Ruling may open way for alternate confined space entry programs
Jun 6, 2012 9:46 AM, By Charles E Wilson
A recent federal administrative court ruling may open the way for tank wash racks to build alternate confined space entry programs under section (c)(5) of the federal rules. However, the Occupational Safety and Health Administration (OSHA) under the Obama Administration is doing all it can to block that option.
Marcel Debruge and John Coleman, both with the lawfirm of Burr & Forman LLP, discussed the latest developments in the 15-year effort to address the right of tank cleaning facilities to use sections of OSHA’s own confined space entry regulations to create non-permit-required confined space entry programs. They addressed the issue during the National Tank Truck Carriers’ Tank Cleaning & Environmental Council Seminar June 4 and 5 at The Hotel Monteleone in New Orleans LA.
The issue started when OSHA targeted a wash rack in Creola AL for investigation on confined space entry violations. “OSHA wanted to make an example out of the wash rack, but the facility was prepared,” Debruge said. “This all started during the Clinton Administration. Ultimately, the case didn’t work out well for OSHA, because the wash rack was prepared. Following a five-day hearing in 2004, a vast majority of the original citation was dismissed or reduced.”
Most importantly, the case showed that alternate confined space entry programs had merit. Wash racks are not compelled to adopt permit-required confined space programs as long as they could demonstrate a viable alternative.
The OSHA regulation clearly allows reclassification of confined spaces. For instance, a clean tank trailer clearly is not the same as one that is dirty. This is an option for wash racks, according to Debruge. However, they need the right paperwork and documentation. Alternative confined space entry methods also are allowed.
“We’ve been fighting with OSHA for 15 years over this,” he says. “They don’t like the fact that the regulation allows reclassification and alternative entry procedures. They don’t like the fact that we now have a court ruling in our favor.”
Coleman added that part of the problem is the Obama Administration’s anti-business attitude. “This is one reason OSHA has eliminated unclassified violations that allowed companies to plead Nolo contendere for certain violations, which heled protect the company record. These pleas are gone. OSHA’s administrators don’t understand you. They have never been in your shoes, and they don’t like you.”
Not surprisingly, OSHA recently revisited the wash rack confined space. Another wash rack that is part of the group that owns the facility in Creola AL had a confined space injury. OSHA claimed that a mistake by a single worker was a willful violation of the law.
The administrative law judge’s (ALJ’s) ruling left clouded the status of reclassification section (c)(7) of the confined space regulation, but upheld section (c) (5), which allows alternate entry programs. OSHA has written a 55-page brief to attack the ALJ’s ruling.
“OSHA will continue to target confined space entry in cleaning racks,” Coleman said. “You are low-hanging fruit to them. They want to block alternative entry plans, and limit you to only permit-required confined-space programs, which make compliance much more difficult. You can prevail, but you need a lot of data on the products you clean, and you must be able to demonstrate how that data applies to your tank cleaning operation. Make sure no worker ever goes into a dirty tank.”
Bulk Transporter will provide detailed coverage of this and other sessions from the Tank Cleaning & Environmental Council seminar.
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