Appeals Court upholds Contractor PSM Citations

A maintenance contractor that provides skilled labor to perform skilled labor, electrical and mechanical work was cited by OSHA for violations of the PSM standard after their employee was injured by a chemical release.

OSHA threw the book at them and through conference and litigation many of the citations were dropped. Two stuck around:

Item 3 alleged a serious violation of § 1910.119(j)(2) for failing to establish and implement written procedures for maintaining the ongoing integrity of process equipment;
Item 4 alleged a serious violation of § 1910.119(j)(3) for failing to train (the employee) in an overview of the process and its hazards and in the procedures applicable to his tasks;

The contractor asserted that the site owner was the operator of the plant, and therefore was the appropriate “employer” responsible for fulfilling the requirements set forth in the cited PSM standards and that the cited standards did not apply to the contractor.

The Appeals Court upheld the previous ALJ ruling:

ALJ expressly rejected Jacobs’s argument that §§ 1910.119(j)(2) and (3) do not apply to contract employers, finding that, under OSHA’ s multi-employer policy, the cited standard applied “to the cited conditions, not to the cited employer.” Because (the Contractor) was the “exposing employer,” it was responsible “for all violative conditions to which its employee had access.”

Two things to keep in mind here:

  • You have to deal with a contract employee the same as you would deal with any similarly situated employee.
  • Process Operator is a function, not a title. Whether it’s the janitor, a line cook, a salesman or a skilled contract employee – if they are operating the process, they are a Process Operator and all the PSM requirements will apply to them.

OSHA would have had a much easier time proving violations of the PSM standard under the Contractors element:

1910.119(h)(3)(i) – The contract employer shall assure that each contract employee is trained in the work practices necessary to safely perform his/her job.
1910.119(h)(3)(ii) – The contract employer shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his/her job and the process, and the applicable provisions of the emergency action plan.

My thinking is that they were trying to prove a larger point with these citations placed under the Mechanical Integrity element.

(link to ruling itself)

About Brian Chapin

PSM / RMP Compliance Consultant
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