Every once in while common sense wins out. It happened recently--twice. An Administrative Law judge with the Federal Occupational Safety and Health Review Commission (OSHRC) issued an opinion throwing out an OSHA citation for a company that had not required its employees to wear flame-resistant clothing (FRC). Similarly, an Office of Administrative Hearing Judge for Wyoming's state Occupational Safety and Health Administration also rescinded citations issued against a company for failure to require its employee to wear FRC.
First, a little background: the oil and gas industry wants to protect workers, including requiring and providing Personal Protective Equipment (PPE). However, many in the industry argue that FRC is not needed for the protection of oil and gas workers and can actually cause other safety concerns. Industry experts say flash-fires--the type of fires that FRCs are designed to protect against--are extremely rare on drilling and production sites. More importantly, FRC's do not protect against sustained fires. The protective chemical present on FRCs is only designed to last about three seconds, enough to protect workers from a sudden, intense flash of heat. In fact, because FRCs design and retention of heat, requiring employees to wear FRCs can cause other health concerns, such as heat stroke.
In 2010, OSHA issued an enforcement directive saying FRCs needed to be used in oil and gas drilling and servicing operations, and OSHA's field agents started writing citations. Petro-Hunt was fined $5,390 after a fire at one of its producing wells, simply because the employees were not required to wear FRC at the site. The company appealed the fine and the administrative law judge ruled in favor of Petro-Hunt on June 8, 2012.
The judge’s ruling indicated that Federal OSHA failed in two major areas:
- Its decision to require FRCs constituted a rulemaking, but didn’t follow the usual process for making rules.
- By making a blanket requirement that workers at all oil and gas sites that had any potential for fires needed to wear FRCs, the agency never looked at whether there was actually a risk and whether that risk could be addressed through other means.
That first point is the one that really gave industry associations heartburn. If an agency can impose an industry-wide requirement without ever looking at the cost/benefits of the action or taking public comment, how do individuals and companies make their case with the agency? How many other directives will an agency impose?
The second point may actually open up a larger legal can of worms. As the judge pointed out, “As with most cases involving the general industry PPE standards, the concern is that it is so broad that it can be applied almost indefinitely.” Translation: if the agency doesn’t have to prove there is an actual hazard at the site and if industry doesn’t have the chance to utilize other design/engineering controls or administrative controls to avoid the risk, it can require just about any kind of PPE.
This was the point the hearing officer made in the Wyoming state OSHA case. Wyoming OSHA took the enforcement position that FRCs are required on drilling sites that utilize oil-based drilling mud, and that failure to require FRCs meant that the company had performed an inadequate hazard assessment. In fact, the company had conducted a hazard assessment and determined that flash-fires were not a "present or likely to be present" hazard on an the drilling location; therefore, FRCs were not necessary. The hearing officer agreed.
In the meantime, these are major victories for groups like the Association of Energy Service Companies and the International Association of Drilling Contractors. Those groups have really led the charge to get OSHA to step back from its FRC directive and arrive at commonsense solutions that can protect workers without exposing them to new hazards like heat exhaustion.
This does not end the issue however. Federal OSHA has not said whether it will appeal this ruling. If it does not appeal the ruling, it may decide to go through a formal rulemaking process to require FRCs. Wyoming OSHA has indicated it will propose new rules to require FRCs within a certain radius of the well location. In the meantime, companies are faced with the dilemma of determining whether to make workers wear FRCs while the agencies figure out what to do next.
The focus should be on protecting employees from fires. If FRCs only protect against flash-fires, then the real question should be: are flash-fires a present or likely to be a present hazard on oil and gas drilling or production sites? If the answer is no, then what protective purpose does FRC serve? Are there other engineering, mechanical, or administrative controls that effectively minimize fire hazards? At the very least, employers and experts in the industry should be given an opportunity to voice their concerns, through the proper rule making processes, before FRCs are imposed on industry employers by either Federal or state OSHA.