The Official Magazine of the All-Natural Refrigeration Industry

June 2018

Best Practices in Managing an OSHA NEP or EPA GDC Inspection

EDWARD JOHNSON, CARO, SENIOR EHS RISK ENGINEERING MANAGER DEAN FOODS

ABSTRACT

This paper gives ammonia refrigeration professionals guidance on Occupational Safety and Health Organization (OSHA) National Emphasis Program (NEP) or United States Environmental Protection Agency (EPA) General Duty Clause (GDC) inspections and the regulations and documents that govern them. Specifically, the paper discusses the following items:

  1. How facilities are chosen for a NEP inspection.
  2. What comprises the NEP inspection process, including
        1. Pre-inspection document requests (Appendix A provides examples),
        2. Responses to an inspector’s arrival at your facility,
        3. OSHA priority for conducting inspections,
        4. Opening conference,
        5. The inspection,
        6. Closing conference,
        7. Opportunity for an informal conference with OSHA, and
        8. Types of citations and maximum penalties for each
  3. What comprises EPA GDC inspections, including
    1. The GDC as defined under the Clean Air Act, Section 112(r)(1);
    2. Who the GDC applies to;
    3. Facility obligations under the GDC;
    4. How the EPA chooses where to inspect;
    5. The emphasis on ammonia refrigeration;
    6. Frequently cited discrepancies; and
    7. Best practices for GDC facilities. 

To summarize, this paper

  • Will provide enhanced awareness of how facilities are chosen,
  • Provide examples of documents typically requested during an NEP inspection,
  • Gives a better understanding of best practices for the inspection process,
  • Define the GDC and identify typical discrepancies found, and
  • Gives clear guidance on preparing for NEP and GDC inspections.

HOW FACILITIES ARE CHOSEN FOR AN NEP INSPECTION

In a recent OSHA Directive, CPL 03- 00-021, effective January 17, 2017, OSHA added EPA Level 1 and Level 2 processes to the Programmed Inspection and NEP selection criteria. This directive also provided some criteria on how facilities are targeted for an NEP inspection:

Complaint or referral:

  • If a complaint or referral is received relating to a process safety management (PSM)-covered process and it involves an application of the PSM standard, then the area director (AD) shall evaluate the complaint or referral item(s) according to the field operations manual (FOM) and conduct an inspection using this instruction.
  • If the complaint or referral item(s) is (are) initiated due to a complaint or referral related to a contractor employer, inspections of both the contractor and host employer should be conducted.
  • If the complaint or referral item does not involve an application of the PSM standard (for example, a complaint about fall protection hazards in a PSM- covered process), then the inspection or inquiry will normally be limited to the complaint and referral item(s)/ subject(s). However, if the facility has not already been inspected using this instruction, a concurrent inspection using this NEP may be conducted at the AD’s discretion.

Accident or catastrophe:

When an accident or catastrophe occurs in a facility that contains a PSM-covered process and it

  • Involves an application of the PSM standard, then the inspection will include the accident investigation item(s)/subject(s) and a chemical NEP inspection using this instruction.
  • Does not involve an application of the PSM standard, then the inspection will normally be limited to the accident investigation item(s)/subject(s). However, if the facility has not already been inspected using this instruction, a concurrent chemical NEP inspection using this instruction may be conducted at the AD’s discretion. In other words, if OSHA is in your facility for an accident investigation not related to PSM, they may conduct an NEP at the same time if they choose.

EPA Risk Management Program (RMP) facility information: As OSHA’s PSM standard also covers most RMP facilities, the specific site’s RMP information is a resource that can be helpful in PSM NEP inspections. For instance, compliance safety and health officers (CSHOs) can use RMP data to determine

  • Whether employers consider themselves to have either an RMPor a PSM- covered process;
  • Which RMP-covered chemicals and quantities are on site;
  • What RMP program level the operator assigns and reports, which can give insight into whether the process is PSM-covered or if the operator claims a PSM exemption;
  • If any incidents have occurred that were required to be reported to the RMP accident database;
  • What prevention and mitigation measures exist as reported by the operator; What off-site consequence analysis (OCA) data are required of operators (employers) to analyze their RMP-covered process worst-case and alternate case release scenarios of covered chemicals (Note: OCA data can provide information about potential worker exposures during releases).

    To assist in the coordination of enforcement inspections, regional PSM coordinators may contact their local EPA RMP coordinators to share inspection information/ results.

    In a new OSHA Directive published January 17, 2017, the Chemical Facility PSM NEP guidance was modified to include petroleum refineries. The results of this change include the following:

  • Refinery inspections began in fall of 2017.
  • OSHA will use 15 questions during inspections, whereas previous refinery inspections had 39 broad document requests and 98 questions. The dynamic list of questions is not made public.
  • No pre-inspection questionnaires or document requests are required.
  • The purpose of inspection is to “spot-check” PSM documents.
  • A single CSHO can conduct inspections. • On-site contractors are included in the inspection.
  • OSHA will share NEP inspection findings with the EPA for facilities under an RMP.

This new guidance could soon apply to ammonia (NH3 ) facilities, as it will allow OSHA to perform NEP spot checks quickly and with fewer personnel.

WHAT COMPRISES THE NEP INSPECTION PROCESS

If your facility is selected for an OSHA NEP inspection, you may receive a written request for documents to be sent to OSHA for review. Consider delivery by certified mail, FedEx, or UPS, with a return receipt requested. Do not send original documents, and do not give them access to any electronic files or your PSM software database. Always meet the deadline given for submission of the documents and do not send more than they ask for. Appendix A includes a list of documents typically requested for an NEP inspection. Your organization should keep a detailed log of all documents provided to OSHA and any documentation that they were received.

OSHA may then request additional documents, or clarification/ additional information on the documents provided. OSHA has up to six months to review the documents, visit the facility if they choose, or issue citations based on your written program and/ or items they find during a facility visit.

During the review of your documents, OSHA may decide to visit your facility and target any discrepancies discovered in your program. For example, if your program lacks current inventory calculations in your process safety information (PSI), they may try to determine what your current inventory is, any NH3 purchases made, and how you track it (if at all).

If an OSHA compliance officer comes to your door, you are permitted, by law, to refuse to allow the OSHA compliance officer access to your facility. However, in most cases, that is a bad idea. Some companies have wrongly believed that refusing entry would give them time to “fix” their safety problems before the compliance officer returns with a warrant and probably several more compliance officers. A compliance officer could suspect that your company has something to hide, conduct a very detailed inspection, and spend more time at your plant.

When the compliance officer arrives at your facility, he or she will present credentials and state his or her name and the purpose of the visit. Verify the compliance officer’s identify prior to allowing access. Feel free to call the local OSHA office to verify that they have a compliance officer with that name and badge number. Verifying their identity is normal and expected by compliance officers.

The compliance officer should be given a site safety orientation after his or her identity is verified. Consider including all potential hazards at the facility, the person who will escort the inspector to the egress route, and the location of external meeting areas. The escort will stay with the inspector at all times and is responsible for the inspector’s safety in an emergency.

Inspections must take place during normal working hours for your facility. If no member of your management team or safety team is available, inspectors will allow up to two hours for one to show up. Compliance officers encourage employee/ union representatives to participate in the inspection. They especially like when members of your PSM team participate and may even ask for members to participate.

If your facility does not have a PSM team, consider forming one as soon as possible. The plant manager, plant engineer, and some of the process technicians should be on this committee. Also, because PSM standards require employee participation, consider having employees from other areas of your facility participate as well. This is a different committee from your plant safety committee. The PSM team’s purpose is solely for your NH3 process, or any external factors that could affect the covered process. The PSM team should meet at least monthly, take minutes and attendance, and track progress on any issues that may arise, open audit items that need to be completed, or any significant repairs or rebuilds. This team can also be a resource for incident investigations and creating/tracking management of change (MOC).

The inspector will hold an opening conference and explain to the group participating in the inspection the purpose of the visit and how the inspection will proceed. If you have not previously provided them, the compliance officer may request some or all of the documents listed in Appendix A. Having these documents available is best; however, you normally get up to four hours to provide them. Again, do not provide documents that they do not ask for. Regardless of the purpose of the inspection, OSHA has the right to examine your PSM documents at any time, so be ready. During the opening conference, inform the inspector if you have any proprietary or trade secrets at your facility and request that any pictures or videos taken in those areas be safeguarded and returned after any citations are resolved and closed.

During the actual inspection/walk through, if the inspection is targeting a specific area, such as the engine room, take the inspector to that area via the shortest possible route and on an outside route if possible. If the compliance officer has previously reviewed your documents, he or she may already have an area, or system that he or she wants to see. However, anything the inspector sees during the route is “fair game” and can be cited, so don’t provide them with anything that is not targeted. The compliance officer must comply with your employee safety and any food safety requirements. He or she should be allowed to take pictures and videos of your facility. If you refuse, the inspector could return with a warrant.

He or she will safeguard any and all trade secrets as discussed during the opening conference. Consider having your safety or management representative take pictures and/ or videos of whatever the compliance officer takes. Take lots of notes about items the inspector mentions during the inspection. The compliance officer will normally interview employees in private and ask them about safety training and their knowledge of the facility’s emergency action plan and the PSM program.

Any employee may approach the compliance officer to ask questions and/or make comments at any time.

Federal law strictly prohibits employers from retaliation against any employee who interacts with the inspector in any way. OSHA is very strict about this, and the inspector will note the names of all employees they interact with during the inspection.

When possible, correct items that are found while the inspector is present. These items will be labeled by the inspector as CDI, or corrected during inspection. This will not prevent a citation, but will normally reduce the penalty.

The inspection will end with a closing conference. The compliance officer will briefly summarize findings and note items that may have been CDI. He or she will also explain your legal rights and what to expect next. The compliance officer investigates and reports findings to the OSHA area director, but does not write the citations or recommend penalties. The area director will write citations, determine penalty amounts, and send to them to your facility. The area director has six months to get these sent to you, although it normally doesn’t take that long.

You also have an opportunity to attend an informal conference, which is normally held at your local OSHA area office. This is an opportunity to sit down with the compliance officer and area director to discuss the inspection and possibly reduction of the penalties. Most companies taken advantage of the opportunity to meet, as the result is often reduced penalties and/or changes to the citations.

As of August 2, 2016, penalties assessed for inspections taking place after November 2, 2015, were increased by 44%. State programs are required to raise their fines at least as high as the new federal rate. OSHA will continue to reduce the maximum fine based on the size of the company and other factors.

The types of citations in order of severity and the maximum penalties per violation are

  1. De Minimis: A safety suggestion or concern that does not meet the criteria for another type of citation. No penalty.
  2. Not Serious: A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. $12,934 maximum per citation.
  3. Serious (all PSM citations are at least serious): A violation where the probability is substantial that death or serious physical harm could result and where the employer knew, or should have known, of the hazard. $124,709 maximum per citation
  4. Repeat: A violation of any standard, regulation, rule, or order where, upon re- inspection, a substantially similar violation is found. (If your company has multiple facilities, and OSHA finds the same violation at your other facilities, they can cite you for a repeat violation for citations issued for the past seven years.) $129,336 maximum per citation.
  5. Willful: A violation where the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. $129,336 maximum per citation. In addition, if an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a courtimposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
  6. Failure to Abate Prior Violation: Failure to abate a prior violation may bring a civil penalty of up to $12,934 per citation for each day the violation continues beyond the prescribed abatement date.

WHAT COMPRISES EPA GDC INSPECTIONS

What Is the General Duty Clause?

Under the Clean Air Act, Section 112(r)(1), the General Duty Clause states that “The owners and operators of stationary sources producing, processing, handling or storing such substances [i.e., a chemical in 40 CFR part 68 or any other extremely hazardous substance] have a general duty [in the same manner and to the same extent as the General Duty Clause in the Occupational Safety and Health Act (OSHA)] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur” (EPA, 2000).

The General Duty Clause has been in effect and enforceable since November 15, 1990. It applies to any facility where extremely hazardous substances are present. The General Duty Clause is a performance-based authority recognizing that owners and operators have primary responsibility in the prevention of chemical accidents. The EPA believes that owners and operators who have these substances must adhere, at a minimum, to recognized industry standards and practices (and any government regulations) to be in compliance with the General Duty Clause.

The General Duty Clause applies to “owners and operators of stationary sources producing, processing, handling or storing any extremely hazardous substances” (OSHA, 1970).

“Stationary source” is defined in Section 112(r)(2)(C) as “any buildings, structures, equipment, installations or substance emitting stationary activities (I) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur” (EPA, 2000).

WHAT ARE THE OBLIGATIONS UNDER THE GENERAL DUTY CLAUSE?

The General Duty Clause imposes the following primary obligations on the owners and operators of stationary sources:

  1. Identify hazards that may result from accidental releases, using appropriate hazard assessment techniques;
  2. Design and maintain a safe facility, taking such steps as are necessary to prevent releases; and
  3. Minimize the consequences of accidental releases that do occur.

HOW DO THE EPA REGIONS PRIORITIZE FACILITIES TO VISIT?

  1. Stationary source has an accident (or a “near miss” that could have been an accident) that warrants an investigation.
  2. Stationary source appears in agency databases for having repeated releases.
  3. Industry hazard is identified after a similar source has a major accident.
  4. A state or local government official or other member of a community asks for assistance with a particular source.
  5. A source asks for assistance regarding a particular hazard.
  6. Stationary sources have a significant quantity of an extremely hazardous chemical in close proximity to population centers or sensitive populations (e.g., schools, hospitals, etc.).
  7. OSHA makes contact after an inspection reveals hazards that could cause a release.

Research also indicates that if a particular company has releases involving first responders and/or violations of the RMP and GDC, that company may also its facilities targeted in other EPA and OSHA regions.

WHY IS NH3 REFRIGERATION EMPHASIZED?

In February 2015, the EPA published an enforcement alert titled “Anhydrous Ammonia at Refrigeration Facilities under Scrutiny by U.S. EPA.” This enforcement alert used as examples six cases with significant issues at NH3 facilities. Two of those issues were releases, three were RMP violations, and one was a GDC violation.

The enforcement alert also stated that between 2012 and 2015, releases at nine refrigeration facilities resulted in major property damage, numerous injuries and hospitalizations, and several deaths. These releases also resulted in $8.4 million in civil penalties and $10 million in supplemental environmental projects (SEPs).

Under the General Duty Clause heading, the enforcement alert stated, “Recent GDC cases indicate that some facilities may not be taking required steps to design and maintain safe facilities or take precautions that would minimize the consequences of an accidental release of ammonia.”

WHICH DISCREPANCIES ARE CITED MOST FREQUENTLY?

According to the EPA Combined Enforcement Policy, Appendix A, published in June 2012, common failures that resulted in violations include:

Failure to identify hazards

  • Failure to identify chemical or process hazards that may result in accidental release or explosion.
  • Failure to consider risk from adjacent processes, which may pose a threat to the process.
  • Failure to consider safety considerations adequately given the facility’s siting (e.g., when the facility is located in close proximity to residential neighborhoods, sensitive ecosystems, and/ or industrial parks containing industries utilizing listed hazardous substances). 

Failure to design and maintain a safe facility, taking such steps as are necessary to prevent releases

  • Failure to design and maintain a safe facility. In determining this factor, consider the facility’s physical conditions, applicable design codes, federal and state regulations, and recognized industry practices and/or consensus standards.
  • Failure to provide for sufficient layers of protection. An additional layer of protection would have prevented a release or explosion (i.e., enclosed and secure engine room).
  • Failure to use updated design codes.
  • Failure to implement a quality control program ( MOC) to ensure that components and materials meet design specifications and to construct the process equipment as designed.
  • Also, design failures include commonsense design flaws or inadequate equipment, such as failure to include sufficient instrumentation to monitor temperature, pressure, flow, pH level, etc. Other design flaws include lack of emergency shutdown systems, overflow controls, instrumentation interlocks, and use of failsafe design. 
  • Failure to provide for or properly size pressure-relieving devices on a tank or vessel subject to pressure.
  • Failure to train employees as to the hazards that they may encounter. Failure of operators or employees in implementing or following operating instructions or company rules.

Failure to minimize the consequences of accidental releases that do occur

  • Failure to develop an emergency plan that specifically addresses release scenarios developed from hazard identification and historical information.
  • Failure to follow the emergency plan or to coordinate with the local emergency planning committee or local emergency management agency.
  • Failure to monitor any shutdown (decommission/drain NH3 ) of a facility.

HOW DO NH3 FACILITIES THAT ARE UNDER THE THRESHOLD QUANTITY COMPLY WITH THE GDC?

The information presented to this point emphasizes that complying with the GDC is vital for our industry. Do not assume that the EPA will not visit a small facility below the threshold quantity (TQ) and levy substantial civil penalties and SEPs.

Furthermore, having a safe and healthy workplace for employees is an obligation and maintaining a safe environment for the neighbors is a civic duty regardless of the quantity of NH3 at the facility.

The best place to start is to implement the IIAR Ammonia Refrigeration Management Program 2005 (ARM). This program is designed for facilities with less than TQ of NH3 , which is 10,000 lb. for federal OSHA and the EPA, but some states will have a lower TQ.

Keep up with current and new guidance from RETA (education and training of process operators); IIAR; the American Society of Heating, Refrigerating and Air- Conditioning Engineers (ASHRAE), the National Fire Protection Association (NFPA), and your state and local municipal codes.

Once implemented, consider conducting periodic compliance audits to verify the ARM program’s effectiveness.

A FINAL WARNING: DISCRETION IS ADVISED

If your facility is not subject to OSHA’s PSM standard or the EPA’s RMP requirements, ensure that inspectors know that the facility has developed an ammonia refrigeration management program, not a PSM or RMP. Otherwise, during visits by EPA or OSHA officials, if they are told that your facility is “complying with PSM standards,” they may ask to review your 14 elements of PSM or ask if you have filed an RMP.

In the research done to prepare this paper, a GDC case summary discussed a situation where an EPA inspector came on location and asked how much NH3 they had at their facility. The employee answered “Oh, we are well over 10,000 pounds.” The EPA cited them for not maintaining an accurate inventory. The facility then had to spend two months and a lot of money to prove that its inventory had consistently been 9,000 pounds or less.

The EPA and OSHA work with each other now more than ever. Seeing the EPA show up at your facility within a couple of weeks after an OSHA inspection is not uncommon. This was previously listed among the reasons for the EPA to determine facilities to target for a GDC inspection.

A best practice is that every facility

  • Has a designated person, or persons, trained to greet and answer questions for any inspectors that come to your facility.
  • Discourage unqualified employees from answering specific questions about the plant. This can only be accomplished by training all employees on the procedures to be followed if OSHA or the EPA visits your facility.
  • Only give the inspectors what they ask for. They typically review every document that is provided to them before and during any inspection, and any discrepancies found in these documents are citable by OSHA and EPA.

Most of all, BE PREPARED, BE COMPLIANT, and BE READY!

The views and opinions expressed in this paper are solely those of the author and do not necessarily reflect the opinions, policy, or position of Dean Foods Company or any of its affiliates.

REFERENCES

Conn, Maciel, Carey, LLP. “The OSHA Defense Report Regulatory Update: OSHA’S PSM Standard & EPA’S RMP Rule. December 12, 2017. Washington, DC.

EPA (U.S. Environmental Protection Agency). 2000. “Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(1).” EPA 550-B00- 002, Washington, DC.

EPA (U.S. Environmental Protection Agency). 2009. “The General Duty Clause.” EPA 550-F-09-002, Washington, DC.

EPA (U.S. Environmental Protection Agency). 2012. “Combined Enforcement Policy for Clean Air Act Sections 112(r)1, 112(r)7, and 40CFR Part 68.” Washington, DC.

EPA (U.S. Environmental Protection Agency). 2015. “Anhydrous Ammonia at Refrigeration Facilities under Scrutiny.” EPA Enforcement Alert, 14(2), February.

IIAR. 2005. IIAR Ammonia Refrigeration Management Program 2005 (ARM). Alexandria, VA.

OSHA (Occupational Safety and Health Administration). 2017. “PSM Covered Chemical Facilities National Emphasis Program.” OSHA Directive Number CPL 03-00-021. Effective Date January 17, 2017. Washington, DC.