IIAR

By Lowell Randel, IIAR Government Affairs Director

As reported in the last issue of The Condenser, the Occupational, Safety and Health Administration was working late in 2011 to finalize the national rollout of the PSM Covered Chemical Facilities National Emphasis Program (NEP). The program was finally announced through a directive released on November 29, 2011 and has been in effect since that date. The directive marks the evolution of the pilot NEP on chemical facilities that has been in operation since the summer of 2009 into a nationwide program. As expected, the NEP will be implemented nationwide, including the mandatory adoption (or equivalent) by state plan states. While programmed inspections are already taking place in federal OSHA states, many state plan states are currently working to implement their plans for the NEP and it could take a few more months for some of the state plan states to begin their programmed inspections.

The OSHA Directive lays out two categories for facilities subject to the NEP. The first category is for facilities likely to have ammonia used for refrigeration as the only Highly Hazardous Chemical (HHC) and the second category is for all other facilities. It is interesting to note that the name of the new NEP indicates that the program is focused on “chemical facilities”. With the heavy focus on ammonia refrigeration, it appears that the title may be a bit of a misnomer, as industrial refrigeration sites do not process or manufacture chemicals, as may be inferred from the program’s name. There is concern that this may cause some misunderstanding in the field and lead to the application of principles meant for chemical manufacturers and processors in industrial refrigeration settings. This has been recognized by IIAR as a potential problem and outreach is ongoing with OSHA to try and minimize any issues that may arise.

IIAR was encouraged to see the training and experience requirements established in the Directive for inspectors conducting NEP programmed inspections. Given the decentralized nature of OSHA, it can be difficult to ensure that NEP inspections will be conducted in a consistent manner across Regions, Areas and state plan states. By including training requirements, the agency has acknowledged the importance of having well informed inspectors to the effectiveness of the program. Even with the training requirements, IIAR will be closely monitoring the implementation of the NEP to identify potential areas of inconsistency and be ready to provide technical resources to OSHA to help remedy such inconsistencies.

As facilities prepare for potential NEP inspections, it is important to note that a requirement to verify abatement of previous OSHA PSM citations has been added to the national program. Facilities with past violations should make sure that proper abatement measures have been taken.

Similar to the NEP pilot program, OSHA will use four sources for targeting programmed inspections:

• U.S. Environmental Protection Agency’s (EPA) Chemical Accident Prevention Provisions, Program 3 Risk Management Plans (RMP)
• Explosives manufacturing NAICS codes
• OSHA’s IMIS database
• OSHA Area Office knowledge of local facilities

OSHA has compiled these lists and run a random generator to determine the order in which facilities appear on the programmed inspections list.

During the NEP development process, there were concerns that sites participating in the OSHA Voluntary Protection Plan (VPP) and OSHA Consultation’s Safety and Health Achievement Recognition Program (SHARP) would be subject to the NEP, despite the special efforts made by these sites to proactively address safety. However, the Directive specifically states that VPP and SHARP sites are to be deleted from lists for programmed inspections. VPP and SHARP sites will continue to be subject to the NEP during unprogrammed inspections. In addition, facilities that had NEP inspections during the pilot program during the last two years will be deleted from the programmed inspections list.

The directive requires Regions to complete an average of 3-5 programmed inspections per Area Office per year under the NEP. Approximately 25 percent of all programmed inspections will come from ammonia facilities (Category I). OSHA has indicated that this percentage was actually placed in the directive to avoid a disproportionate number of inspections at ammonia refrigeration facilities, due to the high number of such facilities nationwide. The remaining 75 percent will come from all other facilities (Category II). The Directive states that unprogrammed inspections must also follow the NEP. Unprogrammed inspections may occur as a result of complaints, referrals, accidents or catastrophes.

Inspections will be conducted using an unpublished dynamic list of questions related to Process Safety Management. For ammonia refrigeration inspections, there will be 10 questions specific to ammonia refrigeration and 5 questions regarding general PSM compliance. The directive states that priority will be given to implementation over documentation, so facilities should be prepared to demonstrate that the implementation of their PSM program is consistent with their written plan. If an inspector determines that PSM deficiencies may exist outside dynamic list questions, the inspection may be expanded after consultation with the Area Director.

Inspections will begin with an opening conference which will include a verification that the facility is subject to the NEP. This was an issue identified during the pilot program, as many facilities thought to possess a threshold quantity of chlorine were ultimately determined to not be subject to the NEP. This provision will be unlikely to effect ammonia refrigeration facilities unless the site no longer has over 10,000 pounds of ammonia. The inspector will then ask for a series of documents including the facility’s PSM plan and OSHA worker illness and injury logs.

The inspector will ask for a description of the facility’s PSM programs and conduct a walkaround. It is important to note that contractors at the facility will also be subject to the inspection.

As facilities prepared for a potential NEP inspection, it is helpful to look at the results of the NEP pilot to identify which areas were most cited for violations. According to OSHA, during the first two years of the pilot, 207 inspections had taken place. Ammonia facilities made up approximately 41 percent of all inspections (programmed and unprogrammed) through the first two years of the pilot program. Of the 207 inspections, 142 resulted in citations. For those inspections resulting in citations, an average of nine violations was cited per inspection, resulting in an average total of $30,933 in fines.

The majority of citations resulting from NEP pilot inspections came from PSM elements such as Process Safety Information, Mechanical Integrity and Process Hazard Analysis. This is not surprising, given the heavy focus on PSM in the questions. However, there were a substantial number of non-PSM related citations that can give facilities an indication of where problem areas may exist. The most prevalent non-PSM citations included issues such as lockout/tagout, personal protective equipment and record keeping. The results of the pilot illustrate some key areas that facilities may want to examine within their PSM and overall safety programs.

IIAR strongly encourages all members to read the full directive and review their PSM programs in anticipation of a possible inspection. A full copy of the OSHA Directive detailing the NEP can be found at: http://www.osha.gov/ OshDoc/Directive_pdf/CPL_03-00-014.pdf

In addition, IIAR is working with OSHA through the Alliance program to develop compliance assistance materials related to the NEP to help members better understand the NEP and how to comply. IIAR Government Affairs will continue to actively engage with OSHA regarding the NEP and work to provide members the latest information on program developments.