably perform its intended design function and operate properly within the limits established by PSI. The MI element of the PSM Standard requires operators to establish and implement an MI program to maintain the ongoing integrity of process equipment. Additionally, MI requires written procedures by which an operator (1) conducts MI training, (2) performs inspections and testing of process equipment following RAGAGEP, and (3) corrects deficiencies in process equipment that are outside of acceptable limits (defined by the PSI or RAGAGEP) (a) before any further use or (b) in a timely manner while assuring the safe operation of the equipment during an interim period.

OSHA has recently issued citations for an MI program's failure to correct process equipment deficiencies in a safe and timely manner. See, e.g., Sec'y of Labor v. Arkema Inc. (2012). As with PHAs, this article provides guidance on how to comply with the MI element and, in particular, the timing requirement for corrective action.

PSM Violations

Deficient PSI, PHA, or MI violate the PSM Standard and could result in an OSHA citation. There are three categories of PSM violations: (1) serious, (2) non-serious, and (3) willful. A violation is ?serious? if death or serious physical harm (a substantial impairment to bodily function) could result from the violation. Conversely, a violation is ?non-serious? if no death or serious physical harm could result from the violation. OSHA assesses civil penalties of up to $7,000 for every serious and non-serious violation. A violation is ?willful? if committed with either intentional disregard for or plain indifference to the requirements of the PSM Standard. OSHA assesses civil penalties between $5,000 and $70,000 for every willful violation. Willful violations that cause death to an employee are subject to criminal sanctions, including imprisonment of up to 1 year. A bill known as the ?Protecting America's Workers Act? was recently proposed in both the U.S. Senate and House of Representatives and would increase OSHA civil penalties to between $8,000 (minimum) and $250,000 (maximum) per violation, and criminal penalties to up to 20 years for repeated deaths.

The severity of each OSHA penalty is determined by the gravity of the violation. Two factors largely determine the gravity of a violation: (1) the severity of the injury that could occur from the violation (high, medium, or low), and (2) the probability that the injury could result from the violation (greater probability or lesser probability). Other factors OSHA may consider include the size of the operator, the operator's good faith, and the operator's history of violations at the site. These factors, however, are not defenses to the underlying violations.

When confronted with a potential PSM violation (e.g., inadequate PSI, PHAs, or MI), OSHA may issue a citation under the PSM Standard and under the OSHA General Duty Clause (in case the PSM Standard does not apply). The General Duty Clause is a ?catchall provision? that imposes an independent duty on operators to provide a safe work environment. Specifically, it requires an operator to provide a place of employment that is free from ?recognized hazards? that are currently ?causing, or are likely to cause [should they occur] death or serious physical harm to . . . employees.? A hazard is ?recognized? where: (1) the employer has identified it, (2) it is known in the industry, or (3) it is blatantly obvious. Penalties under the General Duty Clause are the same as those under the PSM Standard.

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