Browsing articles in "Federal"

OSHA Offers Good-Faith Employers Leeway On June 1 Hazcom Deadline

Mar 20, 2015   //   by .   //   Federal, News, Oregon  //  Comments Off on OSHA Offers Good-Faith Employers Leeway On June 1 Hazcom Deadline

OSHA is offering some enforcement leeway for companies that show good-faith efforts to meet an upcoming June 1 deadline for updating safety data sheets (SDS) and labeling mixtures of chemicals with known hazards under a 2012 worker right-to-know standard, though some in industry believe the agency’s new compliance directive demonstrates that industry should have challenged the rule as infeasible when it came out three years ago.

The development comes as OSHA separately contemplates moving forward on a yet another new hazard communication (HCS or hazcom) standard to keep the U.S. system up to date with the evolving United Nations-devised Globally Harmonized System (GHS) of classifying and labeling chemicals.

OSHA’s February enforcement directive guides compliance officers in dealing with situations in which employers are striving to meet the upcoming deadline but cannot feasibly do so because of circumstances outside their control, mainly the timing of upstream suppliers providing the information needed for updating the data sheets. June 1 is the date by which chemical manufacturers, importers, distributors and employers must be in compliance with all modified provisions of hazcom, other than two exceptions for distributors and employers, OSHA notes.

The new guidance applies only to compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of SDS and labels for chemical mixtures under the rule. It allows an extension of three to six months for employers found to be acting in good faith to comply with the SDS requirement based upon new information received from suppliers.

OSHA lays out an enforcement position for employers, including product formulators, that have exercised “reasonable diligence” and “good faith” to classify their chemical mixtures according to the 2012 rule and consequently develop HCS 2012-compliant SDS and labels.

Manufacturers and importers, in classifying mixtures, are permitted to rely on information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information, OSHA notes, citing the regulatory text.

But compliance officers, for inspections after the June 1 compliance date that involve a mixture that does not have a hazcom 2012-compliant label or SDS and in cases where the manufacturer or importer says it was unable to comply with the June 1 deadline, must determine if the employer has exercised reasonable diligence and good faith to comply with the terms of the standard. The policy only applies where the mixture’s material safety data sheet (MSDS) and label comply with the old hazcom standard issued in 1994.

OSHA says when necessary it will exercise its enforcement discretion to allow for a “reasonable time period” for manufacturers or importers to come into compliance. But on or after June 2, upstream raw material suppliers that do not have a hazcom 2012-compliant SDS or label available for downstream manufacturers or product formulators of mixtures will not be in compliance.

Upstream raw material suppliers must provide HCS 2012-compliant SDSs to downstream manufacturers or importers with the first shipment and after an SDS is updated. “If a downstream manufacturer or importer requests an updated SDS prior to receiving a new shipment, the upstream supplier must provide it immediately,” OSHA states. The agency says if it becomes aware of a manufacturer or importer requesting but not receiving a revised SDS from an upstream raw material supplier, the matter “shall be referred for further enforcement action” to the area office with jurisdiction over the employer and a citation will be considered.

OSHA describes “reasonable diligence” and “good faith efforts,” as, when requested by a compliance officer, documentation of “substantive efforts” to:

  • Obtain classification information and SDSs from upstream suppliers.
  • Find hazard information from alternative sources (e.g. chemical registries).
  • Classify the data themselves.

Establishing reasonable diligence and good-faith effort, according to OSHA, requires that the manufacturer or importer show it has tried to obtain the SDS through direct oral and written communication with the upstream supplier.

OSHA says in situations where a mixture is shipped by a manufacturer or importer after June 1 that does not comply with the latest hazcom requirements, the compliance officer will consider whether the employer:

  • Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts.
  • Developed and documented efforts to find hazard information from alternative sources like chemical registries.
  • Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its upstream suppliers.
  • Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with hazcom.
  • Developed the course of action to change to SDS and labels.

Any combination of these efforts may, depending on the circumstance, be consistent with reasonable diligence and good-faith efforts, though the compliance officer must consider all of the factors. OSHA says the inspector must consider whether the manufacturer or importer attempted to obtain the hazard information in a timely manner.

Compliance officers will consider on a case-by-case basis distributor efforts to comply with the rule’s Dec. 1 deadline for shipping with updated labels.There may be distributors that, due to a manufacturer or importer not being able to comply with the June 1 effective date despite its own efforts, are consequently unable to comply with the Dec. 1 compliance date, OSHA notes, adding that the inspector will determine whether a distributor exercised reasonable diligence and good faith to comply with the deadline. “In making such determination, a CSHO shall consider whether the distributor is able to document its communication with the manufacturer or importer about the circumstances for the noncompliance” with the rule, OSHA states.

Some in industry view the policy as demonstrating what OSHA should have done differently in the rulemaking, not later on through an enforcement directive. The U.S. agency’s approach contrasted with the European Union’s that far preceded the OSHA rulemaking, because the EU countries decided to tackle substances first, then mixtures several years later, instead of all at once as OSHA did with the June 1 deadline.

The EU had the Dangerous Substances Directive and the Dangerous Preparations Directive in place many years before adopting the Classification, Labelling and Packaging regulation, and those directives contained 85 percent of what was in the GHS, according to Larry Halprin, partner in Keller and Heckman, who has worked extensively on hazcom issues. “Therefore, in proceeding with HCS 2012, we essentially adopted the EU chemical hazard communication system plus a modified version of the pictograms already used in the transport sector,” he tells Inside OSHA Online.

“The collective determination of the EU, consisting of approximately 30 (plus) sovereign countries, was that, despite its enormous head start over the U.S. in implementing the GHS, it was essential to first phase in the classification/labeling/SDS for substances for several years and then phase in the classification/labeling/SDS for mixtures,” he says. “Inexplicably, OSHA asserted that it knew better and mandated a single deadline, which it now recognizes to be infeasible and the source of tremendous confusion and uncertainty.”

Such infeasibility could have formed the basis for a challenge to the rulemaking, Halprin suggests.

The rule at Section 1910.1200(g) provides an employer with three months to update the SDS from the time it receives significant new chemical hazard information, he notes. “While OSHA failed to explicitly address this question until it issued the February 9 memo, I believe the only logical interpretation of HCS 2012 is to treat the receipt of the initial HCS 2012-compliant SDS from the supplier as the type of new info that would trigger the three-month SDS update period rather than requiring the downstream formulator to provide an HCS 2012–compliant SDS for its formulation to its customers on June 1, 2015. Therefore, conditioning the application of this three-month period to receipt of the initial HCS 2012-compliant SDS, based on a demonstration of good faith, seems to be an attempt by OSHA to amend the HCS without rulemaking.”

Halprin says conditioning an extension of the period, from three to six months, on the good faith of the formulator probably falls within OSHA’s discretion, but again says that this suggests “compliance with the standard is generally infeasible for all formulators and this point should have been raised by formulators by filing a petition for review during the 59 days after the standard was adopted.” — Christopher Cole (

FEDOSHA calls for Arizona to Follow Federal Fall Protection Policy

Jan 22, 2013   //   by .   //   Federal, News  //  Comments Off on FEDOSHA calls for Arizona to Follow Federal Fall Protection Policy

FEDOSHA is demanding that the Arizona State Plan (“ADOSH”) follow federal policy regarding fall protection.  In some circles, this has been seen as a signal that FEDOSHA will more strictly construe and enforce its “at least as effective” measure of state programs in the second Obama term.  The American Society of Safety Engineers (ASSE) filed a formal “Complaint About State Program Administration” (aka “CASPA”) with FEDOSHA after Arizona state lawmakers adopted statutory language setting Arizona’s fall protection requirement at 15 feet.  FEDOSHA requires conventional fall protection at 6 feet with some limited exceptions.  FEDOSHA has stated that to be “as effective as” the federal program, ADOSH must implement the federal policy. If ADOSH does not, FEDOSHA apparently has threatened to trigger the process for assuming jurisdiction over setting standards and enforcement of fall protection in residential construction in Arizona.  With Arizona’s propensity to go its own way on a variety of issues,  the outcome over this dispute is unclear at this point.

Federal Osha Publishes General Industry Inspection Targeting Plan Changes

Jan 18, 2013   //   by .   //   Federal, News  //  Comments Off on Federal Osha Publishes General Industry Inspection Targeting Plan Changes

The link below references a Federal OSHA Notice that describes a Federal program change which establishes policies and procedures regarding general industry inspection targeting under the SST-12 plan. States with OSHA approved State Plans are required to have their own inspection targeting systems (a “core inspection policy”), which must be documented in their State Plans and revised as necessary to reflect current practices, and must include the elements of the plan described by Federal OSHA.  This program does not include construction worksites.  For more detailed information go to:


Jan 2, 2013   //   by .   //   Federal, News  //  Comments Off on OSHA’S TOP 10 VIOLATIONS FOR FISCAL 2012 ANNOUNCED

Federal OSHA has announced the preliminary Top 10 most frequently cited workplace safety violations for fiscal year 2012.  They are as follows:

(1)       Fall Protection – General Requirements (1926.501) – Total violations:  7,250

(2)       Hazard Communication (1910.1200) – Total violations:  4,696

(3)       Scaffolding (1926.451) – Total violations:  3,814

(4)       Respiratory Protection (1910.134) – Total violations:  2,371

(5)       Ladders (1926.1053) – Total violations:  2,310

(6)       Machine Guarding (1910.212) – Total violations:  2,097

(7)       Powered Industrial Trucks (1910.178) – Total violations:  1,993

(8)       Electrical – Wiring Methods (1910.305) – Total violations:  1,744

(9)       Lockout/Tagout (1910.147) – Total violations:  1,572

(10)    Electrical – General Requirements (1910.303) – Total violations 1,332

by Cummins, Goodman, Denley & Vickers, P.C.

OSHA’s use of General Duty Clause Rejected / Lack of Fair Notice

Sep 18, 2012   //   by .   //   Federal, News  //  Comments Off on OSHA’s use of General Duty Clause Rejected / Lack of Fair Notice

OSHA v. ERICKSON AIR-CRANE, Inc., OSHRC Docket No. 07-0645

This matter was brought before the Federal Occupational Safety and Health Review Commission for review following Employer’s appeal of the ALJ’s ruling that it violated the general duty clause of OSEA by exposing employees to fall hazards on top of a fuel tanker truck.  The Commission reversed the ruling, finding that Employer lacked fair notice of OSHA’s application of the general duty clause.

Employer was an Oregon-based corporation doing business in Nebraska providing helicopter lifting services to various industries.  Employer kept a fuel tanker truck stationed onsite.  On March 1, 2007, Employer suspended activities due to strong winds. The foreman instructed two employees to climb to the top of the tanker truck and repair a spare main rotor blade. During the repairs, a strong gust of wind knocked the box cover into one of the employees, causing him to fall 10 feet and sustain serious injuries. (Employer conceded that the foreman’s instructions controverted existing policies to remove the blade box from the top of the tanker truck before performing any repairs.)

The Employer was issued a citation for violation of the general duty clause because it did not require employees to wear fall protection. On appeal, the Commission ruled that Employer lacked fair notice of OSHA’s application of the general duty clause in this manner.  OSHA’s 1990 Fall Protection guidelines specifically listed exceptions for rolling stock, unless located near a building.  Here, the fuel tanker truck (“rolling stock,”) was not located near a building.

The Commission also found that the issue of whether Employer’s policies constituted means of abatement if followed properly was never pled by OSHA, never raised at Hearing by OSHA, and never consented to as a issue for trial by Employer.  In fact, the Commission determined that the only entity to raise the issue at hearing was the ALJ.  The Commission therefore reversed the ALJ’s ruling.

by Cummins, Goodman, Denley & Vickers, P.C.

OSHA SOL interpretation unreasonable – no deference given / recordkeeping violations dismissed

Sep 18, 2012   //   by .   //   Federal, News  //  Comments Off on OSHA SOL interpretation unreasonable – no deference given / recordkeeping violations dismissed

AKM LLC, v. Sec. of Labor, 675 F.3rd 752 (2012).

On May 10, 2006, OSHA began an inspection of AKM LLC, doing business as Volks Constructors (Volks), and discovered that Volks had not been keeping updated injury report logs, forms, and summaries between 2002 and early 2006.  On November 8, 2006, OSHA issued the following citations with associated fines totaling $13,300.00:

  • 67 violations of 29 CFR § 1904.29(b)(2)—alleging incident report forms were incomplete;
  • 102 violations of 29 CFR § 1904.29(b)(3)—alleging injuries were not entered in Volks’ log;
  • One violation of 29 CFR § 1904.32(a)(1)—alleging year-end reviews were not conducted between 2002 and 2005;
  • One violation of 29 CFR § 1904.32(b)(3)—alleging the wrong person certified the summary.

Volks appealed and moved to dismiss the citations because they were issued over six months since the occurrence of the most recent allegedly improper injury recording on April 22, 2006. The Administrative Law Judge affirmed the citations.  Volks’ appealed to the Review Commission. OSHA argued to the Commission that all cited violations were “continuing violations” because Volks had yet to rectify dating back to 2002.  As such, by OSHA’s reasoning the statute of limitations would not expire until the end of the five year document retention period in 29 CFR  § 1904.33(a). In a split decision, the Review Commission upheld the citations.  Volks’ appealed to the US Court of Appeals – DC Circuit.

The Court of Appeals framed the question on appeal as “whether the Act’s record-keeping requirement, in conjunction with the five year regulatory retention period, permits OSHA to subvert the Act’s six-month statute of limitations.”  The Court of Appeals held that, contrary to the Secretary’s interpretation, the Congressional intent behind the six month statute of limitations in the Act for issuance of citations was clear and exact.  As such, deference to OSHA’s interpretation was not appropriate nor warranted in this case.  Additionally, the Court of Appeals defined the word “occurrence” within the statute of limitations as a “discrete antecedent event.”  In this particular instance, the Court explained, each time Volks failed to report an injury, make a record, or review a record was one such “occurrence.”  The most recent “occurrence” took place more than six months before the issuance of the citations. The Court further held that the five year window for “failure to maintain records” could not be employed if those records had never been created to begin with, as alleged in the November 2006 citations. The Court of Appeals vacated the citations as untimely.

by Cummins, Goodman, Denley & Vickers, P.C.