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OSHA Official Warns Employers To Prevent Heat-Related Incidents

May 27, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Official Warns Employers To Prevent Heat-Related Incidents
With average temperatures rising as a result of climate change, a top OSHA official is warning employers to ensure they take adequate precautions to protect their workers from heat-related injury or death, or face risk of enforcement actions and penalties.

Kelly Schnapp, director of OSHA’s Office of Science and Technology Assessment, told a May 26 webinar sponsored by the White House that employers have an obligation under the OSH Act’s “General Duty” clause to protect workers from heat-related risks.

The issue is “taken very seriously,” she said. “We’ve seen way too many [heat-related] deaths over the years,” she added.

She said OSHA is aware of thousands of cases where workers have died on the job as a result of extreme heat. She noted that of the 84 heat-related deaths investigated by OSHA in 2013-14, 17 of 23 died within the first three days on the job, an indication that employers may not be providing workers with enough time to acclimate to hotter weather.

She said such deaths are “real and preventable” and employers have an obligation to protect their workers.

Schnapp cited OSHA guidance that recommends employers allow employees to acclimate to heat, provide shade and cold water as well as training to supervisors.

Her presentation was one of several on the webinar aimed at encouraging improved training of employers and others to prevent heat-related deaths or illnesses.

Others on the webinar listed similar strategies to protect workers and others from heat risks. For example, Doug Casa, CEO of the Korey Stringer Institute, detailed his efforts to get states and sports officials to adopt measures to prevent adverse effects from heat at sporting events, though he stressed that the strategies apply to outdoor workers too.

White House science advisor John Holdren told the webinar that temperatures are rising as a result of greenhouse gas emissions that cause climate change. He said each decade since the 1950s has been warmer than the last, though the warming has not been uniform.

But he said there has been a significant increase in heat extremes, which occurs when temperature increases combine with increased humidity to create danger and even extreme danger.

In these circumstances, “working outdoors becomes inefficient and then impossible as heat and humidity increase,” he said. Holdren added that the “capacity to do work” declines to zero at some of the heat indices now being encountered.

“At very high heat values, working outdoors is in fact fatal,” Holdren said.

Looking forward, he said to expect wide ranging fatalities as heat incidents become more widespread. For example, the heat wave that killed tens of thousands in Europe in 2003 will become the norm.

Occupational Hazards

Holdren’s comments echo results of a recent report from the U.S. Global Change Research Program — a multi-agency group — which shows that climate change and temperature increases that result may increase the severity and prevalence of known occupational hazards, as well as the development of new hazards.

Most at risk are outdoor workers, the report said, which includes agriculture workers, commercial fishermen, construction workers, transportation workers, and first responders. Workers in hot indoor environments such as warehouses and factories are also at risk.

“The risk workers face from climate change includes working in hotter temperatures and the possibility of longer spans of hot days for outdoor work. These kinds of exposures can cause heat related illnesses, as well as stress and fatigue which can put workers at risk for injury. Workers may also have less control over their exposures to climate change related risks than the general public,” NIOSH said in touting the report.

But despite increased risk of higher heat exposures, NIOSH recently decided to retain its current standards to limit heat exposures, though the agency is planning two new research areas: the effects of climate change on workers and how heat stress affects the toxic response to chemicals.

The institute recently updated its criteria document governing occupational exposure to heat and hot environments, deciding that its current Recommended Alert Limits (RALs) and Recommended Exposure Limits (RELs) can remain unchanged.

“It was determined that the current RALs for unacclimatized workers and RELs for acclimatized workers are still protective for most workers,” the document says. No new data were identified to use as the basis for updated RALs and RELs. Most healthy workers exposed to environmental and metabolic heat below the appropriate NIOSH RALs or RELs will be protected from developing adverse health effects,” the document says.

But NIOSH decided to remove the ceiling limits for acclimatized and unacclimatized workers after finding that many workers live and work in temperatures above those limits. Despite leaving the standards in place, the document identifies two newer areas of research that will likely continue to grow: the effects of climate change on workers and how heat stress affects the response to toxic chemicals.


Congress Moves To Gut OSHA Plan To Weigh Violations In Procurement

May 26, 2016   //   by .   //   Federal, News  //  Comments Off on Congress Moves To Gut OSHA Plan To Weigh Violations In Procurement
Despite a threatened veto from the White House, the Senate appears slated to join the House in adopting legislation that would gut OSHA’s plan for implementing President Obama’s directive that the agency consider government contractors’ records of workplace violations in granting contracts.

The Senate has begun debate on a defense authorization bill, S. 2943, that includes language restricting OSHA-led implementation of President Obama’s Executive Order (EO) 13673 requiring federal agencies to weigh contractors’ labor law violations in awards to companies that have been suspended or debarred for their labor law violations.

Like the House version of the bill, the Senate bill includes language that would exempt most or all Defense Department contractors — who make up roughly two thirds of all federal contractors — from the executive order’s requirements, according to press reports.

Obama’s order on Fair Pay and Safe Workplaces calls for contractors and their subcontractors to report recent violations in the past three years, and requires federal officials to review those compliance records and determine “whether a contractor has a satisfactory record of integrity and business ethics.”

The order tasks OSHA with issuing guidance for implementing the order and defining the various types of violations that contractors must report, which include “any administrative merits determination, civil judgment, or arbitral award or decision rendered against them.”

The administration is moving ahead to implement the order with the White House Office of Management and Budget beginning formal review May 4 of the Department of Labor’s final guide for assisting federal agencies in reviewing contractors’ violations, as well as a related Federal Acquisition Rule to enforce the requirements.

Labor groups that have backed the EO and supported OSHA’s guide, have called for the agency to include provisions aimed at preventing future violations, such as employer retaliation against workers who report violations, in the settlement deals that the EO calls for federal officials to consider in procurement decisions.

But the EO and a proposed version of the guidance have drawn significant concerns from industry groups, who fear it will significantly increase OSHA’s leverage to force contractors to comply with requirements even if they are only subject to alleged violations, in violation of their due process rights.

An industry observer has also said the guide also appears to allow OSHA to impose future requirements outside of the rulemaking process.

Given the concerns, lawmakers are seeking to curtail the order’s reach. But there are differences between the two bills. While the Senate bill language seeks to ensure the EO’s provisions apply only to companies that have been suspended or debarred, the House language would shield all defense contractors from the order’s implementing rules.

The Senate language directs the Defense Department to ensure that companies, except for those that have been suspended or debarred for labor violations, “are not compelled or required to comply with the conditions for contracting eligibility as stated in any acquisition regulations promulgated to implement Executive Order 13673.”

The House language says, “The provisions of Executive Order 13673 and any implementing rules or regulations shall not apply to the acquisition, contracting, contract administration, source selection, or any other activities of the Department of Defense or the National Nuclear Security Administration.”

But the White House has threatened to veto the House bill in part over the prohibition, which the administration said would roll back important safeguards for ensuring companies that shirk labor laws do not underbid contractors that invest in worker safety, according to a May 16 Statement of Administration Policy (SAP) on the House language.

“The Administration strongly objects to section 1095, which would roll back important safeguards established by the President to ensure that taxpayer dollars do not reward corporations that break labor laws and thereby jeopardize the performance and cost of Federal contracting,” the SAP says. — Dave Reynolds (

Industry Details Strategy To Stymie OSHA’s Electronic Reporting Rule

May 25, 2016   //   by .   //   Federal, News  //  Comments Off on Industry Details Strategy To Stymie OSHA’s Electronic Reporting Rule
Industry groups are laying out a multi-part strategy aimed at stymieing — and eventually rewriting — OSHA’s recently finalized electronic recordkeeping and reporting rule, signaling the measure will face significant opposition in Congress and the courts as the Obama administration prepares to leave office in the coming months.

Testifying on behalf of the Coalition for Workplace Safety, a group of large trade associations and businesses, David Sarvadi told a House Education and the Workforce Committee panel May 25 that the rule should be “shelved till details of the program can be developed in conjunction with employers who have to use the system.”

Lisa Sprick, president of an Oregon roofing company who testified on behalf of the National Roofing Contractors Association, said in her testimony to the subcommittee on workforce protection that OSHA should create a “taskforce” that would include employers and others to help rewrite the rule to account for industry concerns.

In addition, Sarvadi said the agency should be “prohibited from publishing specific case data” on injury and illnesses that the rule currently requires.

And Sarvadi urged Congress and the courts to block an especially controversial — and in his view unlawful — provision in the rule that allows OSHA inspectors to issue citations for retaliation against whistle blowers, an approach that critics say upends current statutory requirements that require whistle blowers to first petition the agency to enforce against unlawful retaliation.

“Eventually people with different viewpoints may be in charge and they may not like what may be allowed under their loose interpretation,” Sarvadi warned OSHA’s supporters.

While GOP lawmakers appeared to support industry calls for OSHA to rewrite the rule to account for their concerns, they appeared to stop short of explicitly backing many of Sarvadi’s calls for blocking the rule and its implementation.

“We owe it to working families to hold the administration accountable for its misguided policies and to call on OSHA to take a more responsible, effective, and collaborative approach,” subcommittee Chairman Tim Walberg (R-MI) said in his opening statement.

Walberg’s limited support for industry calls may have been driven by a new report from the Government Accountability Office (GAO), released by Democrats at the hearing, that appears to offer strong support for the rule.

The report, “Additional Data Needed to Address Continued Hazards in the Meat and Poultry Industry,” called for several agencies, including OSHA to gather additional data to address continuing hazards in the meat and poultry industry to address a growing number of injuries in the sector despite an overall industry decline.

“Federal data show a decline in injuries and illnesses, yet meat and poultry workers continue to face hazardous

conditions,” the report found, noting that the rates of recordable illnesses and injuries in the meat and poultry industry remained higher than those of manufacturing from 2004 through 2013.

The report called for improved recordkeeping and reporting in the meat and poultry industries and detailed OSHA difficulties obtaining data from the industry. Specifically, it called for OSHA to study how it could regularly gather data on injury and illness rates among sanitation workers in the meat and poultry industry and for NIOSH to study “the injuries and illnesses these workers experience, including their causes and how they are reported.”

“Given the challenges to gaining access to this population, NIOSH may want to coordinate with OSHA to develop ways to initiate this study,” the report says.

OSHA said in its response to GAO that it agreed with the recommendation but raised concerns about how it should be implemented

Critics Concerns

Despite relatively limited public support for the industry strategy to reverse the rule, Walberg nevertheless signaled significant sympathy for industry concerns, including the rule’s failure to contextualize incidents, potential for privacy violations and imposition of significant costs.

“This regulatory scheme designed to shame employers will do little–if anything–to advance the cause of worker safety,” he said.

“What it will do is make it easier for Big Labor to organize, and for trial lawyers to bring frivolous lawsuits. The agency will need to spend millions of dollars on this special interest tool, which will shift scarce resources away from proactive policies to improve safety, such as inspections and compliance assistance programs. And in the process, the agency is jeopardizing the privacy of workers’ personal information,” he added.

OSHA’s rule, which was published in the Federal Register May 12, generally requires businesses to submit electronically to the agency many injury and illness records that they are currently required to maintain internally. The agency plans to publish the data though without revealing any personal details.

But the measure has drawn significant concern from industry groups, who say the agency lacks legal authority to disclose the data which they expect will unfairly tarnish companies’ reputations and discourage illness and injury recording and reporting.

Industry officials have also been concerned over provisions that strengthen OSHA authority to enforce against employers that discourage injury reporting or retaliate against workers who do report.

OSHA chief David Michaels has defended the measure as legally justified and will encourage employers to provide safer workplaces — despite industry assertions that the publicizing such data will deter injury reporting.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” Michaels said. “Our new reporting requirements will nudge employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”

But Sarvadi, in his testimony, stressed that the rule is not needed, charging that the current Bureau of Labor Statistics (BLS) method for assessing workplace safety and health trends is adequate and has long shown a decline in injuries and illnesses. “OSHA and BLS could certainly spend a lot more money trying to capture more of what some believe are the cases that are not recorded or are incorrectly recorded, either by omission or misclassification. But the additional data will not change the essential characteristics of the picture of workplace injuries and fatalities,” he said.


Rules To Protect Workers From Chemicals, Falls Top OSHA’s Agenda

May 20, 2016   //   by .   //   Federal, News  //  Comments Off on Rules To Protect Workers From Chemicals, Falls Top OSHA’s Agenda
OSHA is planning to advance several dozen rules and proposed rules in the coming year, ranging from measures to protect workers from slips, trips and falls, industrial facility accidents and exposure to numerous toxic chemicals, according to a federal rulemaking docket.

In the Spring 2016 update to the Unified Agenda (UA), OSHA says it plans to complete in August its decades-long effort to issue a final rule preventing slips, trips and falls, a leading cause of worker injuries and deaths.

The agency says that new technologies and procedures are available to reduce workers’ risk of falls since the agency first proposed an update to its current rules in April 1990.

But the agency has struggled to complete the rulemaking. The final rule is based on a May 2010 revision to the original 1990 proposal.

But it is unclear how the agency will be able to meet its deadline given that it has not yet submitted a draft version of the final rule to the White House Office of Management & Budget (OMB) for review.

The agency had submitted a draft final rule to OMB for review last July but the review was extended in October, and the rule was later withdrawn from review, after White House officials limited the total number of rules it would review before the administration left office.

The two rules that OSHA was recently able to get through OMB review — the silica standard and the reporting and recordkeeping rule — cleared OMB review in the past few months. Homebuilders and labor unions have already filed competing legal challenges on OSHA’s final rule, issued in March, strengthening protections for workers in construction and other industries from exposure to silica.

But a top OSHA official has said the lawsuits pending in the U.S. Court of Appeals for the District of Columbia Circuit are unlikely to delay implementation.

The recordkeeping rule, which requires certain employers to electronically submit workplace injury and illness data to the agency, is expected to draw lawsuits in the coming weeks from industry groups who contend that publicizing injury data will deter reporting.

OSHA is also planning to continue its effort to overhaul its industrial facility accident prevention rule under a 2013 executive order (EO).

Chemical Safety

In the coming year, OSHA plans to advance numerous rules aimed at better protecting workers from chemical hazards, including a plan to update many of its Permissible Exposure Limits (PELs), as well as a potentially wide-reaching overhaul of its Process Safety Management (PSM) industrial facility accident prevention program.

The agency is specifically targeting one industrial chemical in the near term. By June, OSHA plans to analyze public comments on its August proposed rule seeking to limit worker exposures to beryllium. The effort started after United Steelworkers petitioned OSHA in 1999 and 2001 seeking an emergency temporary standard for the substance.

OSHA denied the petitions, but began researching occupational exposures to beryllium, issuing a request for information (RFI) and conducting a small business advocacy review (SBAR) in support of the August proposed rule.

OSHA and others, including EPA, have long argued that many OSHA PELs issued in 1971 are outdated and fail to account for recent toxicology or exposure data. To address the issue, OSHA is planning a pair of rules, one seeking to update certain PELs and another to revoke PELs the agency has determined outdated.

For decades, OSHA has struggled to strengthen its PELs. The agency in 1989 issued a final rule updating more than 200 chemical PELs and issuing 164 new ones. But the U.S. Court of Appeals for the 11th Circuit vacated that rule, citing deficiencies in OSHA’s analysis.

Then in October 2014, OSHA issued an RFI in support of a future rule strengthening its PELs, and the agency says it plans to analyze those comments by September, the UA says.

The second rule OSHA is pursuing on PELs would revoke a small number of the limits for reasons, including that they may be substantially lower than other exposure limits for the same substance and so provide workers with a false sense of security. OSHA says the rule is consistent with EO 13563 on streamlining or eliminating outdated or overly burdensome rules.

The agency is also planning to issue RFIs to support future rules on two industrial chemicals that the National Toxicology Program, part of the U.S. Department of Health and Human Services, has deemed as reasonably anticipated to be human carcinogens.

On 1-bromopropane, a solvent used in adhesives and metal surface cleaning operations, and by dry cleaners, OSHA plans to issue an RFI in August to support a PEL or other rule to limit worker exposures. And in October, OSHA says it will issue an RFI supporting its effort to strengthen its PEL for styrene, which is used in the manufacture of plastic, rubber and other products.

Accident Prevention

OSHA also hopes to complete this summer a small business advocacy review of a pending update to its PSM rule, part of a broad federal effort to implement President Obama’s EO 13650 on strengthening the safety and security of the nation’s industrial plants.

Obama issued the Aug. 1, 2013 order in response to the fertilizer facility explosion in West, TX, that killed 15 people, including first responders. The order calls for strengthening facility safety and security by improving communication, emergency response, and modernizing policies, rules and standards.

In May, OSHA issued documents supporting the SBAR and plans to complete the review in June, according to the UA.

OSHA is also seeking to strengthen emergency response and preparedness through a second rulemaking under the 2013 facility safety EO. While OSHA currently regulates aspects of emergency response, the agency says its rules are decades old and fail to address a full range of hazards facing emergency responders.

“Current OSHA standards also do not reflect all the major developments in safety and health practices that have already been accepted by the emergency response community and incorporated into industry consensus standards,” OSHA says.

So the agency is holding information gathering meetings to support possible updates to its emergency response standards, and has scheduled the topic for an October meeting of its National Advisory Committee on Occupational Safety & Health.

OSHA is also pursuing a variety of other possible rules, including plans to reduce workers’ blood lead levels, prevent the spread of infectious diseases to health care workers, and prevent falls in specific industries, such as in shipyards and from communications towers.

In March 2017, the agency plans to propose a rule to reduce the spread of infectious diseases, such as tuberculosis, chicken pox, or severe acute respiratory syndrome to healthcare workers. And, OSHA plans to issue findings in October from its review of whether its blood-borne pathogens standard remains necessary.

Before the end of the year, OSHA plans to issue an advanced notice of a proposed rule revising its lead standards to improve protection of workers in industries and occupations where preventable exposure to lead still occurs.

Also in 2016, OSHA plans to propose a rule adding new methodologies for complying with the agency’s fit-testing requirements for respirators used in a variety of industries. — Dave Reynolds (


OSHA Official Says Industry Court Challenges Unlikely To Delay Silica Rule

May 19, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Official Says Industry Court Challenges Unlikely To Delay Silica Rule
A top OSHA official is pushing back against industry plans to delay implementation of the agency’s new rule limiting silica exposures in workplaces, calling recent industry appeals court challenges to the rule an “expected” consequence of any major OSHA rule, and saying the lawsuits are unlikely to stall OSHA’s implementation of the new standards.

David O’Connor, director of the Office of Chemical Hazards in OSHA’s Directorate of Standards and Guidance, told a May 19 webinar on the rule that while the agency faces more than a half-dozen industry lawsuits challenging its March rule strengthening its decades-old silica standards, the agency is on solid legal footing and officials do not expect the litigation to delay implementation.

“[We] and don’t anticipate that this will have any impact on the implementation or implementation dates of the standard,” O’Connor told the webinar, hosted by CPWR – The Center for Construction Research and Training. “[W]e’re confident that the final rule that we published, and the supporting analysis meet OSHA’s legal requirements,” he added.

His assertions come as the U.S. Court of Appeals in the District of Columbia Circuit recently consolidated the suite of labor and industry challenges to the rule.

And in an April 20 order in the case, North America’s Building Trades Unions, v. OSHA, the court set May 31 deadlines for petitioners to file any procedural motions, statements of issues and other documents. The court set a June 13 deadline for any dispositive motions, as well as identical deadlines for the respondent filings.

Some observers believe industry petitioners will soon ask the court to stay the regulation until the litigation is resolved. “It is possible the challengers will request that the Silica Rule be stayed while the legal proceedings run their course,” Louis Thorson, a lawyer at Foley Lardner, said in a recent advisory.

In addition to the court challenges, industry groups are also asking lawmakers to delay the rule so OSHA can conduct further analysis. In testimony last month, a representative of the National Association of Homebuilders urged a House panel to block the silica rule until OSHA reconsiders the measures’ impacts to small businesses.

The rule, issued in late March, is OSHA’s first overhaul of its silica standards in more than 40 years. It strengthens the current permissible exposure limits (PEL) for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 micrograms per cubic meter (ug/m^3) to 50 ug/m^3 over eight hours.

OSHA has set compliance deadlines of June 23, 2017 for the construction industry and a year later for a separate standard for general industry and maritime.

The agency says the rule generally requires employers to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

But homebuilders and foundry industry representatives argued in their April 19 testimony before a House workforce protections subcommittee that the rule poses significant burdens and that certain required methods for limiting exposure may be impractical or unsafe.

Guidance Documents

During the webinar, O’Connor defended the rule and said OSHA is working on guidance documents to help companies comply.

OSHA PELs under the old standard are decades-old and difficult to understand and apply, O’Connor said. “There is a great deal of evidence showing the previous PELs do not adequately protect workers,” he said.

The rule seeks to protect more than 2.3 million workers, 87 percent of whom are in construction, O’Connor said, adding that workers inhaling crystalline silica face risk of respiratory illnesses, ranging from silicosis and emphysema to lung cancer. OSHA estimates the new rule will prevent more than 600 deaths each year, and 900 cases of silicosis annually.

O’Connor also said that OSHA is working on guidance documents and worker training materials to assist companies in complying with the new standard. The agency plans to issue small entity compliance guides for both the construction and general industry standards in June. — Dave Reynolds (


Facing Suit, OSHA Chief Offers Broad Defense Of New Injury Reporting Rule

May 11, 2016   //   by .   //   Federal, News  //  Comments Off on Facing Suit, OSHA Chief Offers Broad Defense Of New Injury Reporting Rule
Facing an almost certain legal challenge from industry groups, OSHA chief David Michaels is offering a broad legal and policy defense of the agency’s new rule requiring facilities to report worker injury data, arguing the measure is legally justified and will encourage employers to provide safer workplaces, despite industry assertions that the publicizing such data will deter injury reporting.

“We are very comfortable that we have the statutory authority to do this,” Michaels said on a May 11 conference call with reporters, noting that the OSH Act gives the Labor Department authority to compile, analyze and publish injury data. He added that OSHA’s authority for the rule “is pretty straightforward.”

His comments refer to the agency’s final rule revising its “Recording and Reporting Occupational Injuries and Illnesses” regulation to require employers in certain high-hazard industries to electronically submit workplace injury and illness data to the agency.

Released May 11, OSHA will publish the rule in the Federal Register May 12. The promulgation date is significant because it is well before the estimated May 23 deadline agencies must meet if they are to avoid a possible Congressional Review Act challenge — though any such effort will likely require presumptive GOP nominee Donald Trump to win the presidential election and for Republicans to retain control of both the House and the Senate.

In his conference call with reporters, Michaels argued OSHA’s new reporting rule will strengthen the agency’s enforcement against employers who fail to provide safe workplaces, and that publicly posting much of the data as the rule requires will pressure employers to take greater steps toward improving worker safety.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” Michaels said. “Our new reporting requirements will nudge employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”

The rule also includes provisions to strengthen OSHA enforcement against employers that discourage injury reporting or retaliate against workers who do report. Michaels told reporters that employer “programs and policies that discourage workers from reporting will not be permitted and retaliation will not be permitted.”

Michaels’ defense of the rule comes as industry officials are charging that OSHA lacks statutory authority to publish employers’ data on worker injuries or to enforce the new provisions seeking to strengthen protections for whistleblowers. In a May 11 statement, the U.S. Chamber of Commerce calls OSHA’s approach “misguided,” and reiterates arguments that OSHA lacks statutory authority to publish the reported information online or to enforce new provisions aimed at tightening protections for whistleblowers.

“Instead of improving workplace safety, this will only create a new filing requirement that will lead to sensitive employer data being published without context or explanation,” the Chamber says. “OSHA’s obsession with shaming employers has not lead to better results in workplace safety and this regulation will not change that trend.”

The Chamber and other industry critics have also charged that the rule’s requirements are so broad it will force employers to provide OSHA with more data than the agency has the resources to assess. They also say the data will create a false impression about employers’ safety records because it will require disclosure of all records regardless of their value. For example, the rule does not account for fault or whether a workplace accident is the result of worker negligence.

Strengthen Enforcement

Labor and public interest groups, meanwhile, are backing the OSHA rule, saying it will strengthen enforcement and inform research on the causes of worker injuries and efforts to prevent those injuries.

The United Steelworkers, in a May 11 statement, says electronic posting of worker injury information will allow easy access to injury data, “enhancing the ability of workers, unions and management officials to efficiently identify workplace hazards and unsafe conditions and to take action to prevent future injuries.”

The group Public Citizen says,“Without access to complete and timely injury and illness data, deadly workplace hazards will go unaddressed.” The group adds, “The electronic recordkeeping rule will be critical in preventing debilitating injuries and illnesses in workers across the country.”

In the call with reporters, Michaels said that currently little or no information about worker illnesses or injuries at individual work sites is available to OSHA or made public. He also argued that employers currently lack sufficient financial incentive to adequately prevent worker injuries.

In arguing that better reporting is needed to spur safer workplaces, Michaels noted that 13 workers die in traumatic work-site incidents each day, and that more than three million workers suffer workplace injury or illness annually.

The new requirements, which take effect Aug. 10, do not change employers’ current injury and illness record-keeping obligations, but require employers to provide the data to OSHA in a standard format.

“We are taking information that employers are already required to collect and using these data to help keep workers safer and make employers, the public, and the government better informed about workplace hazards,” OSHA says in a fact sheet on the rule.

Michaels added that the additional burden of transmitting that data to OSHA will cost less than $15 million a year.

Additionally, the rule includes provisions to improve OSHA enforcement against companies that discourage employees from reporting injuries or retaliate against workers who do. “Both of those would be violations of the standard and OSHA could issue a citation and require abatement,” Michaels said.

Under the rule, employers with 250 or more workers must submit detailed illness and injury records, which OSHA will scrub for identifying information before posting certain of the data online. The rule requires companies with between 20 and 249 employees to submit summary data of workplace illnesses and injuries.

The new reporting requirements cover only about 500,000 of the nation’s roughly 7 to 8 million work sites, Michaels said. The first summary reporting is due in July 2017, and the first detailed reporting from larger facilities is due in July 2018.

“Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable big data’ researchers to apply their skills to making workplaces safer,” Michaels said in a statement. — Dave Reynolds (


Industry Backs ‘Abatement Before Citation’ Bill, But Says Right To Contest Should Be Preserved

May 8, 2016   //   by .   //   Federal, News  //  Comments Off on Industry Backs ‘Abatement Before Citation’ Bill, But Says Right To Contest Should Be Preserved
Industry advocates are voicing strong support for a measure put forth by Rep. Vickly Hartzler (R-MO) to alter OSHA enforcement by letting employers sidestep citations for non-serious regulatory violations as long as the alleged hazards are abated during a “grace period,” but there is also concern that the bill if enacted might discourage employers from contesting citations they believe are flawed.Agreeing to abate citations for minor concerns if compliance officers are believed to be wrong on either the conditions in the facility or the relevant regulatory code, or both, could have the unintended consequence of setting up the employer for claims of “repeat” violations if OSHA comes around again, one attorney says.Hartzler’s bill provides for a period to abate alleged violations before OSHA issues proposed penalties that can run up to $7,000 each (see related story).

The measure amends Section 10(a) of the OSH Act by inserting the text: “No such penalty may be assessed for a violation that is determined not to be willful, repeated, or serious as described in section 17(k), during the period of time fixed for abatement of the violation in the citation issued under section 9(a) or final order issued under this section, as the case may be, and no such penalty may be assessed for such a violation if such violation shall have been abated by the employer in accordance with such citation or final order before the end of such time period.”

Hartzler calls the change a common-sense measure, but worker advocates wonder if the issue prompting Hartzler’s legislation may be illusory without more evidence that OSHA is using up scarce resources by nitpicking small violations.

One industry lawyer tells Inside OSHA Online the problem is real, and “that’s something I’ve been talking about for a long time. It makes no sense to pound people with OSHA’s interpretation of the statute with penalties” and then tell them OSHA has discretion authority over what to cite. “There’s a need for enforcement, but I think OSHA’s interpretation of the statute … is just flatly wrong.”

The attorney argues that OSHA need not cite up to its maximum penalties for non-serious violations and that there are many site-specific considerations when an inspector goes into a workplace. “You’ve got to take into account what’s going on in the place,” the sources says, but even then resources at OSHA are so constrained that “in reality we have to rely on voluntary compliance.”

A different attorney, Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey, says Hartzler’s bill tackles “a real problem” and points to data showing that the percentage of “in-compliance” inspections, or those resulting in no citations, generally hovers around 25 percent. “When OSHA visits your facility there is a 75 percent chance they are going to issue at least one citation. They have to prove to their boss that they’re there,” he says, and that can mean “minor, trivial violations even if there is no real basis for it.”

Hartzler’s bill “creates a real incentive for employers to take abatement seriously,” Conn adds. “The purpose of the [OSH] Act and the purpose of OSHA is to help employees, and collecting penalties doesn’t help employees.” Still, Conn sees a bigger problem, saying, “OSHA too often inflates” how it characterizes infractions and thus, violations that “clearly” should be classified as other than serious, OSHA calls serious.

“I don’t think this is a huge deal,” he says, referring to the non-serious penalties. “Even though they can issue penalties up to $7,000 … you really never see that.”

Conn expresses concern, however, that the congresswoman’s bill could actually create a potential disincentive to contest flawed citations. That is because, he says, given the incentive of abatement without penalties, “you’re more likely to accept the violation that’s not valid,” thereby setting the employer up for repeat citations. “Perhaps the solution is that the bill allows for … preserving the right to contest a violation.” He suggests the bill be amended to permit employers to contest larger citations.

Steve Wodka, a labor-side attorney in Little Silver, NJ, expresses doubt that the problem cited by Hartzler rises to the level of requiring a legislative fix. “Federal OSHA simply doesn’t have the resources to go out and be citing the employer for minor things that, as the congresswoman says, don’t have any impact on worker health and safety,” he says. “There’s really an initial question here as to whether these things are going on” and whether OSHA is using limited resources effectively. Hartzler has contended that employers in her Missouri district see it as an issue.

“That’s really the first question, is this really happening, and if it is, OSHA ought to take those resources out there in Missouri and put them somewhere else where people are clamoring for inspections,” Wodka says.

Hartzler’s legislation awaits markup in the Education and the Workforce Committee. — Christopher Cole (

New Health, Safety Data Drives Advocates’ Push For Stricter OSHA Policies

Apr 27, 2016   //   by .   //   Federal, News  //  Comments Off on New Health, Safety Data Drives Advocates’ Push For Stricter OSHA Policies
New federal health and safety data showing an increase in the number of workplace injury and deaths is prompting new calls from labor and other advocates for policymakers to strengthen OSHA’s policies and practices, including issuance of long-awaited standards, increased enforcement and inspection funds and stepped up focus on immigrant, temporary and older workers, as well as those in the public and oil & gas sectors.

Relying largely on recently released data from the Bureau of Labor Statistics (BLS) for 2014, the AFL-CIO, as well as the National Council for Occupational Safety and Health (NCOSH), April 27 released separate reports detailing increases in workplace injuries that the groups said show the need for a host of stricter OSHA policies and practices aimed at better protecting workers.

“America’s workers shouldn’t have to choose between earning a livelihood and risking their life, yet every day too many end up on the wrong end of that choice,” AFL-CIO President Richard Trumka said in a statement. “Corporations are prospering while working people suffer because of corporate negligence and insufficient government oversight. We must go beyond mourning those we’ve lost, and take bold, decisive action to ensure that a day’s work brings opportunity, not the risk of death or injury.”

The groups’ calls, issued to coincide with Workers Memorial Week, appear to provide a workplace safety advocacy agenda for labor unions and health and safety advocates heading into the November presidential and congressional elections.

In its report, Death on the Job: The Toll of Neglect, AFL-CIO listed a series of steps policymakers needed to take to address the data. For example, the labor federation urged OSHA to issue long-awaited rules governing injury reporting, beryllium, combustible dust and infectious disease and increase penalties for violations.

But the group also recommended that a host of other growing workplace risks need to be addressed, noting that ergonomic hazards, infectious diseases and chemical exposures pose serious risks, “but are largely unregulated.”

AFL-CIO also called for “enhanced enforcement and development of an OSHA workplace violence standard” to address the “growing and serious” threats, especially to women workers and workers in the health care industry.

Both groups also urged policymakers to increase funding for both federal and state OSHA inspectors, noting that regulators lack sufficient resources. For example, AFL-CIO noted in its report that there are a total of 1,840 state and federal inspectors available to inspect the estimated 8 million work sites under OSHA’s jurisdiction, which translates into about one inspector for every 74,760 workers.

The AFL-CIO also urged the agency to increase its penalties, noting that the average penalty for a serious violation was $2,148.

The agency’s current administration has been working to address those two limitations on enforcement. For example, the administration has been touting its stricter injury reporting rule, suggesting it could obviate the need for increased inspectors in some cases.

And officials are also developing an interim rule to increase penalties after Congress authorized the move in a budget deal enacted at the end of 2015.

OSHA chief David Michaels warned recently that the many businesses that are still avoiding the new reporting rule’s requirements could face increased noncompliance penalties once the agency raises its penalty amounts.

Worker Fatalities

Based on their reviews of BLS and other data, the two reports generally found similar results. Both found 4,821 workers were killed on the job in 2014, with the fatal injury rate rising to 3.4 per 100,000 workers, up from 3.3 per 100,000 in 2013.

But AFL-CIO notes in its report that the number of deaths due to fatal injury is dwarfed by the estimated 50,000 workers who die as a result of occupational diseases. That means that 150 workers died each day from hazardous working conditions, the report says.

Workplace illnesses and injuries also increased. Nearly 3.8 million work-related injuries and illnesses were reported, though AFL-CIO says underreporting is “widespread” and estimated the “true toll” is 7.6 million to 11.4 million injuries each year.

States with the highest fatality rates, the group found, were Wyoming, North Dakota, Alaska, South Dakota and Mississippi.

Given the high rates in Wyoming, North Dakota and Alaska, three major oil and gas producing states, it was not surprising the reports found high incidence of workplace injuries in that sector. The AFL-CIO noted that there were 144 deaths in the oil and gas sector in 2014, the highest number of fatalities ever recorded.

“The fatality rate for oil and gas extraction was 15.6 per 100,000 workers, nearly 5 times the national average,” the report says. “The escalating fatalities and injuries in the oil and gas extraction industry demand intensive and comprehensive intervention,” the group added.

NCOSH notes in its report, Preventable Deaths, that fatalities increased in the agriculture, mining and manufacturing sectors.

Both reports also found greater risks to older workers, which made up one third of the total number of fatalities. Speaking on a press call, Jessica Martinez, NCOSH’s acting executive director, said it was unclear why so many more older workers were being injured and called for more studies to assess the data and make recommendations.

Martinez also noted an increasing risk for temporary workers. She said that in 2014, 802 contracted or temporary workers died from workplace injuries, marking 16 percent of all fatalities. She said the figure was higher than in 2013, underscoring the growing number of temporary jobs in the economy and the fact that such workers are “frequently assigned to the most hazardous” jobs.

She reiterated recommendations that NCOSH and other organizations had submitted to OSHA in 2013 to better protect such temporary workers, which included calls for clarified health and safety responsibilities in dual employer settings, better targeting and tracking of data, stepped up enforcement and improved investigation procedures.

Martinez said OSHA supports the groups’ efforts to address temporary workers. But she said it is “tricky” determining who is accountable for protecting temporary workers. “Who is accountable?” she said, adding that both employers and temp agencies have responsibility for ensuring safe workplaces.

“We need more local focus to help enforce and protect temporary workers and track down temp agencies,” she said.


Unions Craft Petition Seeking OSHA Rule Addressing Health Facility Violence

Apr 21, 2016   //   by .   //   Federal, News  //  Comments Off on Unions Craft Petition Seeking OSHA Rule Addressing Health Facility Violence
Bolstered by calls from top Democrats and a long-awaited congressional investigation, a broad coalition of labor unions is preparing a formal petition asking OSHA to set a comprehensive workplace violence prevention standard to protect healthcare workers.

A source familiar with the issue says the coalition, including the American Federation of Teachers (AFT), Service Employees International Union, American Federation of State, County and Municipal Employees, United Steelworkers, National Nurses United (NNU) and others are expected to petition OSHA “to formally begin the process” to craft a standard.

Such a petition could provide a formal mechanism by which the unions could eventually sue the agency to force formal consideration of a standard, a move that may be necessary given uncertainty whether OSHA will agree to develop the standard.

The effort comes days after top Democratic lawmakers, including Sen. Patty Murray (D-WA) and Rep. Bobby Scott (D-VA), the ranking Democrats on Congress’ labor committees, publicly urged OSHA to craft such a standard.

“It is clear to me that OSHA should move forward and develop an enforceable violence prevention standard to help protect our nation’s healthcare workers. Injuries requiring days away from work are financially and emotionally costly for both employers and workers, and these avoidable injuries put pressure on working families to do more with less,” Scott said in an April 14 statement.

“No worker should ever have to fear facing violence on the job,” said Murray.

The lawmakers made their statements as they released a long-awaited report from the Government Accountability Office (GAO) that found a growing number of violent incidents against healthcare workers but limits on OSHA’s current ability to limit it.

According to a fact sheet on the GAO report, OSHA has issued voluntary guidelines on preventing workplace violence in healthcare facilities, which include a risk assessment, employee engagement, flagging high risk patients, environmental controls (locks, escape routes, alarm buttons, etc.), record keeping and evaluation.

But OSHA has no formal standard that requires healthcare facilities to adopt a violence prevention program. Instead, the agency has been forced to rely on the OSHA Act’s “general duty clause” for enforcement, which requires elements of evidence that are complex to develop and sustain in these cases.

According to the fact sheet, from 1991 through October 2014, OSHA issued 18 general duty clause citations to healthcare employers for failing to address workplace violence; 13 of those citations were issued from 2012 through 2014, when OSHA implemented its National Emphasis Program targeting workplace violence in nursing and residential care facilities.

OSHA officials acknowledged that it can be challenging to develop a general duty clause citation for workplace violence, and cited potential benefits of having a workplace violence prevention standard, the fact sheet says. For example, OSHA inspectors can issue nonbinding hazard alert letters warning employers of a serious workplace violence safety concern. But currently, OSHA does not know whether employers have taken steps to address the safety hazards identified in such letters, the sheet says.

GAO Recommendations

Given the limits in OSHA’s authority, the GAO report issued a series of recommendations, including urging OSHA to improve training for inspectors on developing citations for workplace violence hazards and follow-up on hazard alert letters to determine whether an employer has implemented steps to prevent workplace violence, or if a follow-up inspection is needed.

GAO also called for OSHA to “assess the results of its current efforts to determine whether additional action, including development of a standard, is needed.”

But in a response to the recommendation, OSHA stopped short of formally committing to develop a standard. In its Feb. 26 response to an early draft of the GAO report, Administrator David Michaels said the agency “intends to find a cost-effective way to gauge its enforcement efforts to determine whether additional measures, such as developing a workplace violence standard for healthcare workers, is necessary.”

Michaels added that the agency should “continue this important enforcement initiative, and others, to reduce the hazards of workplace violence.”

Such a considered effort appears to fall short of calls by labor representatives who are renewing their long-standing calls for OSHA to quickly move to develop a standard. “The GAO report demonstrates what we already know from our members–it is past time for federal action to protect healthcare workers across the nation, as rates of violence are on the rise and increasing in severity,” Bonnie Castillo, NNU’s director of health and safety, said in a statement following the release of the GAO report.

“To fully protect all healthcare workers in the nation, we need a strong federal OSHA standard requiring workplace violence prevention plans in all hospitals and healthcare facilities. And we need it now,” she said.

Randi Weingarten, AFT’s president, echoed Castillo’s call. “It’s time to treat workplace violence in healthcare settings with the seriousness this crisis warrants. We urge OSHA to promulgate a national standard. Healthcare professionals, patients, and visitors deserve nothing less,” Weingarten said.


Industry Urges Congress To Block Silica Rule To Force New OSHA Review

Apr 19, 2016   //   by .   //   Federal, News  //  Comments Off on Industry Urges Congress To Block Silica Rule To Force New OSHA Review
The National Association of Homebuilders (NAHB) is urging Congress to block OSHA’s silica rule until the agency has reconsidered the measure’s impacts on small businesses, a call that at least one key Republican lawmaker signaled he is prepared to support.

“I urge Congress to consider ways to forestall the implementation of this deeply flawed rule until such time as OSHA has revisited the potential burden this rule will set upon small businesses,” Ed Brady, a homebuilder from Texas, told the House workforce protections subcommittee April 19 in testimony on behalf of NAHB.

He said he is calling on Congress to take such a step because he does not expect OSHA to heed the group’s call to “re-examine and reassess how its final rule will harm the construction industry, job growth, consumers and the economy while doing little to improve the health and safety of industry workers.”

Because the agency is unlikely to change course, we believe “that Congress must take the lead and move swiftly to craft legislation that will keep this fundamentally flawed rule from taking effect.”

Rep. Tim Walberg (R-MI), chairman of the House Education and the Workforce Committee’s workforce protections subcommittee, signaled support for NAHB’s call though he stopped short of endorsing any particular legislative strategy to address the issue.

“I hope we will see OSHA step back and say ‘we might want to listen to some of these [industry concerns] more carefully. We might have a better way to protect individuals in the work place’,” he said.

In his opening statement, Walberg also criticized OSHA for adopting a tough new standard even though it has not been able to fully enforce existing requirements.

“The department’s first priority should have been enforcing existing standards. If OSHA is unable–or unwilling–to enforce the current limit for silica exposure, why should we expect the results under these new standards to be any different?” he said.

The April 19 hearing was intended to review OSHA’s recent rule strengthening its long-time silica standard. Key among the changes is the agency’s decision to strengthen the current permissible exposure limits (PEL) for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 micrograms per cubic meter (ug/m^3) to 50 ug/m^3 over eight hours.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements, including monitoring requirements.

The rule set two standards, one for the construction sector and another for maritime and general industry, such as brick manufacturing, foundries, and hydraulic fracturing.

According to OSHA, the rule generally requires employers to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

Industry Challenges

NAHB and other industry groups are already challenging the rule in a federal appellate court where they are expected to petition for a stay pending judicial review on the merits.

NAHB’s call for lawmakers to block the rule’s implementation appears to add to their upcoming efforts to stay the rule in court, where they are expected to argue the measure is technically and economically infeasible.

Industry witnesses used the hearing to reiterate their legal arguments.

Brady, for example, argued in his testimony that some of the silica control methods the rule will require homebuilders to adopt — such as increased use of water to control dust — are impractical. He said it is unsafe for roofers in Midwestern states to use water to control dust in colder months, when freezing could create additional risks of slipping.

“Imagine installing tiles on a slippery, wet roof. This practice would also create quality-control issues by introducing water to areas of the roof not designed for moisture,” he said.

Similarly, many builders may not have water sources available on job sites. Nor is it possible for renovators to use water to control dust in indoor environments, Brady added.

In a similar vein, Janis Herschkowitz, president of PRL Inc. who testified on behalf of the American Foundry Society (AFS), told the hearing that using water as a dust control method could prove fatal in foundries, where water causes molten steel to combust.

Walberg later endorsed her point, noting that a US Steel foundry where he worked had incurred such an incident when he worked at the plant. “You don’t want to mess around with water around molten steel. OSHA needs to take that into consideration,” he said.

Herschkowitz and Brady, as well as Henry Chajet, a lawyer at Jackson Lewis testifying on behalf of the U.S. Chamber of Commerce, all pressed the case that OSHA had significantly underestimated the rule’s costs. “OSHA estimates that the new silica rule will cost only about $1 billion. However, the estimate is wildly speculative and inaccurate, using low implementation cost forecasts, that in reality will add up to multiple billions of dollars,” Chajet said in his testimony.

Chajet also charged that OSHA had not justified the need for the standard. He said the agency had not yet met the Supreme Court’s legal standard — derived from litigation that vacated the agency’s benzene standard — that requires a threshold finding “that a place of employment is unsafe — in the sense that significant risks are present and can be eliminated or lessened by a change in practices.”

He said that while the chamber is not challenging whether exposure to crystalline silica presents a hazard, “current data undermine OSHA’s conclusion that a significant risk is present in contemporary workplaces.” As a result, he said “the first question Congress should examine is why OSHA believes such a sweeping revision to the PEL for [silica] is warranted in light of the success of existing limits, and what accounts for this success.”

But Democrats and labor union representatives strongly resisted industry and GOP concerns over the need for the rule and its potential costs to industry, citing significant health and economic benefits. For example, James Melius, research director of the Laborers’ Health and Safety Fund of North America and administrator of the New York State Laborers’ Health and Safety Trust Fund, said in his testimony that the rule would significantly reduce cases of silica, lung cancer and other adverse effects from silica exposure.

He argued this would result in health care and other savings, including reduced hospital visits, health insurance and workman’s compensation claims, as well as increased worker retention and productivity.

Melius also sought to make the point that some industries had been able to get ahead of the rule, resulting in regulatory benefits. For example, he noted that the asphalt paving industry, together with labor unions, had been able to jointly develop control technologies that OSHA eventually endorsed in the rule, resulting in the industry backing the rule.


OSHA Clarifies Enforcement Of Updated Hazard Communication Standard

Apr 11, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Clarifies Enforcement Of Updated Hazard Communication Standard
OSHA in a recent letter of interpretation (LOI) has clarified aspects of its policy for enforcing the agency’s updated 2012 Hazard Communication Standard (HCS) after industry groups raised concerns about shipping existing stocks of covered chemicals that were already packaged and labeled to comply with the old rule before the new HCS took effect.

In a March 10 letter to the American Coatings Association (ACA), a paint industry group, Thomas Galassi, head of OSHA’s Directorate of Enforcement Programs, outlines an enforcement policy that allows distribution of existing stocks of chemicals already in the supply chain but generally requires companies to have labels and safety data sheets for the shipments available.

OSHA’s HCS requires chemical manufacturers and importers to evaluate the hazards of their substances and prepare labels and safety data sheets to ensure that workers and customers understand chemical hazards. The agency’s 2012 update of the standard strengthened requirements for labels and safety data sheets.

Manufacturers and importers had to comply with the updated 2012 HCS by June 1, 2015, while distributors faced a Dec. 1, 2015 deadline for depleting existing inventory labeled under the old 1994 standard.

While OSHA issued guidance last year on its plans for enforcing the new standard, ACA in October, sought additional clarity, particularly regarding potential enforcement against companies that complied with the new standard in labeling new products but still had existing stocks in the supply chain labeled under the agency’s prior 1994 standard.

In an October meeting with OSHA, ACA faulted the agency’s 2015 enforcement guidance for a variety of reasons, including that manufacturers send safety data sheets to downstream distributors separately from product shipments, which could leave shipments in the supply chain out of compliance with the new standard.

In the March 10 letter, Galassi reiterates OSHA’s enforcement policy detailed in May 29 guidance, apparently clarifying aspects to industry’s satisfaction. The March memo says that while manufacturers may ship existing stocks labeled under the prior 1994 HCS after the June 2015 deadline for complying with the new rule, they must supply labels and safety data sheets that are compliant with the updated 2012 HCS.

Galassi outlines a similar requirement for distributors. While distributors do not have to relabel existing stocks packaged for shipment prior to the December 2015 effect date, they must obtain and provide labels and safety data sheets from the manufacturer or importer that comply with the 2012 standard.

In cases where distributors are unable to obtain the labels and safety data sheets, they must demonstrate that they exercised “reasonable due diligence and good faith” in trying to get those documents, OSHA says. All distributed containers must comply with the 2012 HCS by Dec. 1, 2017, the letter says.

In a March 29 blog post, ACA’s Stephen Wieroniey says OSHA’s recent letter of interpretation addresses some, but not all of the group’s concerns.

“ACA believes that this March 2016 LOI more clearly states OSHA’s expectations for existing ‘ready for shipment stock’ and product in the supply chain, and should alleviate concerns raised by the membership,” he says. “Ideally, this LOI will provide manufacturers and distributors with the specificity needed to remain confident that they are compliant when shipping HCS 1994-labeled stock beyond June 1, 2015 and Dec.1, 2015, respectfully.”

Wieroniey notes that the rule has taken effect and urges ACA’s members to comply with the HCS 2012 standard and document all good faith efforts to do so.

On its website, OSHA says the 2012 HCS update aligns the agency’s standard with the Globally Harmonized System of Classification and Labeling of Chemicals, which will help reduce trade barriers and bring a common and coherent approach to classifying chemicals and communicating hazard information on labels and safety data sheets.

Additionally, OSHA says the change will yield productivity improvements for companies that handle, store and use hazardous chemicals, while reducing costs for companies that periodically update labels and safety data sheets for chemicals covered under the HCS.


Labor Groups’ Suit Over Silica Rule May Signal Push For Stricter Standards

Apr 6, 2016   //   by .   //   Federal, News  //  Comments Off on Labor Groups’ Suit Over Silica Rule May Signal Push For Stricter Standards
A coalition of major labor groups is suing OSHA over its controversial rule setting new standards to limit occupational exposures to crystaline silica, suggesting they may push to strengthen the regulation even as industry groups argue the measure is unlawful because it is technologically and economically unachievable.

The coalition, including the AFL-CIO, United Steelworkers (USW) and United Auto Workers (UAW), April 1 petitioned the U.S. Court of Appeals for the 3rd Circuit to review OSHA’s March 25 silica rule.

While the groups have long pushed for the rule and welcomed its eventual release, they also argued in their comments on the proposed version of the rule that OSHA should strengthen the measure’s standards. For example, UAW said in its comments on the proposed version of the rule that the permissible exposure level (PEL) should be set at 25 micrograms per cubic meter (ug/m^3) “or lower where feasible” rather than the 50-ug/m^3 limit that OSHA proposed and later adopted.

“In general industry and maritime, engineering and work practice controls can reduce exposures to less than 50 μg/m3 for the vast majority of workers,” UAW said.

“In construction, where the changing and mobile nature of the work create more variable exposures, the preliminary feasibility analysis finds that for more than 82 percent of all construction workers engineering and work practice controls can reduce exposures to less than 50 ug/m3,” UAW added.

The labor groups’ petition was filed days before a a host of industry groups launched their own challenges in several other appellate circuits.

The multiple petitions ensure that the Judicial Panel on Multi-District Litigation will decide by lottery in the coming weeks which circuit will be the venue for the consolidated litigation. The panel’s decision will be important as the selected circuit could favor one side or the other due to past legal precedents.

Such suits must be filed within 10 days of the rule’s promulgation in order to ensure they will be considered in the judicial panel’s lottery.

Among the industry cases that have been filed so far, several construction industry groups have filed separate petitions in the 5th Circuit, while the Oklahoma Chamber of Commerce has sued in the 10th Circuit.

In addition, the Greater North Dakota Chamber of Commerce April 4 filed a petition for review in the 8th Circuit.

Rule’s Requirements

The rule at issue marked the first overhaul of OSHA’s silica standards in more than 40 years. Key among the changes is the agency’s decision to strengthen the current PEL for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 ug/m^3 to 50 ug/m^3 over eight hours.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements, including monitoring requirements.

The rule set two standards, one for the construction sector and another for maritime and general industry, such as brick manufacturing, foundries, and hydraulic fracturing.

According to OSHA, the rule generally requires employers to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

The rule also requires medical exams to monitor highly exposed workers and gives them information about their lung health.

Industry groups are expected to argue that the rule’s PEL is unlawful because it is economically and technologically unachievable, violating OSH Act requirements that the agency set standards to prevent unlawful risk and exposure.

But the labor groups charge in their comments that evidence in the rule’s record suggests PELs at levels at or below 25 ug/m^3 are achievable.

“Many of the underlying studies on which the feasibility analysis is based found that engineering and work practice controls — generally wet methods and local exhaust ventilation — reduced exposures for many workers to levels below the proposed PEL,” UAW says .

“Thus the feasibility analysis and the underlying evidence show not only that the 50 ug/m3 standard is indeed technologically feasible, it also provides evidence that in some operations, the proper and consistent application of available control measures can reduce exposures to 25 ug/m3 or below,” the group adds.


OSHA Draws Multiple Industry Challenges To Just-Promulgated Silica Rule

Apr 5, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Draws Multiple Industry Challenges To Just-Promulgated Silica Rule
Just days after its promulgation, OSHA’s rule setting strict new standards for crystaline silica has drawn at least three separate appellate challenges from various industry groups, launching a process that will allow the groups to make the case that the new exposure limits that are at the heart of the rule are economically and technologically unachievable.

An alliance of Texas, Mississippi and Louisiana construction industry groups April 4 asked the U.S. Court of Appeals for the 5th Circuit to review the rule.

The affiliated national organizations of the construction industry groups–the American Road and Transportation Builders Association, American Subcontractors Association, Associated Builders and Contractors (ABC), the Associated General Contractors of America, Mason Contractors Association of America, Mechanical Contractors Association of America and National Association of Home Builders–will join the Texas construction groups’ petition, ABC said in a joint press release.

A separate coalition of Texas foundries and other Lone Star state businesses April 4 also petitioned the 5th Circuit to review the measure.

In addition, the State Chamber of Oklahoma filed its own petition for review in the 10th Circuit.

The three challenges, as well as any subsequent petitions, will likely be consolidated and assigned to a single circuit to be selected in a lottery by the Judicial Panel on Multi-District Litigation.

The petitions come just days after the rule’s March 25 publication in the Federal Register, much sooner than the 60 days that challengers otherwise have. But in order to be considered in the lottery, petitions must be filed within 10 days of the rule’s promulgation.

The rule marked the first overhaul of OSHA’s silica standards in more than 40 years. Key among the changes is the agency’s decision to strengthen the current permissible exposure limits (PEL) for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 micrograms per cubic meter (ug/m^3) to 50 ug/m^3 over eight hours.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements, including monitoring requirements.

The rule set two standards, one for the construction sector and another for maritime and general industry, such as brick manufacturing, foundries, and hydraulic fracturing.

According to OSHA, the rule generally requires employers to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

The rule also requires medical exams to monitor highly exposed workers and gives them information about their lung health.

Industry Opposition

But the rule has drawn strong opposition from industry groups, especially those in the construction sector, who have long charged that the rule’s new PEL and action levels are technologically and economically unachievable.

“The construction industry raised numerous concerns regarding OSHA’s proposal, but the agency failed to address many of these issues when promulgating the final rule,” ABC said in its April 4 statement. “In particular, the industry presented substantial evidence that OSHA’s proposed [PEL] was technologically and economically infeasible,” the group added.

While the just-filed petitions do not detail the industry arguments, many industry groups detailed their arguments in comments on the proposed version of the rule, which included the same PEL and action level as the final version.

For example, in February 2014 comments on OSHA’s proposed rule, the Construction Industry Safety Coalition (CISC), an alliance of 25 construction sector trade associations that came together to address the silica rule, charged that the Agency had “not met its burden of demonstrating that the [rule] is technologically and economically feasible.”

For example, the alliance charged that OSHA did not identify all the construction tasks and worker job categories that would be affected by the proposal and also did not address the omitted tasks and job categories in the technological and economic feasibility analysis,. Similarly, the CISC charged that OSHA’s analysis does not consider the “broad range of tasks and variety of settings and environments” in which construction work occurs.

The CISC also charged that OSHA underestimated — by as much as a factor of four — the costs of implementing the rule. For example, the group said OSHA omitted at least1.5 million workers, including plumbers, roofers, electricians, plasterers, tile and marble setters and many of their helpers, from its analysis. “Together, the additional occupations increase OSHA’s base estimate of the affected workforce by approximately 50 percent,” CISC said.

In addition, the group charged that OSHA had used “highly unrealistic assumptions” about the costs and productive penalties associated with control equipments’ deployment and use in the construction industry. “OSHA has incorrectly estimated costs for engineering controls by assuming a more limited number of at-risk workers than will truly be affected by any final rule,” the group charged.

ABC said in its statement that OSHA “failed to take into account this evidence and moved forward with the same infeasible PEL in the final rule. This and other final rule provisions display a fundamental misunderstanding of the real world of construction.”


OSHA Delays Controversial PSM Chemical Concentration Enforcement Policy

Mar 31, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Delays Controversial PSM Chemical Concentration Enforcement Policy
Facing industry litigation and congressional criticisms, OSHA has delayed until the end of the 2016 fiscal year implementation of its controversial policy for determining threshold concentrations for when some so-called Appendix A chemicals are subject to the agency’s process safety management (PSM) standard for highly hazardous chemicals.

“Through September 30, 2016, employers will not be cited for violations of the PSM standard based on the June 5, 2015, enforcement policy,” OSHA said in a notice quietly posted to its website March 22.

“However, PSM citations may still be issued based on the previous ‘commercial grade concentration’ policy, under which OSHA considers the total weight of the chemical in the process at commercial grade concentrations and higher,” the statement adds.

The delay could complicate ongoing litigation challenging the policy filed by the American Chemistry Council and a host of other petrochemical industry groups, who are concerned that the policy could expand the universe of businesses subject to the PSM requirements without formal notice and comment.

And it could also give OSHA time to advance its pending PSM overhaul, which could eventually include codifying the now delayed enforcement policy.

At issue is OSHA’s June 5 enforcement policy on the concentration of a chemical that must be present in a process to determine whether the chemical is at or above the threshold quantity listed in Appendix A of the standard. OSHA says the revision falls under President Obama’s August 2013 executive order on improving chemical facility safety and security.

OSHA says the policy — known as the 1 percent policy — is intended to address inconsistencies and ambiguities in prior agency policy for determining when chemical concentrations subjected facilities to PSM requirements.

The current policy generally sets threshold concentrations for only 11 of the 137 chemicals listed in Appendix A. The remaining 126 substances that lacked specified concentration limits were subject to the PSM when they were present at commercial grade percentages of purity “because the commercial grade of most of the [highly hazardous chemicals] HHC’s is approximately 99 percent purity,” OSHA says.

In 1994, OSHA clarified that those 126 substances are covered at “commercial grade” concentrations and higher, with “commercial grade” defined as “a typical maximum concentration of the chemical that is commercially available and shipped.”

EPA Policy

But OSHA says that under the 1994 policy, it is not clear “whether the threshold quantity of a chemical without a specified concentration must be accounted for under the standard if the commercial grade concentration is significantly less than 99 percent or the chemical is used in the process at a concentration that is greater or lesser than maximum commercial grade concentration.”

In addition, it is not clear “whether the threshold quantity of a chemical in a mixture (e.g., a solution containing the chemical and a solvent) includes only the weight of the chemical or includes the weight of the mixture as a whole.”

OSHA was also concerned that the prior policy does not adequately account for the potential that the chemicals listed in Appendix A without specified concentrations may retain their hazardous characteristics even at relatively low concentrations.

To address such concerns, OSHA adopted the approach EPA used when it developed its List of Regulated Toxic Substances and Threshold Quantities for Accidental Release Prevention. There, EPA adopted a provision requiring that if a listed substance with no specified cut-off concentration is present in a mixture at a concentration of one percent or greater by weight, the threshold quantity of the substance must be determined unless the owner or operator can demonstrate that the partial pressure of the substance under all conditions in the process is below 10 millimeters of mercury (mm Hg).

“OSHA believes that the one percent concentration cut-off established in the EPA rule is the appropriate policy on the concentration of an Appendix A chemical that must be present in a mixture before the threshold quantity of the chemical must be determined,” OSHA says in the policy.

For chemicals for which no concentration is specified, employers are required to calculate “the total weight of the chemical in the process at a concentration of one percent or greater. However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg),” the policy says.

Stiff Resistance

But the policy, as well as several other guidance documents issued around the same time, was met with stiff resistance, in large part because the policies were developed without notice-and-comment rulemaking.

Key senators, including Lamar Alexander (R-TN), chair of the Senate health committee, and James Lankford (R-OK), chair of a key regulatory affairs subcommittee, formally requested that OSHA rescind the guidance, as well as several other informal policy measures issued around the same time, and go back to the drawing board with a public rulemaking process.

“These guidance documents took effect immediately when they were issued; therefore parties not previously subject to certain requirements were deprived of notice that they were about to fall subject to OSHA enforcement. For example, OSHA’s chemical concentration guidance substantially expanded the universe of chemical manufacturers and distributors subject to the process safety management standard,” they said in a Sept. 29 letter to Labor Secretary Thomas Perez.

And ACC and other petrochemical sector groups sued in the U.S. Court of Appeals for the District of Columbia Circuit. In its non-binding statement of issues, ACC said it would ask the court to determine whether the memo “violates the OSH Act, violates procedural requirements set forth in the Administrative Procedure Act (APA), or is arbitrary and capricious, unsupported by substantial evidence, or otherwise inconsistent with reasoned decision-making under the APA.”

The American Petroleum Institute said in its statement that the OSHA memorandum “will require members to identify and comply with industry standards not previously applicable.”

The industry petitioners are slated to file their opening briefs in the case June 10. Industry intervernors must file by June 27 and OSHA is slated to respond by July 28.

But even as the litigation is proceeding, OSHA is advancing a rulemaking to overhaul its PSM regulation that could include the clarifications in the June 5 policy memo.

The rulemaking is required by President Obama’s executive order 13650, “Improving Chemical Facility Safety and Security,” which requires the agency to “identify issues related to modernization of the PSM Standard and related standards necessary to meet the goal of preventing major chemical accidents.”

OSHA recently announced that it is conducting a Small Business Advocacy Review (SBAR) panel to determine any adverse impacts on small entities. Topics for consideration in the SBAR include consideration of “additional minor modifications which largely codify existing OSHA interpretations of the PSM standard” and “solicit feedback on any similar provision of EPA’s [risk management program] rule and the PSM standard that could be streamlined.”

An ACC spokesman declined comment.


OSHA’s Silica Rule Headed For Release After Clearing White House Review

Mar 22, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA’s Silica Rule Headed For Release After Clearing White House Review
OSHA’s high-priority but controversial final rule seeking to limit workers’ exposure to crystalline silica dust appears to be poised for imminent release after it cleared review by the White House Office of Management & Budget (OMB), usually one of the last steps before such regulations can be promulgated.

According to OMB’s website, the office completed the interagency review March 21, returning the final version of the rule to the Labor Department “consistent with” recommended changes.

The action clears the way for top officials to release the final regulation — long a top priority for OSHA Administrator David Michaels — early enough to avoid a likely privileged effort in Congress to block the measure while also ensuring that any litigation challenging the final rule will be handled by the Obama administration.

Michaels told Inside OSHA Online late last year that the silica rule will be completed “during Obama’s presidency,” thereby ensuring the administration that championed the measure will be responsible for defending it.

The proposed version of the rule sought to cut in half the permissible exposure limits (PELs) on crystalline silica dust in general industry and construction to 50 micrograms per cubic meter (ug/m^3), time-weighted average, and put numerous ancillary measures in place to prevent worker inhalation of the dust, which is blamed for silicosis and other illnesses following chronic exposures.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements.

But the proposed rule met with fierce opposition from industry, which argues that it is costly, infeasible and may not prove effective in reducing overall silicosis incidence rates.

As a result, the measure will almost certainly face numerous efforts to block its implementation. Industry sources, for example, have said they will challenge the rule in court. One industry attorney, for example, has said that “many employer groups see the action level of 25 ug/m^3 as a major issue from the economic and technical feasibility standpoints.”

Construction industry officials have also charged that the rule would be difficult to implement because it does not accommodate differences between work sites and the monitoring requirements could be costly.

Congressional lawmakers are also likely to oppose the measure. While lawmakers declined to include a rider blocking the rule in the omnibus budget legislation President Obama signed late last year, sources have said that lawmakers could seek to withhold funding for the measure in upcoming spending legislation.

But lawmakers appear unlikely to be able to overturn the measure under the Congressional Review Act (CRA), which creates a privileged process for Congress to try to block regulations if they act within 60 legislative days of a rule’s promulgation.

According to American Action Forum, a group that generally opposes regulations, says that in order for a rule to avoid a CRA resolution of disapproval it must be issued at least by May 17, though that may slip if lawmakers hold a lame duck session after the November election.