Enforcement cases for flame-resistant clothing in oil and gas

December 18, 2012

MEMORANDUM FOR:
REGIONAL ADMINISTRATORS

REGIONAL SOLICITORS

FROM:
RICHARD E. FAIRFAX

Deputy Assistant Secretary

JOSEPH M. WOODWARD

Associate Solicitor for Occupational Safety and Health

SUBJECT:
Guidance on Handling Cases Developed Pursuant to the FRC Enforcement Policy Memorandum

This is to provide guidance on application of the Enforcement Policy for Flame-Resistant Clothing in Oil and Gas Drilling, Well Servicing, and Production-Related Operations (March 19, 2010) ("FRC memorandum"). As discussed below, the FRC memorandum identifies specific operations in the oil and gas industry where there is a potential for flash fires. Where employees engaged in such operations are not using FRC, compliance staff should carefully evaluate available information to determine whether a hazard requiring use of FRC is present. FRC cases in these industries are novel issue cases under the National Framework for Workload Agreements and the Procedures for Significant or Novel Enforcement Cases, which means that early consultation between OSHA and SOL is necessary.

I. Use of the FRC Memorandum

The FRC memorandum identifies certain drilling, well-servicing and production-related operations where available data show the potential for flash fires exists. The memorandum states that, where appropriate, citations under the general industry personal protective equipment standard, 29 C.F.R. § 1910.132(a) should be issued for the failure to provide or ensure use of flame-resistant (FR) clothing for these operations. The PPE standard requires employers to provide and ensure use of personal protective equipment, including protective clothing, "whenever it is necessary by reasons of hazards of processes or environment...."

The memorandum sets out OSHA's policy that compliance staff should closely review the identified operations if FRC is not in use to determine whether FRC is needed to protect workers against flash fires.

The memorandum does not mean that a citation should be issued whenever FRC is not used during these operations. On the contrary, the memorandum states that a citation requires evidence that the employer had actual notice of the need for the equipment or that a reasonable person would have recognized the existence of a hazardous condition warranting use of the equipment.

A subsequent agency letter stresses the point. The letter states that the FRC memorandum "is an enforcement policy document intended for use by OSHA compliance officers (CSHO). It was provided to our CSHOs for clarification so they can evaluate the need for employers to provide and to require the use of FRC during certain drilling, well servicing, and production-related operations." The letter lists criteria that should be considered in determining whether a hazard requiring FR clothing exists, including the history of the oil field, the types of work operations conducted, the proximity of workers to flammable materials, the engineering controls associated with well control, and whether they are adequately designed, installed, tested and maintained. See attached letter dated October 19, 2010 to Dr. Lee Hunt.

In short, to enforce the PPE standard in this context, we will need to show that FRC is necessary to protect workers from hazards in their workplace. Both information about general experience in the industry and information about the conditions and exposures at the specific workplace are relevant in assessing whether a flash fire hazard requiring FRC is present in a workplace. In litigation, we will need to present evidence demonstrating the hazard. We are developing additional guidance materials to assist compliance staff in assessing flash fire hazards. We will forward these separately.

Finally, a recent ALJ opinion in the Petro-Hunt case wrongly characterized the FRC memorandum as a substantive rule requiring notice and comment. This was based on the impression that the memorandum was intended to create a per se duty to provide FRC whenever a listed operation takes place, and that the agency took the position that it need not present evidence of a hazard but could simply rely on the memorandum. Petro-Hunt, LLC, No. 11-0873 (June 6, 2012) at p. 15. As discussed above, that is not the purpose or effect of the memorandum.

[Note, the last two paragraphs were deleted from this publicly-posted version because they concerned internal OSHA instructions.]

Attachment