IIAR

The Occupational Safety and Health Administration continues to be a major focus of IIAR’s government relations efforts, including the work of the newly reconstituted Government Relations Committee. IIAR members are reporting that OSHA has become increasingly active with inspections and enforcement activities. The National Emphasis Program for Chemical Facilities, or NEP, is a major reason OSHA inspection of ammonia refrigeration facilities has increased. This article will examine some of the recent trends in overall OSHA enforcement over the last few years and take a closer look at the results of the first full year of the NEP.

OSHA INSPECTION DATA FY2009 – FY2013

OSHA reports its inspection data by fiscal year. As such, the last full fiscal year of statistics available is FY 2012. However, OSHA has preliminary data covering the first few months of FY 2013 that will also be used to show trends. In FY 2012, OSHA conducted a total of 40,691 inspections. This is over 1900 more inspections that were conducted in FY 2009, showing a roughly five percent increase in inspections over the period. Digging deeper into the statistics, 62 percent of inspections in FY 2009 were programmed inspections, while 56 percent of inspections in FY 2012 were programmed. So far in FY 2013, 59 percent of inspections have been programmed, which is the average percentage over the period from FY 2009 to FY 2013.

In FY 2009, 17 percent of all inspections were based on complaints. The number in FY 2012 was 23 percent and so far in FY 2013 24 percent of all inspections has been initiated due to complaints. The percentage has increased each year since FY 2009, showing a clear trend of increased complaints triggering OSHA inspections. Some would contend that this trend is due to increased union activity and messaging from OSHA encouraging workers to alert the agency to workplace hazards.

While there has been an increase in overall inspections from FY 2009 to FY 2012, the total number of violations issued in FY 2012, 78,727, is less than any of the years between FY 2009 – FY 2011. The high watermark for violations issued was 96,742 in FY 2010. The average number of violations from FY 2009 to FY 2012 was 87,161. The percent of inspections with violations being contested rose from seven percent in FY 2009 to eleven percent in FY 2012. The percent of inspections deemed “in compliance” averaged just under 25 percent during the period in question, meaning that roughly one in four OSHA inspections has not resulted in any violations.

Another interesting aspect of OSHA inspection data is the number of violations issued by establishment size. By far, the majority of OSHA inspections take place at smaller establishments. In FY 2012, 54 percent of all inspections occurred in workplaces with 25 or fewer employees. Seventy-five percent of all inspections were in establishments with 100 or fewer employees. The relative number of violations is consistent with this breakdown. Fifty percent of violations occurred in workplaces with 25 or fewer employees and 70 percent of violations were in establishments with 100 or fewer employees.

For those inspections where violations have been cited, the percentage of violations classified as serious has remained steady over the period at an average of 75 percent. However, the average penalty amount per serious violation has increased significantly. In FY 2009, the average penalty for a serious violation was $970. In FY 2012, that number more than doubled to a level of $2,153 per violation. The increase in penalties for serious violations is by design, as OSHA revised its penalty structure in FY 2011. OSHA has been successful in achieving its goal of increasing the penalties for serious violations.

For general industry, the most cited standards from FY 2009 to FY 2012 were:

1. Hazard Communication
2. Electrical, Wiring Methods
3. Lockout/Tagout
4. Respiratory Protection
5. Powered Industrial Trucks
6. Machine Guarding
7. Electrical, General Requirements
8. Bloodborne Pathogens
9. Personal Protective Equipment
10. Guarding Floor and Wall Openings

By examining the last four years of OSHA inspection data it is clear that OSHA has intensified its enforcement activities. Not only is OSHA conducting more inspections, but the average penalty for serious violations has increased significantly. There are some indications that the trend of increased overall inspections may reverse in FY 2014 due to budget constraints. In the President’s recently released FY 2014 budget request, OSHA anticipates inspecting 1,711 fewer worksites than it did in FY 2014.

However, the reduction in overall inspections in FY 2014 may not translate into fewer inspections of ammonia refrigeration facilities. The President’s budget suggests that OSHA will be targeting its inspection resources on refineries, chemical plants and facilities where emerging chemical and health issues could arise. This seems to indicate that efforts such as the National Emphasis Program for Chemical Facilities will continue to intensify.

NATIONAL EMPHASIS PROGRAM FOR CHEMICAL FACILITIES — FIRST YEAR RESULTS

The National Emphasis Program for Chemical Facilities (NEP) began as a pilot program in 2009 and transformed into a full national program in November 2011. The purpose of the chemical facility NEP is to reduce or eliminate workplace hazards associated with the release of highly hazardous chemicals (HHCs). Ammonia is included in the HHC category and inspections of ammonia facilities with over 10,000 pounds of ammonia are specifically included in the NEP. The first year of results from NEP inspections is now available.

It is important to note that the NEP is being implemented in both federal OSHA states and OSHA state plan states. Data from both the federal and state inspections is available and will be discussed separately below.

Federal OSHA inspectors conducted a total of 205 inspections during the first year of the NEP. Programmed inspections made up 127 of the total, while 78 of the inspections were unprogrammed (resulting from an accident, complaint or referral). The majority of NEP inspections took place in three of OSHA’s ten regions. Regions 4, 5 and 6 accounted for 121 inspections, or 59 percent of all inspections in the first year. Region 4 encompasses much of the southeastern United States. Region 5 covers many Midwestern states and Region 6 covers parts of the Gulf coast and southwest.

One explanation for the higher number of inspections in Regions 4 and 6 is that just prior to the chemical NEP OSHA conducted a National Emphasis Program for Petroleum Refineries. This is relevant because Region 4 and Region 6 include a large number of petroleum refineries. The chemical NEP requires that inspectors meet certain training and experience requirements. Many inspectors from Region 4 and Region 6 had already met these requirements because of the petroleum NEP, so these regions were better placed to conduct more chemical NEP inspections in the first year. This also sheds light on why some IIAR members who have been through an NEP inspection have reported inspectors citing American Petroleum Institute standards during inspections. This could be because many inspectors had just gone through the petroleum NEP and were more familiar with API standards than the more applicable IIAR standards.

From the 205 federal NEP inspections, OSHA issued 1160 violations. These violations resulted in $4.8 million in proposed penalties, for an average of $4000 per violation. It is important to note that these numbers are for initial proposed penalties and do not reflect any reductions that may occur. Process Safety Management accounted for 740 of the violations representing almost 64 percent of all federal NEP violations in the first year. The average proposed penalty for PSM violations was $4,800, which is 20 percent higher than the overall penalty average. Total proposed penalties for PSM was over $3.5 million.

Four PSM elements made up over 73 percent of all PSM violations. The four most frequently cited PSM violations were for: Mechanical Integrity (21.3 percent), Process Safety Information (20.3 percent), Process Hazard Analysis (17.5 percent), and Operating Procedures (14.5 percent). The most frequent nonPSM citations included Lockout/Tagout, Hazardous Waste and Emergency Response, Respiratory Protection, Record Keeping and Guarding Openings.

OSHA State Plan states conducted 29 inspections in the first year, 25 of which were planned/programmed inspections. Of these 29 inspections, 20 occurred in the Region 5 states of Illinois, Indiana, Michigan and Minnesota. This could be attributed to the presence of OSHA personnel in this Region who have specific expertise in the area of PSM and follows the high number of federal NEP inspections in Region 5.

State plan NEP inspections resulted in 149 violations, 118 of which were for PSM. Initial penalties for state plan inspections totaled $1.5 million and the average initial penalty per violation was $10,000. Again, these statistics are for proposed penalties. While the average proposed penalty in state plan inspections is more than twice the federal average, there are indications that many of the final penalties are being reduced significantly and align more closely with the federal average.

The five most frequently cited PSM elements account for over 80 percent of the PSM violations. The top five PSM elements in state plan states are: Mechanical Integrity (26.3 percent), Process Hazard Analysis (21.2 percent), Process Safety Information (16.1 percent), Operating Procedures (8.5 percent), and Contractors (8.5 percent).

IIAR GOVERNMENT RELATIONS ACTIVITY

IIAR recognizes OSHA’s recent trends towards more active enforcement and inspections impacting the ammonia refrigeration industry. As a result, IIAR continues to actively engage with OSHA regarding the agency’s overall enforcement activities and specifically the NEP for chemical facilities. The newly reconstituted IIAR Government Relations Committee is focusing much of its attention on OSHA. At the 2013 IIAR Conference, the Government Relations Committee met to discuss strategies to address OSHA policies and programs. Among the strategies identified were: educating OSHA inspectors about IIAR standards and the ammonia refrigeration industry, developing mechanisms to collect IIAR member regulatory experiences and answer industry questions, and exploring partnerships with like-minded groups to engage policy makers in Washington, DC. IIAR government relations will continue to pursue these and other strategies to promote and protect the interests of our industry.