Many SIS practitioners are concerned about how government and regulators interpret the implementation of codes and standards that are relevant to their industries. Concrete guidance is rarely given beyond what is strictly written in the regulations (e.g., 29 CFR 1910.119) and occasional letters of interpretation. OSHA Citations offer some insight, but are not reliable information as they are merely allegations, not convictions. More substantive information in terms of rulings and judgments is harder to come by, and when it is available the information is always important to know. Due to some very large fines that have recently been levied by OSHA, operating companies are beginning to fight back instead of settling to minimize their legal costs.
One such case has recently closed. The OSHA review commission has very recently released a ruling OSHRC Docket No. 10-0637 – Secretary of Labor, Complainant, BP Products North America, Inc., and BP-Husky Refining, LLC, respondent. This particular ruling should be of great interest to the SIS practitioner community because a series of the citations were related to failure to comply with the API 556 standard for safety instrumented functions on fired heaters. Overall, the original citation proposed fines of almost $3 million. After the ruling was handed out, most of the citations were vacated and the final ruling was for $35,000. See the PDF copy of the ruling by clicking on the link on this page.
With respect to SIS, the interesting portion of this ruling is related to the allegation that the Respondent did not comply with RAGAGEP because the API 556, which was considered RAGAGEP contained a list of recommended shutdown functions, all of which were not included in the design of the heater. In the ruling, the discussion of these items begins on page 33 where the section is titled Items 28, 29, and 30 where these items numbers correspond to the citation numbers. The citation alleged that RAGAGEP had not been followed because all of the shutdowns shown in Table 1 – Alarms and Shutdown Initiators were not present in the design of the equipment that was audited. The respondent’s counsel and expert witness made the case that all of the shutdowns that were on the list need not be installed. They argued that the standard provides a list of functions that should be considered, but if risk analysis demonstrates that these functions are not required, they need not be installed.
The arguments and the judges discussion of the arguments follow on pages 33 through 37. Ultimately, the judge ruled that the OSHA interpretation that ALL of the safeguards in API 556 must be implemented was NOT correct, and that the respondent’s interpretation that the items on the list must be considered and implemented (or not) based on the results of risk analysis. Based on this assessment, all of the OSHA citations were vacated, no fines were levied for these items.
This ruling has important ramifications. First off, it clarifies that should means should, not shall. When an industry sector standard recommends that a list of shutdowns should be installed, that means that they should be considered through the risk analysis process and implemented if that risk analysis process agrees that they are necessary. But if that risk assessment process shows that they are not necessary, they do not need to be installed. This thought process should also be carried out to other standards that make similar recommendations, such as the API 616-619 series that make recommendations for SIS on rotating equipment. And unlike speculation based on words in standards, we now have an actual ruling from a Judge to assist in the decision making process.