July 4, 2022

Volume XII, Number 185

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July 01, 2022

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OSHA’s Flame-Resistant Clothing Memo Deemed ‘Improper Rulemaking’

On June 6, an Administrative Law Judge ruled that OSHA had engaged in “improper rulemaking” in issuing a memorandum requiring employers in the oil and gas drilling industry to provide and require their workers to use fire resistant/retardant clothing (FRC) (Secretary of Labor v. Petro Hunt, LLC, OSHRC Docket No. 11-0873).

The ruling was the first to address the validity of OSHA’s March 2010 “FRC Memo,” which was sent to regional administrators and state plan designees in a stated attempt to clarify OSHA’s policy for citing the general industry standard for the use of FRC and to resolve the “inconsistent use” of FRC among oil and gas companies. The decision vacated a citation OSHA had issued to Petro Hunt arising from a 2010 fire at a Petro Hunt worksite near Keene, North Dakota.

The Administrative Law Judge rejected OSHA’s argument that the enforcement memo was merely its interpretation of the personal protective equipment standard codified at 29 C.F.R. § 1910.132, concluding instead that the FRC Memo impermissibly constitutes a new industry standard. The Memo “takes a performance standard and imbues it with a specific obligation that FRC must be worn during the enumerated oil and gas operations regardless of the particular circumstances that may be present at any individual facility.” In so doing, OSHA “has changed the requirement of the underlying standard,” thereby “engaging in improper rulemaking under the aegis of an enforcement standard.”

By using the terms “concludes” and “requires,” [OSHA] has gone beyond mere interpretation and stepped into the realm of rulemaking by converting a performance-based standard into a specific standard. [OSHA] cannot “require” anything more than what is authorized by the regulations. If [OSHA] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then [it] must resort to the required notice and comment rulemaking process.

As a result, “the FRC memo does not have the force and effect of law.”

After holding that the FRC Memo was “little more than an enforcement tool,” the Administrative Law Judge vacated the citation OSHA had issued to Petro Hunt because OSHA failed to establish that Petro Hunt either had actual notice of a need for protective equipment at its Keene location or that a reasonable person familiar with the circumstances and industry would have recognized the existence of such a hazard.

OSHA has not indicated whether it plans to appeal this decision, or to engage in the formal rulemaking process necessary to make the use of FRC a blanket requirement. In the meantime, however, this decision is a victory for employers in the oil and gas industry. Although the ruling establishes that FRC need not be worn by employees in every instance, employers are cautioned to continue to evaluate the need of FRC on a case-by-case basis.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume II, Number 172
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