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On March 19, 2010, OSHA issued a Fire Resistant/Retardant
Clothing enforcement memorandum pertaining to oil and gas
operations. The memo stated that engineering and administrative
controls may not be sufficient to protect oil and gas workers from
the hazard of flash fires and that 1910.132(a) would be cited if
employers did not provide and require employees to use flame
resistant clothing (FRC). The memo can be found on OSHA's
website
here.
Later in 2010, in part relying on the March 2010 memo, OSHA
cited Petro Hunt, a national oil and gas company,
for failing to provide employees engaged in production operations
appropriate personal protective equipment (PPE), specifically
failing to provide FRC. Two Petro Hunt employees were gauging the
level of crude oil in storage tanks—one employee had on
FRC and the other, the supervising employee, did not. OSHA
learned that Petro Hunt did not require its employees to wear
FRC.
In accordance with the March 2010 memo, OSHA cited Petro Hunt
for a violation of 29 C.F.R. 1910.132(a), which requires an
employer to provide PPE "wherever it is necessary by reason of
hazards." The standard as written is a general
performance standard and it does not state specifically how the
employer is required to comply with the standard. Rather the
standard gives the employer the flexibility, after performing a
hazard assessment, to make reasonable determinations as to when PPE
is necessary for employees.
In Secretary of Labor v. Petro Hunt,
LLC, (OSHRC, June 2012), by relying
on the March 2010 memo, the Secretary sought to establish that
Petro Hunt had knowledge that flash fires were hazards and
therefore FRC was required under 1910.132(a). In response,
Petro Hunt alleged that the memo created a specific standard, one
which required all oil and gas employers regardless of
circumstances or controls in place to provide employees with
FRC. As such, the memo amounted to improper rulemaking
because it did not go through the notice and comment
process.
In his decision, ALJ Patrick Augustine held that the memo
constituted a new standard under the Administrative Procedures Act
(APA). His rationale was that the memo "takes a
performance standard and imbues it with a specific obligation that
FRC must be worn during enumerated oil and gas operations
regardless of the particular circumstances that may be present at
any individual facility. By doing this, Complainant has
changed the requirement of the underlying standard; thus, engaging
in improper rulemaking under the aegis of an enforcement
standard."
He further held that the memo was not an interpretation of
1910.132(a) or a general statement of policy, either of which
would qualify as an exception under the APA, and therefore not
require notice and comment rulemaking. The ALJ concluded, that
"[b]y using the terms 'concludes' and
'requires' [in the March 2010 memo] Complainant has gone
beyond mere interpretation and stepped into the realm of rulemaking
by converting a performance-based standard into a specific
standard. Complainant cannot 'require' anything more
than what is authorized by regulations." Further the ALJ
held that that requirements in 1910.132(a) were plain and
unambiguous and not in need of interpretation. He pointed out
that the standard requires the employer to perform a hazard
assessment under 1910.132(d) and that within the oil and gas
industry, the memo "constitutes an indirect repeal of section
132(d)...because the hazard assessment is "inconsistent with a
blanket determination that FRC, or any PPE for that matter, is
required in all instances."
The ALJ concluded that the FRC memo was not sufficient to put an
employer on notice that a hazard existed requiring FRC and held
that the Secretary failed to establish that there was a hazard
present that required the use of FRC. Petro Hunt had
instituted a series of engineering and administrative controls,
none of which were shown to be insufficient. As a result, the
ALJ vacated the citation.
What does this mean for employers? While the decision
will likely be appealed to the Review Commission, it raises the
issue of just when does "enforcement guidance" cross the
line into rulemaking. If the ALJ decision is upheld by the Review
Commission, OSHA's future use of enforcement guidance would be
subject to greater scrutiny.
Note: This article was pulished in the
August 2012 issue of the MSHA/OSHA Report.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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