This is an interesting citation, one that to me appears OSHA was not happy with this employer. As I read this decision, I was shocked that OSHA would have issued a citation, much less a Serious, in this situation. If all employers did 1/4 of what Cargill does at this facility for PRCS entry then there would be MUCH LESS tragedies in PRCSs! I usually do not mention company names in these types of postings, but when a company does things right I do believe they should be acknowledged and in this case Cargill was SPOT ON and should be recognized – not penalized. This case involved Cargill using the Topeka, KS Fire Department as their PRCS Rescue Service. OSHA took issue with the fact that it took 4-5 minutes for one of the stations to respond and when this station went out on other calls, the other stations were staffed with trained rescuers and even those stations could arrive within 4-7 minutes. The court even used response records to establish response times from the stations. I will add this, Cargill won this because the other stations were staffed with rescuers who too could arrive on site in a timely manner. Had this not been the case, this decision may have turned out in favor of OSHA. Here are the facts:
As part of its permit-required confined space program, Respondent designated the Topeka Fire Department (“TFD”) to respond to general emergencies and permit-required confined space rescues, particularly at its facility. TFD operates 12 fire stations, manned by 231 firefighters, in the city of Topeka, Kansas. TFD is a public entity that provides the community with fire response, emergency medical services, hazardous material response, and technical rescue services. Among its technical rescue capabilities is confined space rescue.
TFD’s Technical Response Unit and most of its technical response personnel are located at TFD Station 11. TFD Station 11 is located approximately one-quarter of a mile away from the Respondent’s facility and houses a fire engine (E11), a fire truck (T11), and a technical response tractor-trailer (TR11).
According to TFD Division Chief, TR11 has nearly a million dollars worth of technical rescue equipment.
Station 11 operates 24 hours a day, seven days a week, and employs 24 firefighters who rotate in 24-hour shifts.
At any given time, Station 11 is manned by two companies comprising three to four firefighters each.
Most of the firefighters at Station 11 have completed 80–100 hours of initial training in confined space rescue and continually participate in additional daily training.
Further, TFD regularly conducts tours and annual training drills at the facility with the assistance of the Respondent’s employees.
These drills include mock emergency rescues from Respondent’s grain bins and tunnels. As part of Respondent’s pre-entry procedures for bin cleaning operations, Respondent telephones Station 11 to notify them that an entry is about to take place and provides them with the specific bin location. If a permit-required confined space emergency actually occurs, the Respondent’s practice is to immediately contact Station 11, sound an alarm, and initiate the facility’s Emergency Action Plan (“EAP”). As part of the EAP, Respondent’s employees assist TFD by positioning themselves to direct the TFD responders to the location of the emergency, and by shutting down nearby equipment. Because it is a public fire department, however, TFD cannot absolutely guarantee the availability of its equipment or personnel, nor is TFD able to notify Respondent if and when Station 11 (or any other nearby station) goes out on a call. The record established that there are three other TFD fire stations located within three miles of the facility:
- TFD 1 (1.5 miles away);
- TFD 3 (2.5 miles away); and
- TFD 6 (3 miles away).
Further, according to the Chief, approximately 6 to 8 firefighters at other TFD stations are also trained in technical confined space rescue.
In 2011, TFD’s average response time—measured from dispatch to arrival on scene—for all incidents in the Topeka area was 4 minutes, 45 seconds. TFD also maintains data for past response times specific to Respondent’s facility. According to the data, TFD has responded to emergency calls emanating from Respondent’s facility 14 times in the last 9 years. Station 11 was available to, and did, respond to every one of the reported incidents, ranging from EMS services to confined space rescue, with a response time that ranged between two and seven minutes.
Based on the Court’s calculations from the data introduced into the record, Station 11’s average response time to the facility was approximately 4 minutes. On one occasion, Station 11’s responders arrived at the location of Respondent’s emergency before the plant manager, who was already on the property at the time of the incident. Further, with respect to the two incidents identified by the Chief as confined space technical rescues, Station 11’s Technical Response Unit (TR11) arrived each time within four to six minutes of receiving the initial call. Despite these facts, as well as the discretion afforded to employers in the language of the cited regulation, Complainant argues that Respondent’s decision to designate the Topeka Fire Department to respond to emergencies, including permit-required confined space emergencies, violated the Act.
The cited standard is a performance standard in that Respondent was required to evaluate the hazards associated with its permit-required confined space entry program and select an emergency rescue service it deemed capable of providing a timely and adequate response. Without specifically articulating what constitutes a “timely response,” Complainant argues that Respondent’s selection of TFD was “not a viable choice” because “it takes only 3 or 4 seconds to become helpless in flowing grain… and in about 20 seconds, a man can be buried.” Complainant argues that because TFD Station 11’s Technical Response Unit (TR11) had response times of 4 minutes, 9 seconds in one instance, and 5 minutes, 55 seconds in another instance, and may not always be available because of other calls (though this has never happened), Respondent’s emergency rescue service decision was improper. In other words, although the cited regulation allows employers to make an educated choice in designating emergency rescue services, Respondent allegedly made the wrong choice.
Based upon this record, the Court is not convinced that Respondent failed to properly evaluate and select a rescue team or service that can reach victims within a time frame appropriate for the hazards identified.
First, it is unclear as to what Complainant would consider a timely response for Respondent’s bin cleaning operations or other permit-required confined space activity. It is difficult to imagine a rescue team, whether internal or external, that could:
- be notified,
- assemble,
- travel to, and
- Arrive at the location of any emergency in the 3-4 second or 20-second time-frames referenced by the Complainant in the first sentence of its Post-Hearing Brief.
The complainant has stated that an employer is not expected to guarantee that a particular rescue attempt will be successful (although there is no doubt that would be Complainant’s, the Respondent’s, and the designated rescue personnel’s objective); rather:
OSHA’s measurement of a host employer’s compliance . . . will not be based solely upon a rescue service’s actual performance during any single instance, but instead upon the host employer’s total effort prior to arranging for an outside rescue service to ensure that the prospective rescue service is indeed capable, in terms of overall timeliness, training, and equipment, of performing an effective rescue at the host employer’s workplace. Even CSHO Beacom acknowledged various actions that a designated rescue service would be subjected to, such as evaluation of the scene, equipping rescuers, and actually reaching the victim.
Second, TFD Station 11 is located only one-quarter of a mile away, is outfitted with over a million dollars’ worth of technical rescue equipment, participates in regular rescue drills and tours of the facility, and is specifically notified each time Respondent conducts bin cleaning operations. Though not determinative, it is very persuasive that on one occasion TFD 11 arrived at the scene of an accident (when an employee suffered a broken arm) before the plant manager, who was already on the facility property at the time.
Third, Complainant’s argument suggests that the only way Respondent could comply with the cited standard is by designating its own, in-house, stand-by, permit-required confined space rescue team. That suggestion is rejected for several reasons:
- the standard allows for the choice between on-site and off-site rescue services based on various evaluation criteria;
- there was no evidence to suggest that an on-site rescue team would be capable of responding more quickly or more effectively (in terms of equipment or training) than TFD Station 11 or other nearby stations; and
- stand-by rescue services are only specifically required when entrants are exposed to IDLH atmospheres—which is not asserted in this case.
Complainant’s argument that TFD Station 11’s possible unavailability prevents its designation is also rejected. That argument would seem to prohibit an employer from ever selecting a public emergency response service to provide permit-required confined space rescue. Such a prohibition is not articulated in the standard. While it is certainly possible that TFD Station 11 may be unavailable to respond to an emergency call at Respondent’s facility, Station 11 has in fact responded to every such call during the last nine years. There are three other TFD stations located within three miles of Respondent’s facility, and firefighters trained in technical rescue at those locations can operate the Technical Response Unit at Station 11 when necessary. Other TFD stations have historically responded to emergency calls at the facility as quickly, and in some instances more quickly, than TFD Station 11.
Finally, and perhaps most importantly, Complainant’s argument appears to take the non-mandatory criterion from Appendix F of Section 1910.146, and attempt to make it mandatory. Complainant introduced a 2008 OSHA interpretation letter, which discusses an employer who designated a local fire department as its off-site emergency rescue service. The letter reproduced 1910.146(k)(1) in its entirety, as well as paraphrased portions of non-mandatory Appendix F, paragraph A.3 as follows:
Compliance may require the employer to be in close communication with the off-site rescue service immediately prior to each permit space entry. In the scenario you describe, the employer must ensure close communication with the rescue service during entry operations so that if the rescue service becomes unavailable while an entry is underway, the employer can instruct the attendant to abort the entry immediately. Entry operations cannot resume until the entry supervisor verifies that rescue services are able to respond in a timely manner.
Appendix F is apparently intended to help employers address the question of whether a particular emergency response service will be available to effectuate a timely rescue. By its own terms, the criteria contained in Appendix F may be considered by an employer during its evaluation process, but it is not required to do so. By using phrases such as “the employer must ensure” and “operations cannot resume” until Appendix F criteria are met, this interpretation letter appears to make mandatory that which the standards themselves clearly describe as non-mandatory. The provisions of this 2008 interpretive letter also relate to an employer’s obligations during a permit-required confined space entry. However, the cited standard in this case addresses an employer’s obligations in selecting an emergency response service prior to an entry ever taking place. Further, the regulatory history of the standard, seems to clearly indicate that off-site rescue services can be appropriate.
In particular, the Agency has attempted to indicate clearly that an employer who retains an off-site rescue and emergency service must ensure that the designated service has the equipment, training and overall ability to respond in a timely fashion when summoned to rescue a permit space entrant. OSHA does not thereby intend to require that host employers “guarantee” the performance of off-site services, to make compliance more burdensome for off-site services than for on-site services, or to prevent the use of off-site services. The Agency has consistently maintained that the purpose of § 1910.146(k) is to require that employers’ provisions for rescue, by whatever means, are adequate. Public, professional, emergency rescue services, such as the local fire department described in this case (and more specifically, TFD’s Technical Rescue Unit 11) seem more likely to have well-maintained rescue equipment, greater rescue skills and experience, and more advanced and focused rescue training, than most employers could replicate. Based on the foregoing, the Court finds that Complainant failed to prove that Respondent selected a rescue service from those evaluated that was incapable of reaching victims within an appropriate time frame for the permit-required confined space hazards at Respondent’s facility. Accordingly, Citation 1, Item 1 of Docket No. 12-1583 will be VACATED.
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