GCPS 2015 __________________________________________________________________________

Implementing PSM: Perspective from a Process Engineer

turned PSM Attorney

D.A. Duggar
Arent Fox LLP
1717 K Street NW
Washington, D.C. 20006
[email protected]
[email protected]

Prepared for Presentation at

American Institute of Chemical Engineers
2015 Spring Meeting
11th Global Congress on Process Safety
Austin, Texas
April 27-29, 2015

AIChE shall not be responsible for statements or opinions contained

in papers or printed in its publications

GCPS 2015 __________________________________________________________________________

Implementing PSM: Perspective from a Process Engineer

turned PSM Attorney
D.A. Duggar
Arent Fox LLP
1717 K Street NW
Washington, D.C. 20006
[email protected]
[email protected]
Keywords: PSM Standard, boundaries, covered process, Akzo Nobel, Motiva, Kaster, process
equipment, recommendations

Abstract
OSHAs Process Safety Management Standard was rolled out in 1992. One year later, I started
my career as a process engineer in the petrochemical industry. As any process engineer will tell
you, PSM is a large part of your daily responsibilities when working in a production unit.
During my time as a process engineer, I developed process safety information, participated in
numerous PHAs, wrote operating procedures, trained operations personnel on new equipment
and new product lines, completed MOCs, conducted PSSRs, served on incident investigation
teams and assisted with compliance audits. Now as an attorney, I counsel industry on defending
PSM citations, resolving facility-siting issues, and addressing RAGAGEP questions (just to
name a few). And it has been during this time as an attorney that I have realized that when it
comes to Process Safety Management, process engineers and OSHA are actually talking at crosspurposes.
Readers will learn the distinction between how process engineers view PSM, how OSHA views
the PSM Standard, and how attorneys navigate between the two views. With these insights,
readers will be better equipped to minimize the risk of falling out of compliance with the PSM
Standard.

1. Defining PSM and what is required for compliance.

For the purposes of this paper, I would contend that process engineers view PSM as a safety
philosophy, as everything that could be done to manage risk. PSM is more than OSHAs PSM
Standard. For example, PSM includes PHAs (required by the Standard) and LOPAs (not
required by the Standard).
OSHA enforces the health and safety lawstherefore, it views PSM as the PSM Standard.
Furthermore, OSHA views the PSM Standard as what should be done to minimize risk (though
OSHA would probably use the term shall).1 Note two distinctions at the outset: (1) should, not

GCPS 2015 _________________________________________________________________________

could and (2) minimize, not manage. Because PSM is the (capital S) Standard and the Standard
is the law, it should be done.
But OSHA faces a very real problem. It is confined to enforcing only those written words.
Therefore, OSHA must read the words of the Standard as broadly as possible to capture all that it
contends should be done.
In addition, OSHA is tasked with protecting workers. Minimizing the risk is the actual objective,
not merely managing it.
Attorneys generally have no opinion as to what could or should be done to manage or minimize
risk. To them, PSM is what legally has to be done. And what legally has to be done is governed
by legal canons of construction applied to the text of OSHAs PSM Standard.

Figure 1. The Multiple Views of what PSM Compliance means

While these three views overlap in some areas, they are not congruent. Views on what
constitutes compliance with PSM differ. As a result, one can envision seven distinct
understandings of what compliance with PSM means.

2. The text of the PSM Standard different meanings to different people.

Two men are sitting at a bar having a conversation. One is from London (England), the other
Paris (Texas). A baseball game is playing on the TV overhead. Baseball is nice but I really
prefer football. Its what I played when I was a kid. says the one.
Yes, says the other, the people in my neighborhood were more passionate about football than
just about anything else. It was like a religion to them.

GCPS 2015 _________________________________________________________________________

You know, I think we met once before. Were you at the conference back in 2012?
Not sure, says the other, Id have to check my diary.
Are you hungry? Im going to meet some friends for dinner shortly.
Sure, just give me a moment to go to my room and grab my coat. Ill meet you on the first
floor.
After each waited on the first floor for fifteen minutes, they left separately never aware neither
understood anything the other was saying. Why? Both men were speaking English. Both men
were using common, everyday words. Nonetheless for these two, the meanings of at least the
italicized words were quite different.
It pays to know your audience. When discussing PSM, it also pays to know your speaker. What
the speaker is saying may not be what the listener understands. While the previous example may
not be very realistic, it is illustrative. Words mean different things to different people.
Confusion happens in everyday conversation and it happens when discussing PSM compliance.

3. Here is where my process ends.

Most process engineers would say an entire facility is covered by at least some aspects of process
safety management. Again, this is because PSM is more of a safety philosophy than a set of
regulations. The process engineer does not stop thinking about safety just because there is no
highly hazardous chemical (HHC) in a given process unit of the plant.
But this does not mean that the process engineer believes all elements of OSHAs PSM Standard
should be applied throughout the entire facility. The process engineer will draw process
boundaries demarcating the OSHA PSM Standard covered processes. The process engineers
demarcation will frequently coincide with the production unit boundaries. Unit A makes
chemical A so Unit A becomes process A.
OSHA has a different view of a process. OSHAs regulatory definition of a covered process
encompasses groups of vessels: (1) interconnected vessels containing a minimum amount of a
highly hazardous chemical and (2) certain nearby separate vessels. Whether the groups of
vessels comprising the process all reside within one production unit is irrelevant. To fully
understand OSHAs view, one must examine OSHAs published interpretations regarding PSM
covered processes.
3.1

The boundaries of the PSM covered process under Akzo Nobel

If a production unit downstream of a covered process is interconnected with a covered process,

OSHAs default position is that the downstream production unit is also covered under OSHAs
PSM Standard. In other words, the default position is if there is an interconnection, there is
coverage. The two production units are one covered process.

GCPS 2015 _________________________________________________________________________

Yet OSHA has recognized limits to this default position. In response to litigation with Akzo
Nobel, OSHA proposed a three-part analysis to answer the question, Where does the covered
process end? Akzo Nobel conceded the upstream production unit was covered by OSHAs
PSM Standard. Akzo Nobel differed with OSHA as to whether an interconnected, downstream
production unit was also covered by OSHAs PSM Standard.
In a memorandum2 written in response to litigation, OSHA stated:
In this case, the company does not dispute it has a covered process, as defined by
29 CFR 1910.119. However, what is disputed is the limits or the boundaries of
the process downstream from the equipment the company stipulates is part of the
covered process.
The company contends that interconnected equipment
downstream from what it stipulates as the covered process should not be included
in the boundaries of the covered process. The company contends there is no
circumstance, i.e. deviations, upsets, releases, etc., which might occur
downstream (outside) from the stipulated covered process, which could affect a
catastrophic release of HHC in the upstream stipulated covered process.
Therefore, the company contends that since there is no potential for a catastrophic
release of a HHC, those downstream aspects should be considered as being
outside the limits or boundaries and should not be considered as part of the
covered process.
OSHA proceeded to recommend a three-part analysis be performed. First, include all the
interconnected vessels as well as separate nearby vessels that could be involved in a potential
release of a highly hazardous chemical. Second, determine whether these vessels contain (at any
particular time) a threshold quantity (TQ) of a highly hazardous chemical. Lastly, consider each
aspect of the process to determine whether the particular aspects could either (a) cause a highly
hazardous chemical release or (b) interfere with mitigating the consequences if there was a
highly hazardous chemical release. As the memo went on to state:
If based on this analysis, it is determined that interconnected equipment
downstream from the stipulated covered process cannot cause a HHC release or
interfere with the mitigation of the consequences of a HHC release, and the
equipment does not itself contain a TQ or greater amount of a HHC, then such
equipment could safely be considered outside the limits or boundaries of the
covered process.
The Akzo Nobel Memorandum explicitly recognizes the interconnection of the downstream
production unit to the upstream covered process but accepts it could safely be considered
outside the limits or boundaries of the covered process. No problem, right?

GCPS 2015 _________________________________________________________________________

3.2

Motiva and Kaster Did the boundary just move?

Ten years after the Akzo Nobel memorandum, OSHA published the Motiva Interpretation in the
Federal Register.3 Under Motiva, the PSM standard presumes that all aspects of a physically
connected process can be expected to participate in a catastrophic release.4
A process engineer might disagree with OSHAs presumption but would expect it could be
rebutted by utilizing the recommended Akzo Nobel analysis. Turns out, that may not be the
case.
Two years later on May 21, 2009 OSHA published the Kaster Letter of Interpretation.5 With this
letter of interpretation, OSHA stated that mere interconnectivity extended the boundaries of the
covered process. A rebuttable presumption seemingly no longer exists. The Kaster letter states:
Because Process A and Process B are interconnected, Process B is a PSM covered process
because together with Process A it meets the definition of a process in 29 CFR 1910.119(b).
Thats it. No discussion of an Akzo Nobel analysis. No discussion of a possibility that Process
B might not be a PSM Standard covered process.
OSHA goes on to claim that the Kaster Letter is consistent with the Motiva Interpretation
published in 2007 despite the apparent elimination of the rebuttable presumption. So is an
interconnected, downstream process covered by the PSM Standard?
A careful analysis of the Kaster Letter as well as informal discussions with OSHA
representatives indicate that OSHA believes one more question should be asked: Does the highly
hazardous chemical exist downstream? If the answer is yes, then the downstream process would
be considered one process together with the upstream process. Figure 2 below helps to illustrate
OSHAs position.

Figure 2. A hypothetical chemical plant with four production units

GCPS 2015 _________________________________________________________________________

From OSHAs perspective, the decision to draw a process boundary congruent with the
production unit boundary is an arbitrary one. In Figure 2, Unit A is interconnected with Unit B
and together there is more than a threshold quantity of a highly hazardous chemical. Therefore,
Unit A and Unit B constitute one PSM Standard covered process from OSHAs point of view.
But this is not how the process engineer views a process. For the process engineer, Unit A is a
process and Unit B is a separate process. Because Unit B is a different process and Unit B does
not contain a threshold quantity of a highly hazardous chemical, the process engineer would be
inclined to say Unit B is not covered by OSHAs PSM Standard.
Thats not the only difference. While the process engineer and OSHA would agree that Unit A is
covered, the process engineer might conclude (using an Akzo Nobel analysis) that not all of
Unit A is covered by the PSM Standard. Figure 3 illustrates.

Figure 3. A hypothetical production unit

If the process engineer performed an Akzo Nobel analysis and determined that interconnected
equipment downstream of the Reaction Section (i.e. the Separations Section, the Washing and
Blending Section, and the Finished Product Section) could not cause a highly hazardous
chemical release or interfere with the mitigation of the consequences of a highly hazardous
chemical release, and that the equipment did not contain a threshold quantity of a highly
hazardous chemical, then the process engineer might conclude such equipment could safely be
considered outside the limits or boundaries of the covered process.

GCPS 2015 _________________________________________________________________________

However it is highly unlikely OSHA would agree with this approach. For OSHA, all sections
within Unit A are interconnected, there is more than a threshold quantity of a highly hazardous
chemical within Unit A, therefore all of Unit A is a PSM Standard covered process.

4. More misunderstood words.

Process engineers and OSHA are doing more than just talking past each other. When two sides
talk past each other, each believes the other is challenging a particular point that is in fact not
being challenged. Rather the two are talking at cross-purposes.
For process engineers, PSM is a safety philosophy and a process is a distinct production unit
with the goal of producing a particular product. For OSHA, PSM is a legally enforceable
standard and a process is where a highly hazardous chemical may be found, either by design or
by accident. There are other differences as well.
4.1

Equipment in the Process and Process Equipment

With the exception of RAGAGEP, the phrases equipment in the process and process equipment
are the most likely to lead to misunderstandings. For the process engineer, process equipment is
equipment that physically touches the process chemicals. It is pressure vessels, storage tanks,
reactors, distillation columns, heat exchangers, filters, pumps, agitators, etc. Piping is that which
connects process equipment. Piping in and of itself is not process equipment. And control
systems are a different beast entirely. However, with the introduction of the PSM Standard,
process engineers begrudgingly accepted piping and control systems as process equipment.
Today, process equipment is what must be present for the process to occur.
For OSHA, this is too narrow a definition. Rather, process equipment is largely everything that
falls within the physical footprint of the covered process, regardless of whether it normally
comes into day-to-day contact with process chemicals. And the distinction is important because
equipment in the process6 and process equipment7 appear numerous times in the PSM Standard.
On the one hand, OSHAs broad interpretation of process equipment is to be expected. OSHA is
bound by the text of the Standard so the broadest definition of process equipment provides it
with the broadest reach to regulate. But on the other hand, control room vents and eyewash
stations, while important, are not in the same class as reactors and distillation columns. Take
away the control room vent and eye wash station and the process goes on. Take away the reactor
or distillation column and the process comes to a halt.
4.2

PHA and Incident Investigation Recommendations and Resolution

OSHAs PSM Standard requires that after completing a PHA, [t]he employer shall establish a
system to promptly address the teams findings and recommendations; assure that the
recommendations are resolved in a timely manner and that the resolution is documented . . . .8
Following an incident investigation, [a] report shall be prepared at the conclusion of the
investigation which includes . . . any recommendations resulting from the investigation.9 The

GCPS 2015 _________________________________________________________________________

employer shall also be required to establish a system to promptly address and resolve the
incident report findings and recommendations. Resolutions and corrective actions shall be
documented.10
To the process engineer, these recommendations are intended to be suggestions. It is something
that could be done. In fact, if the hazard has a low likelihood or low consequence, nothing need
be done at all. Indeed the recommendations are often preceded by the word consider. For
example, consider adding a detector [to address the hazard identified]. Management considers
the suggestion, reviews the hazard, and then decides whether the recommendation should be
implemented, altered or rejected.
OSHA views recommendations differently. In its view, the recommendation should be done.
This is because the recommendation results from a recognized hazard. Existing safeguards were
deemed deficient. A recommendation was made. For OSHA, a hazard has been identified and
something should be done. Doing nothing is not acceptable. If the recommendation is not
implemented, the employer must document what other actions are to be taken and complete
those actions as soon as possible.11 The employer cannot decide to do nothing.
CalOSHAs recent DRAFT 2.0 PSM Regulatory Text Process Safety Management for Refineries
best reflects OSHAs view:
The PHA report shall include: (i) the findings of the PHA team; (ii) the teams
recommendations; and (iii) an implementation schedule for all recommended
actions.
The employer shall establish a system to promptly implement all recommended
actions. Each recommended action not requiring a process shutdown shall be
completed within two years after the completion of the PHA unless the employer
can demonstrate in writing that it is not feasible to do so. Where a recommended
action cannot be implemented within two years, the employer shall document the
decision and rationale for the delay and implement the corrective action as soon
as possible.12
So while both the process engineer and OSHA are using the term recommendation, the word has
very different meanings to each. As with the other examples, the two sides are talking at crosspurposes.

5.

So who is right?

So who is right, the process engineer or OSHA? What is the correct way to understand the
words and phrases process, equipment in the process, process equipment, and recommendation?
Perhaps you are thinking this is where the attorney comes in. Here is where someone hires an
attorney to get an unbiased opinion as to who is right, the process engineer or OSHA. Not so
fast.

GCPS 2015 _________________________________________________________________________

Recall that attorneys generally have no opinion as to what could or should be done. Rather, PSM
is what legally has to be done. And what legally has to be done is governed by legal canons of
construction applied to the text of OSHAs PSM Standard. But there is not only one legal canon
of construction. There are several and both the employer and OSHA will have attorneys arguing
to the court whose interpretation should prevail.
How is the possible? Examine Figure 4 and ask yourself, is it a white shirt or is it a blue shirt?
For the attorney, the answer depends on who is paying the bill.

Figure 4. Do you see a white shirt or a blue shirt?

Attorneys do not interpret the law. The courts do. Attorneys advocate for an interpretation. So
if the one paying the bill is a white shirt manufacturer, then of course the shirt is a white shirt
with blue stripes. But if the bill is being paid by a blue shirt manufacturer, then it is obviously a
blue shirt with white stripes.
And this demonstrates how the attorney views PSM. If there is a reasonable legal argument to be
made using accepted legal canons of construction and the facts can support the argument, then
the attorney will make the argument on the clients behalf. The attorney will advocate for the
clients point of view.

6.

Then what is a PSM attorney good for?

If attorneys do not interpret the law but just make arguments, why spend the money on one?
Do you have a life insurance policy? If you do and you are reading this, then you have not
needed it. Did you waste your money buying the policy? No. Because what you were really
buying was peace of mind.

GCPS 2015 _________________________________________________________________________

Hiring an attorney may not answer who is right. But the attorney should let you know if you
have a (legal) leg to stand on and thereby give you some peace of mind. The attorney will
counsel you on your compliance efforts and let you know if your point of view is legally
reasonable.

7.

Okay, but you still have not answered who is right?

So who is right? At the outset, the answer is that OSHA is presumed correct. Unless the
employer is willing to contest the citation in court, the fine must be paid, the hazard must be
abated, and OSHAs view prevails.
Yes the employer can contest the citation. But contesting a citation can be expensive. In fact
just the pre-trial phase alone can easily exceed the fine proposed by OSHA. A single serious
violation of the PSM Standard carries a penalty of $7000. That is enough to buy between 10
20 hours of an attorneys time. And two and half days is not enough time for an attorney to
gather all the facts, much less do all that is required during the pre-trial phase.
So who is right, the process engineer or OSHA? What is the correct way to understand the
words and phrases process, equipment in the process, process equipment, and recommendation?
The answers depend. They depend on the judge, the skill of the attorneys, and on how much you
are willing to spend in order to prevail. Otherwise, OSHA is right and its point of view prevails.

7. References
[1]

In keeping with standard convention for recommended practices, OSHA would probably
argue its determinations shall (not should) be done. Shall obligations are mandatory
whereas should obligations are recommended but optional.

[2]

February 28, 1997 Memorandum for Patricia Clark, Regional Administrator from John B.
Miles, Jr.., Director, Directorate of Compliance Programs Assistance available at
http://1.usa.gov/1IYIG50.

[3]

Interpretation of OSHAs Standard for Process Safety Management of Highly Hazardous

Chemicals, 72 Fed. Reg. 31453 (June 7, 2007) available at http://1.usa.gov/13v58T5.

[4]

Id. (emphasis added).

[5]

May 21, 2009 Letter of Interpretation issued to Mr. Mark R. Kaster, Dorsey & Whitney
LLP available at http://1.usa.gov/1zohnNl.

[6]

The phrase equipment in the process appears three times: 29 C.F.R. 1910.119(d),
(d)(3), (d)(3)(i).

[7]

The phrase process equipment appears seven times: 29 C.F.R. 1910.119(f)(4), (j)(1),
(j)(2), (j)(3), (j)(4)(i, iii, iv).

GCPS 2015 _________________________________________________________________________

[8]

29 C.F.R. 1910.119(e)(5).

[9]

29 C.F.R. 1910.119(m)(4).

[10]

29 C.F.R. 1910.119(m)(5).

[11]

29 C.F.R. 1910.119(e)(5).

[12]

State of California Department of Industrial Relations Division of Occupational Safety

and Health, DRAFT 2.0 PSM Regulatory Text Process Safety Management for
Refineries Proposed General Industrial Safety Order 5189.1 October 31, 2014 (emphasis
added).

The author would like to thank Bill Bower, Andrea Cheek, Alec Dobson, and Lincoln Essig for
their time and efforts at reviewing this paper and for their suggestions at making it a better paper
overall. The author assumes all responsibility for any lack of clarity that remains.