OSHA Update Newsletter – April 2012 (Prometrix Safety Consulting)

OSHA Releases Final Rule on Global Harmonized Standard (GHS) for Hazard Communications (HC)

OSHA published the Final Rule for GHS on March 26th and provides a tiered timetable for compliance extending up to about 4 years. The changes in the HazCom requirements bring it into alignment with international standards including pictograms and labeling practices. The highly controversial provision requiring Safety Data Sheets to include a section for Hazards Not Otherwise Classified (HNOC) is a reality that chemical manufacturers and users will need to address. It is reasonable to expect OSHA to eventually initiate a National Emphasis Program (NEP) to enforce the new standard. The business community has expressed concerns over how HNOC will be enforced, therefore, it could be anticipated that some of the early citations will be contested as all stakeholders explore the bounds of the new requirements. The petroleum refining industry proactively supported this rulemaking.

House Holds Hearings on Department of Labor’s (DOL) Budget for 2013

Secretary Solis testified before Congress (Education & Workforce and Appropriations) todiscuss the Administrations’ budget request of $12B for the Department of Labor, which includes $565M for OSHA. The request for FY2013 remains flat versus prior year and focuses additional resources on enforcement, particularly Whistleblower Programs “because the best way to promote compliance is to ensure workers can raise concerns without fear of reprisals.” Most of the OSHA discussions centered around how the agency is pursuing young worker protections in the agricultural/farming industry. The Secretary declared that the I2P2rulemaking was “on hold” with no indication of when or how it would proceed. The FY2013budget debate is expected to continue for months to come as lawmakers contend with the national deficits and the economy.

OSHA Solicits Input on Reinforcing Concrete and Backover Hazards

The Agency has published a Request for Information (RFI) concerning injuries and fatalities associated with reinforcing concrete as well as vehicle / equipment backing maneuvers. OSHA is seeking input on how to address these hazards and if rulemaking is an appropriate solution. Approximately 30 fatalities have occurred in reinforcing concrete activities during the past 10 years and 360 fatalities occurred from back over incidents between 2005-2010. Both hazards were merged into one item in the Fall 2011 Regulatory Agenda. Comments must be submitted by June 27th.

Court Decision Authorizes, Under Certain Conditions, OSHA to Subpoena 3rd Party Safety & Health Audits

A recent decision in the Solis v. Grinnell Mutual Reinsurance Company case authorizes OSHA to have access to 3rd party audit reports, unless those reports were provided under attorney-client privilege. The defendant argued that providing OSHA with the report would have a ‘chilling effect’ on other employers seeking such audits since those could be used against them in enforcement proceedings. There is a growing trend of OSHA utilizing such audit reports.

OSHA Released New Policy Related to Safety Incentive & Disincentive Policy and Practices

OSHA issued a policy to address their concern that employees may feel discriminated against if they report an injury, for fear of retaliation by the employer or coworkers, thus, becoming reluctant to seek medical attention, report the incident for OSHA recordkeeping, or file a workers’ comp claim. OSHA intends to protect the employee’s right to report unsafe conditions or accidents via whistleblower protections in accordance with Section 11c of the OSH Act.

OSHA Issues National Emphasis Program (NEP) for Chemical Facilities / Process Safety Management

The Agency issued a new NEP for chemical facilities (PSM) to protect industry workers from high consequence / low probability releases of highly hazardous chemicals. The NEP replaces the 2009 pilot enforcement program and covers facilities subject to the Process Safety Management standard. According to the Compliance Directive, the source for generating target lists will include EPA’s Program 3 Risk Management Plans (RMPs), OSHA database of sites (history of PSM violations), and others. The regulator anticipates 300 to 500 such inspections per year. Sites that are VPP/SHARP or have been subjected to a comprehensive PSM inspection within the prior 2 years will be excluded.

OSHA Organizational Structure Update

OSHA has made a number of changes in its leadership structure over the past number of months. Doug Kalinowski, former head of Michigan’s OSHA state plan with 30 years of related experience, was named the new Director for Cooperative & State Programs (DCSP: VPP, Alliances/Partnerships, Consultations, State Plans). The Agency has also rotated some of the Regional Administrators (RAs) among the different regions and National Office.