OSHA’s Oil & Gas Flame Resistant Clothing Memo Held To Be Improper Rulemaking

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On March 19, 2010, OSHA issued a Fire Resistant/Retardant Clothing enforcement memorandum pertaining to oil and gas operations. The memo stated that engineering and administrative controls may not be sufficient to protect oil and gas workers from the hazard of flash fires and that 1910.132(a) would be cited if employers did not provide and require employees to use flame resistant clothing (FRC). The memo can be found on OSHA’s website here.

Later in 2010, in part relying on the March 2010 memo, OSHA cited Petro Hunt, a  national oil and gas company, for failing to provide employees engaged in production operations appropriate personal protective equipment (PPE), specifically failing to provide FRC. Two Petro Hunt employees were gauging the level of crude oil in storage tanks—one employee had on FRC and the other, the supervising employee, did not. OSHA learned that Petro Hunt did not require its employees to wear FRC.

In accordance with the March 2010 memo, OSHA cited Petro Hunt for a violation of 29 C.F.R. 1910.132(a), which requires an employer to provide PPE “wherever it is necessary by reason of hazards.” The standard as written is a general performance standard and it does not state specifically how the employer is required to comply with the standard. Rather the standard gives the employer the flexibility, after performing a hazard assessment, to make reasonable determinations as to when PPE is necessary for employees.

In Secretary of Labor v. Petro Hunt, LLC, (OSHRC, June 2012), by relying on the March 2010 memo, the Secretary sought to establish that Petro Hunt had knowledge that flash fires were hazards and therefore FRC was required under 1910.132(a). In response, Petro Hunt alleged that the memo created a specific standard, one which required all oil and gas employers regardless of circumstances or controls in place to provide employees with FRC. As such, the memo amounted to improper rulemaking because it did not go through the notice and comment process.  

In his decision, ALJ Patrick Augustine held that the memo constituted a new standard under the Administrative Procedures Act (APA). His rationale was that the memo “takes a performance standard and imbues it with a specific obligation that FRC must be worn during enumerated oil and gas operations regardless of the particular circumstances that may be present at any individual facility. By doing this, Complainant has changed the requirement of the underlying standard; thus, engaging in improper rulemaking under the aegis of an enforcement standard.”

He further held that the memo was not an interpretation of 1910.132(a) or a general statement of policy, either of which would qualify as an exception under the APA, and therefore not require notice and comment rulemaking. The ALJ concluded, that “[b]y using the terms ‘concludes’ and ‘requires’ [in the March 2010 memo] Complainant has gone beyond mere interpretation and stepped into the realm of rulemaking by converting a performance-based standard into a specific standard. Complainant cannot ‘require’ anything more than what is authorized by regulations.” Further the ALJ held that that requirements in 1910.132(a) were plain and unambiguous and not in need of interpretation. He pointed out that the standard requires the employer to perform a hazard assessment under 1910.132(d) and that within the oil and gas industry, the memo “constitutes an indirect repeal of section 132(d)...because the hazard assessment is “inconsistent with a blanket determination that FRC, or any PPE for that matter, is required in all instances.”

The ALJ concluded that the FRC memo was not sufficient to put an employer on notice that a hazard existed requiring FRC and held that the Secretary failed to establish that there was a hazard present that required the use of FRC. Petro Hunt had instituted a series of engineering and administrative controls, none of which were shown to be insufficient. As a result, the ALJ vacated the citation. 

What does this mean for employers? While the decision will likely be appealed to the Review Commission, it raises the issue of just when does “enforcement guidance” cross the line into rulemaking. If the ALJ decision is upheld by the Review Commission, OSHA’s future use of enforcement guidance would be subject to greater scrutiny. 

Note: This article was pulished in the August 2012 issue of the MSHA/OSHA Report.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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