Safety And Health Leg & Reg 2011 Asse Pdc Iv

Safety & Health Developments 2011 Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC www.safety-law.com

What’s New With OSHA
New Rules to Watch For:
I2P2
Crystalline Silica
Globally Harmonized Standard for HazCom
Confined Space in Construction
New Health Standards (Diacetyl, Beryllium, PELs update)
Combustible Dust
National Emphasis Programs
SVEP
Increased Use of General Duty Clause and Egregious Penalties
Revision of Whistleblower Programs

OSHA’s Regulatory Priority: I2P2
OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program (I2P2).
Components: planning, implementing, evaluating, and improving processes and activities that protect employee safety and health.
The Agency currently has voluntary Safety and Health Program Management Guidelines (54 FR 3904-3916), published in 1989, which will be a basis for I2P2, along with best practices under OSHA's VPP and SHARP programs
OSHA will also consider consensus initiatives such as American National Standards Institute/American Industrial Hygiene Association Z10 and Occupational Health and Safety Assessment Series 18001.
Twelve States have similar rules.
Stakeholder meetings held Summer 2010; SBREFA panel set for 6/2011

Crystalline Silica Proposal
OSHA is proposing to address worker exposures to crystalline silica through the promulgation and enforcement of a comprehensive health standard.
Agency maintains that exposure to silica causes silicosis, a debilitating respiratory disease, and may cause cancer, other chronic respiratory diseases, and renal and autoimmune disease as well and over 2 million workers are exposed in general industry, construction, and maritime industries.
Peer review of scientific reports forming basis for proposal now underway.
Proposed rule expected in April 2011; SBREFA panel already conducted.
Anticipate – at a minimum – exposure limit will be cut in half.

Hazard Communication
OSHA will revise its Hazard Communication Standard (HCS) to make it consistent with a globally harmonized approach to hazard communication – final rule set for 8/2011.
HCS covers over 945,000 hazardous chemical products in seven million American workplaces and gives workers the "right to know" about chemical hazards they are exposed to.
OSHA and other Federal agencies have participated in long-term international negotiations to develop the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
Revising the HCS to be consistent with the GHS is expected to significantly improve the communication of hazards to workers in American workplaces, reducing exposures to hazardous chemicals, and reducing occupational illnesses and fatalities.
Changes include new formats and information requirements for MSDSs and labels, inclusion of combustible dust info, and use of pictograms.
Will require retraining of all workers!

Infectious Diseases
At Pre-Rule Stages (comments being considered from RFI in 2010)
OSHA’s view: Employees in health care and other high-risk environments face long-standing infectious diseases hazards such as tuberculosis (TB), varicella disease (chickenpox, shingles), and measles (rubeola), as well as new and emerging infectious disease threats, such as Severe Acute Respiratory Syndrome (SARS) and pandemic influenza.
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 infectious disease exposures to pathogens that can cause significant disease.
Targeted sectors: health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, other occupational settings where employees can be at increased risk of exposure to potentially infectious people.
A standard could also apply to laboratories which handle materials that may be a source of pathogens, and to pathologists, coroners’ offices, medical examiners, and mortuaries.

OSHA Pre-Rule Stage Summary
Other standards at pre-rule stage:
Occupational Exposure to Beryllium
Emergency Response and Preparedness
Occupational Exposure to Diacetyl and Food Flavorings Containing Diacetyl
Reinforcing and Post-Tensioned Steel Construction
Backing Operations
Bloodborne Pathogens (610 Review)

Proposed Rule Stage
Combustible Dust
Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention)
Occupational Injury and Illness Recording and Reporting Requirements
NAICS update and modernizing the OSHA reporting system

Final Rule Stage
Confined Space in Construction
General Working Conditions- Shipyards
Electric Power Transmission and Distribution (Electrical Protective Equipment)
Cooperative Agreements
Occuptional Injury/Illness Reporting for MSDs (withdrawn late January 2011 by OSHA for further stakeholder discussion)

OSHA Revised Penalties
OSHA has made changes in administrative procedures that could significantly increase the average penalty – impacts what OSHA area directors can offer in settlement.
Changes took effect for inspections opened on/after 10/1/2010
The issuance of “egregious” violations is increasing, and this allows a penalty to be assessed for each occurrence of a problem or each worker affected.
Area directors can offer an employer with 250 or fewer employees a 20 percent penalty reduction if it agrees to retain an independent safety and health consultant.
Repeat Violations: The time period for considering the classification of repeated violations will be increased from three to five years.

History Reduction: The time frame for considering an employer's history of violations will expand from three years to five. An employer who has been inspected by OSHA within the previous five years and has not been issued any serious, willful, repeat, or failure-to-abate citations will receive a 10 percent reduction for history.
History Increase: An employer that has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate violation within the previous five years will receive a 10 percent increase in their penalty, up to the statutory maximum.
Employers who have not been inspected and those who have received citations for serious violations that were not high gravity will receive neither a reduction nor an increase for history.
Gravity-Based Penalty (GBP): The gravity of a violation is the primary consideration in calculating penalties and is established by assessing the severity of the injury/illness which could result from a hazard and the probability that an injury or illness could occur.
OSHA is adopting a gravity-based penalty structure for serious citations which will range from $3,000 to $7,000.

Size Reduction : OSHA amended its penalty reduction structure based on the size of employers, allowing for a penalty reduction between 10 and 40 percent for those with less than 250 employees.
No size reduction will be applied for employers with 251 or more employees.
Good Faith: The old good faith procedures in the FOM were retained, to permit a penalty reduction in recognition of an employer's effort to implement an effective workplace safety and health program.
Employers must have a safety and health program in place to get any good faith reduction. Good faith reductions are not allowed in the cases of high gravity serious, willful, repeat, or failure-to-abate violations.
Quick Fix: The 15% Quick-Fix reduction, which is currently allowed as an abatement incentive program to encourage employers to immediately abate hazards identified during inspections, remains unchanged. However, the 10% reduction for employers with a strategic partnership agreement will be eliminated.
Minimum Penalties: The minimum proposed penalty for a serious violation was hiked to $500.
The proposed minimum penalty for a posting violation will increase to $250 if the company was previously provided a poster by OSHA

National Emphasis Programs
Recordkeeping : 2010 program audited 2007/2008 for targeted employers (those with lower than average incidence rates in high hazard industries) and focused on underreporting due to incentive programs and disciplinary threats
Program ended early but may resume in 2011 with new criteria
Combustible Dust : Intended to gather information for rulemaking and to educate employers with CD hazards; to date, 24 percent of citations issued have been under General Duty Clause
Process Safety Management : Focus on industries with highly hazardous chemicals. Inspectors will gather facts related to PSM requirements and verify that employers' written and implemented PSM programs are consistent
Other NEPs that are ongoing (or under development) include: crystalline silica, lead, amputations, oil refineries, shipbreaking operations, trenching, primary metals, occupational asthma, flavorings and diacetyl, and oil and gas well drilling

Severe Violator Enforcement Program
CPL 02-00-149 (SVEP) took effect 6/18/2010 and sets forth parameters of program.
Focuses enforcement efforts on employers who willfully and repeatedly endanger workers by exposing them to serious hazards.
Establishes procedures and enforcement actions for SVEP, including increased inspections, mandatory follow-up inspections of a workplace found in violation and inspections of other worksites of the same company where similar hazards or deficiencies may be present.
Targets those who commit willful, repeated or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.

SVEP
Will trigger inspections at all worksites based on certain types of violations found during initial inspections
Repeat citations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations.
Violations under this section do not need to be classified as “High Emphasis Hazards.”
A “High Emphasis Hazard” is one based on a fall or a specific National Emphasis Program (NEP)
Non-Fatality/Non-Catastrophic High Emphasis Hazards. An inspection which finds two or more Willful or Repeat violations or failure to abate notices based on high gravity, serious violations due to a High Emphasis Hazard.
All “egregious” enforcement actions (cases where OSHA has alleged instance-by-instance violation of a particular standard) will be considered SVEP cases.
Where circumstances warrant, at the discretion of the Area Director, high gravity serious violations related to standards and hazards identified in the SVEP will not normally be grouped or combined, and will have individual proposed penalties.

MSHA Emerging Issues
Expect emphasis on health standards (e.g., coal dust) development (but OSHA will take lead on silica);
MSHA is also developing a version of “I2P2”
Other rulemaking initiatives:
Metal/Nonmetal Dams and Impoundments
Modified assessment of civil penalties (NPRM 3/2011)
Examination of work areas in underground coal mines (proposed rule issued 12/10)
Emergency temporary standard for proximity detection in underground mines
Expect increased use of Pattern of Violations and injunctions to shut down mines;
New POV guidance was issued in 2010, but a POV rule was proposed 2/1/2011
Heavier use of “flagrant” penalties, more criminal referrals, increased issuance of citations and new applications of subjective standards
FMSHRC has 19,000 case backlog

What About Congress?
Shift of power raises questions about whether OSHA reform will have momentum … and what form it will take!
Rep. Kline (R-MN) becomes new chair of House Education & Labor Cmte; Rep. Miller (D-CA) becomes ranking minority member
House subcommittee on workforce protections will be chaired by Rep. Tim Walberg (R-MI), a new House member
Leadership of Senate HELP Committee remains stable …

What About Congress?
OSHA Reform, MSHA Reform, Regulatory Reform legislation all introduced to date
OSHA VPP funding likely to be hot topic (as well as continuing MSHA’s small mines office)
House may attack the OSHA MSD recordkeeping program through appropriations
Status of NIOSH within CDC may be examined

New Legislation - OSHA
HR 128: Directs the Secretary of Labor to revise regulations concerning recording/reporting of occupational injuries and illnesses – Rep. Green (D-TX)
HR 190: New “PAW Act” … Would amend OSH Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for high gravity violations, to adjust penalties for inflation, and to provide greater rights for victims and their families – Rep. Woolsey (D-CA)

New Legislation - MSHA
S. 153 – introduced 1/25/2011 by Sen. Rockefeller and three cosponsors (all democrats)
Contains same provisions as in the Byrd Mine Safety bill offered in 111 th Congress
Includes OSHA reform provisions at end of bill
Unlike version approved by House Ed & Labor Committee in 2010, does NOT exempt aggregates industry and other surface and non-gassy underground mines

Regulatory Reform Legislation
HR 10 (introduced with over 100 republican cosponsors) – “REINS Act”
Provides that major rules of executive branch will not have effect unless a joint resolution of approval is enacted by Congress
Purpose: increase accountability and transparency in federal regulatory process and provide more Congressional oversight on rulemaking activities
Would require submission of rules and their C/B analysis, actions under the APA, and other relevant info to both houses of Congress, for review by committee(s) with jurisdiction.

Regulatory Reform Legislation
Comptroller General of Congress would submit report on all major rules to committees within 15 calendar days of submission, assessing agencies’ compliance with procedural steps
No determinations under HR 10 would be subject to judicial review, except that a court can determine whether the federal agency completed the necessary requirements under this law for a rule to take effect.
Major rule: greater than $100 mil. in annual economic effect, cause a major cost/price increase for consumers, individual industries or government, or significantly and adversely effect competition, employment, investment, productivity, innovation or ability of US-based enterprises to compete in domestic and export markets
Major rule could only take effect upon enactment of the joint resolution of approval by Congress – otherwise, rule is deemed “not approved” and cannot take effect.
Senate and House debate on resolutions limited to 2 hrs
Exceptions: rules necessary because of imminent threats to health, safety or other emergency, criminal law enforcement, national security, or international trade agreements.
Non-major rules: can be subject to process, unless agency provides finding that notice and public procedure are impracticable, unnecessary or contrary to the public interest.

QUESTIONS? Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC [email_address] 301-595-3520

Safety And Health Leg & Reg 2011 Asse Pdc Iv

by Muhammad Akhlaq Khan

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