The History of Section 7 – Regulation 851 of the Ontario Health & Safety Act

HISTORY:

Pre-December 1997, Section 7 of The Regulation for Industrial Establishments required owners or lessees to submit plans and drawings for new, used or modified processes, systems, equipment or structure to the Ministry of Labour for review.

This was known as a Pre-Development Review (PDR) and was provided by a Ministry licensed professional engineer.

The PDR review conducted by the Ministry of Labour engineers was mainly constricted to a review of documentation provided by the owner or lessee, to ensure compliance with current applicable codes and standard.

This submission was accompanied with a fee.

In December of 1997, the Provincial Government transferred the PDR function to the private sector and amended Regulation 851 to require an employer to obtain an engineering review from a licensed professional engineer stating that the equipment, structure, device or process would comply with the Regulations and current applicable standards.

The professional engineer focused on the review of drawings and specifications to ensure compliance with current applicable codes and standards. There were no guidelines issued by the Ministry of Labour or other entities to assist engineers in the application of Section 7 of the Regulations for Industrial Establishments.

Section 7 was once again amended in October 2000, to address the concern that the PDR requirements was too broad. The new amendment, now called a Pre-Start Health and Safety Review (PHSR), clarifies the requirements and focuses on specific, highly hazardous structures, processes and equipment.”

Under this Regulation, anyone who wanted to begin construction, reconstruction or alteration of any equipment, machines or devices installed in a factory, and that is used in a process that either uses or produces a designated substance or a substance that is hazardous because of its toxicity, flammability, temperature, pressure or other property or required by the Regulation to have a shield, guard, operating control or other devices that prevent access, was required to have a review signed by an engineer before work started. (Refer to Section 7 of Ontario Regulation 851-2000).

Section 7 now identified specific hazardous circumstances that require a professional engineer’s review, these are:

1. Storage and dispensing of flammable liquids:
   When certain quantities of flammable liquids are stored or dispensed. (The requirements of Ontario Fire Code part 4 applies to flammable and combustible liquids)
2. Guarding:
   When safeguarding devices that signal an apparatus to stop. Examples of these include: light curtains, safety mats, two hand control systems and barrier guards that use interlocking mechanical or electrical safeguarding devices.
3. Racks and racking systems:
   When industrial pallet racks, movable shelf racks and stacker racks made of cold-formed or hot-rolled steel structural members are used.
4. Potentially explosive processes:
   When there are any processes involving flammable liquids or combustible liquids heated above their flash point and processes where flammable gases or combustible dust are potentially explosive.
5. Dust collectors:
   When there are any processes involving handling of combustible dusts, such as flour, chocolate, powder paint, or wood dust, or where a dust collector or filter receiver is required and may create a condition of imminent hazard to a worker.
6. Molten metal and foundries:
   In cases where factory produces aluminum or steel, or a foundry that melts material or handles molten material.
7. Lifting devices:
   In instances when the construction, addition, installation or modification relates to a lifting device(s), traveling cranes or automobile hoists.
8. Occupational exposure to hazardous substances:
   When a process uses or produces a substance that may result in a worker’s exposure to that substance in excess of any occupational exposure limits. Some examples of this include substances such as silica, isocyanates and asbestos. And while the regulation allows a knowledgeable person or an engineer to sign a PSR, it is not clear how the issue of professional liability insurance would be addressed in this case.

Previously, the PDRs had to be stored near the equipment in case of a review by the Ministry of Labour. Under the new rules, the PHSRs must be presented to either a Joint Health and Safety Committee or a health and safety representative, as well as to any Ministry inspector, upon request.

If some, or all, of the measures in the professional engineer review are not taken, owners must submit written notice to the Joint Health and Safety Committee specifying which acceptable alternative measures have been taken prior to the equipment’s first use. In the end, the Ministry of Labour has the final responsibility for enforcing this Regulation.

Owners and employers viewed the Pre-Start Health and Safety review as a positive change that would help to ensure health and safety in the workplace, and it shifts the liability for compliance to professionals

The MOL Guideline:

“Guideline for Pre-Start Health and Safety Reviews: How to apply Section 7 of the Regulation for Industrial Establishments”, was issued in April 2001.”

The guideline details the requirements of the PSR process.

It spells out the 8 circumstances, that would trigger a review or exempt the circumstance from a PSR.

It applies to a newly installed apparatus, structure, protective element or a process, existing in the workplace, and is to be modified when it is in non-compliance with the Regulations.

For example, if existing equipment does not comply with the Regulations for industrial Establishments, compliance must be ensured and an exemption would not apply.

In the case of a process that involves a risk of ignition or explosion, the process is exempt from a PSR if:

• Conducted in a spray booth, that is manufactured and installed in accordance with current applicable standards.
• The spray booth meets the definition of a spray booth in Regulations 388/97 made under the Fire Protection Act.
• Documents are available in the workplace that establishes that exemption.

Should the exemption not be established, an owner is required to retain a professional engineer to carry out the PSR process.

In this case, the engineer must:

• Determine whether a dust is classified as easily ignitable by referring to the Material Safety Data Sheet (MSDS) for the product. An easily ignitable dust also means a “combustible dust” as listed in Table 2-5 of the National Fire Protection Association (NFPA). Or If a dust is not listed in Table 2-5, the dust must be classified as a combustible dust if it has been group classified by the supplier as in the Ontario electrical Safety Code or if tested for ignition sensitivity and severity.
• Testing may be required, but a test must only be conducted when the engineer determines that testing will not endanger the health or safety of the workers.
• After reviewing all specifications of the process.

The PEO Guideline:

Professional Engineers Ontario issued a Guideline in November 2001 titled” Professional engineers providing reports for pre-start health & safety reviews”.

PEO is the regulating body for the entire practice of professional engineering.

The purpose of the Guideline was for educating both licensees and the public regarding standard of practice.

It is specifically intended to aid engineers in performing their engineering role in accordance with the professional Engineers Act & Regulation 941 and its purpose is to provide professional engineers undertaking a pre-start health & safety review (PSR) with guidance on the level of diligence, methodology and reporting acceptable to Professional Engineers Ontario.

The purpose of the PSR report is to ensure that a timely professional review identifies non-compliance.

It refers to the specific circumstances identified in the Table of Section 7 of O.R. Regulation 851 (as amended) as those requiring a PSR and describes the PSR process as that identifying potential hazards to workers in a factory and the recommendation for remedial measures to control or remove these potential hazards.

• Because a new apparatus, structure or protective element is to be constructed, added or installed or a new process used as identified in the Table, or,
• Because a modification is required to an existing apparatus, structure, protective element or process as identified in the Table.
• The guideline addresses the professional responsibility, scope of work and liability and reminds engineers of their obligation under Section 31(2) of the OHSA, which specifies that a professional engineer, as defined by the Professional Engineers Act, will have contravened the OHSA if a worker is endangered as a result of the professional engineer`s negligent or incompetent advise or certification.

In its description of the PSR process, the Guideline lists the following 4 steps:

1. Data collection;
2. Review of information;
3. Evaluation; and
4. Reporting.

The Guideline also recommends the scope of work that an engineer, offering to provide a client with a PSR proposal, must include in the proposal and guidance as to what the PSR report should include.

— Ralph Balbaa M.Eng., P.Eng., is a health and safety expert with more than 40 years of engineering experience and a former Ministry of Labour consultant. He is the President of HITE Engineering, a Mississauga-based consulting firm specializing in industrial and construction safety.