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OSHA Launches Pilot PSM National Emphasis Program for Chemical Facilities

Beveridge & Diamond, P.C., August 3, 2009

On July 27, 2009, the Occupational Safety and Health Administration (“OSHA”) launched its much-anticipated National Emphasis Program (“NEP”) for chemical facilities.  The Chemical NEP establishes an inspection program to ensure compliance with OSHA’s standard on Process Safety Management of Highly Hazardous Chemicals (“PSM”).[1]  The NEP will operate as a one-year pilot program with programmed inspections targeting Regions I, VII, and X, and with unprogrammed inspections in all regions.  After one year, OSHA will evaluate the NEP and consider renewal and expansion of the program to other regions. 

1.      Background:  The PSM Standard and Refinery NEP

OSHA developed the PSM standard in 1992 following a number of catastrophic incidents at refinery and chemical facilities.  The standard is intended to prevent or minimize the consequences of a catastrophic release of toxic, reactive, flammable or explosive highly hazardous chemicals (“HHCs”) by requiring a comprehensive management program integrating technologies, procedures, and management practices.  In 1994, OSHA released a guidance document that established Program Quality Verifications (“PQVs”) as the primary enforcement mechanism for the PSM standard.[2]  However, due to the resource-intensive nature of PQV inspections, the guidance acknowledged that OSHA would perform only a limited number of such inspections each year.  A recurrence of substantial incidents in the petroleum refining industry after the standard went into effect, most notably the 2005 incident at BP’s Texas City, Texas refinery, led OSHA to recognize the need for more effective enforcement of the PSM standard.     

Through NEPs, OSHA has identified industries or hazards deserving priority attention from its national, regional, and area offices as well as states that choose to implement similar programs.[3]  OSHA unveiled in 2007 an NEP for petroleum refineries that established a comprehensive inspection strategy for refineries considered at greatest risk of catastrophic accident.[4]  Under the refinery NEP, OSHA has issued a large number of serious, willful, and repeat citations of the PSM standard.[5]  Patrick Kapust, a safety and health specialist in OSHA’s Enforcement Directorate, noted that the program turned up “more violations than [OSHA] expected” and significantly taxed the agency’s inspection resources.[6]  Plans to extend the refinery NEP to chemical facilities were announced in 2008; however, the agency delayed the effort for over a year because of several significant accident investigations.  The long-awaited Chemical NEP attempts to build on the refinery NEP while committing limited agency resources to chemical facility selection and inspection.

2.      The Chemical NEP’s Targeted Approach

The Chemical NEP mandates a high volume of narrowly-focused, relatively low-resource inspections.  As a pilot program, it is limited to Regions I (Connecticut, Maine, New Hampshire, Rhode Island, and Vermont, although Vermont has a state plan covering private sector employees), VII (Iowa, Kansas, Missouri, and Nebraska; Iowa also has a state plan covering private sector employees), and X (Alaska, Washington, Oregon, and Idaho).  These regions are not known for their chemical facilities.  In contrast, Region II (which includes New Jersey) and Region VI (which includes Louisiana and Texas) were not included in the pilot.  Regions I, VII, and X do have facilities where ammonia, chlorine, or other HHCs are used, and, as indicated below, that might be enough to include those facilities within the pilot program.

Facilities that may be subject to programmed (i.e., planned) inspections will be identified through the coordinated development of a “master list.”  The OSHA Directorate of Enforcement Programs (“DEP”) and the Office of Statistics are required to develop a list targeting the following facilities:

  • OSHA PSM facilities that are covered by EPA’s Risk Management Program as RMP Program 3 sites;
  • explosive manufacturers; and  
  • facilities that have been previously cited for PSM violations.

Facilities identified in each master list will be divided into three categories: (1) facilities likely to have ammonia used for refrigeration as the only HHC; (2) facilities likely to have chlorine used for water treatment as the only HHC; and (3) facilities likely to have both ammonia and chlorine, ammonia or chlorine used for other than refrigeration or water treatment, or HHCs other than ammonia or chlorine.  

Facilities that are participants in OSHA’s Voluntary Protection Program or Safety and Health Achievement Recognition Program, as well as facilities that have received a comprehensive PSM inspection within the previous two years, will not be included in the national list.

The Chemical NEP mandates between five and ten programmed inspections in each Area Office.  Sites will be randomly selected but should consist of 50% from the Category 3 master list, 25% from the Category 2 master list, and 25% from the Category 1 master list.  The agency will conduct unprogrammed inspections (targeting facilities that have received a complaint or referral or that have had a catastrophic incident) at chemical facilities in all OSHA regions.  In addition, some facilities may be selected for inspection pursuant to the current Site-Specific Targeting Plan.     

3.      Building on the Experience of the Refinery NEP

OSHA inspections under the Chemical NEP will employ a “dynamic list” of Inspection Priority Items to review PSM compliance similar to the list employed in the refinery NEP.  This approach differs from the broad and open-ended PQV process in that it relies on specific, investigative questions designed to gather facts related to the PSM requirements.  DEP will develop the dynamic list questions in five substantive categories:  
(1) PSM general; (2) ammonia refrigeration; (3) water and/or wastewater treatment; (4) storage; and (5) chemical processing.  Periodically, DEP will revise the questions on the dynamic lists. 

4.      Inspection Procedures   

The Chemical NEP inspections will follow the procedures outlined in Chapter 3 of OSHA’s Field Operations Manual[7] with several modifications as outlined in the NEP.  Each inspection will consist of:  (1) an opening conference; (2) a facility-led overview of the site’s PSM programs; (3) an initial walkaround; (4) a compliance evaluation of a selected PSM-covered unit within the facility; (5) an inspection of contractors working on or adjacent to the selected unit; and (6) issuance of citations for any alleged PSM violations.   

Inspections must be staffed by at least one “Level 1” qualified Compliance and Safety Health Officer (“CSHO”, i.e., inspector).[8]  The CSHO will select a PSM-covered process to evaluate for purposes of PSM compliance.  Approximately fifteen questions will be drawn from the applicable dynamic list for each evaluation of a selected unit (ten questions from the applicable chemical process dynamic list and five questions from the PSM general dynamic list).  The NEP also identifies a list of general and process-related documents that the CSHO is to consult during the inspection, including documents beyond what are required by the PSM standard, such as a list of all PSM-covered process units or a summary description of the facility’s PSM program.  If an inspection reveals deficiencies outside of the dynamic list questions, the scope of the inspection may be expanded after consultation with the Area Director.  The CSHO may also recommend citations for hazardous conditions or violations of OSHA standards regardless of whether they are specifically addressed by the dynamic list.   

5.      NEP Evaluation and Next Steps

The pilot will be effective for one year.  The program will be evaluated using data collected from case files and reports submitted to OSHA headquarters by each Area Office.  OSHA has indicated that it will consider renewal of the NEP and expansion of the programmed inspections to other regions following the conclusion of the pilot program.  No formal timeline for that expansion has yet been announced.  

For more information, please contact Mark Duvall at mduvall@bdlaw.com, Maddie Kadas at mkadas@bdlaw.com, Ken Finney at kfinney@bdlaw.com, Laura McAfee at lmcafee@bdlaw.com or Steve Richmond at srichmond@bdlaw.com. This alert was prepared with the assistance of Lauren Hopkins.



[1] 29 C.F.R. § 1910.119.

[2] CPL-02-02-045, Process Safety Management of Highly Hazardous Chemicals ­– Compliance Guidelines and Enforcement Procedures (Sept. 13, 1994), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1558.

[3] In addition to the chemical and refinery NEPs, OSHA currently operates NEPs for combustible dust, buttered flavored popcorn, lead, silica, amputations, trenching, and shipbreaking operations.  Others, such as one on injury and illness recordkeeping, are under development.

[4] CPL 03-00-004, Petroleum Refinery Process Safety Management National Emphasis Program (June 7, 2007); Statement of Richard Fairfax, Director of Enforcement Programs, OSHA, Before the Subcommittee on Oversight and Investigations Committee on Energy and Commerce, U.S. House of Representatives (May 16, 2008), available at http://archives.energycommerce.house.gov/cmte_mtgs/110-oi-hrg.051607.Fairfax-Testimony.pdf.

[5] Katherine Torres, “Fairfax: OSHA Plans PSM Inspections for Chemical Plants,” EHS Today (Apr. 9, 2008), available at http://ehstoday.com/safety/chemical/ehs_imp_79656/.

[6] Bureau of National Affairs, OSHA Official Confirms Emphasis Program Will Be Extended to Chemical Facilities, 39 Occupational Safety & Health Reporter 567 (July 9, 2009).

[7] OSHA Instruction CPL 02-00-148, Field Operations Manual (2009), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf.

[8] The NEP classifies inspection team personnel according to the training and experience he or she has received.  Level 1 personnel generally must have completed specified OSHA training courses and must have prior experience with chemical industry safety. 

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