By Eric J. Conn, Head of the OSHA Practice Group

Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing “semi-annual” regulatory agendas that outline the status of on-going and intended federal regulations and standards.  Someone needs to tell the Administration that “semi-annual” means twice yearly, not every other year.

Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter.  Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012.  The only regulatory agenda published during 2012, was for Fall 2011.

Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration’s continued aggressive regulatory plans.

 

Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:

“The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public’s right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret.”

The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) — just in time for 2013.  Here are the OSHA-related highlights.  OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:

1. A new Confined Spaces in Construction standard (by July 2013)

  • For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
  • The Final Rule for the construction industry is expected this summer.

2. An updated Electric Power Transmission and Distribution standard (by March 2013)

  • Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines.  Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
  • The final rule is expected early this year.

3. Gutting Cooperative Programs (by April 2013)

  • OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
  • This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.

4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)

Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog.  On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog.  We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you.  Thank you for that.

Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013.  Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:

1.  Heavy-handed enforcement will continue to trend up:

During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue.  OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers.  The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement.  As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term.  Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.

In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history).  As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation).  OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation.  We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%.  Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M.  That trend is also expected to continue.

The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.

The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.”  Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.

Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions).  We anticipate a doubling down on programs and strategies like:

By Eric J. Conn

A federal jury recently awarded three workers approximately $180 million in damages for injuries sustained in a 2010 explosion at a grain elevator owned by ConAgra Foods, Inc.  See Jentz v. Conagra Foods, Inc., No. 3:10-cv-00747 (S.D.I. June 1, 2012).  At the one-month trial in the U.S. District Court for the Southern District of Illinois, the plaintiffs alleged that ConAgra and West Side Salvage Inc., a maintenance contractor and co-defendant, were liable for their injuries because they failed to:

  1. Clean the grain bin properly;
  2. Maintain wheat middling pellets (flour production byproducts used as animal feed) in a reasonably safe manner; and
  3. Take precautions necessary to protect and warn workers of hazardous conditions.

Finding that ConAgra and West Side acted negligently, the jury awarded the plaintiffs approximately and $80 million in compensatory damages and $100 million in punitive damages.  ConAgra is responsible for $160 million of the damages and West Side is responsible for almost $21 million.  Because ConAgra intends to appeal the verdict and damages, payment to the plaintiffs will be stayed until a final resolution of this case.

By way of background, on April 27, 2010, the plaintiffs were removing equipment from a concrete grain bin at ConAgra’s grain mill in Chester, Illinois when the bin exploded.  The plaintiffs alleged that the explosion occurred because the grain bin had not been cleaned in twenty years, causing the wheat middling pellets inside to self-heat, smolder, and explode.  Although all three plaintiffs survived, they sustained severe burns to their bodies and faces.

This significant verdict place grain handlers under even more scrutiny, and emboldens OSHA to intensify its active enforcement program targeting grain handlers’ programs.  Grain handlers should expect OSHA to continue performing comprehensive wall-to-wall inspections of grain elevators, issuing citations (many flawed and based on inconsistent interpretations of standards), and releasing inflammatory public statements about unproven allegations that carelessly harm employers’ reputations.  Prudent grain handlers, therefore, should proactively prepare for OSHA’s arrival by, at the very least:

  1. Implementing safety and health programs;
  2. Conducting regular audits of these programs and their effectiveness;
  3. Performing hazard assessments of workplace conditions;
  4. Training employees regularly on the hazards associated with grain elevators and their jobs; and
  5. Responding promptly to safety and health concerns.

Such preparatory and precautionary actions will enable grain handlers to showcase to OSHA a genuine and good-faith commitment to their employees’ safety and health.

 

Lindsay A. Smith, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC, office, contributed significantly to the preparation of this post.

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule.  Here’s the short list:

  1. New Hazard Classification Criteria
  2. New Method for Evaluating Mixtures
  3. Amended Label Requirements
  4. Proscrictive Format for Safety Data Sheet
  5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
  6. Information and Training Requirements
  7. Other Effective Dates
  8. Inclusion of a Category of Hazards Not Otherwise Classified
  9. No Preemption of State Tort Laws
  10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.

Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:

  1. Why it is important for grain handlers to prepare now for an OSHA inspection;
  2. What to do now to prepare for an OSHA inspection; and
  3. How best to manage an OSHA inspection once it begins.

The Grain Journal, a leading voice in the grain industry, published a three-part article series about my speech in its March/April issue.  The articles   – “OSHA Is Targeting You,” “Preparing for an Inspection,” and “During the Inspection” – can be found here at pages 68 – 80 of the March/April issue of Grain Journal.

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

 

  1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
  2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
  3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
  4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
  5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
  6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
  7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
  8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
  9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
  10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.

By Paul H. Burmeister and Eric J. Conn

At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months.  The agenda includes updates about the status of several major OSHA rulemaking efforts.  Below is a brief summary of the Reg Agenda.

This Reg Agenda was far less ambitious than each of the previous agendas set forth by the Obama Administration’s OSHA, but it does reveal the agency’s top priorities that will continue to be pressed even during an election year.  The highlights include:

  1. The Injury and Illness Prevention Program (I2P2) Rule going before a Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel review;
  2. Continued revision of OSHA’s permissible chemical exposure limits (PELs);
  3. Changes to OSHA’s Hazard Communication Standard are growing closer; and
  4. A projected date for Silica exposure regulations; and

I2P2 –SBREFA Panel is Imminent:

The most significant update in the Reg Agenda is the much-anticipated call for a SBREFA panel review of the I2P2 Rule.  The SBREFA Panel process provides an opportunity for small business representatives to offer input to OSHA on the potential impact of proposed regulations and to propose alternative regulatory approaches.

If implemented, the I2P2 Rule would require employers to “find and fix” workplace hazards, regardless whether the hazards relate to an existing OSHA standard.  More importantly, like OSHA’s “General Duty Clause,” an I2P2 rule would provide another means for OSHA to impose fines against employers in the absence any existing hazard-specific standard (i.e., in practice, if any injury occurs, the employer will likely be cited for failing to identify or correct the hazardous condition).

An I2P2 Rule has long been identified as the top regulatory priority for today’s OSHA, but to date, the public has not seen proposed regulatory language for the Rule.  That is about to change because under the SBREFA process, small business representatives will review and comment on an actual draft of the I2P2 regulatory text that OSHA would intend to publish as a proposed rule.  OSHA began the SBREFA process for the I2P2 rule on January 6, 2012, and announced that the SBREFA panel would be held within two months of that time (i.e., by the beginning of March 2012).  In anticipation of the I2P2 SBREFA Panel, OSHA published an Injury and Illness Prevention Programs White Paper describing OSHA’s expectations about injury and illness prevention programs, how they protect workers, existing I2P2 requirements under various OSHA-approved state programs, and costs associated with implementing I2P2 programs.

Permissible Exposure Levels To Be Re-Set:

The Fall Reg Agenda also reiterates OSHA’s continued efforts to re-evaluate permissible exposure limits (PELs), many of which have not been updated since1971.  PELs are the limits for how long an employee can be exposed to a hazardous substance without experiencing harmful effects.  OSHA’s new Reg Agenda indicates that OSHA is preparing a Request for Information, due out in August 2012, to seek “input from the public to help the Agency identify effective ways to address occupational exposure to chemicals.”  OSHA’s expectation is that more advanced research in this area will find that the current exposure limits are outdated.

HazCom Alignment with GHS Getting Closer:

The overhauled Hazard Communication Standard, which is intended to align the current OSHA Hazard Communication Standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), is growing closer to becoming a final rule.  The recently released Reg Agenda indicates that a final action for the Standard is due in February 2012, but the Rule remains under review at the Office of Management and Budget, where it has been stuck since October of last year.

Silica Rule Also Held Up at OMB:

Delays at the Office of Management and Budget have also held up OSHA’s proposed new standard for exposure to crystalline silica.  OSHA submitted the rule for review all the way back in February 2011, where it has remained buried since.  Nevertheless, OSHA plans to release the proposed work rule on silica exposure this month.

What’s Missing from the Reg Agenda:

While I2P2, Silica, PELs and HazCom remain on the agenda, and remain top priorities for today’s OSHA, the new Reg Agenda is remarkable for what is missing.  With no explanation, several items that had been featured in previous Reg Agenda updates were changed by OSHA in this Reg Agenda from active status to the “Long-Term Actions” category, effectively putting them on the backburner with the designation: “Next Action Undetermined” and completion dates of “To Be Determined.”

The two most notable items moving from active rulemaking to “Long Term Actions” in the new Reg Agenda include:

  1. Combustible Dust Standard, which has been in the works since 2009, following a recommendation from the U.S. Chemical Safety & Hazard Investigation Board.  See our previous post on the OSHA Law Update Blog regarding the status of the Combustible Dust Rulemaking.
  2. Musculoskeletal Disorder (MSD) Column on Recordkeeping Forms.  In January 2010, OSHA proposed to revise its Injury & Illness Recordkeeping Rule to add a column to check on the OSHA Form 300 if a recordable case is an ergonomic/MSD injury.  MSDs, for recordkeeping purposes, are disorders of the muscles, nerves, tendons, ligaments, joints, cartilage or spinal disc not caused by a slip, trip, fall, motor vehicle accident or similar trauma.  The Assistant Secretary of Labor for OSHA gave a speech in 2010 announcing that “OSHA’s field staff will be looking for ergonomic hazards in their inspections, and we will be providing them with the support and tools they need to enforce under the general duty clause.”  OSHA intended for this MSD Recordkeeping rule to be that ergonomics enforcement tool, as it would allow OSHA to characterize more ergonomic hazards as “recognized,” and therefore, more Ergonomic Citations issued under OSHA’s General Duty Clause.  Congress finally passed OSHA’s 2012 budget, however, and it included an addendum that stated: “None of the funds made available [in the entire budget] may be used to promulgate, administer, enforce, otherwise implement the [MSD] Column being developed by OSHA.”

Last week, the leaders of the grain industry in North Dakota gathered for their annual conference, this year the Centennial gathering of the North Dakota Grain Dealers Association.  I had the privilege of speaking at the conference, and share some background about OSHA’s increasing focus on the grain handling industry, a review of grain handlers’ rights vis-a-vis OSHA, and some strategies and tips for preparing for and managing an OSHA inspection.  I also had the opportunity to speak about OSHA’s approach to inspections in the grain industry at the National Grain & Feed Association’s annual country elevator conference.

 

Audience members at the conferences wrote articles that provide some detail about my presentations.  One article in AgWeek covers the increased enforcement activity and OSHA inspection rights and tips.  Another article in AgWeek reviews OSHA’s inconsistent and impractical enforcement stance regarding sweep augers inside of grain bins.  The last article, published in DTN The Progressive Farmer, covered OSHA’s focus on the grain handling industry and inspection strategies.

 

For more information about employers’ rights and strategies during an OSHA inspection, take a look at our OSHA Inspection Checklist, a desk reference for employers to use in preparing for and managing an OSHA inspection.

By Amanda R. Strainis-Walker and Eric J. Conn

OSHA’s keen interest in enforcement related to combustible dust shows no sign of waning as we close the door on 2011.  OSHA’s Combustible Dust National Emphasis Program (NEP), initiated in 2008, continued in earnest through 2011, and notably, has no expiration date.  The number of violations and the size of civil penalties arising out of the Combustible Dust NEP inspections continue to rise, and OSHA points to that data as support for its active pursuit of a comprehensive Combustible Dust Standard.

Combustible Dust NEP:

OSHA launched the Combustible Dust NEP after the U.S. Chemical Safety & Hazard Investigation Board publicized a study of 25 years of combustible dust incidents, which identified 281 combustible dust incidents that killed 119 workers and injured 718.  The NEP announced an aggressive inspection campaign with a scope that identified more than 30,000 facilities in 70 different industries as “at risk” for a combustible dust incident.

Since the Combustible Dust NEP inspections commenced, there have been more than 2,600 total inspections.

The resulting enforcement actions from these inspections have resulted in more than 12,000 violations (approx. 8,500 of which have been classified as Serious, Willful or Repeat), with an average of 6.4 violations per Chemical NEP inspection (twice the average of violations per all other types of inspections), and total civil penalties exceeding $24 million.

 

 

 

 

 

 

 

 

 

 

To date, the top six most frequently cited violations during Combustible Dust NEP inspections have included:

  1. Hazard communication (1910.1200)
  2. Respiratory protection (1910.134)
  3. Housekeeping (1910.22(a))
  4. Electrical safety (1910.305)
  5. Lockout/Tagout (1910.147)
  6. Electrical safety (1910.303)

Combustible Dust Rulemaking:

In October 2009, OSHA announced the issuance of an Advanced Notice of Proposed Rulemaking seeking comments regarding a comprehensive Combustible Dust Standard.  Since then, OSHA has been gathering information for its rulemaking docket through stakeholder meetings, site visits, and an expert forum.  The next step in the Combustible Dust Rulemaking is a Small Business Regulatory Enforcement Fairness Act (“SBREFA”) Panel to review the impact of the proposed rule on small businesses.  However, the SBREFA Panel has been delayed several times, in large part because OSHA has not been ready to unveil the actual proposed regulatory text for the Rule.

OSHA points to the “success” of the Combustible Dust NEP as evidence of a need for a comprehensive Combustible Dust Standard.

In a speech to the Steel Manufacturers Association in October 2010, the Assistant Secretary of Labor for OSHA, David Michaels, justified the rulemaking by explaining that “in [just] three years [of OSHA’s Combustible Dust NEP], we have found nearly 9,100 violations at inspected facilities . . . .”

The problem is, the NEP findings would only really support the need for a comprehensive Combustible Dust Standard if OSHA’s existing standards did not adequately outline for employers what steps they needed to take to protect employees from explosion hazards associated with combustible dust, or give OSHA the framework to adequately enforce unsafe combustible dust conditions through citations.  If that were actually the case; i.e., that OSHA’s existing standards were inadequate to address combustible dust hazards, then OSHA would surely be relying more heavily on its “catch-all” General Duty Clause in citations arising out of the Combustible Dust NEP.

In reality, however, that has not been the case.  The General Duty Clause logs in as the 7th most frequently cited from the Combustible Dust NEP, with fewer than 500 total citation items as compared to the top 6 violations citing existing specific standards (listed above), which accounted for more than 4,300 total citation items.  Similarly, on OSHA’s “Safety and Health Topics” Page for Combustible Dust, OSHA identifies a litany of existing standards it has in its arsenal to address combustible dust hazards:

All of this begs the question whether there really is a recognized hazard that is not sufficiently addressed by existing standards.

Regardless of standards cited under the Combustible Dust NEP, and whether there really is a need for a Combustible Dust Standard, two things are apparent as we head into 2012: (1) OSHA is finding ways to generate very significant enforcement actions related to combustible dust against employers across a broad spectrum of industries; and (2) OSHA is moving forward with developing a new comprehensive standard to address the explosion hazards associated with combustible dust.

*  Note that the Combustible Dust NEP enforcement data referenced in this post is current through October 2011.