1 Attorney-Client Privileged Communication 1

Transcription

1 1 Attorney-Client Privileged Communication 1

2 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 2

3 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 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. 3

4 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 4

5 David Michaels 5

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7 $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. 7

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9 (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. 9

10 Approaches to Confined Space Entry Full permit entry Not a confined space Reclassification Alternate entry procedures 10

11 Where OSHA Finds Fault Failure to comply with all aspects of permit entry Training deficiencies Documentation not in order Failure to follow safety rules 11

12 Really Three Options - Clean Tanks as Not PRCS - (c)(7) Reclassification - (c)(5) Alternate Entry 12

13 Plan A: Clean Tanks Not PRCS - The theory: (1) Dirty tanks have hazards (2) Nobody goes in dirty tanks (3) Clean tanks never have hazards - 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 13

14 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. 14

15 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. 15

16 (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 16

17 (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 17

18 Plan C: (c)(5) Alternate Entry - 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 18

19 (c)(5) Advantages - No program - No permit system or PRCS entry permits - No specified entrants, attendants and supervisors duties requirements - No rescue obligations 19

20 (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 20

21 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 21

22 The 2004 Alabama Decision - Background - The 2004 Decision 22

23 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, 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. 23

24 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. 24

25 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,

26 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. 26

27 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]. 27

28 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. 28

29 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. 29

30 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. 30

31 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. 31

32 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. 32

33 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). 33

34 The Fight Goes On: Dana and The Chicago Situation - Background - The Chicago Decision 34

35 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. 35

36 The Chicago Decision - ALJ rejected theory that tanks were not permit-required confined spaces, finding exposure based upon rule violator s entry - 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. 36

37 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 (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

38 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 38

39 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. 39

40 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 40

41 QUESTIONS? 41