Staying compliant with OSHA and the EPA can be difficult and maddening. Still, the complexity of agency regulations and the opaque manner in which rules are sometimes published and enforced are not a reliable defense when it comes to compliance violations.
Organizations must take responsibility for understanding the rules and regulations under which they operate. This can be a challenge when even the people charged with their enforcement are a little fuzzy about their application.
Here are two stories about the peril of operating in a regulatory environment with so many moving pieces followed by 7 Ways to Stay Compliant When Compliance Doesn’t Come Easy.
Ambiguity = License to Frack
Fracking, the process used by oil and gas companies to access natural gas deposits, is under attack by Congress. At issue is whether the process violates the Safe Water Drinking Act, which is under the domain of the Environmental Protection Agency (EPA). To get up to speed, read Tom Zeller Jr.’s interesting article on the fracking debate in the New York Times.
The biggest concern is the use of diesel fuel in the fracking mixture – water, sand and other chemicals – to blast open the natural gas wells, which regulators fear could lead to contaminated drinking water. Congressional investigators say the companies using diesel fuel are in violation.
In the New York Times article, Zeller has zeroed in on a key argument the oil and gas companies are making to refute the violation claims, which is to say, the EPA may have wanted to regulate the use of diesel fuel in fracking, but it never actually developed the rules and procedures to do so.
In fact, the article makes clear that both sides in the argument are in agreement that the EPA intended to regulate the use of diesel fuel (and that is was in fact mandated to do so by Congress) but the two sides are at odds over whether the EPA established clear guidelines, rules and procedures for companies to follow.
On the one hand, the E.P.A.’s “underground injection control program,” requires companies to obtain permits for activities that involve putting fluids underground; on the other hand, oil and gas executives say the EPA never created any rules or procedures for obtaining permits.
One fight in that debate centers on an update the EPA posted to its Web site last year that said diesel fuel is covered by its underground injection program. The oil and gas companies say this “amounted to new rule-making that circumvented administrative requirements for notice and public commentary.”
So the question is, “how explicit does the EPA have to be in outlining the rules and the procedures for such an issue?” The article suggests oil and gas companies understood the use of diesel fuel in fracking was an issue; yet, they proceeded absent any hard clear regulation – a gamble that will likely cost them serious legal fees in the near future.
Even so, it may have been a calculated risk on the part of the oil and gas companies, knowing in the end they would make more money than they lost using the process for as long as they could, even with fees and fines.
Either way, in today’s atmosphere of environmental consciousness, companies have to balance the bottom line with their corporate image and good stewardship of natural resources. Zeller’s article reports that 32 million gallons of diesel fuel was used in fracking processes across 19 states, a fact that’s hard to spin, regardless of whether the law permits it or not.
Organizations facing similar ambiguity in regulations with the EPA or OSHA might be better off engaging with the agency in question and to advocate for a resolution before going too far down the wrong road.
Desperately Seeking Guidance
No one is suggesting that engaging with government agencies to get clarification on rules is easy. In the last month, VelocityEHS was asked by customers to provide clarification on a couple of OSHA standards, and as always, it was an interesting experience.
Let me make clear from the start that our response to such requests is always, “If you have a specific question related OSHA standards, you have to talk to OSHA to ensure compliance.”
That said, looking at the application of OSHA regulations as they relate to our customer’s needs is always beneficial to us, and when asked, we will look at a troublesome standard to provide some perspective.
The first question we received recently was on the posting of Form 300A; a customer asked whether they needed to post Form 300A in all of their locations, or just those with more than 10 employees. They were confused because they had received a request for data from the BLS for their location with 15 employees, but not at the ones with fewer than ten employees.
The OSHA standard, by our reading, states that exemptions are on the company level not the facility level. So even though some facilities had fewer than ten people, the company as a whole had more than ten and so did not qualify for exemption under OSHA’s current standard.
Of course, we were not satisfied to take our own word for it, so we called OSHA to get clarification. The person we spoke with was less than certain himself on the rules and made several educated guesses, saying at first, no the company did not have to file at those locations with fewer than ten employees, then he modified that answer to say, it depended on which state the businesses were in. He recommended we contact each state in question.
We then asked him to go over with us the standard as written, in this case 1904.1 which says:
The final rule applies the size exemption based on the total number of employees in the firm, rather than the number of employees at any particular location or establishment…because the resources available in a given business depend on the size of the firm as a whole, not on the size of individual establishments owned by the firm. In addition, the analysis of injury records should be of value to the firm as a whole, regardless of the size of individual establishments. Further, an exemption based on individual establishments would be difficult to administer, especially in cases where an individual employee, such as a maintenance worker, regularly reports to work at several establishments.
At this point, the OSHA rep looked up the standard himself and declared that the company did have to file at all locations and that the federal standard would have precedence in any state.
We were pleased to have our interpretation confirmed, but more than a little concerned that getting the definitive answer from the regulating agency proved so tenuous. If we had accepted his first response or second response at face value, we may have gone down a wrong road.
And if we had gone down that wrong road and then reported our findings to the customer making the inquiry, and had they not made their own inquiry as we instructed them to do, that company could have found itself in violation of OSHA regulations.
In fact, even if they had spoken to the OSHA rep we talked to and followed his first advice on the standard, even though they tried to get clarification and been given “wrong” information, none of that would have mattered much. In the end, they still would have been out of compliance.
You have to be ready to engage and wrestle with the agencies on these points until you feel confident in the direction you receive. Don’t assume the person you’re talking to is the expert on the subject. Keep asking questions until you are satisfied you have the right answer from the right person – not just the answer you like best.
Another customer this week asked whether the administering of oxygen made for a recordable incident. This, as it turns out, is a difficult question to answer – though an EHS Today article on oxygen administration does a very good job. On the one hand, the administration of oxygen is not listed under the list of first aid items, and it is considered to be a significant treatment. Oxygen administered in response to work related illnesses, injuries or symptoms does indeed make the incident recordable.
However, if the administration of oxygen was only done as a precautionary measure, meaning there was no injury, illness or symptom (e.g. out of breath, trouble breathing) then it’s possible that under that scenario it would not be a recordable event.
Adding to the confusion is a change in the interpretation of the standard between 2001 and 2002 and the obtuseness of the explanatory language for the new application of the relating standard.
In this case, we were able to provide the customer with our reading of the standard, nevertheless, we strongly recommended they follow up with OSHA directly because there are so many little specifics that go into determining whether a case is recordable or not.
Hopefully, armed with the information we had gathered in our research, the process of talking to OSHA was a little less painful for our customer. And instead of getting a general answer to a general question, we were able to help them frame the questions to make sure they were able to get a specific answer to their specific question.
In fairness, we usually find dealing with OSHA and the EPA to be an easy and productive experience and we strongly recommend that anyone with compliance questions or concerns reach out to their local agencies, you may be surprised at how responsive they are.
7 Ways to Stay Compliant When Compliance Doesn’t Come Easy
1. Ask For Help
Having more than one person looking for answers, or even figuring out what questions to ask, can be a big help. We will often have three or four people looking into a tough question and the ferocity of our debates often leads us to the best answer. Don’t be afraid to reach out to industry colleagues to tap into their information and experience.
2. Talk to the Regulators
Sometimes the hardest thing to do is also the easiest. Instead of beating your head against the wall, just pick up the phone and call the agency in question. You can even do so anonymously. This is the single best way to make sure you get right answers to your specific questions…the above stories notwithstanding. Going a step beyond, why not try to build a healthy relationship with local agencies before you need help.
3. Get It / Put It In Writing
When it comes to regulations, ambiguity is the enemy of certainty. Don’t be afraid to seek and ask for answers in writing. When trying to decide the best course of action, or how to apply a rule, don’t take someone’s word for it – make sure it is supported with a corresponding standard.
Similarly, don’t be afraid to put your question in writing and send it to the appropriate agency for review. When it comes to OSHA, these kinds of questions and their answers provide a great resource for everyone under the standard in question. Check out OSHA’s Letters of Interpretations for more on this subject.
4. Stay One Step Ahead of the Law
Instead of waiting for final regulations to pass before taking action…take action now. OSHA and the EPA usually signal the direction they’re heading long before they get there. By getting there first, you send the signal that you take safety seriously. A perfect example is I2P2, OSHA’s Injury and Illness Prevention Program and its top priority for 2011. Even though nothing is final yet, there is also nothing stopping organizations from implementing the major tenets of I2P2 today. (Of course, don’t go so far as to conform to a future standard in a way that makes you non-compliant today.)
5. Have a Safety Plan / Work the Safety Plan
One of the things regulators look for when auditing/dealing with a business is evidence of that establishment’s efforts to establish a culture of safety and compliance. It’s still correct to say that ignorance is no excuse for non-compliance. However, a strong, good-faith effort on the part of a company to be compliant can go a long way in determining how regulatory agencies deal with violations. The OSH act, Section 17, paragraph (j) gives OSHA explicit permission to factor in an employer’s good-faith efforts when determining penalties.
Furthermore, the supplementary info section of OSHA’s I2P2 Proposed Rule states:
The Agency has long recognized the implementation of a safety and health program as a way of demonstrating good faith. Similarly, in its first decision, the OSHRC held that good faith compliance efforts are gauged primarily by the presence of effective safety and health programs
6. Get Your Head in the Cloud
Recent advances in cloud computing has made on-demand safety solutions an easy and reliable way to stay on top of compliance issues. From MSDS management solutions that actually push updated MSDSs to your inbox, to chemical management solutions that tabulate your chemical inventory and cross check them against multiple regulatory lists – technology can help manage compliance issues and demonstrate a commitment to safety that goes beyond the average establishment.
Use available technology to give yourself more time to evolve your safety initiatives and even advocate on behalf of your industry for changes to ambiguous or outdated regulations.
7. Don’t Ignore the Problem
Pretending a problem doesn’t exist or feeling like the issue is too big, complex or insurmountable is exactly the wrong thing to do. Better just to get to work on it, taking it one step at a time.
The power of that simple idea was reinforced for me last week when a blizzard blew into Chicago and I and my neighbors emerged from our houses the next day to find our alley and garages completely snowed in.
We stood there with shovels, considering the enormity of our task when someone said “It’s too much.” Most everyone groaned in agreement. Then one of my neighbors, the oldest and smallest woman on the block just started shoveling, saying “Well, we’ll just do a little bit.” We did just a little bit, and then a little bit more, and before you knew it, two of our neighbors with snow blowers, whose attentions were caught by scene of so many shovelers in the alley, joined the effort. Thanks to the reinforcements, we were done in no time.
Help we didn’t know existed came to us because we acted. But even if it hadn’t, we would have cleared that alley, one shovelful at a time.
Staying compliant is a race that never ends, especially when you are bogged down with ambiguous rules and agency complexity, which is why you need an approach that compliments the rigor of the task. To that end, I offer advice from Sandy Meisner, the great acting teacher, who said “That which hinders your task is your task.”