barnett 4-21-15 chemical facilities practice - osha rules and regulations - what you need to know
TRANSCRIPT
Speaker Firms and Organization:
Genova Burns LLCDouglas Solomon, Esq.
Partner
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Presented By:
April 21, 2015
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Partner Firms:
Connell Foley LLPSteve Barnett
Partner
Krugliak, Wilkins, Griffiths & Dougherty, Co. L.P.A.
Jacqueline Bollas CaldwellAttorney
Brief Speaker Bios:
Jacqueline Bollas Caldwell
Jackie is a director of Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. Jackie joined the law firm in 1985, immediately after matriculation from law school. She was elected shareholder in 1991. She served on the Management Committee of the Firm from 1998-2005. Jackie serves as counsel for numerous businesses in all phases of business and corporate representation, including corporate and business formation; contract negotiating, advising, and drafting; bank loan negotiation; buying and selling businesses; handling disputes between minority and majority business owners.
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Douglas Solomon, Esq.
Douglas E. Solomon, a Partner in the firm’s Newark, New Jersey office, is the Director of the OSHA Practice Group and is also a member of the firm’s Labor Law Practice Group.
Mr. Solomon concentrates his practice in the area of traditional labor law on behalf of management clients in both the private and public sector. His labor law experience spans a wide variety of industries, including transportation, entertainment, law enforcement, hospitals, retail, restaurants, charter schools and service industries. His transportation industry experience includes an expertise in representing clients under the Railway Labor Act and the Occupational Safety & Health Act (“OSHA”).
► For more information about the speakers, you can visit: http://theknowledgegroup.org/event_name/osha-rules-and-regulations-what-you-need-to-know-live-webcast/
Steve Barnett
Steve Barnett is a Partner in Connell Foley LLP’s Environmental Law Group. Prior to his law career, Mr. Barnett practiced as a Certified Industrial Hygienist and Professional Engineer in the United States Air Force. He frequently counsel clients in OSHA compliance and enforcement matters. Mr. Barnett is Chairman of the OSHA-New Jersey Industry Communication Alliance, member of the New Jersey Industrial Safety Council appointed by the New Jersey Commissioner of Labor and Workforce Development, former President of the New Jersey Industrial Hygiene Association, and holds a Master of Science in Public Health. His legal practice is devoted to health, safety, security and environment (HSSE) matters in contracts and transactions, regulatory compliance, and litigation.
Under the US Occupational Health & Safety Act (1970) employers are required to provide a safe and healthful working environment. OSHA enforces established standards with which all employers must comply. Employers must also comply with the General Duty Clause of the Act which requires them to keep the workplaces free of recognized serious hazards.
Employers can face dauntingly complex tasks and confusing language in complying with OSHA’s numerous and extensive federal and state occupational safety and health standards and regulations. Many employers and their legal advisors often are un-aware of many of the legal requirements that must be met to ensure the safety of their workers – such as training.
With the growth of temporary employment status in the US, the Occupational Safety and Health Administration is focusing upon employers skirting the laws regarding such issues as Injury and Illness prevention and reporting, safety training deficiencies, and placement of new employees in hazardous positions. In April OSHA announced the final rule revising and enhancing the standards for electric power generation, transmission, and distribution.
In this webinar, our panel of speakers will review the fundamentals of the Occupational Health & Safety Act (1970) and, the extent of the authority of the Occupational Safety and Health Review Commission.
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Specifically, the panel speakers will address the statutes involved in OSHA legal practice, the enforcement of and compliance with the statutes, the regulations promulgated, and the role of the Commission and the courts in appeals relating to OSHA citations and practices. Other issues addressed will include NFPA changes, the SVE Program, and practices putting your organization at risk. Whether you are an employment lawyer or a lawyer representing industrial employees or employers this webinar will be of value.
Agenda:
• OSHA Rules and Regulations: Changes and Implications• OSHA Injury and Illness Prevention Program (I2P2) Rule, Recording, and Reporting• OSHA Inspectors: Avoidance and Preparation• Regulatory Compliance: The Necessary Evil• Severe Violator Enforcement Program (SVEP)• 2015 NFPA: Potential Changes• Role of Courts and the Commission• Industry View-point: Oil and Gas Safety• OSHA and United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals• Practices Putting Your Firm at Legal Risk: Reporting and Training
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Featured Speakers:
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SEGMENT 2:
Douglas Solomon, Esq.PartnerGenova Burns LLC
SEGMENT 1:
Jacqueline Bollas CaldwellAttorneyKrugliak, Wilkins, Griffiths & Dougherty, Co. L.P.A.
Introduction
Steve Barnett is a Partner in Connell Foley LLP’s Environmental Law Group. Prior to his law career, Mr. Barnett practiced
as a Certified Industrial Hygienist and Professional Engineer in the United States Air Force. He frequently counsel clients in
OSHA compliance and enforcement matters. Mr. Barnett is Chairman of the OSHA-New Jersey Industry Communication
Alliance, member of the New Jersey Industrial Safety Council appointed by the New Jersey Commissioner of Labor and
Workforce Development, former President of the New Jersey Industrial Hygiene Association, and holds a Master of Science
in Public Health. His legal practice is devoted to health, safety, security and environment (HSSE) matters in contracts and
transactions, regulatory compliance, and litigation.
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Chemical Facilities Practice – Manufacturers, Importers, Distributors, Employers and Retailers
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Process Safety Management (PSM) Standard, 29 CFR 1910.119
• Bhopal, India chemical release 1984
• Clean Air Act Amendments of 1990 required OSHA to issue chemical process safety standard
• Standard issued 1992
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Incidents
• October 23, 1989, Phillips Petroleum, Pasadena, Texas
• July 19, 1990, BASF, Cincinnati, Ohio
• May 1, 1991, IMC, Sterlington, Louisiana
• March 23, 2005, BP Refinery, Texas City, Texas
• April 2, 2010, Tesoro Refinery, Anacortes, Washington
• April 20, 2010, Deepwater Horizon
• April 17, 2013, West Fertilizer, West, Texas
• June 13, 2013, Williams Olefins, Geismar, Louisiana
• November 15, 2014, DuPont, LaPorte, Texas
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Petroleum and chemical facilities emphasis
• 2007 OSHA Petroleum Refinery PSM National Emphasis Program
• 2011 OSHA PSM-Covered Chemical Facility National Emphasis Program
• 645 inspections, 3,100 violations
• August 1, 2013 Executive Order 13650 Improving Chemical Facility Safety and Security
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
PSM Applicability
• Process which involves threshold quantities listed in Appendix A, or
• Process which involves 10,000 pounds of Category 1 flammable gas or flammable liquid with flashpoint below 100°F on site in one location
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
PSM Applicability (Cont’d)
Process means any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities. For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process.
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
PSM Applicability (Cont’d)
Not applicable to:
Retail facilities
Oil or gas well drilling or servicing
Normally unoccupied remote facilities
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
PSM Requirements
• Process Hazard Analysis• Written operating procedures• Employee training and participation• Pre-startup safety reviews• Evaluation of mechanical integrity of equipment• Contractor requirements• Written procedures for management of change• Permit system for hot work• Investigation of incidents involving releases or near misses• Emergency actions plans• Compliance audits at least every 3 years• Trade secret protection
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Globally Harmonized System of Classification and Labeling of Chemicals (GHS)
• In 2012, OSHA revised its Hazard Communication Standard (HCS or “Hazcom’) 29 CFR 1910.1200 to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS)
• published it in the Federal Register in March 2012 (77 FR 17574)
• Hazcom 2012 replaced Hazcom 1994
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
GHS Compliance Dates
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Effective Completion Date
Requirement(s) Who
December 1, 2013 Train employees on the new label elements and SDS format.
Employers
June 1, 2015*
December 1, 2015
Comply with all modified provisions of this final rule, except:
Distributors may ship products labeled by manufacturers under the old system until December 1, 2015.
Chemical manufacturers, importers, distributors and employers
June 1, 2016 Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.
Employers
Transition Period Comply with either 29 CFR 1910.1200 (this final standard), or the current standard, or both
All chemical manufacturers, importers, distributors and employers
GHS Requirements
Hazard classification: Chemical manufacturers and importers required to determine and classify hazards.
Class: Health, physical, and hazards not otherwise classified.
Category: 1, 1A, 1B, 2, etc.
Chemical mixtures.
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
GHS Requirements (Cont’d)
• Labels: Chemical manufacturers and importers must provide a label that includes a signal word, pictogram, hazard statement, and precautionary statement for each hazard class and category.
• Safety Data Sheets (SDS’s): New format requires 16 specific sections
• Information and training: Workers trained by December 1, 2013 on new label elements and safety data sheet format
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SDS Sixteen Sections1. Identification
2. Hazard(s) identification
3. Composition/information on ingredients
4. First-aid measures
5. Fire-fighting measures
6. Accidental release measures
7. Handling and storage
8. Exposure controls/personal protection
9. Physical and chemical properties
10. Stability and reactivity
11. Toxicological information
12. Ecological information
13. Disposal considerations
14. Transport information
15. Regulatory information
16. Other information including date of preparation or last revision
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Recent OSHA Guidance on Upcoming Compliance Dates
• February 9, 2015 OSHA Enforcement Guidance for June 1, 2015 and December 1, 2015 compliance dates
http://www.osha.gov/dep/enforcement/hazcom_enforcement-memo.html
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Recent OSHA Guidance on Upcoming Compliance Dates (Cont’d)
• Manufacturer, importer, distributor has not received classification and SDS information from upstream supplier(s)
• OSHA will determine of the manufacturer, importer, distributor has exercised “reasonable diligence” and “good faith efforts”
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
OSHA’s Severe Violator Enforcement Program
• OSHA Instruction CPL 02-00-149, June 18, 2010
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SVEP Criteria
• Fatality or catastrophe inspection with one or more willful or repeated violations or failure-to-abate notices (SVEP-fatality).
• Non-fatality/catastrophe inspection with two or more willful or repeated violations or failure-to-abate notices that are high gravity violations related to High-Emphasis Hazards (SVEP-HEH).
• Fatality/catastrophe inspection with three or more willful or repeated violations or failure-to-abate notices that are high gravity violations related to the potential release of a highly hazardous chemical (SVEP-PSM).
• Egregious (e.g., per-instance citations) case (SVEP-egregious).
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
High Emphasis Hazards
• Fall hazards• Amputation hazards• Combustible dust hazards• Crystalline silica hazards• Lead hazards• Excavation/trenching hazards• Shipbreaking hazards• Oil and gas (NAICS code 211111, 213111 and 213112 (Oil and Gas Production Services, Drilling and
Well Servicing/"Upstream Oil and Gas Industry"))• Grain handling• Petroleum Refinery PSM• Chemical Facilities PSM
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SVEP Procedures
• Enhanced Follow-up Inspections
• Nationwide Inspections of Related Workplaces/Worksites
• Increased Company Awareness of OSHA Enforcement
• Enhanced Settlement Provisions
• Federal Court Enforcement under Section 11(b) of the OSH Act
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SVEP Enhanced Settlement Provisions
• safety training
• inform OSHA of current and future worksites
• use OSHA’s consultation services
• regular safety and health audits
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Self-audits
• OSHA Policy Concerning OSHA’s Treatment of Voluntary Employee Safety and Health Self-Audits, July 28, 2000
“the Agency will not use self-audit reports as a means of identifying hazards upon which to focus during an inspection.”
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Secretary of Labor v. BP Products North America, OSHRC Docket No. 10-0637, August 12, 2013
“The majority of the items at issue were self-identified by BPP and BP-Husky in documentation provided to OSHA. OSHA’s use of BPP and BP-Husky’s self-audit reports is in blatant contravention of its Final Policy. Although the undersigned is troubled by the Secretary’s ill-advised use of the Middough reports, I am not using the Middough reports as a basis for vacating the alleged violations self-identified in the reports.”
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
Audit Documentation
• Preparation
Team members
Text, photos, findings, conclusions, recommendations
• Distribution
• Retention
• Attorney client and attorney work product privileges
April 21, 2015
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type your
question in the box that appears and click send.
► Questions will be answered in the order they are received.
Q&A:
April 21, 2015
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SEGMENT 3:
Steve BarnettPartnerConnell Foley LLP
SEGMENT 2:
Douglas Solomon, Esq.PartnerGenova Burns LLC
SEGMENT 1:
Jacqueline Bollas CaldwellAttorneyKrugliak, Wilkins, Griffiths & Dougherty, Co. L.P.A.
April 21, 2015
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