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Judge Throws Out OSHA Clothing Case

Monday, June 25, 2012

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Federal regulators overstepped their authority when they cited an oil and gas company for not having an employee wear flame-retardant clothing, a new ruling holds.

The case—a victory for oil and gas employers—was the first to test a March 2010 Occupational Safety and Health Administration directive that required oil and gas drilling workers to wear Flame Resistant/Retardant Clothing (FRC).

 OSHA had said that oil and gas employers’ use of flame-retardant clothing was inconsistent.

 Lutz Co.

OSHA had said that oil and gas employers’ use of flame-retardant clothing was inconsistent.

OSHA had issued the decision in the form of a memo that cited a general industry standard, saying the agency wanted to resolve the “inconsistent use” of FRC by oil and gas companies.

Administrative Law Judge Patrick B. Augustine ruled June 6, however, that the memo amounted to “improper rule-making.”

The Occupational Health and Safety Review Commission judge dismissed the serious citation and $5,390 fine against Petro Hunt LLC.

Oil Well Workers

The case involved an OSHA inspection of a Petro Hunt well site in northwestern North Dakota after a fire Oct. 14, 2010.

According to court documents, Petro Hunt supervisor Wade Signalness and trainee Jay Garmin visited the site that day as part of their daily duties.

Under supervision, Garmin gauged the level of well fluid in one of the tanks, and the two men left. Five minutes later, they noticed black smoke coming from the site and returned to find the treater shed and its components in flames.

The fire was extinguished, and no one was injured.

When OSHA inspected the next day, however, inspectors learned that Signalness had not been wearing FRC (although the trainee was) and that the employer did not require FRC. They issued the citation and fine.

Broad Standard

The citation invoked 29 C.F.R. § 1910.132(a), a broadly worded performance standard that requires the use of protective equipment, including protective clothing, under numerous hazardous conditions or circumstances.

Because the standard is so broad, OSHA must show that “either the employer had actual notice of a need for protective equipment or that a reasonable person familiar with the circumstances surrounding the hazardous condition would recognize that such a hazard exists.”

In a memo, OSHA argued that a hydrocarbon flash fire is a common danger in the oil and gas industry and that flame-resistant clothing was thus clearly warranted.

The agency also cited an earlier ruling that gives it latitude in interpreting standards, so long as the interpretation is “reasonable.”

Hazard Assessment

The company disagreed, arguing that it had conducted a thorough hazard assessment that resulted in a comprehensive series of administrative and engineering controls—more than 15 separate measures in all—that made FRC unnecessary.

The company also argued that the fire had not been a flash fire and that the company had had no flash fires at any of its 200 facilities.

Furthermore, the company argued, OSHA’s interpretation of the standard was so broad that it had the effect of mandating FRC for all oil and gas operations—essentially creating a new rule that had not undergone the rule-making process.

The judge agreed.

‘Improper Rulemaking’

The memo “takes a performance standard and imbues it with a specific obligation that FRC must be worn during the enumerated oil and gas operations, regardless of the particular circumstances that may be present at any individual facility,” the judge ruled.

In so doing, OSHA “has changed the requirement of the underlying standard,” thereby “engaging in improper rulemaking under the aegis of an enforcement standard.”

By using the terms “concludes” and “requires,” OSHA “has gone beyond mere interpretation and stepped into the realm of rulemaking by converting a performance-based standard into a specific standard,” the judge wrote.

OSHA “cannot ‘require’ anything more than what is authorized by the regulations. If [OSHA] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then [it] must resort to the required notice and comment rulemaking process.”

As a result, “the FRC memo does not have the force and effect of law.”

Coating Case Cited

The ruling also noted similarities with a 2007 case against a Missouri coating contractor who had been cited by OSHA in 1997 for lack of hand-washing facilities and medical surveillance on a project in which two workers were removing lead paint from a bridge.

The contractor had three hand-washing trailers, but none was available at that time, so the company provided an Igloo cooler of water and pre-moistened towelettes, although apparently no soap. The company said it also conducted daily air monitoring for lead exposure.

In the end, the judge dismissed three of four citations against Thomas Industrial Coatings (and reduced the hand-washing violation), finding that the Lead in Construction standard then in force “gives an employer discretion, within reason, to determine how to properly address a hazard.”

Performance standards “require an employer to identify the hazards peculiar to its own workplace and determine the steps necessary to abate them,” the Thomas decision said.

OSHA has not indicated whether it plans to appeal the Petro Hunt FRC decision, or to pursue the requirement through the formal rulemaking process.

The FRC requirement has been challenged before. Earlier this year, OSHA defended the FRC memo against a challenge by Rep. Jeffrey M. Landry (R-LA), who had asked the agency to rescind it.

   

Tagged categories: Health and safety; Industrial Contractors; Lead; OSHA; Personal protective equipment; Protective clothing

Comment from M. Halliwell, (6/26/2012, 10:45 AM)

It would be interesting to find out what the 15 administrative and engineered controls are that made FRC unnecessary. Every active oil and gas well site I've been on (granted, different jurisdiction) have required FRC and I would have viewed the OSHA interpretation as reasonable.


Comment from Mary Chollet, (6/26/2012, 10:52 AM)

The details on the controls enacted are contained in the judge's ruling, which is linked in the article.


Comment from M. Halliwell, (6/27/2012, 10:39 AM)

Thank you, Mary. It is interesting to see the differences in jurisdictions and in the views on the case. Here, where I am at, the controls would be viewed as good but the "reasonable person would recognize a hazard" caveat would have sunk them. I also find it interesting that the court went well beyond what the involved parties believed the issue was: "While the parties seem to believe that the primary question in this case is whether Respondent failed to comply with the standard, the Court views the dispute as one of applicability." I certainly hope that such decisions do not ultimately force OSHA to detail the protective equipment for each hazard in each industry...the resulting document would be forever in the making and be a nightmare for HSE folks to deal with.


Comment from James Johnson, (6/27/2012, 11:39 AM)

It is pretty clear this is yet another case of government over reach, a situation that has become more common the last couple of years and by almost every government agency. There is a reasonable resolution to this and that is to abide by the Constitution, which states that only Congress has can legislate, the making of law. When agencies desire the law be changed they should request Congress make such law. That would reinstitute the intended checks and balances intended. Unfortunately politicians have allowed the Constitution to be encroached upon in the past, but it is time we return to the process provided for in the Constitution. No agency should be allowed to legislate, or make regulation having the effect of law.


Comment from M. Halliwell, (6/28/2012, 4:53 PM)

James, I'm from a different jurisdiction, so you'll have to forgive my ignorance on the US system. In my case, the law is passed via an Act and then the Department works within the Act's framework to set Regulations, which are the means by which the Act is actually applied...the criteria, applicable guidelines for hazards for certain industries, and so on. If you are saying that you do not want agencies making regulations within the legal framework of an act of law (i.e. having the effect of the law from whence the agency or department derives its authority), then does that mean you want Congress to vote on the minutae of OSHA, EPA, DOT, DOE and any other Department's regulations? If so, I think the US would have a serious issue and legislative change for the various Departments would be essentially non-existant. I cannot see that as beneficial for the US economy or average US citizen.


Comment from James Johnson, (7/2/2012, 11:15 AM)

M. Halliwell, the US Constitution is very specific. Before the constitution existed the individual colonies, or states, had 100% of the power. The colonies recognized they needed a central government to protect the country, secure the borders, etc. and they understood that to do that they would have to give up some of their power, or authority. So the Constitution was written and established both to form a central government and to limit the powers of that government to what the states were willing to give up and to protect the liberty of the individual citizen. Understanding that, Article 1, Section 1 states - "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." That clearly states only Congress can legislate, or make law. No where in the Constitution does it give Congress the authority to give their legislative authority over to an agency of the government. Yes, you may consider making regulations, having the effect of law, to be minutae but that is exactly what the Constitution states is to be done. These states had just gotten done fighting a war for their liberty and freedom and their greatest fear was the federal government getting so large it usurped their liberty and freedom. Were Congress to make those laws the people would then have far better representation. Also, Atricle 1, Section 8, enumerates what power the federal government has and is limited to. In many cases agency regulation goes far beyond the enumerated powers. Furthermore, the 10th Amendment states all powers and law beyond the enumerated powers belong to the states and their people. When one reviews the enumerated powers one begins to understand that OSHA, EPA, DOE and other government agencies really should be advisory agencies to the states only as each state has their own OSHA and EPA and such.


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