Prometrix Safety Consulting OSHA / Safety & Health News Summary (2011 YTD)

House Ed/Workforce Subcommittee Holds OSHA Oversight Hearing Following Office of Inspector General Report

The Subcommittee on Workforce Protections recently held a hearing entitled: Is OSHA Undermining State Efforts to Promote Workplace Safety? The hearing stems from a critical OIG report released in March 2011 which asserted that the Agency has not defined what “as effective as Federal OSHA” means when it evaluated all of the 27 State Plan programs. The report further states that Federal OSHA has not evaluated the effectiveness of its own enforcement programs. The GAO has been requested to conduct such a reviewof the agency’s enforcement programs for effectiveness.

Representative Lynn Woolsey (D-CA) Announces Retirement (#OSHA)

The Ranking Member for the House Subcommittee which has jurisdiction over OSHA issues has announced that she will not seek re-election in 2012. Rep. Woolsey was an advocate for OSHA Reform. She introduced the Protecting Americas Workers Act (PAWA) bill in the previous and current Congress. Her retirement, coupled with the likely redistricting in Ohio where Rep. Kucinich is anticipated to lose his seat and other close races on both sides of the aisle, it is likely that this Subcommittee will experience significant “turnover”, particularly among longstanding members.

OSHA Proposes Changes to Reporting Rule (29 CFR 1910.39)

The current rule requires employers to report fatalities and injuries involving hospitalization of 3 or more employees to OSHA within 8 hours of the incident. The newproposed rule would require this reporting regardless of the number of employees hospitalized. Also, amputations will be have to be reported within 24 hours. Stakeholders are encouraged to submit comments on the proposal by September 30.

House Ed/Workforce Subcommittee Holds Hearing After IG Issues Report on DOL Financial Management

The House Subcommittee for Health, Employment, Labor, and Pensions (HELP) held ahearing on June 2 on the topic of the DOL IG report on financial mismanagement at the Department of Labor. The IG testified that multiple deficiencies were discovered by theindependent auditor (KPMG) despite a previous 10 year period with no identified weaknesses in the financial statements. The significance of this hearing and report are anticipated to impact the budget debate and Department funding level for 2012.

New (OSHA) Law Passes in Washington State Which Mandates Hazard Abatement During Contest Period

The Governor of Washington recently signed a new law into effect which mandates that employers correct the hazards identified in a citation — even if it is being contested. The new law changes existing rules whereby employers had no obligation to abate the cited hazards until the case was resolved. Approximately 10% of the citations in WA are contested in comparison to the national average of 7-8%.

OSHA Unveils Webpage for I2P2 (Injury & Illness Prevention Programs)

The Agency unveiled its webpage for safety and health management programs to help employers develop or enhance their own programs in order to better protect their employees. It is also a communication tool for employers to remain updated on developments of the new rulemaking on I2P2. Although many large employers already have sophisticated safety management systems, it is important to note that small businesses often service these same employers and may not be as developed with effective safety and health systems.

OSHA Announces Susan Harwood Grants for Safety & Health Training

The Agency is soliciting applications under the Susan Harwood Training Grant Program through which a total of $4.7M is available to various types of nonprofit organizations. The grants are intended to fund training for workers and employers to recognize and address workplace hazards. The key topics include: crane safety, fall protection, Hazcom, and a few others.

AFL-CIO Releases Annual Workplace Safety Report (OSHA)

Every year, the AFL-CIO publishes a workplace safety report entitled “Death on the Job”. The robust report includes national as well as state-by-state statistics and analysis related to occupational injuries, illnesses, fatalities across a multitude of industries as well as trends. The report cites the accidents at Upper Big Branch (mining), Tesoro (refining), and Kleen Energy (power) as evidence that additional regulations and stronger enforcement are needed to protect workers.

Occupational Safety & Health Review Commission (OSHRC) Rules on Statute of Limitations for Recordkeeping

With the March 11th unanimous ruling from the OSHRC on a case dealing with ’statute of limitations’ on recordkeeping (RK) violations, OSHA can cite employers for certain RK violations that occurred years earlier despite the OSH Act provision which places a 6 month statute of limitations. The commission agreed with the Agency’s argument that the RK violations were “continuous” (ongoing) whereas the unsuccessfully asserted that these were “one time events”. Conversely, one violation which was arguably a “one time violation” from years earlier was vacated.

OSHA Budget for Remaining FY2011 Will Remain in Tact While FY2012 is Debated in Congress

On April 14, the Congress passed a Continuing Resolution (CR) to fund government operations through the remaining part of this current fiscal year. Although there is a reported $38 billion cut in FY11 Federal spending, OSHA’s budget will remain at $559 million. Dr Michaels testified in a House Appropriations subcommittee as part of the FY2012 budget debate over the Administration’s request for a $24M increase to $583M. Stakeholders should expect the $583M to be lowered.

OSHA Launches National Outreach Program to Protect Workers from Heat Stress Hazards

OSHA launched a national campaign to address the issues of heat stress as a lead-up to the Summer season. Although the focus will primarily be for employees who work mostly outdoors (migrant workers, construction, etc), it ought to be noted for other industries as well since even a short duration can expose the employee to a serious hazard.

OSHA Reopens Public Record on Musculoskeletal Disorders Reporting Column

The Agency has reopened the record for rulemaking on MSD reporting so that interested

individuals and small businesses can submit comments on the issues raised during recent stakeholder conference calls. The recent conference calls and subsequent reopening of the record stems from criticism the Agency received last January when the Administration decided to temporarily withdraw the rulemaking in order to better solicit input from the small business community. The topic remains controversial with stakeholders taking opposing positions (support; criticism).

Agency Releases National Survey to Solicit Information from 19,000 Employers

OSHA launched a survey of private sector employers as a tool toward better designingfuture rules, compliance assistance and outreach efforts. Popular perception is that thecollected information will instead be used as justification and/or guidance in developing the controversial I2P2 (Injury & Illness Prevention Program) rule. Some stakeholders look to the conceptually similar rule implemented by Cal-OSHA in the early 1990s as a benchmark.

Senator Introduces Legislation for Oil & Gas Field (Wells) Safety: FASTER Act

Senator Casey (D-PA) recently re-introduced a bill seeking to enhance emergency response at oil and gas wells through new OSHA regulations that place additional safety and preparedness requirements on operators. Faster Action Safety Team Emergency Response (FASTER) Act seeks to require: a) an employee knowledgeable in emergency response to be present at the well at all times; b) a certified response team to be available within three hours of ground travel in the event of an emergency; c) availability of communication technology, such as satellite phones, at the well site; and d) OSHA to be contacted within one hour of the start of an emergency.

Chemical Facility Security Bill Gets Stakeholder Input

Stakeholder recently testified to Congress that a security program for “high-risk” facilities (CFATS) should continue. However, there was not any agreement on if or how changes should be made. The House Subcommittee on Environment and the Economy held a hearing on CFATS (H.R. 908) that would extend the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards program for seven years. The program monitors more than 4,000 high-risk chemical facilities, and requires them to develop and implement security plans.

New Bipartisan Legislation Introduced in House and Senate Which Would Codify VPP as a Permanent Program

Members of both parties in the House and Senate introduced bills which would protect OSHA’s prestigious Voluntary Protection Program as a permanent component of the Agency’s mission. VPP recognizes worksites with exemplary safety and health management systems.

Obama Issues Executive Order #13563: Improving Regulation and Regulatory Review

Obama signed an Executive Order which effectively directs regulatory agencies, including OSHA, to conduct a retrospective review of their regulations to determine which ones may no longer be applicable, are excessively burdensome, inconsistent, ineffective, or redundant. OSHA has been conducting such reviews for many years as part of Section 610 Lookback Reviews which have recently included Methylene Chloride, Lockout/Tagout, and Lead in Construction to name a few. More recently, OSHA withdrew MSD reporting rulemaking and Noise re-interpretation — actions credited to the Executive Order.

OSHA Withdraws Controversial Proposal for Re-Interpretation of the Noise Exposure Rule

On Oct 19, 2010, OSHA unexpectedly proposed a re-interpretation of the Noise Exposure rule. The new interpretation would have clarified the term ‘administrative or engineering controls’ with the intent of driving protection reliance away from PPE and toward higher controls. After extending the comment period, the Agency withdrew its proposal after receiving many concerned comments from the business community (NAM, API) as well as bipartisan objections from Congress over its costs and resource intensive impact.

Midterm Elections of 2010 Result in New Congressional Dynamics

The midterm elections resulted in Republicans gaining 63 seats in the House and 6 seats in the Senate. The House subcommittee with jurisdiction over OSHA (Workforce Protections) is part of the renamed Committee on Education & the Workforce (Ed&Wf). The new Chair (Rep Tim Walberg –R, MI) and Ranking Member (Rep Lynn Woolsey, D-CA) are not aligned in what approach the subcommittee should take with oversight. Walberg is targetingoversight on the regulatory agenda while Woolsey is focused on OSHA reforms (PAWA) as proposed in the previous Congress. Introduced legislation by the full committee can be found here. While makeup of the House Ed&Wf committee is dramatic, its counterpart in the Senate (HELP) experienced much less ’turnover’ and seems more focused on mining safety and other non-OSHA issues.

OSHA Head Says State Plans Should Increase Penalties

In a speech, Dr Michaels says that State Plan States should follow Federal OSHA’s lead in increasing their respective proposed penalties. With OSHA using the new methodology to calculate proposed penalty amounts, Michaels has suggested that State Plan programs ought to do the same as part of meeting their responsibility being “at least as effective” as Federal OSHA since penalties serve as a deterrent to noncompliance.

OSHA Expects to Make Final Actions on at Least Four New Items in 2011

The Agency is working diligently to publish at least these four new final rules by the end of this year. These include: Confined Space in Construction, Electric Power Transmission, Standards Improvement Project (see Exec Order #13563 above), and General Working Conditions in Shipyards. Globally Harmonized System (Hazcom) and Cooperative Agreements might also become final later this year. SBREFA for Combustible Dust is expected to start soon. The Unified Regulatory Agenda for Spring 2011 is anticipated to be published within the next month or so.

The Agency’s Organizational Chart is Updated with Three Senior Positions to be Filled

With early year retirements and other organizational changes, the Agency’s updated org chart is provided here. OSHA is currently seeking to fill these positions Director of Tech Support & Emergency Management, Director of Cooperative and State Programs, and Regional Administrator for Region 6. Leadership for these positions is provided on an “Acting” basis. Jim Maddux (formerly with Directorate of Standards and Guidance) was promoted to Director of Construction.

Agency Will Mark its 40th Anniversary

Dr Michaels is leveraging this major milestone to reinforce his message (speech) that OSHA is committed to providing employers with important information to keep their employees protected from hazards. He asserts that the Agency’s enforcement policies are not counterproductive nor do its regulations hamper economic growth as some have criticized. “Standards that protect workers and enforcement of those standards result in a level playing field where employers who invest in safety are not underbid by those who cut corners on safety”, Michaels said. In 1970, about 14,000 workers died in the United States. In 1972, there were 10.9 injuries or illnesses per 100 workers. Both those figures fell in the ensuing years to about 4,400 deaths and a rate of less than 4 injuries and illnesses per 100 workers in 2009. “While worker deaths, injuries and illnesses are far lower today than 40 years ago, they’re not low enough. There is still much work to be done.”