OSHA took a whipping on application of RAGAGEP in the BP-Husky decision just out.

OSHA took a whipping on application of RAGAGEP in the BP-Husky decision just out. Too many willful violations deleted. This will set back PSM enforcement 20 years. PSM training will have to be modified to reflect this decision. OSHA's needs to look honestly at the internal critics of the litigation from a couple years ago and look at certain VPP reports before spending time and resources to appeal.

Some quotes from the court decision.
Willful 1 was deleted.
"The Secretary’s flawed AVD dooms his case with respect to Willful Item 1. By couching the alleged violation in terms of the missing U-1 form, the Secretary impermissibly creates a significant requirement not found in the cited standard. The Secretary’s focus on the U-1 form is misplaced. BPP and BP-Husky cannot be found in violation of a standard for not possessing a document the cited standard does not require."

Willful Items 2-12 were deleted. However, the Secretary did not cite the companies for failing to comply with an alternative RAGAGEP, such as being outside acceptable limits set by BPP’s internal standards. The Secretary cited BPP and BP-Husky for exceeding 3% IPD, a prescriptive standard he impermissibly shoehorned into a performance standard. The Secretary is held to that violation description. Because the AVD improperly imposes a requirement on employers not found in the cited standards, the Secretary failed to establish BPP and BP-Husky were not in compliance with the appropriate RAGAGEP.
Items 2 through 12 are vacated.

Willful 13 & 14 were deleted
However, the Secretary did not cite the companies for failing to comply with an alternative RAGAGEP, such as being outside acceptable limits set by BPP’s internal standards. The Secretary cited BPP and BP-Husky for exceeding 3% IPD, a prescriptive standard he impermissibly shoehorned into a performance standard. The Secretary is held to that violation description. Because the AVD improperly imposes a requirement on employers not found in the cited standards, the Secretary failed to establish BPP and BP-Husky were not in compliance with the appropriate RAGAGEP.
Items 2 through 12 are vacated.

Willful 15a was deleted.
BPP emptied the pressure vessel and took it out of service in May of 2009, four months before OSHA began its inspection of the refinery. Thus, at the time of OSHA’s inspection, the undersized relief valve did not present a hazard while installed on the empty pressure vessel. Area director Yoksas conceded there was no hazard to employees posed by PSV-136 (Tr. 191). OSHA safety engineer Lay agreed that “[i]f the piece of equipment had been properly removed from service . . . that would have been no hazard” (Tr. 464-465). Item 15a is vacated

Willful 16b, 17b, 18b were deleted
As noted previously, § 1910.119(j)(5) does not require an employer to immediately shut down an operation and replace a deficient piece of equipment. The standard allows an employer to take interim measures to ensure safe operation of the equipment. The Secretary has adduced no evidence that BPP and BP-Husky’s interim measures failed to ensure safe operation of the equipment until the valves could be replaced during turnaround.
The Secretary has failed to establish violations of he cited standard. Items 16b, 17b, and 18b are vacated.

Willful 19a-27a were deleted
The Secretary argues BPP and BP-Husky should have known, through the exercise of reasonable diligence that the PRDs were missing. He contends that the cited pressure vessels were installed years before the PSM Standard was enacted and BPP should have detected at some point before the 2009 inspection that the cited heat exchangers lacked PRDs. CSHO Sternes agreed with Hasselbach, however, that it is difficult to discover the absence of PRDs by looking at the piping and IP&Ds (Tr. 845-846, 1598). Indeed, CSHO Sternes was at the Ohio refinery for two and a half months, five days a week, but he learned of the missing PRDs the same way BPP and BP-Husky did—by way of the December Middough report (Tr. 809, 843). The Secretary has failed to establish BPP and BP-Husky had constructive knowledge of the missing PRDs.
Items 19a through 27a are vacated.

Willful 28-30 were deleted
The Secretary has failed to establish BPP and BP-Husky were in noncompliance with § 1910.119(d)(3)(ii) with respect to the cited furnaces. The Secretary, through CSHO Jensen, is attempting to enforce as mandatory the recommended practices found in RP 556. The Secretary also is incorrectly interpreting RP 556 to require employers to install all of the safeguards listed in Table 1, rather than to select the individual safeguards best suited to the individual furnaces. Items 28, 29, and 30 are vacated.

Willful 31 was deleted
The Secretary has failed to establish BPP and BP-Husky were in noncompliance with the terms of §§ 1910.119(d)(3)(iii) and (e)(3)(i). OSHA did not conduct an independent investigation of the alleged violation, but instead attempted to piggyback onto an internal self-audit commissioned by BPP. BPP’s expert Wolf and its emergency response specialist Herman testified there was no credible risk that the fire water could be contaminated at the cited locations. Because there is no credible risk of hazard, there was no need for BPP’s PHA team to address the hazards of the process.
Items 31a and 31b are vacated

Willful 32-40 were deleted
The Secretary has failed to establish BPP and BP-Husky were in noncompliance with § 1910.119(e)(5). The companies had documentation of the refinery’s facility siting program and the progress being made on it. The Secretary failed to show that the refinery’s extensive project for building, moving, and remodeling its facility, using the inside-out strategy for risk assessment, was not done in a timely manner.
Items 32 through 40 are vacated.

Willful 41 was changed to serious
BPP added a riser to the water tanks that can feed the FCC Feed Drum to prevent and overflow of water into it. BPP also increased the management review and approval required for continued operation of the valves and the FCC Feed Drum. It also installed a full sized relief valve in an interim location that could be installed without incurring the risks associated with a shutdown of the equipment (Tr. 2987, 2992, 3053). There is no evidence of BPP or BP-Husky having a heightened awareness of illegality regarding the relief valves.
The undersigned determines the Secretary’s classification of willfulness is not appropriate for BPP and BP-Husky’s violations of § 1910.119(d)(3)(ii) and reclassifies the violations as serious.

All the OSHA people put their heart and soul in the case. You can't ask anymore than that. I just hope they continue to improve the sector in process safety and share the lessons with the interested parties. Court is a fickle wind and no one can ever predict its out come.