WHO'S YOUR DADDY?

 By William Gorski / Am-Star Refrigeration Group

Ronald Reagan once said Nine of the most feared words to anyone working in the Private Sector are:  “We’re from the Government, and We’re Here to Help.”

 A few years back, I was an attendee at a Meat Association Seminar, and one of the keynote speakers happen to be an OSHA Compliance Officer.  As she made her presentation, I was listening with a certain amount of amusement, because verbally and physically, she had a strong resemblance to Roz (Marsha Warfield) from the old Night-Court series.  

(Note: Just waiting for the Super-Bowl to start; so I thought I'd write something)

Roz for lack of a better or more descriptive name, had an overbearing stage presence.  

Strong and almost military in appearance, she made you feel as though any amount of provocation would provide cause for her to read the riot-act to anyone not paying close attention; meanwhile pontificating in no uncertain terms just what it is that a Compliance Officer does in performance of his or her duty.  

 Yep, Roz was the Drill Sargent, we were the new “Cruits”, and you had better be paying close attention, as she would not be repeating herself unless you were willing to drop and give her twenty for her trouble.  

 She continued.  Her lengthy oratory artfully painted a vivid  picture of the various types of fines, citations and required obligations that may be encountered as an employer operating under General Duty Clause… and she went on, descriptively stating that when we’re done with our inspection and if any issues were found, you can bet your bottom dollar that you can also expect a visit from the EPA.

 Upon reaching the end of her homily, she asked if there were any questions.  Sternly, she shot out a penetrating glance across the room as though probing each and every one of us… if there were any questions, you were asking at your own risk.    I’ve got to admit I felt challenged.  It seemed to me more like a dare then a request… I couldn’t help myself.  So, I asked. 

 Dead Silence… you could hear a pin drop in that large conference room.  Yikes!  What did I just do?

 My Question:  Having already cited a facility for an OSHA non-compliance issue; then the EPA comes along and cites the same issue, wouldn’t that be Double-Dipping?

 I was waiting for the explosion.  The Roz-like character beamed.  She was in charge, and she wasn't afraid to let me know about it.   A long, cold stare swept from across the room in my direction; then after a moment or two, (I swear I felt the earth shake under my feet) I heard a deep low-pitched rumble…  and if I had had access to a string of Rosary Beads at that moment, they would have been going around and round like a bicycle chain.  Saints preserve us, was I out of order or something?  Gee-Whizz, she asked… I responded.

 The officer went into a tirade, building from a hushed tone to an explosive crescendo.  First-of-all, she let me know that OSHA is everything Inside the building, and the EPA was everything Outside the building; almost implying that they were entitled, which wasn’t exactly what I’d call a decisive answer, and in fact, not really answering my question at all. 

Before I could further qualify the question, she went on to say that if I show up at your door, you had better let me in, cuz if I have to come back, I’ll have the necessary paper, and I’ll find something… and you better not give me any flimsy excuse that the Chief Operating Engineer is not available to show me around or provide paperwork or I’m coming back with the law…  And you had better have a copy of your Mechanical Integrity on-site, along with your SOP’s, MOC’s and PHA’s.  There was more, but you get the idea.  These people Don’t Fool Around. 

So, what exactly was Roz talking about?

Understanding OSHA, the EPA and the General-Duty Clause:

Ammonia use has already been indirectly regulated under the General Duty Clause of the Clean Air Act, not to mention directly as part of the EPA Risk Management 68.15 Program and OSHA’s 1910.119 Regulation documents. 

What about other refrigerants, chemicals and gases and their relationship to Threshold and Total Quantities on premises?

To answer that question, we need to take a closer look at that great bureaucratic catch-all… The General Duty Clause, (OSHA 29-CFR Section-1903.1).   It requires employers to furnish employees with a place of employment free from recognized hazards that are likely to cause death or serious physical harm. 

Thus the General Duty Clause is the primary vehicle for governmental inspection & compliance and may be applied as OSHA or the EPA may see fit under this particular piece of legislation; and now since September 2009 and under the current administration, the EPA has near dictatorial powers; so as Roz implied, you can bet they are going to do just that.  

In the event of an audit or investigation resulting from a release incident, a facility could be cited under the EPA Section of the General Duty Clause if it had not implemented EPA Risk Management Program standards. The Clean Air Act section 113(b) allows the EPA to assess penalties of up to $34,500 per day (at the time of Roz’s discussion) for each violation.

 What the General Duty Clause says:

"The owners and operators of stationary sources producing, processing, handling or storing a chemical as in 40 CFR Part 68 or any other extremely hazardous substance have a general duty in the same manner and to the same extent as the general duty clause in the Occupational Safety and Health Act (OSHA), to identify hazards which may result from releases using appropriate hazard assessment techniques to design and maintain a safe facility; taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur."    

It's interesting to note that Total Quantity is Not Mentioned.  So much for the 10,000-lb rule.  This requirement is applicable to all facilities that use listed substances (i.e., chlorine, sulfur dioxide, anhydrous ammonia, chlorine dioxide, etc.) even at quantities BELOW the listed EPA or OSHA threshold.

In all fairness, the Roz-like OSHA Compliance Officer and I talked after the meeting, and she was quite charming.  She wanted to get her point across, and she wanted to keep us out of trouble; albeit using a no-holds-barred method to get our attention. 

Okay, I get it.  She was from the government, and she was there to help.