Judge rejects OSHA’s memo on flame-resistant clothing, calls it ‘improper rulemaking’

published in McAfee & Taft RegLINC Regulatory Update | July 2, 2012

By Chris Paul

On June 6, 2012, Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge Patrick Augustine vacated a citation the Occupational Safety and Health Administration (OSHA) had issued to Petro-Hunt LLC for failure to have employees wear flame-resistant clothing (FRC). Secretary of Labor v. Petro-Hunt, OSHRCJ, No. 11–0873. There is an avenue for further review of the decision if requested by OSHA.


The case is the first challenge to OSHA’s “Enforcement Policy for Flame-Resistant Clothing in Oil and Gas Drilling, Well Servicing, and Production-Related Operations” (“FRC memo”) — the March 2010 enforcement directive sent to OSHA regional administrators and state plan designees supposedly to clarify OSHA’s policy for citing the general industry standard for PPE for failure to provide and use FRC in oil and gas drilling and servicing operation (see memo here).

OSHA argued that the FRC memo was enforceable and merely an interpretation of the Personal Protective Equipment (PPE) standard at 29 C.F.R. 1910.132(a). OSHA said that the “clarification” in the FRC memo was necessary because there was “inconsistent use” of FRC among oil and gas companies. Petro-Hunt's position was that the FRC memo was effectively a new standard which made a performance-based standard into a specific requirement that FRC be provided to employees.

The judge ruled that the FRC memo constituted a new standard, and that OSHA had engaged “in improper rulemaking under the aegis of an enforcement standard… Contrary to the long-established precedent of determining whether PPE is required based upon a discrete set of facts and circumstances, [OSHA] has attempted to short-circuit its burden of proof by concluding that the failure to provide FRC is a per se violation of the general industry PPE standard.” By using terms like “concludes” and “requires,” OSHA went “beyond mere interpretation and stepped into the realm of rulemaking by converting a performance-based standard into a specific standard.” If OSHA wanted to implement a requirement that FRC be worn in all instances at oil and gas operations, then OSHA needed to go through the process of rulemaking as required by the Administrative Procedures Act. Judge Augustine concluded that the FRC memo “does not have the force and effect of law.”

With respect to the citation itself, which arose from an October 2010 fire at a Petro-Hunt well in North Dakota, OSHA failed to prove the existence of a flash fire hazard at the location. Petro-Hunt testified that they had no record of flash fires at their locations in decades. The judge noted that “a low rate of injury indicates that a hazard requiring the use of PPE was not present.” The judge determined that Petro-Hunt’s decision to utilize engineering and administrative controls was therefore consistent with industry custom and practice in implementing hazard assessment pursuant to Section 1910.132(d) and OSHA’s guidance regarding the hierarchy of controls.


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