Daily News

OSHA's enforcement officials devoted to construction issues are voicing concern about both rising actual numbers and overall rates of injuries and fatalities in the sector as the economy improves and starts showing signs of accelerating building activity, and warn construction firms to take action now on safety measures to head off a further escalation. The increasing proportion of deaths to number of workers is alarming, a top official says.

Also, because the 2012 reported data are preliminary, the picture likely will get worse, an OSHA official warned.

A Louisiana petrochemical plant has been cited for OSHA safety procedure violations following a deadly blast earlier this year that drew national attention to chemical facility safety and security, including one “willful” citation by the federal agency -- a development that could also reflect intensifying pressure by OSHA on the industry through enforcement tools as well as a growing focus on process safety management (PSM).

Possible health hazards associated with nanomaterial exposures continue to stick out on OSHA's radar, with experts at the agency closely following any emerging research that could point to health impacts on workers and lead to future OSHA activity in the nanotechnology arena, officials in the standard-setting division told stakeholders Friday (Dec. 6). OSHA's focus on the issue comes as researchers at NIOSH increasingly emphasize the concerns and shortly after NIOSH issued recommended exposure caps for carbon nanotubes (CNT) and carbon nanofibers (CNF).

The Supreme Court plans to decide this week whether to review a lower court ruling that effectively upholds OSHA's legal stance that federal health and safety regulations do not preempt more stringent laws of general applicability at the local level, a case that has been closely watched in the district and appeals courts because of its perceived implications for OSHA preemption issues generally.

OSHA officials are signaling that a new standard on beryllium exposures that is applicable only to the construction sector could be limited to lowering the permissible exposure limit (PEL) for the toxic metal, though that is only one option being considered and regulators are also weighing a range of medical surveillance measures to screen workers for potentially developing beryllium disease or cancer.

Just a few straightforward lines OSHA slipped into an otherwise routine set of guidelines for written feedback on the agency's recently unveiled regulatory proposal on silica hazards has led to the rulemaking equivalent of a firestorm, with industry furious that OSHA is asking stakeholders with technical comments to voluntarily disclose the funding sources and by implication, who has a financial stake in the policies they are advocating.

OSHA is eying the possibility of making several major changes to its process safety management (PSM) standard, designed to protect workers from catastrophic events inside chemical plants, and process safety enforcement policies, according to sources who say the agency's thinking may be reflected in a series of questions OSHA is asking about how regulators could improve the PSM and related standards.

Some industry advocates view the Obama administration's latest regulatory agenda for OSHA as fitting hand-in-glove with a more aggressive stance in the safety and health arena on both the standards and enforcement fronts, possibly emblematic of a tougher overall emphasis on regulations in the president's second term. That observation from industry quarters comes as OSHA faces opposing pressure from unions to move faster on rules while Democrats are in control.

OSHA officials are signaling that a draft proposal for new regulations to protect workers from beryllium exposures could be released in the next few months, sources tell Inside OSHA Online, noting that the agency intends to update a group of advisors on the rulemaking later this week.

The partial shutdown of the federal government that ran over two weeks in October had a substantial impact on workplace safety and health enforcement efforts nationwide, the White House says in a recent report, with OSHA unable to conduct most of its usual inspection regimen with most compliance officers furloughed. Inspectors were only able to complete roughly 16 percent of what they conducted last year during that period, according to the report.

OSHA has set next spring as the new time frame for commencing a small business impact review of a proposed rule that would tackle the complex issue of combustible dust hazards in the workplace, according to the Labor Department's new regulatory agenda, released by the White House alongside other agencies' last week. Worker advocacy groups swiftly criticized the rule's latest timetable as further evidence of what they contend is foot-dragging on a crucial safety standard, even as OSHA technically advanced the rulemaking to the “proposed” rather than “prerule” stage.

OSHA chief David Michaels found himself answering the same basic question, albeit phrased different ways, several times in a conference call on OSHA's campaign to inform employers of chemical hazards: How could the agency somehow leverage the newly available resources in a hypothetical enforcement action? Each time his answer was basically the same: OSHA has no plans to use the educational push as an enforcement tool. But still, questions linger – with industry persistently raising apprehensions about how the new data tools propagated by the agency could be used.

OSHA plans to implement several changes to its mechanical power press rule including removal of a paperwork requirement involved in weekly inspections of the machinery -- revisions the agency says will contribute to an administration-wide effort to reduce regulatory burdens wherever possible. OSHA also says it will align the rule's maintenance and repair provisions to the corresponding American National Standards Institute (ANSI) standard.

Ensuring employee safety during the surge of consumer activity around the holidays remains a key enforcement concern for OSHA despite the controversial aspects of the federal agency exercising enforcement discretion that critics say goes beyond its statutory powers in requiring employers to fix known hazards, sources say. OSHA has produced a fact sheet and statement cautioning retail employers about the issue as Black Friday approaches.

OSHA released its long-awaited proposed rule tackling crystalline silica exposures on Friday (Aug. 23), rolling out a comprehensive regulation that if eventually adopted would cut the permissible exposure limit to 50 micrograms of respirable crystalline silica per cubic meter and take broad measures to limit worker exposures across industries.

The proposed rule is split between two separate standards -- one for general industry and maritime, and the other for construction.

OSHA's position asserting that the independent agency charged with reviewing OSH Act citations has authority to order so-called “enterprise-wide” abatement of hazards keyed to inspections at individual locations of a multi-site employer faces new legal hurdles after an administrative law judge (ALJ) rejected the agency's interpretation. The judge's decision stops short of creating a legal precedent as the issue has not been reviewed by the full Occupational Safety and Health Review Commission (OSHRC) but could still offer guidance on the issue, sources say.

Editor's note: The following is a letter to the editor from industry attorney Lawrence Halprin of Keller and Heckman regarding OSHA's proposed silica rule. Inside OSHA Online invites reader comments on this subject, which may be sent to ccole@iwpnews.com.

OSHA is forcefully pushing back against Republican calls on Capitol Hill for a second small business review of the agency's planned crystalline silica rule, with a top agency official telling Inside OSHA Online the agency did a “very thorough panel” in the early 2000s and afterward fully addressed small business concerns in the proposed rule unveiled this summer. Republicans also want a further extension of the rule's comment period – an idea received coolly at OSHA, which has already postponed the deadline at industry's request by 47 days.

A key case testing the legal theories involved in OSHA's use of the general duty clause to press citations in situations where the agency has not issued a specific standard will be reviewed soon by the full Occupational Safety and Health Review Commission (OSHRC), with one of the two sitting commissioners withdrawing her recusal from the case after divesting stock in Wal-Mart Stores Inc., the company challenging OSHA's stance. An OSHRC official says the case, which has languished at the review commission due to lack of a quorum, likely will not be decided before year's end.

The American Medical Medical Association (AMA) on Tuesday (Nov. 19) officially endorsed OSHA's recently released proposal to toughen regulations on workplace exposure to crystalline silica, saying the change would lead to a dramatic decline in worker illness and calling the existing permissible exposure limit (PEL) insufficient. Sources say the rare backing of a major physicians group adds gravitas to OSHA's arguments in favor of the silica rulemaking, which is opposed by many in industry.