OSHA stepping up confined-space enforcement; decision on alternatives still to be handed down in 2004 case
Sep 1, 2012 12:00 PM, By Rick Weber
WITH the Occupational Safety and Health Administration (OSHA) stepping up its enforcement of confined-space entry of tanks, companies need to guard against complacency, according to Marcel Debruge, an attorney for Burr & Forman LLP in Birmingham, Alabama, who has defended and counseled employers in OSHA cases.
In “Confined-Space Entry Update,” he said there is a tendency for a company to accept a $2,500 penalty that could have been $15,000. Debruge spoke at the National Tank Truck Carriers' Tank Cleaning & Environmental Council annual seminar June 4-5 in New Orleans, Louisiana.
“You're sure you dodged a bullet, and it looks like you saved money, but the next time you're cited anywhere at any of your facilities, they do a computer check,” he said. “It doesn't matter that it's 1000 miles away. When you settle with OSHA, it's a guilty plea. That enables them to call you a ‘repeat offender.’ They love repeats. We're seeing more and more of it.
“Whenever you have to make a business decision — especially about confined-space entry — please think long and hard about the implications, because if you say, ‘Yes, we'll pay the money, we plead guilty, go away,’ that's going into the computer, and what are you going to do going forward to comply? What have you worked out with OSHA, and do you have it in writing? If you don't have that, you're completely at a risk of a repeat. And guess what? They're not going to care.”
He recommended that companies negotiate aggressively and try to get language into the agreement stating that it only applies to this particular facility, and that companies get counsel before signing any agreement.
“We haven't seen any public website announcements that they're going after tank washes, but I promise you this industry is in the computer,” he said. “At administrative levels of OSHA, they're well aware of confined space in tank wash operations, and you just need to be careful.
“A lot of it is a lottery system. You may have an injury or OSHA may come back on a referral. You may not know why they come out. You may get lucky. You may get a laid-back inspector. But if someone shows up who isn't necessarily very friendly and has read too many internal emails at OSHA that what you do is an inherently dangerous business and people get killed in this business and people enter dirty tanks, they may make an example of you. You need to be careful.
“If someone shows up and announces they're an industrial hygienist, you should pucker up a bit. If someone shows up and says they work closely with EPA, be careful. If someone immediately starts talking about incidents that happened in your company at other facilities in other states, you need to be careful at that point. If they instantly come in and talk to hourly employees and you catch wind that they're trying to get employees to say things like, ‘Yes, we go into dirty tanks,’ or ‘No, we don't always test,’ or ‘Yes, sometimes the meter isn't always working’ … We've seen that at multiple companies. If someone comes on site and seems to be a little too interested in escalating things, you should react and be a little more cautious.
“You may find yourself where there's a presumption against you, and the OSHA inspector is going to be inclined to believe the employee over you. That's almost always the case, but with what's happening around here now, that's especially the case.”
He said OSHA Standard 1910.146 (permit-required confined spaces) isn't as simple as it was intended to be. Violations can happen easily, even if a company is “well-intentioned.”
OSHA Standard 1910.146(b) says:
Permit-required confined space (PRCS) means a confined space that has one or more of the following characteristics:
Contains or has a potential to contain a hazardous atmosphere;
Contains a material that has the potential for engulfing an entrant;
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 cross-section; or
Contains any other recognized serious safety or health hazard.
“You're not going to win an argument with OSHA saying a tank that was not supposed to be entered was not a permit space, even if Jose or Sam went into the tank contrary to company policy,” Debruge said. “People sometimes make mistakes or cut corners. OSHA's view is, ‘We don't care if you say he wasn't supposed to go in there. He went in there. That's your problem. You should have stopped it. You violated every one of these boxes because he didn't conduct a permit entry when he went in there.’ As a fundamental matter, make sure nobody ever goes into a dirty tank.”
How do you safely and lawfully make entries?
- Full-permit entry
“Go through all the steps, all sub-paragraphs, have safety harnesses, do the testing. The challenge is that there are a lot of places to make mistakes, a lot of equipment that needs to be on hand, a lot of training that needs to take place. You can't be there all the time to make sure it's done right.”
- Say it's not a confined space
“Which would be very difficult.”
“Once you've cleaned it, it isn't the same as it was before. It isn't dripping with acid or whatever. Once you have cleaned it and drained it and blow-dried it, it's not the same as it was. Is it still a permit-required confined space? OSHA usually would say it is. But the standard in (c)(7) does allow you to reclassify.”
- Alternate-entry procedures
“It's been embedded in 1910.146 for 15 years. We've been fighting a battle with OSHA to get them to concede that this industry is entitled under (c)(5), alternate entry, to have that stripped-down methodology of going into these tanks. OSHA wants you to have full-permit entry whenever you go into a clean tank. They don't like the fact that there is (c)(5), alternate entry. The good news from a recent opinion is that OSHA's Administrative Law Judge (ALJ) says (c)(5), alternate entry, is appropriate in a tank entry. That's a big deal.”
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.”
PRCS reclassification under (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.”
“If you can establish it, you don't have to comply with anything,” said John J Coleman III, also with Burr & Forman LLP. “The trick is you have to satisfy the requirements. You have to have the data up front showing your tank going through the process poses no hazards — not even a skin hazard from a little burn. And you have to have documentation for it.
“And there are OSHA issues. They think 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.”
He said (c)(5), alternate entry, is available when the employer: shows the space's only hazard is atmospheric (no chance of engulfment, entrapment, or other hazards (such as skin burn); shows that forced air ventilation alone maintains safe entry atmosphere; develops monitoring data showing the first two requirements are met and makes it available to employees; and periodically monitors the space and follows proper procedure if conditions change adversely.
The employer must: do a test of oxygen LEL and toxics before entry (with entrant observing); ensure continuous clean source forced air ventilation eliminates hazard before entry; and document foregoing with date, location, and signature of determinant.
“OSHA has real problems accepting the documentations,” Coleman said, “but the advantages are that you don't have to have a program, permit system or PRCS entry permits, specified entrants, attendants, and supervisors' duties requirements, and rescue obligations.”
He said the industry scored a “big victory” in the case of Suttles Truck Leasing, which in September 1996 was cited by OSHA for allegedly failing to test atmospheres for toxicity prior to PRCS entry. Eight years later, in September 2004, the Occupational Safety & Health Review Commission (OSHRC), in Secretary of Labor v. Suttles Truck Leasing, dismissed or significantly reduced in size the vast majority of the original citations.
Debruge said that there was relative calm during the rest of the Bush Administration, but then the Obama Administration “decided it wasn't happy with what happened in the Suttles decision.”
Debruge said OSHA in 2009 inspected Dana's tank-wash facility in Chicago, Illinois, following an employee injury.
The ALJ rejected the theory that the tanks were not permit-required confined spaces, finding exposure based upon rule violator's entry.
“The ALJ rejected (c)(7) reclassification because, contrary to OSHRC in the 2004 decision, she did not consider the predecessor-company testing satisfactory even based on testimony of the expert who tested both sites, and did not consider permit forms containing information standard required as satisfactory documentation,” he said.
“The 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 the violation from willful to serious respecting the program and let the other two violations stand, because she concluded the company did not follow alternate-entry procedure in the single instance when the rule violator entered the 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.’
“We're awaiting a decision from the OSHRC. If this stands, it's a green light to you to go down the road of alternate entry, which until now has been somewhat in question. So pat the people of Dana on the back.
“OSHA is 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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