OSHA Issues Silica Enforcement Memo

The silica standard for construction came into effect last year, on September 23, 2017, whereas most provisions of the silica rule as it pertains to general industry and maritime (29 CFR § 1910.1053) take effect this month, on June 23, 2018. The new standard for general industry and maritime imposes stricter permissible exposure limits (PELs) by establishing “a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and associated ancillary requirements.”

According to a June 8th memorandum from OSHA, “OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  The Agency indicates that those employers will be treated more leniently than employers in situations where “it appears an employer is not making any efforts to comply.”

If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.

The determination as to whether an employer is or is not making a good faith effort to comply seems to be open to interpretation by the individual OSHA investigator.  The Agency appears to acknowledge this when it mentions yet-to-be-released “interim inspection and citation guidance” and refers to “effective implementation and uniform enforcement of the new standard.” (emphasis added)  This may in part be the reason why during the first 30 days of enforcement, any proposed citations for inspections carried out during this time period, will first have to go to OSHA’s National Office for review and approval before citations are actually issued.

A couple of publications produced by OSHA on the silica standard for general industry and maritime which may provide useful information are as follows:

The Joint Commission Issues Seven New Workplace Violence Prevention Recommendations

Many healthcare workers experience violence in the workplace often resulting from violent behavior by their patients, clients and/or residents. What can healthcare organizations do to improve safety and minimize the risk of workplace violence?  Click here to read the full article on Jackson Lewis’ Healthcare blog.

OSHA Proposes Limited Extension of the Compliance Dates for Beryllium

On May 11th OSHA began enforcement of certain requirements of the beryllium standard.  For generally industry, construction and shipyards this included the permissible exposure limits.  Further, in general industry enforcement began for the requirements of an exposure assessment, respiratory protection, medical surveillance and medical removal. While OSHA began enforcement of some of the these requirements it had previously announced a delay in enforcement of other ancillary provisions for general industry until June 25, 2018 and that it intended to issue a proposal to further extend this compliance date for the ancillary provisions to Dec. 12, 2018.

In last Friday’s Federal Register (June 1, 2018) OSHA announced its proposed rule to extend the compliance date for “certain ancillary requirements of the general industry beryllium standard” from March 12, 2018 to December 12, 2018.

However, the proposed extension does not delay enforcement for the following requirements in general industry:

  • Permissible exposure limits (PELS)
  • Exposure assessment
  • Respiratory protection
  • Medical surveillance
  • Medical removal protection provisions
  • Any provisions where the compliance dates in the standard take effect in 2019 and 2020

For the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries. OSHA believes that the proposed extension for general industry “will maintain essential safety and health protections for workers” while the Agency works to “clarify specific provisions” in the beryllium standard weighing the health and safety of workers against the burdens placed on employers in complying with the standard.

Comments to the proposed rule may be submitted to OSHA by July 2, 2018. The Federal Register, including detailed instructions on how to submit may be found here.

OSHA’s Revised “Improve Tracking of Workplace Injuries and Illnesses Regulation” at OMB for Review

OSHA is a step closer to publishing a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses.  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 Notice of Proposed Rulemaking may be out by late summer.

It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit the establishment’s OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. In its Spring Regulatory Agenda, OSHA stated,

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

It is also anticipated that proposed changes may be made to the “anti-retaliation” provisions of the regulation.  Specifically, the current regulation allows OSHA to cite an employer for having policies or procedures that may discourage employees from reporting a work-related injury or illness, which some stakeholders argue is in conflict with the OSH Act and Congressional intent with the whistleblower provisions under Section 11(c).

Employers should follow this rulemaking carefully as it is likely to change the requirements for the electronic submission of recordkeeping forms.  Currently, all employers covered by the rule are required to submit their 2017 300A Form electronically by July 1, 2018.

 

 

 

OSHA Issues Notice of Proposed Rulemaking for Crane Operator Certification – Shifting the Original Intent of the Negotiated Rulemaking Committee

In August 2010 OSHA issued the final cranes and derricks in construction standard, 1926 – Subpart CC. As part of that standard, 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 until November 10, 2017 and requested public comment.

The extension was 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).

In response to these industry concerns and ACCSH’s recommendation that the Agency delay implementation of the operator certification deadline OSHA issued a three-year extension for operator certification from November 10, 2014 to November 10, 2017, which was further delayed by a year in August 2017 to November 10, 2018 while the agency gathered additional public input on the issue.

After more than four years, OSHA has finally issued a Notice of Proposed Rulemaking (NRPM) to update the cranes and derricks in construction standard. The NPRM was released on May 21, 2018 and seeks to revise the operator certification requirements in several major respects.

OSHA proposes to amend 29 CFR 1926 subpart CC by revising sections that address crane operator training, certification/licensing, and competency. The purpose of the amendments are to clarify training requirements for operators; to remove certification-by-capacity from certification requirements; to clarify and permanently extend an employer’s duty to evaluate potential operators for their ability to safely operate assigned equipment covered by subpart CC; and to require that employers document the evaluation.

Evaluation of Operators

In some respects the proposed rule undermines the intention of the initial negotiated rulemaking committee, C-DAC. It was C-DAC’s intention that certification was a definitive means of ensuring that operators were properly trained and competent to safely operate equipment covered by the standard.  If revised, the standard would make certification akin to a driver’s learner permit requiring employers to still evaluate an operator’s skill and competency to operate equipment safely.  The proposed standard is written in performance oriented language and does not establish what specific skills must be assessed and as drafted it is possible this requirement to evaluate an operator could change from job to job.  According to OSHA the proposed standard would “also require employers to evaluate the operator’s judgement.” Meaning an employer would have to assess the operators ability to apply his knowledge and skills but also the operators “ability to recognize risky or unusual conditions.”

Certification by Capacity of Crane

The proposed rule does seek to address the initial industry concerns regarding certification based on the capacity of the crane. OSHA proposes to eliminate any requirement that operator certification be based on the capacity of the crane.

OSHA is unaware of any direct evidence establishing a safety benefit for requiring certification by capacity. For these reasons, OSHA has preliminarily determined that, if the employer duty [to evaluate operators] becomes permanent requirement, employee certification by capacity of crane should no longer be required, rather, it should merely be an option for those employers who wish to use it.

Public comments or requests for an informal public hearing must be submitted to OSHA by June 20, 2018. A copy of the proposed rule can be found online.

 

Complimentary Webinar: Preventing Safety Liability at Multi-Employer Worksites

Multiple employers work together at the same site all the time.  So if someone gets hurt or if OSHA knocks, how do you know you have done enough to protect your company?  Safety liability can be serious business if you have not taken proper precautions to establish each employer’s roles and duty of care before beginning work.   Courtney Malveaux will cover this topic on June 20th.  More information and the link to register can be found here.  We hope you can join us!

PSM “Retail Exemption” in Farm Bill May Fall Victim to Politics

In an April 30th memorandum to Regional Administrators, Tom Galassi (Director for OSHA’s Directorate of Enforcement Programs) announced that OSHA’s process safety management (PSM) standard, which establishes requirements for preventing or minimizing explosion hazards related to chemicals, did not apply to “retail facilities.” This had previously been at the center of debate in a 2016 case before the DC Circuit Court of Appeals, Agricultural Retailers Ass’n V. US Dep’t of Labor, where the Court struck down the definition of “retail” provided by OSHA in a memorandum.  837 F.3d 60 (D.C. Cir. 2016).

Galassi’s recent memo states:

In light of the D.C. Circuit’s decision, the following PSM enforcement policy guidance applies:

OSHA will not issue citations under the PSM standard for employers in the following North American Industry Classification System (NAICS) codes:

424510 – Grain and Field Bean Merchant Wholesalers

424590 – Other Farm Product Raw Material Merchant Wholesalers

424910 – Farm Supplies Merchant Wholesalers

The retail exemption is based on the belief that these businesses do not handle chemicals in large volumes and, therefore, do not pose a high risk of hazardous release. However, those who are exempted are still expected to comply with other OSHA regulations, such as the storage and handling of chemicals.

The ARA’s (Agricultrual Retailers Association) continued push to have the retail exemption permanently written into the Farm Bill is now caught up in politicking. The bill failed in the House last week, 198-213.  Democrats opposed President Trump’s proposed stricter work requirements for food stamp recipients while the Republican Freedom Caucus “held the bill hostage, demanding that the House first vote on controversial immigration legislation in exchange for their support” (Politico).

The Senate, meanwhile, is working on a bipartisan Farm Bill but it is unknown if the PSM retail exemption will or will not be included in that bill.

OSHA Spring Regulatory Agenda…What to Expect from OSHA

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Last week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

The Regulatory Agenda for the Department of Labor includes a total of twenty regulatory entries for OSHA specific actions. In this year’s regulatory agenda there are nine regulatory actions in the pre-rule stage, including Communication Tower Safety, Emergency Response and Preparedness, Mechanical Power Press Update and Prevention of Workplace Violence in Health Care and Social Assistance. Seven regulatory actions are in the proposed rule stage including  Amendments to the Cranes and Derricks in Construction Standard, Crane Operator Qualification in Construction and the addition of Puerto Rico as a State Plan and four regulatory actions are in the final rule stage.

Some of OSHA’s regulatory actions under consideration:

 

RULE

 

ANTICIPATED AGENCY ACTION

 

Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction

 

Request for Information in November 2018

 

Tracking of Workplace Injuries and Illnesses

 

Notice of Proposed Rulemaking in July 2018

 

Lock-out/Tag-out Update

 

 

Request for Information in June 2018

 

Crane Operator Qualification in Construction

 

Notice of Proposed Rulemaking in May 2018

 

Workplace Violence in Health Care and Social Assistance

 

SEBREFA Small Business Review in January 2019

 

Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

 

Final Rule December 2018

 

Tree Care Standard

 

SBREFA Small Business Review in April 2019

 

The full federal Unified Agenda and Regulatory Plan can be found online at:

http://www.reginfo.gov/public/do/eAgendaMain

Trump Administration Takes Aim at Obama-era Beryllium Standard

On January 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule adopting a comprehensive standard for exposure to beryllium and beryllium compounds – a separate standard was promulgated for general industry, construction and shipyards. On May 4, 2018, OSHA issued a Direct Final Rule (DFR) regarding the beryllium standard for general industry.  This followed the Agency’s announcement on April 30th that it had reached settlement with several industry petitioners who had challenged the general industry standard in the US Court of Appeals for the Eighth Circuit.  The Agency has said that the DFR clarifies “aspects of the beryllium standard for general industry as it applies to process, operations, or areas where workers may be exposed to materials containing less than 0.1% beryllium by weight.”

This DFR adjusts the regulatory text of the general industry beryllium standard to clarify that OSHA does not intend for requirements that primarily address dermal contact to apply in processes, operations, or areas involving only materials containing less than 0.1% beryllium by weight. These clarifications are made through changes to the definition of beryllium work area; the addition of definitions of dermal contact, beryllium-contaminated, and contaminated with beryllium; clarifications of certain hygiene provisions with respect to beryllium contamination; and the clarifications to provisions for disposal and recycling. In addition, because under these changes it is possible to have a regulated area that is not a beryllium work area, this DFR makes changes to certain housekeeping provisions to ensure they apply in all regulated areas. Finally, this DFR also includes a change to the definition of “emergency”, adding detail to the definition so as to clarify the nature of the circumstances OSHA intends to be considered an emergency for the purposes of the standard.

The press has described the DFR as narrowing, easing, or limiting the standard’s definitions. In this Direct Final Rule, OSHA is adopting a number of clarifying amendments to address the application of the standard to materials containing trace amounts of beryllium. OSHA believes this rule will maintain safety and health protections for workers while reducing the burden to employers of complying with the current rule. According to OSHA, “this direct final rule is expected to be an Executive Order (E.O.) 13771 deregulatory action” with a net annual cost savings of  $0.36 million per year.  OSHA will consider comments on the DFR and if no significant adverse comments are received by June 4, 2018, OSHA will publish a Federal Register notice confirming the effective date of the changes and the DFR will take effect on July 4, 2018.

On May 11th OSHA began enforcement of certain requirements of the beryllium rule.  For generally industry, construction and shipyards this included the permissible exposure limits.  Further, in general industry enforcement began for the exposure assessment, respiratory protection, medical surveillance and medical removal requirements. According to OSHA, “The agency will delay enforcement of other ancillary provisions for general industry until June 25, 2018.  The Agency plans to issue a proposal to further extend this compliance date for the ancillary provisions to Dec. 12, 2018.” For the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries.

 

 

OSHA’s National Stand-Down to Prevent Falls in Construction – May 7-11, 2018

Today marks the first day of OSHA’s 5th annual National Stand-Down.  The week-long event aims to focus attention on  the fact that “Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 370 of the 991 construction fatalities recorded in 2016 (BLS data).”  The Safety Stand-Down prompts employers and employees to pause and use this week as an opportunity to discuss safety, in particular fall hazards and prevention.  OSHA has partnered with groups such as the National Institute for Occupational Safety and Health (NIOSH), the American Society of Safety Engineers (ASSE), and the U.S. Air Force to help support this cause.  Additionally, OSHA has published a poster and dedicated a section on its website to spread awareness and assist employers who would like to become involved.  If you are interested in learning more, go to: https://www.osha.gov/StopFallsStandDown/index.html

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