July 5, 2012
For those involved in the FR world, whether on the manufacturing, distribution, or end-user sides, word has quickly spread regarding the recent federal court ruling deeming the memo issued by OSHA in 2010 as "improper rule making."
Here's a quick history of what has led up to this ruling:
The General Duty Clause under the Occupational Health & Safety Act of 1970 requires employers to provide a workplace that is "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees."
In 2010, according to OSHA, 16% of fatalities in oilfields resulted from fire and explosions. In March of that year, CFR 1910.132 was created to remedy the "inconsistent use" of FRC in drilling operations. It was issued in the form of a memo.
Several companies in the industry raised objections to this memo, stating that FRC was expensive, hot, and bulky to wear - especially in the hot climates in which most oil & gas is produced.
On October 14, 2010, a flash fire occured at a Petro Hunt facility in Northwestern North Dakota. The fire was extinguished and nobody was hurt. However, upon OSHA inspection the following day, a citation and a fine were issued because the company did not require flash fire resistant clothing and the employees did not have protective clothing during the time of the incident.
After appeals were made by Petro Hunt, which demonstrated a proper hazard assessment was made prior to the incident, a federal judge sided with Petro Hunt, stating that OSHA cannot require FRC without conducting the promper rulemaking process.
The final ruling: OSHA "cannot 'require' anything more than what is authorized by the regulations. If [OSHA] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then [it] must resort to the required notice and comment rulemaking process." As a result, "the FRC memo does not have the force and effect of law."
So, where does this leave the oil & gas industries as it pertains to the use of flame-resistant clothing? It remains an unknown at this point. Perhaps OSHA will conduct the formal rule making process and enact a law that reflects upon the memo issued in 2010. Or, maybe the ruling will stand as the last word when it comes to this issue. Regardless, employers will still need to determine if FRC is needed on a day-to-day basis by conducting a proper and formal hazard analysis.
My opinion: the use of flame retardant coveralls, FRC, flame resistant clothing, or however you choose to use the term - has become engrained in the safety culture of these industries. Many of the companies we speak with in the drilling industries have built budgets for the expenditure, their employees have accepted protective clothing as a part of their daily PPE, and these end users are now seeking FR technology that will provide an advantage in comfort compared to the FRC they were forced to purchase two years ago.
-The TECGEN Talker