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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 (ccole@iwpnews.com)

Senate Republicans Call On Obama To Demand Immediate Resignation Of CSB Chair

Mar 17, 2015   //   by .   //   News, Oregon  //  Comments Off on Senate Republicans Call On Obama To Demand Immediate Resignation Of CSB Chair

Two key Senate Republicans on safety and environmental issues are demanding President Obama immediately call for the resignation of Rafael Moure-Eraso, the chair of the U.S. Chemical Safety Board (CSB) who has been roiled with controversy on Capitol Hill and in interactions with the agency’s inspector general (IG) over allegations of mismanagement, power abuse and whistleblower retaliation.

The fracas with lawmakers on both sides of the aisle and executive branch oversight officials that has entangled Moure-Eraso – particularly in recent weeks – threatens to debilitate the administration of CSB at a crucial time as the board works to complete a series of investigations into chemical disasters and the likely ensuing recommendations to OSHA and other entities concerned with protecting chemical facility workers.

Sen. James Inhofe (R-OK), chair of the Environment and Public Works Committee that oversees CSB, and Sen. Mike Rounds (R-SD), chair of the subcommittee on Superfund, waste management, and regulatory oversight, cited what they described as “failed practices” of Moure-Eraso and “the lack of credibility created by him and his leadership team at this important agency” as reasons for penning the March 12 letter.

They tell Obama in the letter that CSB “can no longer continue to operate credibly under this leadership, and it is therefore our recommendation that you ask for Chairman Moure-Eraso’s immediate resignation.”

The GOP senators go as far as to contend illegal activity in justifying the call for resignation. “There is no doubt that the CSB serves a critical public safety role. However … there is also no doubt that Chairman Moure-Eraso has lost the confidence of CSB staff, the EPA OIG, and Members of both parties in Congress,” they wrote. “While Chairman Moure-Eraso has confirmed he will step down at the end of his term in June, it is our strong view that restoring the public’s confidence in the CSB cannot wait that long. He has violated his oath of office. He has violated the law.”

A top CSB official told Inside OSHA Online that the agency declines to comment on the letter.

Recently House oversight members held a second hearing within a year to probe allegations of whistleblower reprisal and layered on top of previous allegations a new contention that abuse of power occurred at CSB through consolidation of authority within the agency chair. There is also a dispute over use of personal email for official CSB business and differences with the IG over what documents must be turned over.

At the House hearing there was a bipartisan call for Moure-Eraso’s ouster or his resignation or early retirement. Numerous parties, including Moure-Eraso, other board members of CSB and the IG’s office have formally weighed in on the controversy.

Inhofe and Rounds noted that CSB was created by the Clean Air Act and is an independent agency that serves a “vital role” in investigating industrial chemical incidents and issuing reports and recommendations to prevent future incidents. But they contended that since 2010, the CSB’s fulfillment of this mission has been “severely compromised” by the leadership of Moure-Eraso and his senior staff.

The letter outlines a series of events leading up to the current dispute.

The IG in September 2012 began investigating whether the identities of CSB whistleblowers had been unlawfully revealed to CSB leadership, the letter says. “In the course of this investigation, the EPA OIG requested documents from Chairman Moure-Eraso relating to complaints that CSB officials were using nongovernmental email accounts to conduct official CSB business. According to IG [Arthur] Elkins’ testimony before Congress in July 2014, ‘The CSB refused, and to this day continues to refuse, to provide the documents the EPA OIG requested and has determined are necessary for this investigation into those CSB activities.’ As IG Elkins concluded in his July 2014 testimony, Chairman Moure-Eraso’s refusal to comply with his repeated requests amounts to ‘disregarding the law that Congress wrote for the protection of taxpayers.'”

Elkins in February again testified before the House oversight panel, “this time verifying to Congress his belief that the Chairman and CSB senior staff had violated law,” the senators said.

The inspector general, they noted, confirmed that he has sent Obama the findings of his investigation containing the following conclusion: “There is evidence sufficient to support a conclusion that the Chairman and two of his senior officials violated the Federal Records Act, and implementing regulations, by using non-governmental email systems to conduct official government business and not capturing those emails in the CSB records system.”

Inhofe and Rounds said that finding is merely the latest development in a string of controversies, also citing that in June 2014, the final report of a joint congressional investigation found that CSB leadership under Moure-Eraso engaged in a “pattern of hostility toward career staff and whistleblowers” where CSB employees “fear retaliation” if they disagree with the chairman or other members of the leadership team; “manipulated and ignored agency regulations and protocols;” and displayed “utter disregard for the collegial tradition” of CSB, “effectively rendering the CSB unable to issue any recommendations and fulfill its mission.”

Inhofe and Rounds said in June 2014 that Moure-Eraso testified before the House oversight committee “and refused to commit to complying with the EPA OIG investigation.”

“Members of the committee from both parties expressed deep concern about the ability of the CSB to fulfill its public role under the leadership of Chairman Moure-Eraso,” they told Obama. “At this hearing, CSB Board Member Mark Griffon’s written testimony stated, ‘It is clear that management deficiencies — including an untenable turnover rate — have also contributed to the inefficiencies in completing investigations.’ Former CSB Board Member Beth Rosenberg also testified that, in her time on the CSB Board, ‘Those whose opinions differed from those of senior leadership or the Chair are marginalized and vilified. At the CSB, disagreement is seen as disloyalty. Criticism is not welcome and staff fear retaliation.'”

Inhofe and Rounds also noted to the president that the House oversight panel in March held another hearing on CSB. “At this hearing, Board Member Mark Griffon stated ‘At this point, I’ve lost all confidence in the Chairman.’ Ranking Member Elijah Cummings (D-MD) stated that the CSB Chairman’s actions ‘shock the conscience’ that the ‘leadership has become dysfunctional’ and he asked the Chairman to ‘give some thought to taking an early retirement and letting this agency move forward.’ Rep. Gerry Connolly (D-MD) further stated that his ‘hope is that this morning’s hearing may finally cause Chairman Moure-Eraso to recognize that it is in the best interests of the CSB for him to immediately step down and allow the agency to make a complete break from its current state of scandal and disrepair[.]'”

Moure-Eraso still has more than three months left in his appointed term. Obama has already appointed as his successor Vanessa Sutherland, who awaits Senate confirmation. – Christopher Cole (ccole@iwpnews.com)

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Oregon Workers Compensation Board rules Claimant required to cooperate with employer/insurers reasonable investigation. Claimant’s attorney sanctioned.

Sep 17, 2013   //   by .   //   News, Oregon  //  Comments Off on Oregon Workers Compensation Board rules Claimant required to cooperate with employer/insurers reasonable investigation. Claimant’s attorney sanctioned.

In The Matter of the Compensation of Tracey Sklenar, WCB #12-00548.  On October 3, 2011, Claimant filed an occupational disease claim for work-related stress allegedly stemming from her job. On October 11, 2011, Claimant and her attorney were notified that as part of the investigation of her claim, a deposition had been scheduled for October 26, 2011, pursuant to ORS 656.262 and OAR 436-060-0135.

Claimant and her counsel refused repeatedly to submit to the deposition. Instead they offered to submit to a recorded statement.  Claimant was advised that her failure to cooperate with the deposition would result in remedies being sought with the Workers Compensation Division.  The non-cooperation continued. On November 1, 2011, the Oregon Workers Compensation Division (WCD) advised Claimant and her counsel that her benefits would be suspended. The WCD also informed Claimant’s counsel that he may face civil penalties for his unreasonable refusal to cooperate with the deposition.

On December 2, 2011, the WCD suspended Claimant’s compensation.  Thereafter, a non-cooperation claim denial issued.  Also, the WCD levied a civil penalty against Claimant’s counsel for his conduct associated with the non-cooperation.

Claimant and counsel appealed. Claimant argued that she cooperated because it was her option to choose the investigation/information gathering method. Claimant also argued that if her conduct constituted a failure to cooperate, her non-cooperation was beyond her control because she was following her attorney’s advice.

The Oregon Workers Compensation Board ruled that the employer/insurer had the right to choose among the investigatory options, including a deposition, authorized by the statute.  Claimant could propose alternatives, but ultimately, Claimant was required to cooperate.  The Board further ruled that Claimant could not point to her attorney’s bad advice to excuse her failure to cooperate.  The Employer’s denial was upheld.  The sanction assessed against the Claimant’s attorney was affirmed.

OR-OSHA SEEKS TO UNDO “ROGUE SUPERVISOR” CASELAW

Oct 24, 2012   //   by .   //   News, Oregon  //  Comments Off on OR-OSHA SEEKS TO UNDO “ROGUE SUPERVISOR” CASELAW

Issue: On November 7, 2012, OR-OSHA will convene what it hopes will be the one and only discussion with employers concerning its intent to promulgate a brand new “employer knowledge” rule in Oregon. As reflected below, it can be reasonably inferred that the purpose of that rule will be to make employers strictly liable for the bad acts of supervisors. Promulgation of this new rule constitutes an attempt to undo existing case law in this state that provides employers with reasonable protections against this “strict liability” approach and presents serious dangers to all Oregon employers.

Existing Law:

  1. To establish that a citation is valid, OR-OSHA must prove the cited employer either knew (actual knowledge), or reasonably could have known (constructive knowledge), of the violative condition.
  2. Since 1999, the Oregon appellate courts have made it clear that constructive knowledge does not exist where the evidence indicates that the violation resulted from the “bad acts” of a “rogue supervisor.” The courts have held that a “rogue supervisor” is one who acts contrary to an in-place and enforced safety program, where the facts show that such acts were not reasonably foreseeable by the employer. This holding was re-affirmed this year by the Court of Appeals in OR-OSHA v. CC&L Roofing.

OR-OSHA’s Apparent Agenda: Notwithstanding the caselaw going back to 1999, up until the Court of Appeals decided CC&L in February 2012, OR-OSHA’s position was that evidence that a supervisor was involved in the commission of a violation conclusively satisfied its burden of proving “employer knowledge.” In other words, OR-OSHA’s position was that the employer was “strictly liable” for the bad acts of all supervisors, including “rogue supervisors.” CC&L made it clear that OR-OSHA was wrong in this regard. OR-OSHA obviously didn’t like this answer. It would appear that the agency is now intending to achieve through an administrative rule what it failed to achieve in the courts.

Downside for Employers of Such a “New Rule”: While there are numerous downsides to an OR-OSHA administrative rule making employers strictly liable for the bad acts of supervisors, one in particular stands out. That is the effect of such a rule on third party, or “action over” lawsuits. Such suits often arise out of accidents that happen on multi-employer worksites. The allegations typically surround an injury/fatality to an employee of one employer on a worksite. The employee or the employee’s estate alleges that the negligence of a different employer contributed to the occurrence of the accident. Such lawsuits typically involve alleged damages in the six- to seven-figure range. If the employer targeted in such a suit has been cited by OR-OSHA for a violation tied to the cause of the accident, liability can be assumed as a matter of law. After such per se liability is attached to a case, the only issue is damages, meaning how much the employer will pay. No “not guilty” defense can be made. It therefore becomes critical for employers to not be wrongly cited for violations linked to injuries/fatalities. Yet OR-OSHA’s “strict liability for the bad acts of supervisors” rule would do exactly that; meaning employers would be cited for the acts of “rogue supervisors” notwithstanding appellate court decisions to the contrary. The result of such strict liability in OSHA enforcement cases would be strict liability in third party lawsuits, as well.

SUGGESTED ACTION:

  1. Show up at the meeting at the OR-OSHA Portland Field Office on November 7th at 9:00 a.m. and object to OR-OSHA’s intended course of action.
  2. Involve the lobbyists of your trade associations to also object.
  3. Request that OR-OSHA convene more than just the one planned meeting to allow for fair input from employers throughout the state.

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

Opposition to OROSHA Penalty Increase Rules Grows

Dec 21, 2011   //   by .   //   News, Oregon  //  Comments Off on Opposition to OROSHA Penalty Increase Rules Grows

The Oregon Self Insurers Association files opposition to OROSHA’s proposed rule changes.   OSIA’s membership includes certified self-insurers/employers, large-deductible insurereds /employers, and persons, firms, and organizations associated with its members.

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

OR-OSHA v. Moore Excavation

Sep 28, 2011   //   by .   //   News, Oregon  //  Comments Off on OR-OSHA v. Moore Excavation
WCB # 08-00169SH (7/28/11) – OR-OSHA cited employer for failure to tag and remove a damaged ladder from the worksite. At hearing, OR-OSHA argued that the “employee exposure” element of its burden of proof was satisfied with evidence that the ladder “could possibly” be used. The Administrative Law Judge rejected OR-OSHA’s argument. HELD: A violation would be established if it were reasonably predictable that, as a result of the employer’s failure to tag and/or withdraw from service the defective ladder, an employee would attempt to use the damaged ladder. No such evidence was offered. Citation and Notification of Penalty vacated. OR-OSHA has appealed the matter to the Oregon Court of Appeals.

OR-OSHA – Legislative Update

Sep 28, 2011   //   by .   //   News, Oregon  //  Comments Off on OR-OSHA – Legislative Update

HB 2222 

  • Signed by Governor June 18, 2007
  • Amends ORS 654.176 and 654.182.
  • Effective January 1, 2008

All public and private employers, regardless of size, must now have a safety committee or hold safety meetings. Employers of ten or fewer employees used to be exempt unless certain criteria were found by the Director of DCBS. Now, if an employer is agricultural, classified as “small”, or has mobile work sites, rules must be adopted to meet their special needs and providing for alternate forms of safety committees and meetings. “Small” no longer appears to be defined by statute and is left to rule-making. Read more >>