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Lining Maker Loses Bid to Block Inspector

Thursday, December 5, 2013

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A Pennsylvania-based pipe lining maker is barking up the wrong legal tree in its effort to head off a federal health and safety inspection at its facility, a federal judge has ruled.

U.S. District Court Judge Malachy E. Mannion said this week that he lacked the jurisdiction to grant a Temporary Restraining Order sought by Insituform Technologies LLC, based in Olyphant, PA.

Insituform was seeking the TRO to keep Occupational Safety and Health Administration inspectors out of its plant. The company is a global provider of cured-in-place pipe (CIPP), custom coatings and linings, and other technologies and services for the rehabilitation of pipeline.

Insituform Technologies
Insituform Technologies

Insituform says the resin does not require chilling to keep it below the boiling point, an exemption under te PSM standard.

In a memo Monday (Dec. 2) accompanying his order dismissing Insituform's TRO request and granting OSHA's motion to dismiss, Mannion noted that the law provided for administrative review of OSHA decisions. Those appeals are adjudicated by the Occupational Safety Health and Review Commission, an independent federal agency.

Furthermore, although he did not discuss the merits of Insituform's case, Mannion did write that "any hardship" to the company "appears small in this case."

10,000+ Pounds of Resin

OSHA has been trying since June to inspect Insituform's storage conditions of highly flammable 102 TA Resin. The agency is now seeking a warrant to carry out the inspection.

OSHA says it is following up on an employee complaint alleging that Insituform was improperly storing the resin, a highly hazardous chemical used in its CIPP lining process.

Insituform coatings
Insituform Technologies

Insituform provides custom coatings and linings, CIPP technology, and related services and products.

A preliminary inspection that included "direct observation and information obtained from employees and management" determined that Insituform had more than 10,000 pounds of 102 TA Resin on site, court documents say.

PSM Standards

Facilities that use highly hazardous chemicals are governed by so-called Process Safety Management (PSM) standards. In addition, such facilities have been the focus of stepped-up scrutiny since November 2011, under a PSM-Covered Chemical Facilities National Emphasis Program.

The National Emphasis Program allows programmed and unprogrammed inspections in all regions. Unprogrammed inspections are permitted in cases of a formal complaint or referral related to a PSM-covered process.

PSM standard

OSHA's PSM-Covered Chemical Facilities National Emphasis Program allows unprogrammed inspections following complaints or referrals.

OSHA first notified Insituform in writing in June that the agency planned to inspect the facility. After granting one postponement, agency inspectors showed for a surprise inspection Oct. 24, and the company refused to let them in, leading to a series of court actions on both sides.

Exemption Claimed

Insituform contends that it is not covered by PSM standards because the resin is stored in atmospheric tanks that use no cooling or refrigeration. The company chills the resin in the summer and heats it in the winter to maintain the appropriate viscosity for application, but chilling is not required to keep the resin below the boiling point.

Insituform cites a PSM standard exemption for "flammable liquids with a flashpoint below 100ºF (37.8ºC) stored in atmospheric tanks or transferred which are kept below their normal boiling point without benefit of chilling or refrigeration."

Clarification Sought

Insituform attorney Lee A. Rosengard did not respond Wednesday (Dec. 4) to a request for comment, but Rosengard has filed a letter with the court, seeking clarification of Mannion's ruling.

The letter asks whether Mannion will also be ruling on OSHA's application for a warrant and, if so, requests that the company be given five days to respond to the application before that decision is made.


Tagged categories: Cured-in-place pipe (CIPP); Enforcement; Insituform; Lawsuits; Linings; OSHA; Pipeline

Comment from Tony Rangus, (12/5/2013, 9:40 AM)

As per my earlier article post, what a bunch of crybabies. A potentially hazardous safety issue to both the plant workers and the public, yet Insituform goes the dubious legal route to make what, a point. Their management needs to be spanked, like you would do to an obnoxious six year old.

Comment from Anna Jolly, (12/5/2013, 10:15 AM)

I bet they spend more money on lawyers than they spend on safety. Frankly, lawyers are way more expensive.

Comment from arthur Bailly, (12/5/2013, 11:03 AM)

Playing devils advocate here. Maybe it’s more about what is right and what is wrong. Not letting someone bully you because they think they can. I agree that they should have just let them in or even better yet, invited them into the plant in the first place, but just maybe, they are standing on principle. It appears to me the issue they have is whether or not they are a PSM. You can’t just make up the rules as you go to fit what you want or need them to say. Show them how they qualify for PSM. If someone does not meet the description of what a PSM is than you can’t enforce the rules on them. They fill they do not meet the requirements of a PSM and are not going to let OSHA enforce rules on them that don’t apply to them. Instead of restricting OSHA from entering they should tell them they can come in a do a safety inspection but only on the rules and regulations that apply to their operation and the type of facility they are. If OSHA writes them up on a fine under the PSM program then take it to court and fight the issues. Prove your case in court of why you don’t think you are a PSM facility. But then again you shouldn’t have to in the first place if you are not a PSM facility. Don’t always assume someone is doing something wrong just because someone says they are. If you own a blue car and someone says it purple to them doesn’t make it a purple car.

Comment from peter gibson, (12/5/2013, 11:41 AM)

This whole situation sounds ridiculous.IF is a big company. Why would they not store resins properly.Could be the whistleblower is a disgruntled employee.They have been storing that resin for years. All very strange...

Comment from M. Halliwell, (12/6/2013, 11:11 AM)

Peter, you make some good points. Although there was a complaint and the employee may have been disgruntled, the referral for a PSM inspection came from OSHA...from the Dec 3 article: "a Compliance Safety and Health Officer (CSHO) from OSHA's area office filed a referral for a full inspection of Insituform based on observations 'during an inspection based on an employee complaint.'" Sounds like OSHA had already been there and had a reason to want to take a closer look under the PSM guidelines. They may or may not apply, but I suspect there is more to this than just an employee being unhappy. Arthur, I agree that Insituform could have handled it far better...if they were coorperative before and then slammed the door when OSHA hada concern, it adds suspicion (of a cover-up or trying to hide something) to the already present concern. If IF is not a PSM facility then they should be kept from PSM monitoring and the OSHA field staff should probably be reminded about the exemptions to the PSM rules....but if they are (even inadvertently), then they have raised the ire of the regulator. Probably would have been easier to allow the second inspection (with a copy of the PSM regs and someone familiar with them there to "assist" the inspector...after all, they had notice that OSHA wanted to come back) rather than to block the inspection and go directly to court. Just my thoughts :)

Comment from Thomas Matlock, (12/9/2013, 10:44 PM)

If they are compliant with their interpretation of the regulations, show them. The idea that a company that handles hazardous materials can decide when and if a federal agency that oversees same can inspect is just lunacy. The decades long propaganda machine of corporate 'think tanks' and right wing politicians has corrupted this country to the point of 3rd world feudalism, with the modern lords being CEOs.

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