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NATIONAL TANK TRUCK CARRIERS tank truck cleaning safety council austin, tx april 2011

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NATIONAL TANK TRUCK CARRIERS tank truck cleaning safety council austin, tx april 2011

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    1. NATIONAL TANK TRUCK CARRIERS tank truck cleaning & safety council austin, tx april 2011 Marcel Debruge Randy McGough BURR & FORMAN LLP Professional Engineer 3400 Wells Fargo Tower Ball & McGough Birmingham, Alabama 35203 Tuscaloosa, AL 205 458-5263 205 345-6399 mdebruge@burr.com ballandmcgough.com

    2. Confined Space Is Back in the News Obama administration OSHA enforcement Emphasis on company-wide enforcement End of “partnership” with industry Increased penalties and more aggressive enforceement BURR & FORMAN LLP 2

    3. David Michaels BURR & FORMAN LLP 3

    4. BURR & FORMAN LLP 4

    5. $1.32 Million in Confined Space Penalties Seven-figure OSHA fines are becoming more common, especially in cases when the agency believes the company acted with willful disregard to safety. VT Halter Marine, a shipbuilder, faces $1.32 million in fines in connection with a November 2009 explosion and fire in Escatawpa, MS, that killed two workers and seriously injured two others. The two injured workers both received third-degree burns. OSHA cited the company for 17 willful violations, including failure to: inspect and test a confined space before entry prevent entry into confined spaces where the concentration of flammable vapors exceed the prescribed limits, and use explosion-proof lighting in a hazardous location. VT Halter also faces 11 serious violations, including lack of machine guarding and use of defective electrical equipment. Th explosion happened aboard a tugboat as a crew was cleaning and prepping a tank for painting. BURR & FORMAN LLP 5

    6. BURR & FORMAN LLP 6

    7. 1910.146(b) Permit-required confined space (permit space) means a confined space that has one or more of the following characteristics: (1) Contains or has a potential to contain a hazardous atmosphere; (2) Contains a material that has the potential for engulfing an entrant; (3) Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or (4) Contains any other recognized serious safety or health hazard. BURR & FORMAN LLP 7

    8. 1910.146(c)(5) Alternate Entry An employer whose employees enter a permit space need not comply with paragraphs (d) through (f) and (h) through (k) of this section, provided that: The employer can demonstrate that the only hazard posed by the permit space is an actual or potential hazardous atmosphere; The employer can demonstrate that continuous forced air ventilation alone is sufficient to maintain that permit space safe for entry; The employer develops monitoring and inspection data that supports the demonstrations required by paragraphs (c)(5)(i)(A) and (c)(5)(i)(B) of this section; If an initial entry of the permit space is necessary to obtain the data required by paragraph (c)(5)(i)(C) of this section, the entry is performed in compliance with paragraphs (d) through (k) of this section; The determinations and supporting data required by paragraphs (c)(5)(i)(A), (c)(5)(i)(B), and (c)(5)(i)(C) of this section are documented by the employer and are made available to each employee who enters the permit space under the terms of paragraph (c)(5) of this section or to that employee's authorized representative; and Entry into the permit space under the terms of paragraph (c)(5)(i) of this section is performed in accordance with the requirements of paragraph (c)(5)(ii) of this section. BURR & FORMAN LLP 8

    9. (c)(5) Alternate Entry When entrance covers are removed, the opening shall be promptly guarded by a railing, temporary cover, or other temporary barrier that will prevent an accidental fall through the opening and that will protect each employee working in the space from foreign objects entering the space. Before an employee enters the space, the internal atmosphere shall be tested, with a calibrated direct-reading instrument, for oxygen content, for flammable gases and vapors, and for potential toxic air contaminants, in that order. Any employee who enters the space, or that employee's authorized representative, shall be provided an opportunity to observe the pre-entry testing required by this paragraph. Oxygen content, Flammable gases and vapors, and Potential toxic air contaminants. There may be no hazardous atmosphere within the space whenever any employee is inside the space. Continuous forced air ventilation shall be used, as follows: An employee may not enter the space until the forced air ventilation has eliminated any hazardous atmosphere; The forced air ventilation shall be so directed as to ventilate the immediate areas where an employee is or will be present within the space and shall continue until all employees have left the space; The air supply for the forced air ventilation shall be from a clean source and may not increase the hazards in the space. The atmosphere within the space shall be periodically tested as necessary to ensure that the continuous forced air ventilation is preventing the accumulation of a hazardous atmosphere. Any employee who enters the space, or that employee's authorized representative, shall be provided with an opportunity to observe the periodic testing required by this paragraph. BURR & FORMAN LLP 9

    10. (c)(5) Documentation The employer shall verify that the space is safe for entry and that the pre-entry measures required by paragraph (c)(5)(ii) of this section have been taken, through a written certification that contains the date, the location of the space, and the signature of the person providing the certification. The certification shall be made before entry and shall be made available to each employee entering the space or to that employee's authorized representative. BURR & FORMAN LLP 10

    11. 1910.146(c)(7) Reclassification A space classified by the employer as a permit-required confined space may be reclassified as a non-permit confined space under the following procedures: If the permit space poses no actual or potential atmospheric hazards and if all hazards within the space are eliminated without entry into the space, the permit space may be reclassified as a non-permit confined space for as long as the non-atmospheric hazards remain eliminated. BURR & FORMAN LLP 11

    12. 1910.146(c)(7) Reclassification The employer shall document the basis for determining that all hazards in a permit space have been eliminated, through a certification that contains the date, the location of the space, and the signature of the person making the determination. The certification shall be made available to each employee entering the space or to that employee's authorized representative. BURR & FORMAN LLP 12

    13. Atmospheric Testing Randy McGough, P.E. Ball & McGough Engineering, Inc. Tuscaloosa, AL BURR & FORMAN LLP 13

    14. Tank Trailer Interior Atmospheric Testing: An Engineering Approach During several months in 1996 and 1997, we conducted extensive interior atmospheric testing of tank trailers for the chemical bulk transportation industry. Trailers were identified according to various chemical groups and were tested pre and post wash. Chemical groups were identified as Miscellaneous Organics, Inorganics (Acids/Caustics), Alcohols and Pesticides. Chemical groups were identified based on products’ physical and chemical properties as they react to the mechanical wash process. BURR & FORMAN LLP 14

    15. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Items tested were Oxygen levels, Lower Explosive Limit (LEL), Toxicity (CO), VOC’s along with trailer specific chemicals of concern (COC). COC’s were identified by MSDS information for each previously hauled product. Trailers were selected based on available tank trailer normalcy but were selected to cover all 4 chemical groups.

    16. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Specific items were tested pre-wash Items were re-tested post-wash to determine the effectiveness of cleaning process and to evaluate conditions relative to confined space entry. Post wash testing results showed normal atmospheric Oxygen levels (20.8-20.9%); Zero detection of LEL; Zero detection of VOC’s; No chemical levels above their PEL’s; No toxicity detection; No atmospheric hazards

    17. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Results demonstrated conclusively that post-wash tank trailers were not permit-required confined spaces. Tank wash employees also wore personal air monitoring badges during normal work day. Results showed no exposure above any PEL. Local OSHA office and OSHRC accepted testing protocol and test results.

    18. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Additional testing was performed to test interior atmospheric conditions during normal time for internal tank trailer entry and work. Items tested were Oxygen level, LEL, Temperature and Relative Humidity. Results demonstrated conclusively that interior atmospheric conditions did not change during tank trailer entry and work performance. Interior work time average was 20 minutes.

    19. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Testing proved effectiveness of cleaning process to yield tank trailers clean for next chemical to be hauled and also for tank entry as required for inspection or hand labor. All post-wash trailers were non permit-required spaces.

    20. Tank Trailer Interior Atmospheric Testing: An Engineering Approach OSHA has proven to be adversarial toward test results and specific company approaches to tank trailer entry. Air monitoring equipment is continuously questioned and asserted to be inadequate for industry use by OSHA. Tank trailer entry paperwork has been questioned and is occasionally found to be improperly completed. Employee training regarding tank trailer washing procedures, post-wash entry and air monitoring equipment use needs company wide standardization.

    21. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Testing Strategy Recommendations: 1. Individual Company Pre and Post-Wash Testing (typically limited to capabilities of facility gas detection equipment) 2. Third party testing (Industrial Hygienist, Environmental Testing, Engineering Firm, etc.) 3. Industry wide testing (NTTC, ATA, etc.) 4. Possible testing of product residuals remaining after washing process (hand scrape removal) to verify inert properties

    22. Tank Trailer Interior Atmospheric Testing: An Engineering Approach Understand testing of every component of every product hauled is not necessary. Grouping of products hauled is necessary to cover all products hauled by specific companies. Group according to physical and chemical properties as they relate to the mechanical washing process or how chemicals are measured (wt per unit volume (mg/m3) or volume per unit volume (ppm)).

    23. Confined Space in the Tank Wash Entry into “dirty tanks” Entry into “cleaned” tanks Are these “confined spaces”? Are they “permit” spaces? BURR & FORMAN LLP 23

    24. Approaches to Confined Space Entry Full permit entry Reclassification Alternate entry procedures BURR & FORMAN LLP 24

    25. Where OSHA Finds Fault Failure to comply with all aspects of permit entry Training deficiencies Documentation not in order Failure to follow safety rules BURR & FORMAN LLP 25

    26. Compliance Considerations Environmental testing and analysis Decide on compliance strategy – full permit entry, reclassification or alternate entry Training Documentation Personal Protective Equipment Roles and Responsibilities Enforcement/Discipline Multiple worksites BURR & FORMAN LLP 26

    27. Going Forward Awaiting decision from Administrative Law Judge OSHA likely to continue targeting tank wash facilities Without atmospheric testing, there can be no “documentation” to support alternate entry or reclassification Every company should examine its confined space entry procedures to ensure compliance Every company must be aware of the impact any settlement agreement can have on operations nationwide BURR & FORMAN LLP 27

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