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PSM-Covered Chemical Facilities Subject To New OSHA National Emphasis Program

January 1, 0001

 

Recognizing that established procedures and resources limit its ability to inspect each year more than a few employers with highly hazardous chemicals at or in excess of threshold levels, the Occupational Safety and Health Administration (“OSHA”) recently implemented a new National Emphasis Program (“NEP”) intended to increase the number of inspections “by better allocation of OSHA’s resources.” The NEP lays out procedures for inspections that aim to quickly evaluate many employers’ compliance with OSHA’s process safety management (“PSM”) standard applicable to highly hazardous chemicals in the workplace. The NEP became effective July 27, 2009. It is a one-year pilot program.

In performing its inspections of PSM-covered workplaces, OSHA intends to focus on “implementation over documentation.” Accordingly, OSHA will pay particular attention to whether actual implementation by employers of their safety programs is sufficient and is consistent with their written policies.

The steps in the inspection process concentrate on familiarizing the inspector(s) with the employer’s procedures and its PSM-covered process. Under the NEP, inspectors will conduct inspections and assess PSM compliance using “dynamic lists” of “specific investigative questions” which will change “periodically.” Each dynamic list will contain “approximately 10-15 primary and 5 secondary questions.” The dynamic lists cover five categories: PSM General; Ammonia Refrigeration; Water and/or Wastewater Treatment; Storage; and Chemical Processing. OSHA will not make the dynamic lists public. The NEP also provides specific guidance to inspectors on how to conduct their inspections and what documents to request. The list includes documents typically compiled by employers -- but not necessarily required by OSHA -- with PSM-covered processes at their facilities.

Pursuant to the NEP, three OSHA regions will pilot the program using “programmed inspections.” To conduct these planned inspections, OSHA will randomly select workplaces in these regions from a master list of facilities. The targeted pilot regions cover the Pacific Northwest, the Midwest and the New England: Region I (Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island); Region VII (Nebraska, Iowa, Kansas and Missouri); and Region X (Washington, Oregon, Idaho and Alaska). Each Regional Office is expected to complete an average of 5-10 programmed inspections in each Area Office per year under this NEP. Employers who are approved participants in OSHA’s Voluntary Protection Program (“VPP”) or in its Consultation’s Safety and Health Achievement Recognition Program (“SHARP”) will not appear on the master list of facilities. (Petroleum refineries are also excluded because they are the subject of another NEP.) Any facility that has received a comprehensive PSM inspection within the last two years will not be included on the list.

In addition, all OSHA regions will conduct “unprogrammed inspections” under this NEP. Employers may be subject to these unannounced inspections using the new NEP procedures if they are the subject of a formal complaint or referral related to a PSM-covered process or an accident or catastrophe occurs at their facilities.

This NEP will be evaluated after one year and considered for renewal and expansion to other regions. For more detailed information regarding the NEP, visit OSHA’s website and view the directive issued on July 27, 2009