A TREND appears underway by the Occupational Safety and Health Administration (OSHA) to force tank cleaning facilities to comply with confined-space regulations that do not apply to them, according to information presented at the NTTC Tank Cleaning Council seminar.
“The trend illustrates the need for cleaning industry safety professionals to devise a means to protect safe and legitimate tank wash procedures against hefty fines and unworkable abatement methods that threaten the economic viability of tank wash facilities,” said John Coleman. He and Marcel Debruge, both attorneys with Burr & Forman LLP, Birmingham, Alabama, discussed the OSHA issues, emphasizing confined-space standards.
The confined-space standard applies to general industry employers, such as most employers in the tank cleaning industry who have employees who work in confined spaces. However, employers must determine if the tanks that are going to be entered require the facility to have confined-space permits. Before a tank is washed, it should be considered as a permit-required space, Coleman said.
At the same time, the tank truck industry is unique among confined-space work in that tanks normally are not entered at all, and are only entered after a thorough wash process. Hence, there are grounds for contending that most permit-required confined-space obligations do not apply, according to Coleman and Debruge.
Among the exceptions that are available are alternate entry procedures and reclassification as provided in the OSHA standards. “The key is documentation,” Coleman said, pointing out the importance of keeping accurate records of actions taken, and being familiar with the rules necessary to protect workers.
In addition to discussing the OSHA standards, Coleman and Debruge offered information pertaining to OSHA enforcement.
“Confined-space issues are most likely to arise in two types of investigations, a complaint-based inspection or a fatality,” said Coleman. “The investigation can be limited to the scope of the complaint or the fatality, and the employer can take protective measures.”
A cleaning facility should make certain records available to the inspector: OSHA 300 log and 301 and 300A forms, information necessary to establish the appropriate confined-space exception, and hazcom materials.
For the walk-around inspection, Coleman recommended a map be made of the path of travel to the relevant site to minimize the area covered, that all equipment be in place and workable, that a videotape be made of the visit, that concurrent samples be taken of any the inspector takes, and that demonstrations or entries into tanks be avoided while the inspector is present.
Debruge noted that employees may be misled into making erroneous statements. Nevertheless, employers normally cannot be present during the interview of hourly employees. “If possible, prepare non-exempt employees before the interview,” he said. “Give counsel the opportunity to sign up non-exempt employees as clients. This enables the employee to insist that counsel be present during the interview. Remember, do not volunteer anything, clear any disclosure with counsel before making it, and never allow yourself to be convinced that more information will make the inspector go away.”
Exempt level employees always should be interviewed with company counsel present. “These folks can bind the company with what they say,” says Debruge, “so anyone with supervisory authority should be made available for the inspector's interview only if company counsel is present.”