Haynes and Boone, LLP
Among industry and government safety professionals, it is a given that the world's offshore regulatory regimes can be divided into three categories: 1. Prescriptive schemes, like that of theUnited States, which impose detailed mandatory requirements on operators such as a requirement to employ a particular safety mechanism on all rigs; 2. Performance-based regimes, like that of Norway and the United Kingdom, which set goals but leave the responsibility to formulate the details to industry; and 3. Hybrid regimes, like that of Canada, which contain both prescriptive and performance elements.
Despite the similarities of regimes within each of these categories, each country's offshore safety regime differs from the next, reflecting the country's unique legal and regulatory culture and history. But there are some common elements across the globe. One of the most pervasive is Stop Work Authority (SWA)—a safety risk-management approach that empowers each employee (and sometimes makes each employee responsible) to stop work without reprisal if he perceives imminent danger as he performs a workplace function. Stop work authority, in its different forms, is not only universal, but it appears to be universally accepted in the offshore petroleum industry.
The origins of SWA can be traced to general occupational health and safety laws that many countries enacted during the middle of the 20th century. These laws establish basic conditions for employee health, safety, and welfare in the workplace, and many incorporate provisions that mirror present day stop work provisions. For example, under Norway's Working Environment Act and the UK's Health and Safety at Work Act, the employer is generally held responsible for maintaining a safe workplace, and employees are required to inform the employer if an unsafe condition threatens the employee's safety or that of his fellow workers. Norway and the UK explicitly provide for stop work authority, in Norway's case, by safety representatives, and under the UK workplace regulations, by the employee himself. Likewise, the Canada Labour Code empowers an employee to "refuse to use or operate a machine or thing, to work in a place, or to perform an activity, if the employee while at work has reasonable cause to believe that his performance of these activities" constitutes a danger to the employee or to another employee. Unlike present-day stop work authority provisions that apply in high-risk industries, the above provisions seem almost quaint by comparison, especially in their focus on the employee and his peers.
Unlike their statutory forbears, present-day SWA provisions are part of broader safety and emergency management plans tailored to the unique health, safety, and environmental risks of the offshore petroleum industry. In countries with performance-based regimes, companies must adopt SWA as a foundational element of such plans, but they have considerable latitude in defining the risks that trigger SWA, the procedures for stopping work, and the requirements that govern the resumption of work activities. In contrast, in the US prescriptive offshore regime, SWA is defined in great detail, and its specific features are mandatory.
On April 5, 2013, the Bureau of Safety and Environmental Enforcement (BSEE) of the US Department of Interior issued a final rule that adds several new requirements to the regulations that govern Safety and Environmental Management Systems, including a requirement that all operators must create and implement a SWA program. The program must ensure that all personnel can exercise the authority without fear of reprisal; and indeed, the rule makes all personnelresponsible to immediately stop work or decline to perform an assigned task when they witness an activity that creates an imminent risk or danger to the health or safety of an individual, to the public, or to the environment. "Imminent risk or danger" is defined to mean any condition, activity, or practice in the workplace that could reasonably be expected to cause death or serious physical harm, or significant environmental harm to land, air, or mineral deposits, or the marine, coastal, or human environment.
Several of the foregoing aspects of the BSEE SWA rule are worthy of emphasis. First, the rule is triggered by, among other things, imminent risk of environmental harm—not just harm to employees themselves. (Interestingly, harm to theprivate property of the employer is not mentioned; perhaps the employee is already sufficiently motivated to stop work to avoid damage to expensive industrial equipment.) Second, employees not only have the right to stop work, but the responsibility to do so, a formulation that creates an open question as to whether employees can be held legally liable if they fail to stop work or communicate the existence of danger to coworkers. Third, the risk need not be significant to trigger SWA; BSEE declined to adopt a "significance" threshold test on the theory that the operator could determine which activities and associated risks should be addressed in a SWA program.
BSEE's SWA rule goes on to establish precisely how an operator must structure the internal management of the stop work "function." In this respect, the rule vests a particular individual with responsibility "for ensuring the work is stopped in an orderly and safe manner," and that is "the person in charge of the conducted work." This seems to mean the "boss" of the front-line employee. Further, according to the rule, work may be resumed only when the individual on the facility with ultimate work authority (UWA) determines that the imminent risk or danger does not exist or no longer exists. The person with UWA can be a specific person, or the holder of a specific position; in any event, the operator must ensure that all personnel must know the identity of the person with UWA at all times.
BSEE envisions that the person with UWA is one who has over-arching job responsibilities for facility safety and operations that are broader than those of the immediate task supervisor. One can quibble with BSEE's choice—whether the immediate task supervisor would be a more logical choice to make the resume work decision, after all, he was responsible for the mirror image function of shutting work down in an orderly fashion—but it is clear that the agency wanted to err on the side of caution by vesting the resumption decision in a higher-level broader-gauge employee.
While several companies submitted comments on the BSEE SWA proposal, these were brief, and focused on the details of the proposed rule. Notably, no one raised concerns about disruption of the workplace, nor such things as potential misuse of stop work authority by disgruntled employees. The bottom line is that SWA is an accepted building block in the safety and emergency management edifice, and one that will be around for years to come.
Ken Hurwitz is a partner at Haynes and Boone, LLP, an international law firm headquartered in Texas. A graduate of the University of Pennsylvania Law School and the Wharton School, Hurwitz is an energy and environmental regulatory lawyer representing clients in the oil and gas production, transportation, and marketing sectors. He is a recognized authority on offshore safety, operation, and environmental regulation.