By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: New Illinois Office of State Fire Marshall (“OSFM”) regulations, (42 Ill. Reg. 10476, 10662-667, June 15, 2018, effective October 13, 2018), require that periodic operation and maintenance include recorded “walkthrough inspections” for underground storage tank (UST) facilities. 

Under new OSFM rules, each Class A Operator, who has the primary responsibility of operating and maintaining the UST system, and Class B Operator, designated with day-to-day aspects of operating, maintaining and recordkeeping for UST systems “… shall perform walkthrough inspections of each storage tank system for which he or she is designated, and shall record the results of each inspection on a checklist to be maintained with the facility records.”  The walkthrough inspection requirement took effect on October 13, 2018, and replaces the previous requirement to conduct quarterly equipment inspections.  The rules under Part 35, Section 176.655 of the Illinois Administrative Code, require that at a minimum, a walkthrough inspection shall be conducted at least once every 30 days and include inspection of:

  • Release detection methods, including monitoring systems and all associated sensors;
  • The integrity of spill and overfill prevention and spill containment equipment and manholes;
  • Dispensers, hoses, breakaways and hardware for leaks and damage; and
  • Operational status of impressed current cathodic protection systems, including checking and recording that the power is on and that the voltage, amps and hour meter have the appropriate readings required under Section 175.510(f), with a log entry that shows date of inspection, initials of inspector, hour, volt and amp readings, and power on verification.

In addition, at least once per year the Operator shall inspect:

  • All containment sumps by: (i) checking for visual damage to the sumps, covers and lids; (ii) checking for the presence of regulated substances or any indication that a release may have occurred; and (iii) checking that the sumps and the interstitial areas for any double-walled sumps with interstitial monitoring are free of water, product and debris;
  • All UST equipment including emergency stops for the presence or absence of visible damage to any UST component;
  • Emergency stops to document they have been tested by the owner/operator or a contractor for interconnection and pump shutdown;
  • Shear valves to document they have been visually inspected by the owner/operator or a contractor;
  • All required signs to ensure they are fully visible and all communication systems in place and operational;
  • All daily, 30-day, monthly and annual inspections, testing, reporting and records required under 41 Ill. Adm. Code 174, 175 and 176; and
  • If applicable, the tank gauge stick or groundwater bailers, for operability and serviceability (manual tank gauging or groundwater monitoring).

To assist owners and operators with rule compliance and recordkeeping requirements, the OSFM provides a UST Operations and Maintenance Plan Template Form (OSFM O&M Plan Template).  As noted in the OSFM O&M Plan Template and in the rules, each Class A or Class B Operator “shall perform walkthrough inspections” of each storage tank system for which they are designated and shall record the results of each inspection “on a checklist to be maintained with the facility records.”  Specific 30 day inspection report forms and annual walkthrough inspection report forms are also available from the OSFM.  The OSFM also provides FAQs For Class A, B, and C Operator Training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Welder on a construction site.Seyfarth Synopsis: The Federal Railroad Administration’s new Safety Advisory seeks to cover activities that fall outside the scope of FRA safety regulations, but within the purview of the OSHA regulations.

The Federal Railroad Administration (FRA) has just issued its Safety Advisory 2016–02 (November 28, 2016). The Advisory is, according to the Agency, “out of concern for the number of railroad and railroad contractor fatalities that occur when roadway workers perform certain activities that fall outside the scope of FRA’s safety regulations, but within the purview of the U.S. Occupational Safety and Health Administration’s (OSHA) regulations.”

We had previously blogged on the FRA’s amendments to its Federal Track Safety Standards.

This Safety Advisory indicates that it is a “reminder” for railroads and railroad contractors, and their employees (including roadway workers), of the importance of identifying hazardous conditions at job locations, conducting thorough job safety briefings to discuss the hazardous conditions, and taking appropriate actions to mitigate those conditions. The Advisory seeks to remind railroads, railroad contractors, and their respective employees that “OSHA’s job safety regulations may apply to certain roadway worker activities” and offers recommendations for hazard recognition strategies and challenge procedures that may improve roadway worker safety while roadway workers are engaged in activities subject to OSHA’s regulations. The FRA notes that the Advisory is responsive to the National Transportation Safety Board’s (NTSB) Recommendations R–14–33, R–14–35, and R–14–36.

The Advisory follows on the June 10, 2016, final rules addressing roadway worker safety. One of the rules amended the FRA’s Roadway Worker Protection (RWP) regulations (81 Fed. Reg. 37840, 49 CFR part 214, subpart C), while the second rule revised the FRA’s alcohol and drug regulations (81 Fed. Reg. 37894, 49 CFR part 219).

In research, the FRA had found that between January 1, 2000, and December 31, 2015, over 60 roadway worker fatalities occurred while the roadway workers performed work not covered by FRA’s safety regulations. In adopting this Advisory, it concluded that when railroad employees are engaged in activities outside the scope of the FRA’s safety regulations, “they may be required to comply with OSHA’s regulations, such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 29 CFR 1926 (Safety and Health Regulations for Construction).” Specifically, railroads and railroad contractors may be required to implement policies and procedures mandated by OSHA relating to the working conditions for roadway workers.

Accordingly, the FRA Safety Advisory recommends railroads and railroad contractors:

  1. Develop hazard-recognition strategies identifying and addressing existing conditions posing actual or potential safety hazards, emphasizing the contributing factors or actions involved in roadway worker-related fatalities occurring since 2000;
  2. Provide annual training to roadway workers on the use of hazard recognition strategies developed by the railroad or the railroad contractor;
  3. Institute procedures for mandatory job safety briefings compliant with OSHA’s regulations prior to initiating any roadway worker activity. Consistent with OSHA’s regulations, roadway workers should use hazard-recognition procedures to identify potential hazards in their job briefings and then determine the appropriate measures to mitigate the identified hazards. If an unforeseen situation develops during work performance, roadway workers should stop working and conduct a second job briefing to determine the appropriate means of mitigating the new hazard; and
  4. Develop and apply Good Faith Challenge Procedures for all roadway workers who, in good faith, believe a task is unsafe or an identified hazard has not been mitigated.

In conclusion, the FRA encourages railroad and railroad contractor industry members to “take actions consistent with the preceding recommendations and any other actions that may help ensure the safety of roadway workers.”

Employers in these industry segments should consider whether these “recommendations” will be enforced as requirements, as it is likely that Agency inspectors may be looking for compliance with the Advisory, especially if an incident should occur.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

The Federal Railroad Administration (FRA) is amending the Federal Track Safety Standards to promote the safety of railroad operations by enhancing rail flaw detection processes. 79 Fed. Reg. 4234 (January 24, 2014).

After review and consideration of public comments submitted on the FRA’s proposed rule on Track Safety Standards, Improving Rail Integrity (77 Fed. Reg. 64249 (October 19, 2012)), the Agency prepared its final rule. The final rule establishes minimum qualification requirements for rail flaw detection equipment operators, revised requirements for effective rail inspection frequencies, rail flaw remedial actions, and rail inspection records.

Notable is a new provision requiring that providers of rail flaw detection have a documented training program to ensure that a flaw detection equipment operator is qualified to operate each of the various types of equipment utilized in the industry for which they are assigned to operate. For a rail flaw detection test to be valid, the test must be performed by a qualified operator. Qualified operators are in turn subject to minimum training, evaluation, and documentation requirements to help ensure the validity of a rail flaw detection test. “It is the responsibility of the track owner to reasonably ensure that any provider of rail flaw detection is in compliance with these training and qualification requirements.” Emphasis added.

This final rule is effective March 25, 2014. Petitions for reconsideration must be received on or before March 25, 2014. Comments in response to petitions for reconsideration must be received on or before May 9, 2014. Any petitions for reconsideration or comments on petitions for reconsideration related to this Docket, No. FRA–2011–0058, Notice No. 2, may be submitted on the Federal eRulemaking Portal.