Chemical Processing-August 2008

compliance advisor Workplace safety is a shared responsibility Employers have a general duty to their employees Workplace safety is very much a responsibility shared by employer and employee alike. Environment, health, and safety (EHS) professionals are well aware of federal “standards” issued by the Occupational Safety and Health Administration (OSHA), compliance with which goes a long way to assure workplace safety. An equally important legal standard all EHS professionals must be aware of is the “general duty clause” under Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act). The general duty clause and its requirements present ramifications for the chemicals industry. place. A recent segment on “60 Minutes,” for example, focused on the history of organic dust explosions that have taken the lives of workers over the years. Many of these incidents are summarized in OSHA’s safety and health information bulletin, “Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosions,” available at www.osha.gov/ dts/shib/shib073105.html. When asked why OSHA didn’t have combustible dust standards for more industry sectors (there is a grain dust standard), an OSHA representative responded that more standards aren’t needed because employers have a “general duty” under the Act to provide their employees with a safe and healthy workplace. Moreover, OSHA would a look at baseline standards likely also take the position that accumulation of large Even in the absence of OSHA-issued regulatory standards, the OSH Act Section 5(a)(1) establishes a quantities of dust that may pose a combustion hazard violates basic housekeeping standards. baseline standard of employers’ conduct in protectOver the years, there has been some confusion as ing the health and safety of their employees. Known as the general duty clause, it requires an employer to to what duty is owed under the general duty clause. “furnish to each of his employees employment and a The law defines a safety or health hazard as that which place of employment which are free from recognized causes or is likely to cause death or serious physical harm. Congress has stated that a general duty requirehazards that are causing or are likely to cause death or seriously physical harm to his employees.” OSHA ment is for every person to exercise “reasonable care.” Since the OSH Act doesn’t define “reasonable care,” has consistently maintained that where it hasn’t established a specific standard addressing a particular interpreting the standard hasn’t always been easy. hazard, employers must comply with this statutory catch-all provision. See, e.g., OSHA, “All About HoW to avoid broad, costly enforcement OSHA” (2006) at 10, available at www.osha.gov/ Employers have many obligations to observe. One Publications/all_about_OSHA.pdf. that sometimes escapes attention is the “general To establish a general duty clause violation, duty” they owe employees to provide a safe and OSHA must prove that “(1) the employer failed to healthy workplace. Some critics fault OSHA for not render its workplace free of a hazard, (2) the hazard issuing more specific safety and health standards to was recognized either by the cited employer or generensure the workplace is free from harm. However, ally within the employer’s industry, (3) the hazard was the general duty clause is a potentially sweeping causing or was likely to cause death or serious physical provision on which OSHA may rely in bringing an harm, and (4) there was a feasible means by which the enforcement action, even in the absence of a specific employer could have eliminated or materially reduced health or safety standard. The best way to avoid its the hazard.” See, e.g., Secretary of Labor v. The potentially broad and costly enforcement effect is to Duriron Co., OSHRC Dkt. 77-2847 (OSHRC 1983), apply reasonable care in ensuring employees have a available at www.oshrc.gov/decisions/html_1983/77safety and healthful work environment. 2847.html. Whether, or how, the general duty clause may lynn bergeson, Regulatory Editor come into play in a manufacturing context is difficult lbergeson@putman.net to forecast with precision. A good recent example is OSHA’s reliance on the clause to justify the absence Lynn is managing director of Bergeson & Campbell, P.C., a Washof specific combustible dust standards for various ington, D.C.-based law firm that concentrates on chemical industry industry sectors. In the recent past, OSHA has been issues. The views expressed herein are solely those of the author. criticized for its alleged failure to regulate more specif- This column is not intended to provide, nor should be construed ically hazards posed by combustible dust in the work- as, legal advice. 19 The general duty clause is a potentially sweeping provision on which OSHA may rely in bringing an enforcement action. chemicalprocessing.com august 2008 http://www.osha.gov/dts/shib/shib073105.html. http://www.osha.gov/dts/shib/shib073105.html. http://www.osha.gov/Publications/all_about_OSHA.pdf http://www.osha.gov/Publications/all_about_OSHA.pdf http://www.oshrc.gov/decisions/html_1983/772847.html http://www.oshrc.gov/decisions/html_1983/772847.html http://chemicalprocessing.com

Table of Contents Feed for the Digital Edition of Chemical Processing-August 2008

Chemical Processing- August 2008 Contents From the Editor ChemicalProcessing.com Field Notes In Process Energy Saver Compliance Advisor Protect your Plant What’s on Tap for Water? Keep Operations Safe Polystyrene Plant Gains Extra Output and More Process Puzzler Plant InSites Equipment & Services Adlits Product Spotlight/Classifieds Ad Index End Point

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