PSM FORUM
“REGULATORY & LEGISLATIVE UPDATE
FOR OSHA” September 22, 2011
Mark S. Dreux, Esq.
Arent Fox LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
202-857-6405 (o)
703-628-6742 (c)
E-mail: [email protected]
© Mark S. Dreux 2011
2
OVERVIEW
♦ Enforcement Summary
♦ Aggressive Interpretations
♦ Aggressive use of RAGAGEP
♦ Recent Regulatory Initiatives ♦ I2P2 ♦ Recordkeeping/ MSD NRPM ♦ Increased Focus on State Plan States ♦ Noise Interpretation
♦ Recent Legislative Initiatives
3
ENFORCEMENT SUMMARY
♦ OSHA’s Budget
♦ Increased Enforcement ♦ Number of Inspections ♦ Number of Willfuls
4
OSHA’S BUDGET & STAFFING
20%
Fiscal Year 2008 $486 million
Fiscal Year 2009 $511 million
+ stimulus bill funding
Fiscal Year 2010 $555 million
Fiscal Year 2011 $558.6 million*
*Less a 0.2 percent government-wide rescission
Fiscal Year 2012 $583.4 million** **Amount requested in President Obama’s Feb. 14th budget request
5
OSHA’S BUDGET & STAFFING (Cont’d)
OSHA Inspectors
Fiscal Year 2010 +100
Fiscal Year 2011 +25
Fiscal Year 2011 +35 (transferred from
compliance assistance
program)
= 160 new inspectors
6
Emerging Trend of More Inspections, Citations, and Significant Cases
FY’09 FY’10
Inspections 39,004 40,993
Citations 87,663 96,742
Significant
Enforcement
Cases 120 75
Egregious
Citations 4 9
7
Total Violations Issued as Willful
8
REFINING NEP ENFORCEMENT STATISTICS
♦ Based on the 65 NEP citations:
♦ Total Citations 1,542
♦ PSM 1088
♦ Non-PSM 454
♦ Total Fines $9,401,472.00
9
CHARACTERIZATION OF THE CITATIONS
Serious 1335 87%
OTS 77 5%
Willful/Unclassified
92
8%
Repeat
38
Total 1,542 100%
10
REFINING NEP ENFORCEMENT STATISTICS
♦Most Citations 93 (88 PSM)
♦Fewest Citations 1 (0 PSM)
♦Highest Penalty $3,042,000
♦Lowest Penalty $1,125
♦Average 24 citations
$144,638
penalty
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Mechanical Integrity 202
Process Safety Information 189
Process Hazard Analysis 188
Operating Procedures 184
Management of Change 92
Incident Investigation 71
Compliance Audits 47
Contractors 33
Training 29
REFINING NEP PSM ENFORCEMENT STATISTICS
(65 NEP Citations Issued as of 3/14/11)
855
79%
12
Emergency Planning and Response 17
Employee Participation 15
Pre-Startup Safety Review 13
Hot Work Permits 8
Trade Secrets 0
Total PSM Citations
1088
NEP PSM ENFORCEMENT STATISTICS (65 NEP Citations Issued as of 3/14/11) (cont’d)
13
NEP ENFORCEMENT STATISTICS MECHANICAL INTEGRITY
J(1) Process equipment 0
J(2) Written procedures 37
J(3) Training 3
J(4) Inspection and testing 0
J(4)(i) Inspection and testing 29
J(4)(ii) Engineering practices 22
J(4)(iii) Frequency 23
J(4)(iv) Documentation 14
J(5) Equipment deficiencies 61
J(6)(i) Quality assurance 0
J(6)(ii) Inspections 9
J(6)(iii) Materials and spare parts 4
TOTAL 202
88
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♦ J-2 Mechanical Integrity Program ♦ No Procedures for:
♦ Pressure vessels with integrally bonded liners
♦ Corrosion under insulation inspections for pressure vessels and piping
♦ Addressing anomalous readings pertaining to metal thickness
♦ Determining thickness measurement frequency for pressure vessels
♦ Determining the representative number of thickness measurements
NEP ENFORCEMENT STATISTICS
15
♦ J-4 Testing and Inspections ♦ Failure to follow own scheduled T/I
♦ Visual inspections
♦ Ultra sound
♦ Internal corrosion
♦ TML’s
♦ Vibration analysis
♦ Failure to follow RAGAGEP ♦ Testing of wrong locations
♦ Testing of wrong frequency
♦ Insufficient number of tests
♦ Failure to document the T/I results
NEP ENFORCEMENT STATISTICS
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♦ 119(J)(5) Equipment Deficiencies ♦ TML’s below recommended thickness
♦ H2S, HF & LEL detectors not working
♦ Temperature gauge broken
♦ Chains for operating valves missing
♦ Relieve valve set at 270 PSI when MAWP was 150 PSI
NEP ENFORCEMENT STATISTICS
17
NEP ENFORCEMENT STATISTICS
PROCESS SAFETY INFORMATION (PSI)
D Schedule/Prioritization 2
D(1) Information re: Hazards 0
D(2) Technological Information 17
D(3) Equipment Information 170
Total
189
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NEP ENFORCEMENT STATISTICS
PROCESS SAFETY INFORMATION (PSI)
D(3)(i) Information on Equipment 5
D(3)(i)(A) Materials of Construction 5
D(3)(i)(B) P&ID’s 38
D(3)(i)(C) Electrical Classification 7
D(3)(i)(D) Relief System Design and Design Basis 27
D(3)(i)(E) Ventilation System Design 2
D(3)(i)(F) Design Codes and Standards 9
D(3)(i)(H) Safety Systems 1
D(3)(ii) Document Equipment complies with
RAGAGEP
72
D(3)(iii) Equipment Designed on a Code no
Longer in General Use
4
Total 170
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♦ P&ID’s
♦ Inaccurate info on P&ID’s ♦ Vessel or pump out of service
♦ Wrong pressure or temperature
♦ Lines mislabeled
♦ Omissions from P&ID’s
♦ Temperature indicator
♦ Sight glass
♦ By-pass line
♦ New equipment
♦ New lines
NEP ENFORCEMENT STATISTICS
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NEP ENFORCEMENT STATISTICS
♦ 119(d)(3)(i)(D) – Relief System Design and Design Basis
♦ Blowdowns/Atmospheric Discharge ♦ Lack of technical data to show safe release
to atmosphere
♦ Relief Systems – ♦ Adequacy following changes especially
changes in thru-put
♦ Design basis – lack of technical support
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NEP ENFORCEMENT STATISTICS
♦ 119(d)(3)(ii) – Equipment with RAGAGEP
♦ Facility Siting – NFPA 496 and API 752
♦ Electrical classifications—API 500
♦ Trailers – API 753
♦ Relief Valves and Design – ASME & API 520
♦ Adequacy and sizing of valves
♦ No PSV’s
♦ Intervening valves
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NEP ENFORCEMENT STATISTICS PROCESS HAZARD ANALYSIS
E(1) Appropriate PHA/Prioritization 12
E(2) Methodologies 0
E(3) PHA addresses 0
E(3)(i) Hazards 15
E(3)(ii) Incidents 10
E(3)(iii) E and A Controls 15
E(3)(iv) Failure of Controls 11
E(3)(v) Facility siting 31
E(3)(vi) Human factors 23
E(3)(vii) Qualitative evaluation 2
E(4) Team of Experts 0
E(5) Findings/recommendations 53
E(6) Revalidation 15
E(7) Revalidation records 1
TOTAL 188
107
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♦ 119(e) PHA’s ♦ PHA
♦ Failure to consider all scenarios
♦ Loss of utilities or control rooms
♦ Fires and releases of HHC’s
♦ Failure to consider near misses
♦ Propane leaks
♦ Oil Spills
♦ Fires
♦ Failure to adequately consider
♦ Facility Siting
♦ Human factors
NEP ENFORCEMENT STATISTICS
24
♦ Failure to address findings –
♦ Ranged 2-15 years
♦ Complexity – gravity – time (citation factors)
♦ Failure to document corrective measures
NEP ENFORCEMENT STATISTICS
25
NEP ENFORCEMENT STATISTICS
OPERATING PROCEDURES
F(1) Written procedures 18
F(1)(i) Operating phases 65
F(1)(ii) Operating limits 26
F(1)(iii) Safety and health 12
F(1)(iv) Safety systems 9
F(2) Access 3
F(3) Certification 23
F(4) Safe work practices 28
TOTAL 184
130
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♦ SOP’s
♦ Lack operating limits or consequences
of deviation
♦ Missing essential step in procedure
♦ Referring to outdated equipment, step
or specific manager
♦ Error with locks or carseals on valves
for startup
NEP ENFORCEMENT STATISTICS
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♦ (f)(1)(i)(D) – Emergency shutdown including the conditions under which emergency shutdown is required, and the assignment of shutdown responsibility to qualified operators to ensure that emergency shutdown is executed in a safe and timely manner.
♦ Citations
♦ Failure to designate qualified person
♦ Failure to list “entry points (“trigger or initiating”)
NEP ENFORCEMENT STATISTICS
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♦ Safe Work Practices
♦ Procedures/practices for controlling
motorized vehicles in process areas
♦ OSHA relies electrical classification
drawings to show a “hazard”
NEP ENFORCEMENT STATISTICS
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NEP ENFORCEMENT STATISTICS
MANAGEMENT OF CHANGE
L(1) Written procedures 40
L(2) Considerations 2
L(2)(i) Technical basis 3
L(2)(ii) Impact of change 9
L(2)(iii) Operating procedures 1
L(2)(iv) Time Period 3
L(2)(v) Authorization requirements 2
L(3) Employee training 4
L(4) Update PSI 22
L(5) Revise operating procedures 6
TOTAL 92
60
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NEP ENFORCEMENT STATISTICS
♦ MOC’s ♦ Failure to do MOC’s (adequacy)
♦ Throughput increases
♦ Changing startup pressures
♦ Rerating boilers
♦ Removing column, quench water
♦ Failure to do related updates ♦ PSI
♦ Procedures
♦ Training
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NEP ENFORCEMENT STATISTICS
♦ Incident Investigation (71 Citations) ♦ Failure to Investigate near misses
♦ Investigation Report Inadequate
♦ Failure to Address/Document Findings
♦ PSM Compliance Audits (47 Citations) ♦ Audit incomplete
♦ Failure to Address/Document Findings
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NEP ENFORCEMENT STATISTICS
FACILITY SITING
♦ 119(d)(3)(ii) – Equipment complies with RAGAGEP ♦ Control rooms – not complying with NFPA 496
and API 752
♦ 119(e)(3)(v) – “PHA...shall…address facility siting” ♦ PHA inadequately addressed facility siting
♦ Approximately 58% of facilities received facility siting citations
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LESSONS LEARNED FROM REFINING NEP
♦ OSHA’s aggressive interpretations of PSM
standard
♦ OSHA’s aggressive interpretations of
RAGAGEP
♦ OSHA demands documentation for PHA,
audit and incident investigation findings.
♦ Citation patterns show OSHA’s priorities
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♦ Applying steam constitutes a change
♦ Piping and Instrumentation Drawings
♦ Safe Work Permits and Motorized Vehicles
♦ Host employer required to train each contractor and subcontractor employee under the multi-employer policy.
OSHA’s Aggressive Interpretations
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♦ Covering mixtures of less than 10,000 lbs flammables under the PSM standard.
♦ Facility Siting: Determining that 1 in 100 million years constitutes risk for a willful citation.
♦ Required to keep PHA documentation from 1994 and 1998.
OSHA’s Aggressive Interpretations
36
OSHA’s Aggressive Use of RAGAGEP
♦ API 752 ♦ Management of Hazards Associated with Location of
Process Plant Permanent Buildings
♦ API 570 ♦ Piping Inspection Code: In-Service Inspection, Rating,
Repair, and Alteration of Piping
♦ API 510 ♦ Pressure Vessel Inspection Code: In-Service Inspection,
Rating, Repair, and Alteration
♦ API 521 ♦ Pressure-Relieving and Depressuring Systems
Most Frequently Referenced RAGAGEPs
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OSHA’s Aggressive Use of RAGAGEP
♦ API 574 ♦ Inspection Practices for Piping System Components
♦ API 520 ♦ Sizing, Selection, and Installation of Pressure-relieving
Devices in Refineries
♦ API 753 ♦ Management of Hazards Associated with Location of
Process Plant Portable Buildings
♦ ANSI/ISA S.84.01 ♦ Functional Safety: Safety Instrumented Systems for the
Process Industry Sector
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INDUSTRY STANDARDS
♦ API 752
♦ Aggressive interpretation
♦ Blast-resistant buildings
♦ Immediate correction
♦ Dismissing occupancy definitions
♦ Interpreting buildings to be process equipment
♦ Efforts to push back
39
INDUSTRY STANDARDS
♦ API 570
♦ Frequency of inspections
♦ Location of TML/CMLs
♦ Corrosion under insulation
♦ Anomalous Readings
40
INDUSTRY STANDARDS
♦ API 510 ♦ Not inspecting PSVs after removing them from service
to determine if their inspection interval was
appropriate
♦ No specific provision in company policy directing that
localized corrosion and service-specific damage be
considered
41
INDUSTRY STANDARDS
♦ API 521
♦ 2 or 3 scenarios will typically be credible for
any specific PSV application
♦ Dismissing good engineering judgment for
applicable scenarios
♦ Requiring calculations for all 16 potential
overpressure scenarios
42
INDUSTRY STANDARDS
♦ API 574
♦ Failing to ensure that insulation plugs were
replaced and sealed after taking piping
thickness measurements.
♦ Inspection records did not contain original
installation dates for piping sections
43
INDUSTRY STANDARDS
♦ API 520
♦ Bonnet of the bellows relief valve was not
fitted with a vent-to-atmosphere fitting as
recommended
♦ Failure to periodically inspect isolation valves
and car seals
♦ Failure to properly consider sizing of valve
and inlet pressure
44
INDUSTRY STANDARDS
♦ API 753
♦ Trailer/ portable buildings
♦ Identifying laboratory buildings as process
plant portable buildings
♦ Issuing a citation based on a portable tool
trailer owned by a contractor
45
INDUSTRY STANDARDS
♦ ANSI/ISA S 84.01
♦ Not testing the SIL every 6 months
♦ Did not adhere to manufacturer’s testing intervals
46
Recent Regulatory Initiatives
♦ Refinery NEP
♦ PSM Chemical Safety NEP
♦ Recordkeeping NEP
♦ Combustible Dust NEP
♦ Hexavalent Chromium NEP
♦ Reactive Chemicals Directive
♦ Changes in Penalty Polices
♦ Severe Violator Enforcement Program (SVEP)
♦ Injury and Illness Prevention Program (I2P2)
♦ Recordkeeping/ MSD NPRM
♦ Combustible Dust ANPR
♦ Permissible Exposure Limits
♦ Increased Focus on State Plan States
♦ Voluntary Protection Programs
♦ Noise Interpretation
♦ Silica NPRM
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I2P2
♦ Require a Injury and Illness Prevention Program ♦ “It would involve planning, implementing, evaluating, and improving
processes and activities protect employee safety and health.” --OSHA’s Fall 2010 Regulatory Agenda
♦ Stakeholder Meetings—June 2010
♦ SBREFA—Originally planned for June 2011, not yet convened.
♦ No draft available
♦ Enforcement—programmatic vs. comprehensive
♦ Timing concern—November 2012
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Recordkeeping/ MSD NPRM
♦ Require work-related musculoskeletal disorders to be identified on 300 Form
♦ Defines MSD: ♦ [D]isorders of the muscles, nerves, tendons, ligaments, joints,
cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee,
Herniated spinal disc, and Low back pain.
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Recordkeeping/ MSD NPRM
♦ NPRM—January 2010
♦ Final rule originally expected July 2010
♦ Withdrew final rule from OMB review—January 2011
♦ OSHA reopened rulemaking record for public comments May 17, 2011 through June 16, 2011.
♦ OSHA is currently reviewing comments received in May and June.
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Increased Focus on State Plan States
♦ Enhanced Federal Annual Monitoring and Evaluation
• Prompted after a review of the Nevada State Plan in 2009
identified operational deficiencies
• Numerous construction related-fatalities in Las Vegas
• Concluded reports on 25 states and jurisdiction in Sept. 2010
♦ Federal OSHA Opened Office in State Plan States
• Nevada
• Hawaii
• Arizona
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Increased Focus on State Plan States
♦ Pending Legislation—H.R. 571
♦ Establishes a formal mechanism for monitoring state plans.
♦ Allow for concurrent enforcement authority for OSHA while state plan remedies deficiencies.
♦ Hold OSHA accountable for providing strong oversight of state plans by requiring GAO study every five years.
52
Increased Focus on State Plan States
♦ Mandatory Adoption of Federal OSHA Initiatives
• Severe Violator Enforcement Program (SVEP)
• “Because the significant nature of this program requires
nationwide applicability, States are required to either adopt
this program or establish their own equivalent program which
must include enforcement procedures for identifying and
taking action with regard to these recalcitrant and indifferent
employers and for making referrals to, and responding to
referrals from, Federal OSHA.”
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Increased Focus on State Plan States
♦ Washington State Plan
• Enacted legislation requiring employers to abate hazards while
appealing any safety and health violation issued by WISHA
• Effective July 2011
• Less incentive for WISHA to settle cases to achieve timely
resolution of serious safety and health problems
♦ Federal OSHA and other State Plan States
• Filing a Notice of Contest suspends abatement
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Noise Interpretation
♦ OSHA proposed requiring employers to first implement feasible administrative or engineering controls before utilizing PPE to reduce employee noise exposures—October 2010
♦ Proposal would have altered existing enforcement policy
♦ Proposal would have had a major impact on all general industry and construction employers
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Noise Interpretation
♦ OSHA withdraws proposal citing “concerns raised” and the need for “more public outreach”—January 2011
56
Silica ♦ OSHA submitted a proposed rule to OMB for review in
February 2011 ♦ OMB has been reviewing for 7 months
♦ OSHA has evidence that exposure to crystalline silica at the current PEL causes silicosis and other diseases
♦ OSHA completed a SBREFA panel for an early draft version of the rule in 2003
♦ Proposed rule would apply to general industry, construction, and maritime
57
Silica ♦ Silica can be found in refineries
♦ Cement
♦ Catalyst
♦ Grout
♦ Some paints
♦ Sandblasting
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Recent Legislative Initiatives
♦ Handful of occupational safety and health bills introduced in Congress: ♦ H.R. 190 Protecting America’s Workers Act*
♦ H.R. 522 Worker Protection Against Combustible Dust Explosions and Fires Act of 2011*
♦ H.R. 571 Ensuring Worker Safety Act (Re: State Plan Oversight)*
♦ S. 361 Seven Point Plan for Growing Jobs Act*
♦ S. 602 Clearing Unnecessary Regulatory Burdens Act*
* All bills referred to Committee
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Most Prominent Bills
♦ S. 361 & S. 602 ♦ Require federal agencies like OSHA to provide
public notice and comment for every significant guidance document.
♦ Purpose of these bills is to limit federal agencies ability to use guidance documents to achieve policy goals and wrongfully cite employers with violations.
