NTTC Burr Talk on Alternative Entry

Attorney-Client Privileged Communication
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NATIONAL TANK TRUCK CARRIERS
Here We Go Again…Again …
Will OSHA Allow Tank Cleaning?
New Orleans, Louisiana
June 5, 2012
John J. Coleman, III
Birmingham, AL
Marcel L. Debruge
Birmingham, AL
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A Burr & Forman, LLP Birmingham Office
former labor and employment group chair,
John J. Coleman, III has defended and
counseled employers in OSHA cases since
his 1984 successful OSHRC decision in
fatality case Secretary v. Alabama Power
Company.
These include “willful” and
“repeat” cases involving unguarded
machines, asbestos, and confined spaces
(including Suttles Truck Leasing and Dana
Container), among others. A complete bio
is in your materials.
Burr & Forman LLP’s current labor and
employment practice group chair, Marcel
Debruge has defended and counseled
employers in OSHA cases since his
involvement in defending Suttles Truck
Leasing in 1997.
He has defended
employers successfully in willful, repeat
and other “significant” (an OSHA term)
cases, including the Suttles and Dana
cases discussed today. A complete bio is
in your materials.
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Confined Space Is Back in the News
Obama administration OSHA enforcement
Emphasis on company-wide enforcement
End of “partnership” with industry
Increased penalties and more aggressive
enforcement
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David Michaels
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$1.32 Million in Confined Space Penalties
Seven-figure OSHA fines are becoming more common, especially in cases when the agency believes
the company acted with willful disregard to safety.
VT Halter Marine, a shipbuilder, faces $1.32 million in fines in connection with a November 2009
explosion and fire in Escatawpa, MS, that killed two workers and seriously injured two others. The two
injured workers both received third-degree burns.
OSHA cited the company for 17 willful violations, including failure to:
inspect and test a confined space before entry
prevent entry into confined spaces where the concentration of flammable vapors exceed the prescribed
limits, and
use explosion-proof lighting in a hazardous location.
VT Halter also faces 11 serious violations including lack of machine guarding and use of defective
electrical equipment.
The explosion happened aboard a tugboat as a crew was cleaning and prepping a tank for painting.
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1910.146(b)
Permit-required confined space (permit space) means a confined
space that has one or more of the following characteristics:
(1) Contains or has a potential to contain a hazardous atmosphere;
(2) Contains a material that has the potential for engulfing an
entrant;
(3) Has an internal configuration such that an entrant could be
trapped or asphyxiated by inwardly converging walls or by a
floor which slopes downward and tapers to a smaller crosssection; or
(4) Contains any other recognized serious safety or health hazard.
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Approaches to Confined Space Entry
Full permit entry
“Not a confined space”
Reclassification
Alternate entry procedures
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Where OSHA Finds Fault
Failure to comply with all aspects of permit
entry
Training deficiencies
Documentation not in order
Failure to follow safety rules
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Really Three Options
- Clean Tanks as Not PRCS
- (c)(7) Reclassification
- (c)(5) Alternate Entry
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Plan A: Clean Tanks Not PRCS
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The theory:
(1) Dirty tanks have hazards
(2) Nobody goes in dirty tanks
(3) Clean tanks never have hazards
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The problem: (1) Somebody always breaks the rule
(2) Current OSHA views rule breaker as exposed
(3) Employer must prove defense inspectors do not
consider
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Plan B: It May Be Possible To “Reclassify”
Washed Tanks As Non-PRCS
Under (c)(7)(i): “A space classified by the employer
as a permit-required confined space may be
reclassified as a non-permit confined space under the
following procedures: If the permit space poses no
actual or potential atmospheric hazards and if all
hazards within the space are eliminated without
entry into the space, the permit space may be
reclassified as a non-permit confined space for as
long as the non-atmospheric hazards remain
eliminated.”
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PRCS Reclassification Under (c)(7)
(c)(7)(iii): “The employer shall document the
basis for determining that all hazards in a
permit space have been eliminated, through a
certification that contains the date, the
location of the space, and the signature of the
person making the determination. The
certification shall be made available to each
employee entering the space or to that
employee’s authorized representative.”
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(c)(7) Reclassification Advantage: PRCS
Does Not Apply
- If you satisfy (c)(7), none of the standard
applies.
- No program; no attendant, supervisor or
entrant requirements; no permits; no training
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(c)(7) Reclassification Problems
- Standard issues:
- Still have to demonstrate absence of hazards
- Still have to document
- OSHA issues
- thinks there could still be a potentially hazardous
atmosphere based on oxygen and/or combustible gases.
- OSHA has great difficulty defining what it will accept
respecting necessary testing documentation
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Plan C: (c)(5) Alternate Entry
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This exception is available when the employer:
- Show the space’s only hazard is atmospheric (no chance of
engulfment, entrapment, or other hazards (such as skin burn)),
- Show that forced air ventilation alone maintains safe entry
atmosphere
- Develops monitoring data showing the first two requirements and
met and makes it available to employees, and
- Periodically monitors the space and follows proper procedure if
conditions change adversely
The employer must:
- Test of oxygen LEL and toxics before entry (with entrant observing)
- Ensure continuous clean source forced air ventilation eliminates hazard
before entry
- Document foregoing with date, location and signature of determinant
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(c)(5) Advantages
- No program
- No permit system or PRCS entry permits
- No specified entrants, attendants and supervisors’ duties
requirements
- No rescue obligations
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(c)(5) Problems
- Remaining Requirements:
- Still must train
- Still must test
- Still must document much like permits
- OSHA to date has not communicated effectively precitation to this industry when enforcement personnel
consider testing and documentation adequate
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Bottom Line: No Matter What Standard Says,
This OSHA Has A Problem with Anything but
Full Compliance
- The 2004 Decision From Alabama
- The Fight Goes On: Dana and the Chicago Situation
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The 2004 Alabama Decision
- Background
- The 2004 Decision
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The Background
In September 1996 OSHA cited an Alabama tank wash facility
for allegedly failing to test atmospheres for toxicity prior to
PRCS entry.
This was a “significant” case, with an accompanying press
release, and fines of over $130,000.00
The employer asserted that the wash process rendered
WASHED tanks sterile by neutralizing the toxic properties of
substances hauled, and also that there was no device on the
market that could test for all relevant toxics prior to PRCS entry.
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Background
The employer pointed to air sampling data it
generated following OSHA confined space citations
at another company facility, which demonstrated that
the tanks posed no hazard of toxic atmospheres
POST WASH.
The employer’s data showed that there was no need
to test for toxicity POST WASH, and therefore testing
for oxygen and LEL was enough to satisfy OSHA’s
PRCS standard.
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Background (cont’d)
Eight years later, in September 2004, the
OSHRC issued its decision in Secretary of
Labor v. Suttles Truck Leasing.
The vast majority of the original citations were
either dismissed or significantly reduced in
size, with the total final citation amounting to
$4,500.00.
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The 2004 Decision:
Secretary of Labor v. Suttles Truck Leasing
“Of those trailers entered, approximately 10%
contain a thin residual film of the product that
had been carried that adheres to the inside of
the tank. After the wash process, these
substances are chemically inert solids.”
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Secretary of Labor v. Suttles Truck Leasing
“Suttles claims that, as a result of the washing
process, the washed tanks contained no actual or
potential hazards and thus the washed tanks are not
PRCSs. … It claims that the atmospheric testing
conducted … prove that the washing and blow-drying
process eliminates the possibility that there will be a
toxic atmosphere in a washed tank, and that this
evidence was accepted by [OSHA in a prior
investigation at a similar company facility].”
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Secretary of Labor v. Suttles Truck Leasing
“The testing showed that, after the tanks had
been washed and blown dry, the levels of the
chemical in the atmosphere had been
reduced by as much as 20,000 times. All
levels were well below the OSHA PELs. [The
expert] said that the washed tanks did not
have the potential to contain a hazardous
atmosphere, so they were not PRCS.”
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Secretary of Labor v. Suttles Truck Leasing
“… [T]he tanks – both pre-wash and post-wash were PRCSs.”
“In light of Dr. Ball’s testimony placing every chemical carried …
into one of the four groups … we find that the wash process
… made each of the tanks involved “sterile” … and that the
washed tanks, while still PRCSs, have been purged of their toxic
contents.”
“We find … that the results of the sampling in Columbus would
accurately predict the results of the testing for other chemicals in
the same groups in Creola because the Secretary has given us
no basis for finding otherwise.”
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Secretary of Labor v. Suttles Truck Leasing
“The washing and drying process was an integral part of the
PRCS program, not a means to shield against its application.”
“The testing was designed solely to obviate the need for Suttles
to run a pre-entry test for toxic atmospheres on each and every
washed-and-dried tank, which it claimed was both unnecessary
and infeasible. Suttles was not relying upon the Columbus
testing to eliminate testing for any other type of atmospheric
hazards, such as those associated with oxygen deficiency and
flammability.”
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Secretary of Labor v. Suttles Truck Leasing
“It is reasonable to conclude from these explanations that the
nature and scope of the verification testing undertaken pursuant
to (d)(5) will be governed by the results of the evaluation testing
required by (d)(2). Accordingly, if evaluation testing
demonstrates that certain hazards (such as toxic
atmospheres) are eliminated by a cleaning procedure, then
the pre-entry verification testing need not include a test for
those hazards.”
“ … the type of testing that needs to be performed is dependent
on the hazards that are present within the space … (d)(5)(i)
requires the employer to conduct whatever tests are necessary
to ensure that acceptable entry conditions are met.”
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Secretary of Labor v. Suttles Truck Leasing
“The results of this evaluation confirmed that any toxic atmosphere in
the tanks was purged during the cleaning process. It was therefore
appropriate in designing the verification testing procedures for
purposes of fulfilling its obligations under (d)(5) for Suttles to eliminate
the atmospheric test for toxicity since it was found unnecessary, a
conclusion that accords with the explanation in paragraph (2) of
Appendix B. Were it not for a timing issue described below, we would
find that the Columbus testing constituted the kind of identification and
evaluation of hazards contemplated by … (d)(2). Based on the results
of those tests, we further find that, in fulfilling its obligations under
(d)(5) to test permit space conditions prior to specific employee
entries, Suttles was warranted in dispensing with the testing for
toxic atmospheres so long as the tanks were washed, dried and
ventilated in accordance with the operating procedures developed
in consultation with Dr. Ball.”
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Under Suttles, How Could An Employer Comply
With PRCS Entry Toxicity Testing Procedures In
A Cleaned Tank Environment
1.
In every tank to be entered, test the atmosphere for unsafe
levels of the toxic substance hauled prior to washing. No
single gas meter can test for everything.
2.
Collect representative air sampling data that is common to all
terminals, assuming commonality exists and can be proven. If
the data confirms that the wash process eliminates the
potential for a toxic atmosphere, toxicity testing is not required
for tanks hauling substances falling within the grouping of
chemicals.
3.
Reclassify the PRCS space to a Non-PRCS space under
(c)(7).
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The Fight Goes On: Dana and The Chicago
Situation
- Background
- The Chicago Decision
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Background
- OSHA in 2009 inspected a tank wash facility following an
employee injury.
- Resulting willful program violation based upon the
inspector’s reliance on a program from a different facility,
and two willful failure to test and failure to complete permit
violations based upon a single individual’s entry into a dirty
tank in violation of an enforced rule.
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The Chicago Decision
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ALJ rejected theory that tanks were not permit-required confined spaces,
finding exposure based upon rule violator’s entry
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ALJ rejected (c)(7) reclassification because, contrary to OSHRC in 2004
decision, she did not consider predecessor company testing satisfactory even
based on testimony of expert who tested both sites, and did not consider permit
forms containing information standard requires as satisfactory documentation.
ALJ accepted pre-entry testing of each trailer onsite plus continuous forced
air ventilation as supporting application of (c)(5) alternate entry (thus removing any
other obligations except training); she reclassified willful to serious respecting
program and let other two stand, however, because she concluded company did not
follow alternate entry procedure in the single instance when rule violator entered
dirty tank.
The OSHRC has granted review on, among other things, the application of
(c)(5) alternate entry procedures in this context, whether the ALJ properly declined
to consider the lone rule violator’s entry unpreventable employee misconduct, and
whether a “willful classification is appropriate.
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THE ALJ’S IMPORTANT HOLDING
“Dana has established it uses continuous forced
air ventilation during entry. The only hazard
posed by the tanks is an actual or potential
hazardous atmosphere. Dana’s tank entry
permits document the monitoring and data
requirements of §1910.146(c)(5)(i)(C) and (E).
It is determined that Dana has established it uses
the alternate entry procedures of the PRCS
standard.”
Opinion pgs. 30-31
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Going Forward
Awaiting decision from OSHRC
OSHA likely to continue targeting tank wash facilities
Without atmospheric testing, there can be no
“documentation” to support alternate entry or
reclassification
Every company should examine its confined space
entry procedures to ensure compliance
Every company must be aware of the impact any
settlement agreement can have on operations
nationwide
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Under Dana, How Could An Employer Comply With
PRCS Alternate Entry Procedure In A Cleaned Tank
Environment
1.
In every tank to be entered, test the atmosphere for oxygen, LEL
and toxics (to the extent possible; no single gas meter can test for
everything).
2.
Collect representative air sampling data common to all terminals,
assuming commonality exists and can be proven; make data
available at all terminals.
3.
Follow alternate entry steps prior to entering each tank
4.
Document what has been done each time
5.
Have written procedures, training in procedures, supervisory
observation, and documented prompt effective rule enforcement.
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Steps to Consider
1. Begin building alternate entry data NOW
2. Develop inspection plan
3. Prepare supervisors and management for
inspection
4. Appropriately tell rank-in-file rights
5. Audit records and visible safety issues
periodically
6. Discipline consistently and document
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QUESTIONS?
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