Meeting OSHA and EPA Criteria
A White Paper prepared by Maggie Golden
August 7, 2013
203 James Street
Wales, WI 53183
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:
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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 5year 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:
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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:
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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:
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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: [email protected]
Mailing address:
GIR
203 James Street
Wales, WI 53183
Visit our website: http://www.girwhq.com/
Sources
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Chapin, Brian. "Ammonia Citations under the General Duty Clause." TAO Compliance PSM News for
Ammonia Refrigeration. N.p., 17 July 2012. Web. 27 June 2013.
Chapin, Brian. "The Real Cost of an OSHA/EPA Fine Isn't the Check You Write." TAO Compliance PSM
News for Ammonia Refrigeration. N.p., 5 Nov. 2012. Web. 18 June 2013.
ComPSM. "How to Survive EPA/OSHA Audits." IARW Southeastern Regional Chapter Meeting. Cancun,
Quintana Roo, MX. 7 Oct. 2011. Lecture.
Conn, Eric. "10 Things Chemical Plant Operators Need to Know About OSHA's New Chem NEP." EHS
Today Home Page. N.p., 8 Dec. 2011. Web. 07 Aug. 2013.
Cosentino, Casey M., and Eric J. Conn. "OSHA's Per Violation Penalties Increase in 2011." OSHA Law
Update. N.p., 3 Jan. 2012. Web. 17 June 2013.
Hogan, Lee. " to Pay $4 Million in EPA Settlement." NWAonline. N.p., 5 Apr. 2013. Web. 02 July 2013.
Hoyle, Amanda J. " Agrees to Pay Fine for Slim Jim Explosion." Triangle Business Journal. N.p., 12 Jan.
2010. Web. 02 July 2013.
" Plant Fined 206000 over EPA Violations." Meat & Poultry. N.p., 13 Oct. 2011. Web. 02 July 2013.
Occupational Health and Safety Administration. OSH Act General Duty Paragraph. U.S. Department of
Labor - OSHA. N.p., 10 Oct. 2012. Web. 1 July 2013.
Occupational Health and Safety Administration. SEC. 5. Duties, § 5 (a)(1) (1970). Print.
Stanley, Jim. "OSHA’s “General Duty” Clause – Often Used and Frequently Misunderstood." FDRsafety
RSS. N.p., 6 May 2011. Web. 28 June 2013.
Swanson, Eric. "OSHA Cites for Violations at Dodge City Plant." Dodge City Daily Globe. N.p., 17 May
2011. Web. 02 July 2013.
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