Meeting OSHA and EPA Criteria

A White Paper prepared by Maggie Golden

August 7, 2013

203 James Street Wales, WI 53183

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Meeting OSHA and EPA Criteria

Introduction The purpose of this document is to outline the importance of fulfilling OSHA (Occupational Safety and Health Act) and EPA (Environmental Protection Agency) standards, refresh plant personnel on what those standards are, and advise on how to ensure those standards are met. Companies often fear OSHA and EPA citations because of the fines associated with them, however there are more repercussions than the fines alone. With citations come substantial expenditure of manpower and time to pick up the pieces, which means using up valuable time and energy that could have otherwise been applied to business-related tasks. Perhaps most importantly, an OSHA or EPA citation will negatively impact your company’s name. The news release that announces your company’s violations will offer the implication that your company puts its workers and/or surrounding community at risk. Your company will likely be more “under the microscope” of regulatory agencies, as well. Additionally, the workers themselves may begin to question the supervisors’ safety decisions and competence.

OSHA and EPA generally do not make efforts to let the public know when a facility is actually cleared of a citation. Therefore, it is crucial to do everything possible to promote safety and successfully show to OSHA and EPA that you do so.

To ensure your facility is completely up to OSHA and EPA’s standards, it is wise to hire an experienced consultant to guide you through the preparation process. Golden Industrial Refrigeration is fully equipped and eager to provide that service to you. Your investment in our services will save you a variety of costs. We will help cut out the stress of preparation, reduce your time spent on these preparations, and prevent the serious costs of OSHA and EPA fines.

OSHA and EPA at a Glance, and Major Differences OSHA and EPA have similarities in their missions and goals, but they also have important distinctions. At their core, both aim to promote wellbeing and safety. OSHA’s focus is on “enforcing protective workplace safety and health standards,” while EPA’s mission is “to protect human health and the environment.” Therefore, their goals are in line with each other, but OSHA’s are more specialized in their specific focus on worker safety while EPA has a broader scope that reaches into offsite environmental and community health impacts. OSHA and EPA also have differences in their requirements of facilities, and your company must be prepared to satisfy all the specifications each agency has. The differences between the two agencies’ requirements are more extensive than one might think. Here is a breakdown of some major distinctions:

OSHA’s focus is worker safety on-site, while EPA’s concern is how your facility is impacting the wellbeing of the world surrounding the facility.

EPA’s RMPs (risk management program) require an offsite consequence analysis. OSHA’s PSM (process safety management) does not require this.

EPA’s PHAs (process hazard analysis) for their RMPs must also include potential off-site impacts.

Some of the chemical threshold standards are different and some are the same. For instance, the threshold quantity of anhydrous ammonia is 10,000 pounds for both the EPA and OSHA, but

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the threshold for ammonia in solution form is 20,000 pounds with the EPA and 15,000 pounds with OSHA. Additionally, while both agencies regulate a wide range of substances, there are over 25 chemicals and other substances EPA regulates that OSHA does not.

EPA’s Emergency Response Plan for RMP has to be merged with the community response plan.

EPA’s RMP requires more regular revisions to the RMP submittal than that of the PSM 3- and 5-year updates.

EPA generally has shorter visits (usually a half-day to a day), whereas OSHA will often conduct 3 or 4 separate lengthy sessions.

OSHA’s General Duty Clause and its Impacts Some facilities aren’t required to have PSM (Process Safety Management) because they’re under the threshold quantity of 10,000 pounds of ammonia, but they are not immune to citations. Facilities that thought they were exempt from needing a PSM program because they were under the threshold quantity are no longer safe. OSHA has issued citations per the General Duty Clause. All facilities are subject to the General Duty Clause, whether they have 100 or 9,999 pounds of ammonia. The clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970, reads as follows:

Here’s what gives grounds for a General Duty Clause citation: 1. The employer failed to keep the workplace clear of a hazard that its workers were exposed to. 2. The hazard was known of. 3. The hazard was causing, or was likely to cause, death or serious physical harm. 4. There was a feasible and useful method to correct the hazard.

As OSHA puts it, “Employers can be cited for violating the General Duty Clause if there is a recognized hazard and they do not take reasonable steps to prevent or abate the hazard.”

In other words, you are still responsible for having a plan outlining how to deal with hazards, and you must know how to carry out that plan. It is wise to have a PSM program in place even if you aren’t required to have one. It will help you to put the necessary focus on safety procedures and avoid citations under the General Duty Clause.

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An example of an OSHA citation in which the General Duty Clause was enforced:

Recent Changes in OSHA Practices Within the past few years, OSHA has put less focus on giving safety training to facilities and more emphasis on cracking down on policies. There have also been changes to penalties and other practices. Some changes to note:

Significant increase in fines. According to an article on AGWeek.com, “In 2010 figures available

through the first half of the year, there were 167 fines of $100,000 or more, and 18 fines of $1

million or more.”

Doubling of minimum penalties due to the permissible penalty reductions being cut in half.

More utilization of National Emphasis Programs (NEP), which order inspections for particular

risk factors. This includes issues related to combustible dust, machinery, process safety

management, and more.

Launch of a new Chem NEP. The program does intensive inspections at facilities chosen at

random from a list. About 25% of the sites picked for inspections are facilities that work with

ammonia refrigeration. The inspections focus on how well a facility meets PSM standards. The

Chem NEP is already in effect, and does not have an expiration.

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AGWeek summarizes the changes well, “There have been more inspections, more violations, higher

penalties, and more items being characterized in a more serious grade than in the past.”

As you can see in the following graphs from Casey Consentino (an associate in the Labor and

Employment practice in the Washington, DC, office) and Eric Conn (a Member of the Firm in the Labor

and Employment practice in the Washington, DC, office), the average fine for a serious violation doubled

from 2010 to 2011. Additionally, the number of cases which incurred fines of over $100,000 rose

gradually from 2006 to 2011. In 2010 there were 164 penalties of over $100,000, and it climbed to 215

in 2011.

Figure 1: Average OSHA penalty per serious violation (Consentino and Conn)

Figure 2: OSHA number of cases with penalties over $100,000 (Consentino and Conn)

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Preparation for OSHA and EPA Visits It is imperative that plant personnel be ready for OSHA and EPA audits. Overlooking any requirement can result in substantial fines and a compromised reputation. The following is a task list for a smooth visit:

1. It is helpful to have professionals on-site who have prior experience and knowledge of the audit process. That way, you can have more specialized input on potential problems and how to remedy those issues before the visit. With him/her (ideally more than one experienced person), conduct a walk-through of the entire facility at least a few days before the audit.

2. It is vital to have all necessary documentation readily available. Label everything and organize it for easy access.

3. Anticipate potential questions OSHA or EPA will ask, and be prepared with answers to those questions.

4. Do a thorough cleaning of the entire facility. A dirty plant may be cited as a risk factor, and at the very least reflects poorly on your company’s integrity.

5. Create a welcoming environment for the auditor. Have a room ready with seating and adequate space. You also may want to provide light refreshments, like drinks and donuts.

6. Be positive and polite. The auditor may seem intimidating, but remember that they’re of course human – try to relate with them. Show them confidence and in-depth knowledge of your facility.

7. Write notes throughout the audit – it will help you be even more prepared for the next visit. Doing so also shows the auditor that you’re engaged and that you care about further improvement of your facility.

Things Not to Do There are a number of pitfalls you will want to avoid during an OSHA or EPA audit. Here are some important ones:

1. Don’t be confrontational. If you feel like you’re going to lose your composure, excuse yourself for a moment.

2. If you have a consultant, don’t have him/her be the only one talking. You need to show that you are knowledgeable about your facility and its workings.

3. Don’t make the auditor wait around for you to rifle through files – have everything prepared ahead of time.

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BRACE Yourself for OSHA and EPA Visits Golden Industrial Refrigeration would like to help you navigate the steps needed to prepare for OSHA and EPA visits. Our BRACE program comprises five steps that aim to ensure preparedness for these inspections. The steps of the program are as follows:

Business study

GIR will gather information about your company so we have the best possible grasp of how you operate and what your needs may be.

Risk assessment

After we get to know the inner workings of your facility, we will assess potential risks and problem points that could cause snags with OSHA and EPA. We also want to help you ensure the safety of the people within your company.

Analyze potential solutions

Once we determine the risk factors, GIR will work with you to determine the most effective way to resolve them.

Craft plan

With our proposed solution in mind, we will develop a plan to work toward and ultimately accomplish that solution.

Enact plan and evaluate outcome

The last steps are executing the plan and determining if it works for what we set out to resolve. If it does not produce the necessary results, we will reassess the situation and go back to the drawing board. GIR will work with you until your facility is safe and in full compliance with OSHA and EPA.

Real Examples of Facilities’ Incidents and Citations It is worthwhile to examine other facilities’ past violations. It may help you avoid making similar mistakes, and remind you of the very real consequences of failing to meet OSHA’s and EPA’s requirements. The following are a few examples of recent OSHA and EPA settlements and citations.

EPA Example 1: Two Dairies, Puerto Rico, 2012

The dairy paid a penalty of $275,000 to EPA for infringements of The Clean Air Act. Some of the

violations include:

Two major releases of anhydrous ammonia from the facility

Failure to identify hazards and sustain safe facilities

Not complying with administrative orders

Judith Enck, an EPA Regional Administrator, commented, “Reducing toxics in the air is a priority for the

EPA. These facilities were very poorly run and the communities around them suffered as a result, with

some people being sickened by a major release of ammonia in the air. This settlement requires the

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company to comply with the law and not jeopardize people’s health.” The company has had multiple

ammonia releases. In May of 2007, 1,146 pounds of anhydrous ammonia leaked from one facility. This

resulted in 14 local residents needing medical attention – 9 of whom had to be hospitalized overnight.

EPA Example 2: Two Fertilizer Distributors, Washington State, 2011

Two fertilizer distributors incurred settlements totaling about $33,000 for not updating chemical release

prevention plans. One paid $13,521, and the other paid $19,986. According to EPA reports, they “failed

to update their risk management practices at least every five years as required by the CAA (Clean Air

Act). The facilities store more than 10,000 pounds of anhydrous ammonia, which exceeds the threshold

quantity that triggers federal planning requirements.”

Wally Moon, EPA’s Emergency Response team leader in Seattle, Washington, comments, “Companies

with large amounts of ammonia on-site must have a solid, comprehensive leak prevention program in

place. They have a responsibility to protects workers, emergency responders, and the community to

make sure a serious accident doesn’t occur.”

OSHA Example 1: Chicken Farm, Ohio, 2011

A chicken farm faced fines of $288,000 for 61 safety and health violations. Some of the violations

include:

An ammonia leak, and poor response to the leak

Deficiencies in process safety information, process hazard analysis, operating procedures,

employee training, incident investigation, and mechanical integrity

30 safety-related violations, including failure to set up machine guarding, unsafe electrical

practices that were risks for fire, arc flash, or electric shock, and failure to provide workers with

necessary protective equipment

Not implementing lockout/tagout procedures

Deb Zubaty, OSHA’s Columbus, Ohio director, said, “[removed] has a legal responsibility to follow

established process safety management standards to ensure its workers are properly protected from

known workplace safety and health standards. Failing to ensure protection through appropriate

equipment maintenance, training, and adherence to OSHA regulations demonstrates a lack of regard for

employees’ well-being.”

OSHA Example 2: Refrigeration Facility, Alabama, 2011

A refrigeration facility was met with $52,500 in penalties for 16 health and safety infractions. The

investigation of the facility took place after an ammonia release incident that exposed 152 workers to

ammonia vapors.

Anhydrous ammonia leaked from a rooftop pipe at the facility as a result of hydraulic shock to the pipe.

A suction header on one of the evaporators to a blast freezer also failed around this time. The company

only realized the problem after an on-site crane operator “was overcome by vapors and fell down while

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evacuating his crane cab on board a ship that was being loaded by [removed].” Of the 152 workers who

went to the hospital after exposure, 31 were admitted and four were put in the intensive care unit.

Kurt Petermeyer, OSHA’s area director, commented, “This incident demonstrates the importance of

employers with process safety management covered processes, such as anhydrous ammonia

refrigeration, to have an effective safety program. Such a program must include thorough investigations

of all mishaps and chemical releases to identify causal factors and prevent recurrence. Additionally, it is

imperative that employers have efficient emergency response procedures in place to ensure the

protection of responding personnel and quick containment of the chemical release.”

News Articles Detailing High-Penalty OSHA and EPA Cases

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Conclusion It has become increasingly evident over the years that OSHA and EPA audits are not to be taken lightly. However, your facility can come out of OSHA and EPA visits unscathed if you take all the necessary preparations and operate your plant responsibly. Please contact us with any questions you may have about this document, our services, or anything else that we can assist you with. Consider this guide as a starting point in your efforts to prime your facility for OSHA and EPA audits. GIR is here to help make the process more manageable. Phone: 262-982-6006 Fax: 262-982-6009 Email: Goldenir@gir-gps.com Mailing address: GIR 203 James Street Wales, WI 53183 Visit our website: http://www.girwhq.com/

Sources

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