Click here for an interesting article from Construction Executive magazine on the OSHA landscape as it relates to the construction industry.
The Office of Management and Budget (OMB) has announced that it is extending its review period for OSHA's proposed crystalline silica rule. The proposal was received by OMB on February 14, 2011. This extension follows the recent pattern of OMB taking longer than the standard 90 days to review OSHA rules under Executive Order 12866. Notably, last year OMB extended its review of OSHA's proposal to add a separate MSD column on the OSHA 300 Log.
OSHA's proposal to comprehensively regulate crystalline silica in general industry, maritime, and construction could be one of the most significant rulemakings in OSHA's history. Silica, a component of the Earth's crust, is present in a number of industries. Both employer and employee stakeholders have been actively engaged with OSHA during the pre-rulemaking process. Recently, several different groups of stakeholders have met with OMB officials to discuss the proposed rule.
It is unkown what has caused OMB to extend its review of the proposal. Employers should continue to monitor this issue closely, however, and be engaged in the rulemaking process if, or when, OSHA publishes the proposal.
OSHA is a step closer to publishing a proposed rule regulating crystalline silica exposure in general industry, construction, and maritime. OSHA's proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866. This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA's proposal will be out in early to mid-Summer.
Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust. OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and other diseases. It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade. In 2003, OSHA completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel for an early draft version of the rule and has since been preparing regulatory text and background health, risk, and economic data to support the rulemaking.
OSHA's rulemaking efforts in this area are complicated by the broad scope of the rule -- a number of employers in a variety of industries use silica in their operations -- as well as technical issues associated with controlling silica exposures. There are also difficult issues of sampling methodology that the Agency must overcome. And of course, stakeholders are keenly interested in what ancillary provisions OSHA might propose, such as medical surveillance requirements, housekeeping requirements, and requirements related to regulated areas.
All employers should stay tuned and follow this rulemaking closely, even at this early OMB review stage. OMB has recently extended its review of a couple of OSHA rulemakings, which have had the effect of delaying publication. It will be interesting to see how this particular review period proceeds.
On December 20, 2010, OSHA released its fall regulatory agenda, which sets forth the Agency's current rulemaking priorities. Over the last several months OSHA has been emphasizing the need to push forward on several regulatory inititatives. OSHA rulemaking, however, can be painstakingly slow, and OSHA's fall regulatory agenda reflects that.
Of particular note, the issuance of a proposed rule for crystalline silica has been pushed back by the Agency until April of 2011. OSHA has been working on this regulatory initiative since the mid-1990's. Prerule actions to initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for OSHA's Injury and Illness Prevention Program rule and Combustible Dust rule are now set for June and April of 2011, respectively. These rules have been signature initiatives of OSHA over the last several months. Health rules on beryllium and diacetyl appear to be stuck in the Agency's peer review process. At the same time, OSHA did not announce any major new regulatory initiatives in the fall agenda. Two small construction rulemakings were added concerning reinforcing and post-tensioned steel construction and the prevention of equipment backing accidents.
OSHA's regulatory agenda also may be hitting obstacles at the Office of Management and Budget (OMB), which must review all significant OSHA rulemakings. OMB has extended its review of two OSHA final rules: General Working Conditions for Shipyard Employment and Occupational Injury and Illness Reporting Requirements-Musculoskeletal Disorders (MSD) Column. The extended review of the latter rule has effectively prevented it from being implemented in 2011.
All stakeholders should continue to watch OSHA's regulatory agenda over the coming months as the Agency must make significant progress on rulemakings it wishes to finalize by the end of 2012. We will, of course, continue to keep you apprised of developments.
In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA. Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop. The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.
Professor Michaels’ speech touched on many important issues with respect to occupational safety and health. In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace. “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.” Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation. His speech certainly suggests that he will continue to push this as head of OSHA.
Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards. Translation: the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”
So what does all this boil down to as a practical matter? In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives. Some specific initiatives to watch out for include a:
Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations. If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history. OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards. The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register. The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.
Crystalline Silica Proposed Rule. Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust. OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer. It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010. Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.
New Approach on Ergonomics. For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics. WMSDs still comprise a significant percentage of workplace injuries every year. WMSDs occur in every industry and in every job throughout the country.
Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.
Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.
OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA. It will also likely increase ergonomics enforcement under the General Duty Clause.
No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.
OSHA Releases Fall Regulatory Agenda: Focus is on Musculoskeletal Disorders and Airborne Infectious Diseases
OSHA has released its long-awaited Fall Regulatory Agenda. The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months. The Agenda also provides a snapshot into the agency's priorities, as we enter the second year of the administration of President Obama.
Longstanding Rulemakings Remain on the Agenda
Most of the rulemaking items that started under President Clinton or Bush remain on OSHA's regulatory agenda. OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s. OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010. Other rulemakings that continue to receive OSHA's attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.
OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule. This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.
New Rulemakings Added
OSHA is also adding some new regulatory actions that are sure to be controversial. First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column. When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs. This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative. OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.
Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard. Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease." California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.
OSHA continues to be active on both regulatory and enforcement initiatives. We will continue to keep you apprised in this space on the latest OSHA developments.
In a harbinger of things to come, OSHA recently released comprehensive guidance on controlling silica exposures in construction. The document is over 70 pages and details control methods for a variety of operations in construction, including:
- Stationary masonry saws
- Handheld masonry saws
- Hand-operated grinders
- Tuckpointing/mortar removal
- Rotary hammers and similar tools
- Vehicle-mounted rock drilling rigs
- Drywall finishing
The two control measures most commonly recommended throughout the document are:
- Wet methods, whereby water is sprayed at the source of the silica dust generation thus reducing the dust that can become airborne, and
- Vacuum dust systems, whereby grinders or other tools are equipped with a vacuum collection device that captures the silica released at the point of operation.
The document also provides guidance to employers on the current silica permissible exposure limit (PEL) for construction. The current PEL is expressed through millions of particles per cubic foot (mppcf). This “particle count” method is now obsolete and it has been giving the agency enforcement headaches for years. In the guidance document, the agency evaluates the effectiveness of controls not against the silica construction PEL, but against a benchmark 8-hour time-weighted average (TWA) exposure of .1 mg/m3 of respirable silica dust. The agency states that this benchmark level is actually lower than the current construction PEL and thus, for employers following the benchmark level, they will be in compliance with the construction PEL.
The guidance document is also important as an indicator of where OSHA is heading in its upcoming silica rulemaking. The data on which the recommendations in the guidance document are based will be the same as that used by the agency to justify the technological and economic feasibility of a final silica standard.
OSHA’s silica rulemaking is one of the Obama administration’s highest priorities. The next step in the rulemaking process is for OSHA to conduct a peer review of the proposed rule’s risk assessment and health effects. This early look at the agency’s risk assessment for silica will be valuable in seeing the agency’s plans for the PEL. Will it be lowered? And if so, by how much?
OSHA is focused on silica and the guidance document is just the first of more to come.