Audit Reveals Deficiencies in OSHA's Voluntary Protection Program

The Voluntary Protection Program ("VPP") has been used by OSHA since 1982 to foster cooperative relationships between certain employers and their employees to improve workplace safety and prevent injury, illness, and death.  The program also serves to officially recognize work sites with exemplary health and safety management programs.  Work sites that apply to participate in the VPP are subjected to OSHA scrutiny including an initial on-site evaluation by health and safety experts, subsequent re-evaluations, and ongoing monitoring of the work site's safety and health program through annual self-reports and other oversight activities.  Once approved for participation in the VPP, a work site is exempt from OSHA programmed inspections so long as it maintains an exemplary safety and health program and remains in compliance with VPP requirements.  

The VPP was recently audited by the Office of Inspector General ("OIG") to determine if OSHA maintains sufficient controls for the selection, timely reevaluation, and monitoring of VPP participants.  The OIG's audit report, issued December 16, 2013, revealed several deficiencies in the VPP.  

For instance, the report found that 13 percent of VPP participants were allowed to remain in the program despite having injury and illness rates above industry averages or after being cited with violations of safety and health standards. The OIG was critical of OSHA's policy to allow participants with injury and illness rates above industry averages to remain in the program for up to 6 years.  The OIG specifically questioned whether such a policy was adequate to ensure that VPP participants are sufficiently protecting their workers.

The audit also found that OSHA’s existing processes do not effectively ensure compliance with the VPP's timeliness requirements for on-site evaluations.  In fact, the OIG found that 11 percent of participants were not evaluated in a timely manner. The report also charges that OSHA uses unreliable injury and illness data to evaluate participants.

The audit further revealed that OSHA was unable to identify the universe of participants or applicants because relevant data was maintained in at least 11 different databases that were not reconciled. 

The OIG made the following recommendations to improve controls for the selection, timely reevaluation, and monitoring of VPP participants:

1) Reevaluate the policy of allowing work sites with high injury and illness rates to stay in VPP for up to 6 years to ensure that only employers who operate systems which meet the objective of the VPP program are allowed to participate; 

2) Improve data reliability by using one database with appropriate information controls, or implement processes ensuring reconciliations of VPP databases are conducted regularly and before reports on VPP statistics are generated; 

3) Monitor implementation of VPP Memorandum #7 to ensure sites with fatalities and enforcement actions are addressed consistently and timely; 

4) Establish a system to analyze inspection information for continuous improvement of VPP; 

5) Establish a control to monitor whether sites with higher than industry average injury and illness rates are consistently and timely addressed within VPP; 

6) Develop and implement processes and priorities that will ensure participants are evaluated timely for continuing eligibility for VPP. In developing these processes and priorities, OSHA should evaluate all viable options to ensure that the integrity of the program is maintained given the constraints of its available resources; 

7)  Ensure reliable injury and illness data are used to report VPP successes tied with injury and illness statistics.

In its response to the audit report, OSHA contended that most VPP sites have exemplary safety and health programs.  Nevertheless, it agreed with the OIG's recommendations.  Accordingly, employers who participate in the VPP should be prepared for possible changes in the program and enhanced scrutiny in connection with their participation.  Such employers would be wise to review the OIG's summary report, the full audit report, and OSHA's response.  

OSHA Considering Revisions to Process Safety Management and Related Standards

On August 1, 2013, President Barack Obama issued Executive Order No. 13650 in the aftermath of an April 17, 2013 ammonium nitrate explosion that killed 15 people at a West Fertilizer Company facility in West, Texas.  Executive Order No. 13650 is aimed at improving safety and security at chemical facilities across the nation.  As part of that objective, the Executive Order requires the Secretary of Labor to review and suggest improvements to OSHA’s Process Safety Management (“PSM”) standard (29 C.F.R. §1910.119), which prescribes a comprehensive management program for hazardous chemicals in the workplace.

In compliance with Executive Order No. 13650, OSHA has announced a Request for Information (RFI) seeking public comment on potential revisions and/or updates to its PSM standard and other related standards such as its Explosives and Blasting Agents standard (29 C.F.R. §1910.109), Flammable Liquids Standard (29 C.F.R. §1910.106), and Spray Finishing Standard (29 C.F.R. §1910.107).   

The potential revisions/updates identified by OSHA in the RFI focus primarily upon increasing the coverage of the standards.  Two of the most significant actions being considered by OSHA will bring an entire industry within the purview of the PSM standard that was previously not subject to it.  

Specifically, OSHA is seeking comment on whether to strike or retain the exemption contained within §1910.119(a)(2)(ii) for oil and gas well drilling and servicing operations. 

Additionally, OSHA is considering completion of a proper economic analysis of PSM standard coverage of oil and gas production facilities so that enforcement of the PSM standard can be resumed for these facilities.  Although oil and gas productions facilities have never been exempted from the PSM standard like oil and gas well drilling and servicing operations have, OSHA was forced to suspend enforcement of the PSM standard as to those facilities after objections from the American Petroleum Institute and a subsequent concession by OSHA that the original economic analysis for the PSM standard did not include oil and gas productions facilities.

In addition to the potential changes to the PSM standard, OSHA is also considering revisions to its Explosives and Blasting Agents standard to address coverage issues; updates to its Flammable Liquids standard and Spray Finishing standard to increase compatibility with current applicable consensus standards; and changes in enforcement of these standards. 

Employers who work with or around hazardous chemicals should consult Executive Order No. 13650 and OSHA’s RFI to develop a more complete understanding of all of the potential changes to the PSM standard and related standards under consideration by OSHA.  Those who wish to comment on the RFI can do so at www.regulations.gov when the RFI is published in the Federal Register.