President Obama recently issued the Department of Labor’s budget request for fiscal year (FY) 2015. As part of the budget request to Congress, the Occupational Safety and Health Administration (OSHA) is seeking a total budget of $565 million, which is an increase of $12.7 million from the enacted FY 2014 budget.
OSHA is also requesting an additional $3 million for federal enforcement of the health and safety standards of the Occupational Safety and Health Act of 1970, as well as an additional $4 million and 27 FTEs to increase the resources needed to investigate and administer 22 whistleblower statutes under the Whistleblower Protection Programs. The budget also requests an additional $400,000 for the State Programs budget in order to fund the recently approved public employee State plan in Maine and an additional $3.5 million for the State Programs budget to ensure that the states have the resources to run programs that are as effective as OSHA’s Federal enforcement.
OSHA’s budget request for safety and health standards, technical support, and compliance assistant remain relatively flat with virtually no increase in funds.
In the FY 2015 budget, OSHA also includes two proposed amendments to its appropriation language: (1) a request to increase the amount that OSHA may retain from training institute course tuition and fees from $200,000 to $499,000 per fiscal year; and (2) a proposal to allow targeted inspections of small establishments that may have potential for catastrophic incidents (e.g., those subject to Process Safety Management or the EPA’s Risk Management Program).
Of particular note in the FY 2015 budget, OSHA asserts that the:
current appropriations language limits OSHA’s ability to conduct safety and health inspections of small businesses (10 or fewer employees) in industry codes that have lower-than-average workplace injury and illness rates. Neither the number of workers in a company nor low injury and illness rates, however, is predictive of the potential for high-consequence catastrophic incidents, resulting in multiple casualties and extensive property damage that can damage whole communities.
In the last installment of this LOTO series, we address the periodic inspections and training requirements.
Are We Performing Periodic Inspections?
Employers are required to conduct periodic inspections of their energy control procedures at least annually to ensure that they are being effectively implemented and to correct any deviations or inadequacies. 29 C.F.R. § 1910.147(c)(6). The periodic inspection must be performed by an “authorized employee” other than the one(s) utilizing the procedures being inspected.
The periodic inspection shall include a review between the inspector and each authorized employee of that employee’s responsibilities under the energy control procedures and of the limitations of the tagout systems, if used, as provided for in 29 C.F.R. § 1910.147(c)(7)(ii).
The employer is required to certify that that the periodic inspections were performed. The certification shall identify (1) the machine or equipment on which the energy control procedure was being utilized; (2) the date of the inspection; (3) the employees included in the inspection; and (4)the person performing the inspection.
Now that you have considered whether you are covered under the LOTO standard, it is time to consider whether you actually meet the basic requirements of the standards and have proper energy control procedures for each piece of equipment.
Do We Meet the Basic Requirements under the LOTO Standard?
If employees are exposed to hazardous energy during servicing and maintenance activities and one of the exceptions above do not apply, then employers must establish, at a minimum, a program consisting of detailed energy control procedures for each piece of equipment, employee training, and periodic inspections. 29 C.F.R. § 1910.147(c)(1).
Do We Need and Have Detailed Energy Control Procedures?
Energy control procedures for each piece of equipment must be developed, documented, and utilized when employees are engaged in servicing and maintenance activities unless all of the following elements exist:
It seems that just about every week the Occupational Safety and Health Administration (“OSHA”) issues citations to another employer for its alleged failure to implement the requirements under the Control of Hazardous Energy standard, 29 C.F.R. § 1910.147 (better known as the Lockout/Tagout (“LOTO”) standard). In fact, the LOTO standard has consistently been one of the top ten frequently cited standards issued by OSHA over the last several years. Small or unsophisticated employers are not the only ones at risk for receiving citations for LOTO issues. So, as spring approaches (eventually), it is a good time to do a little bit of “spring cleaning” with respect to your LOTO Program to ensure that if OSHA shows up at your worksite, you can feel confident that your program meets the necessary requirements and you have significantly reduced your risk for receiving a citation.
Over the next few days, we will address some of the key questions you can be asking while evaluating your LOTO program. Continue Reading
On February 11, 2014, OSHA issued a long awaited Shipyard Employment “Tool Bag” Directive (CPL 02-00-156). While the Directive provides compliance guidance to Compliance Safety & Health Officers (CSHO) for inspections of shipyard employers, it also provides guidance to covered employers. The Directive is a source of information on how OSHA interprets various requirements and provides answers to commonly asked questions relating to the shipyard industry.
A significant portion of the Directive covers the relatively new requirements in Part 1915, Subpart F – General Working Conditions in Shipyard Employment. On August 1, 2011, OSHA issued a final standard for General Working Conditions in Shipyard Employment, which set out requirements in the following areas:
- Housekeeping, Lighting, and Working Alone
- Medical Services/First Aid and Sanitation
- Lockout/Tags-Plus (control of hazardous energy)
- Motor Vehicles
Many of the revisions in the new rule are simply updates to existing requirements; however, the final rule is significant in that it is the first time that OSHA has established requirements for the control of hazardous energy (lockout/tagout) in the shipyard industry. The new Directive provides guidance, including answers and questions regarding the application of lockout/tags plus in the shipyard industry.
A copy of the Directive can be found here:
The comment period ends on March 10, 2014, for OSHA’s request for information (“RFI”) on the potential revisions to its Process Safety Management (“PSM”) standard, Explosives and Blasting Agents standard, the Flammable Liquids standard, and Spray Finishing standard. This RFI fulfills one of the Agency’s requirements under President Obama’s Executive Order 13650, entitled Improving Chemical Facility Safety and Security.
OSHA identified the following topics as potential candidates for rulemaking or enforcement policy changes and included a list of questions specific to each:
1. Clarifying the PSM exemption for atmospheric storage tanks. OSHA seeks comments on whether it should clarify that the PSM standard covers all stored flammables when connected to, or in close proximity to, a process.
2. Oil- and Gas-Well Drilling and Servicing Exemption. OSHA requests public comment on whether it should retain or remove the current Oil and Gas Well Drilling and Servicing exemption from the PSM standard.
Over the last several years, Federal OSHA has become increasingly active with “policing” state approved plans – states that develop and operate their own job safety and health programs. Recently, Cal/OSHA has come under fire for how it classifies a repeat citation.
Currently, Cal/OSHA classifies a repeat violation as
a violation where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation. For the purpose of considering whether a violation is repeated, a repeat citation issued to employers having fixed establishments (e.g., factories, terminals, stores . . .) will be limited to the cited establishment; for employers engaged in businesses having no fixed establishments (e.g., construction, painting, excavation . . .) a repeat violation will be based on prior violations cited within the same Region of the Division.
Cal. Code Regs. tit. 8, § 334
In short, for a fixed establishment, such as a factory, Cal/OSHA limits a repeat citation to a violation occurring only at that establishment. For non-fixed establishments, such as construction, a repeat citation is based on prior violation occurring only within the same region.
This definition is at odds with how Federal OSHA treats a repeat citation. Federal OSHA will issue a repeat citation if an employer has been cited previously for the same or substantially similar hazard anywhere within federal jurisdiction. For example, if an employer is cited in New York for failing to have a forklift operator trained, that same employer is susceptible to a repeat citation for the same violation in Texas. Currently, Federal OSHA only considers an employer’s violation history within the past five years.
Federal OSHA is pressuring Cal/OSHA to align with the federal repeat criteria and base a repeat classification off prior violations statewide. Cal/OSHA has yet to propose regulatory language revising the definition of a repeat. However, in an effort to solicit public comment on the timing and geographic requirements for a repeat citation, Cal/OSHA will hold a public meeting from 10:00 am to 3:00 pm on Thursday, March 13, 2014 at the Oakland State Building, 1515 Clay Street, 13th Floor, Suite 1304.
In addition to proposing a three-year extension to the operator certification requirements under the final cranes and derricks in construction standard, 1926 – Subpart CC, OSHA further extended the temporary enforcement policy memorandum regarding the use of proximity alarms and insulating links on cranes and derricks operating near power lines.
OSHA’s final standard for cranes and derricks in construction provides employers with several options for operating cranes near power lines. One option includes the use of a proximity alarm or insulating link/device. These devices “warn of proximity to power lines or that insulate against electricity.” 29 C.F.R. § 1926.1401. Additionally, these devices are required to be listed, labeled or accepted by a Nationally Recognized Testing Laboratory (NRTL).
Currently, however, no proximity alarm or insulating link/device has been approved or meets the NRTL requirements. Because of this, in July 2012, OSHA issued a temporary enforcement policy memorandum informing compliance officers that if a crane or derrick being inspected has an insulating link/device, no citation shall be issued, so long as employees are properly protected by an” additional measure” listed in § 1926.1407(b)(3) or § 1926. 1408(b)(4). For example, this additional measure could include using a dedicated spotter or range control warning device.
This temporary enforcement policy memorandum expired on November 8, 2013. On January 24, 2014, OSHA requested that all regional offices continue to follow the July 2012 temporary enforcement policy. OSHA anticipates issuing another memorandum updating the July 2012 enforcement policy in the next few months. Additionally, OSHA plans to propose further rulemaking to address this issue, however, it is unclear when the Agency will move forward with a proposed rule.
In the final cranes and derricks in construction standard, 1926 – Subpart CC, which was issued August 9, 2010, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k). On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline and requested public comment on or before March 12, 2014.
This extension is due, in part; to issues pertaining to the requirements in the standard addressing crane operator certification that arose shortly after OSHA issued the final rule. After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane.
This interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training. In November 2012, International Union of Operating Engineers (“IUOE”) petitioned OSHA to reverse its interpretation and to amend the “Capacity and Type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1).
Many in the regulated community have argued that certification for the specific “capacity” of crane was never an issue during the negotiated rulemaking hearings and specifically that at the time of the negotiated rulemaking, separate certification for different capacities was not available. Stakeholders generally assert that certification should be limited to the type of crane, not the capacity because it is the configuration of the crane that makes it complex not the capacity.
In response to these industry concerns, OSHA held three stakeholder meetings in April 2013 to gather more information. During these meetings the possibility of an extension to the operator certification deadline was discussed and the issue was presented to the Advisory Committee on Construction Safety and Health (ACCSH) in May 2013. During its May 2013 meeting, ACCSH recommended to OSHA that the Agency delay implementation of the operator certification deadline until OSHA reopened the record seeking clarification on third party certification and employer qualification requirement.
Acting on ACCSH’s recommendation, OSHA issued a Notice of Proposed Rulemaking on February 10, 2014 seeking comments on a proposed three-year extension for operator certification from November 10, 2014 to November 10, 2017. During this three-year time period, OSHA will consider other rulemaking options and determine how to address the type and capacity issue. OSHA is seeking comments on the proposed extension timeframe, as well, as the alternative approach of an indefinite extension on the certification requirements until OSHA has completed rulemaking on the type and capacity issue.
Comments to this proposed rule are due by March 12, 2014. The Notice of Proposed Rulemaking can be found online here.
The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:
- OSHA Issues Guidance for Inspectors on Combustible Dust. OSHA inspectors must consider a manufacturer’s or importer’s use of information gained from actual explosion events, lab testing, published data on similar materials or particle size to assure they have properly classified their products for combustible dust hazards under the revised Hazard Communication Standard (HCS), OSHA said in a recent guidance memorandum.
- Congress Tells Regulators to Back Off Small Farms. A bipartisan group of senators, joined by Republican lawmakers in the House, have called for OSHA to halt an unprecedented effort to regulate small farms. EPA has not been spared either.
- Employment Law Q&A. Q: Last week, we terminated a problem employee for falling asleep on the job. This week, one of our long-time employees also was caught sleeping! Do we have to fire this employee? He is one of our best workers.
Click here to download the newsletter and read the full articles.
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