Safety & Health Safety & Health Developments Developments

20112011Adele L. Abrams, Esq., CMSPAdele L. Abrams, Esq., CMSP

Law Office of Adele L. Law Office of Adele L. Abrams PCAbrams PC

www.safety-law.comwww.safety-law.com

What’s New With OSHAWhat’s New With OSHA New Rules to Watch For:New Rules to Watch For:

I2P2I2P2 Crystalline Silica Crystalline Silica Globally Harmonized Standard for HazComGlobally Harmonized Standard for HazCom Confined Space in ConstructionConfined Space in Construction New Health Standards (Diacetyl, Beryllium, PELs New Health Standards (Diacetyl, Beryllium, PELs

update)update) Combustible DustCombustible Dust

National Emphasis ProgramsNational Emphasis Programs SVEPSVEP Increased Use of General Duty Clause and Egregious Increased Use of General Duty Clause and Egregious

PenaltiesPenalties Revision of Whistleblower ProgramsRevision of Whistleblower Programs

OSHA’s Regulatory OSHA’s Regulatory Priority: I2P2Priority: I2P2

OSHA is developing a rule requiring employers to implement OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program (I2P2). an Injury and Illness Prevention Program (I2P2).

Components: planning, implementing, evaluating, and Components: planning, implementing, evaluating, and improving processes and activities that protect employee improving processes and activities that protect employee safety and health. safety and health.

The Agency currently has voluntary Safety and Health The Agency currently has voluntary Safety and Health Program Management Guidelines (54 FR 3904-3916), Program Management Guidelines (54 FR 3904-3916), published in 1989, which will be a basis for I2P2, along with published in 1989, which will be a basis for I2P2, along with best practices under OSHA's VPP and SHARP programsbest practices under OSHA's VPP and SHARP programs

OSHA will also consider consensus initiatives such as OSHA will also consider consensus initiatives such as American National Standards Institute/American Industrial American National Standards Institute/American Industrial Hygiene Association Z10 and Occupational Health and Hygiene Association Z10 and Occupational Health and Safety Assessment Series 18001. Safety Assessment Series 18001.

Twelve States have similar rules.  Twelve States have similar rules.  Stakeholder meetings held Summer 2010; SBREFA panel set Stakeholder meetings held Summer 2010; SBREFA panel set

for 6/2011for 6/2011

Crystalline Silica Crystalline Silica ProposalProposal

OSHA is proposing to address worker exposures to OSHA is proposing to address worker exposures to crystalline silica through the promulgation and crystalline silica through the promulgation and enforcement of a comprehensive health standard. enforcement of a comprehensive health standard.

Agency maintains that exposure to silica causes Agency maintains that exposure to silica causes silicosis, a debilitating respiratory disease, and may silicosis, a debilitating respiratory disease, and may cause cancer, other chronic respiratory diseases, cause cancer, other chronic respiratory diseases, and renal and autoimmune disease as well and over and renal and autoimmune disease as well and over 2 million workers are exposed in general industry, 2 million workers are exposed in general industry, construction, and maritime industries.construction, and maritime industries.

Peer review of scientific reports forming basis for Peer review of scientific reports forming basis for proposal now underway.proposal now underway.

Proposed rule expected in April 2011; SBREFA Proposed rule expected in April 2011; SBREFA panel already conducted.panel already conducted.

Anticipate – at a minimum – exposure limit will be Anticipate – at a minimum – exposure limit will be cut in half.cut in half.

Hazard CommunicationHazard Communication OSHA will revise its Hazard Communication Standard (HCS) to OSHA will revise its Hazard Communication Standard (HCS) to

make it consistent with a globally harmonized approach to make it consistent with a globally harmonized approach to hazard communication – final rule set for 8/2011. hazard communication – final rule set for 8/2011.

HCS covers over 945,000 hazardous chemical products in HCS covers over 945,000 hazardous chemical products in seven million American workplaces and gives workers the seven million American workplaces and gives workers the "right to know" about chemical hazards they are exposed to. "right to know" about chemical hazards they are exposed to.

OSHA and other Federal agencies have participated in long-OSHA and other Federal agencies have participated in long-term international negotiations to develop the Globally term international negotiations to develop the Globally Harmonized System of Classification and Labeling of Harmonized System of Classification and Labeling of Chemicals (GHS). Chemicals (GHS).

Revising the HCS to be consistent with the GHS is expected to Revising the HCS to be consistent with the GHS is expected to significantly improve the communication of hazards to workers significantly improve the communication of hazards to workers in American workplaces, reducing exposures to hazardous in American workplaces, reducing exposures to hazardous chemicals, and reducing occupational illnesses and fatalities. chemicals, and reducing occupational illnesses and fatalities.

Changes include new formats and information requirements Changes include new formats and information requirements for MSDSs and labels, inclusion of combustible dust info, and for MSDSs and labels, inclusion of combustible dust info, and use of pictograms.use of pictograms.

Will require retraining of all workers!Will require retraining of all workers!

Infectious DiseasesInfectious Diseases At Pre-Rule Stages (comments being considered from RFI in At Pre-Rule Stages (comments being considered from RFI in

2010)2010) OSHA’s view: Employees in health care and other high-risk OSHA’s view: Employees in health care and other high-risk

environments face long-standing infectious diseases hazards such environments face long-standing infectious diseases hazards such as tuberculosis (TB), varicella disease (chickenpox, shingles), and as tuberculosis (TB), varicella disease (chickenpox, shingles), and measles (rubeola), as well as new and emerging infectious measles (rubeola), as well as new and emerging infectious disease threats, such as Severe Acute Respiratory Syndrome disease threats, such as Severe Acute Respiratory Syndrome (SARS) and pandemic influenza. (SARS) and pandemic influenza.

OSHA is considering the need for a standard to ensure that OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program employers establish a comprehensive infection control program and control measures to protect employees from infectious and control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease exposures to pathogens that can cause significant disease. disease.

Targeted sectors: health care, emergency response, correctional Targeted sectors: health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, other facilities, homeless shelters, drug treatment programs, other occupational settings where employees can be at increased risk occupational settings where employees can be at increased risk of exposure to potentially infectious people. of exposure to potentially infectious people. A standard could also apply to laboratories which handle materials A standard could also apply to laboratories which handle materials

that may be a source of pathogens, and to pathologists, coroners’ that may be a source of pathogens, and to pathologists, coroners’ offices, medical examiners, and mortuaries. offices, medical examiners, and mortuaries.

OSHA Pre-Rule Stage OSHA Pre-Rule Stage SummarySummary

Other standards at pre-rule stage:Other standards at pre-rule stage: Occupational Exposure to Beryllium Occupational Exposure to Beryllium Emergency Response and Preparedness Emergency Response and Preparedness Occupational Exposure to Diacetyl and Occupational Exposure to Diacetyl and

Food Flavorings Containing Diacetyl Food Flavorings Containing Diacetyl Reinforcing and Post-Tensioned Steel Reinforcing and Post-Tensioned Steel

ConstructionConstruction Backing OperationsBacking Operations Bloodborne Pathogens (610 Review) Bloodborne Pathogens (610 Review)

Proposed Rule StageProposed Rule Stage

Combustible DustCombustible Dust Walking Working Surfaces and Walking Working Surfaces and

Personal Fall Protection Systems Personal Fall Protection Systems (Slips, Trips, and Fall Prevention) (Slips, Trips, and Fall Prevention)

Occupational Injury and Illness Occupational Injury and Illness Recording and Reporting Recording and Reporting Requirements Requirements NAICS update and modernizing the NAICS update and modernizing the

OSHA reporting systemOSHA reporting system

Final Rule StageFinal Rule Stage

Confined Space in ConstructionConfined Space in Construction General Working Conditions- ShipyardsGeneral Working Conditions- Shipyards Electric Power Transmission and Electric Power Transmission and

Distribution (Electrical Protective Distribution (Electrical Protective Equipment)Equipment)

Cooperative AgreementsCooperative Agreements Occuptional Injury/Illness Reporting for Occuptional Injury/Illness Reporting for

MSDs (withdrawn late January 2011 by MSDs (withdrawn late January 2011 by OSHA for further stakeholder discussion)OSHA for further stakeholder discussion)

OSHA Revised PenaltiesOSHA Revised Penalties OSHA has made changes in administrative OSHA has made changes in administrative

procedures that could significantly increase the procedures that could significantly increase the average penalty – impacts what OSHA area directors average penalty – impacts what OSHA area directors can offer in settlement. can offer in settlement. Changes took effect for inspections opened on/after Changes took effect for inspections opened on/after

10/1/201010/1/2010 The issuance of “egregious” violations is increasing, The issuance of “egregious” violations is increasing,

and this allows a penalty to be assessed for each and this allows a penalty to be assessed for each occurrence of a problem or each worker affected. occurrence of a problem or each worker affected.

Area directors can offer an employer with 250 or Area directors can offer an employer with 250 or fewer employees a 20 percent penalty reduction if it fewer employees a 20 percent penalty reduction if it agrees to retain an independent safety and health agrees to retain an independent safety and health consultant.consultant.

Repeat Violations: Repeat Violations: The time period for considering The time period for considering the classification of repeated violations will be the classification of repeated violations will be increased from three to five years.increased from three to five years.

OSHA Revised PenaltiesOSHA Revised Penalties History Reduction: History Reduction: The time frame for considering an employer's The time frame for considering an employer's

history of violations will expand from three years to five. An history of violations will expand from three years to five. An employer who has been inspected by OSHA within the previous employer who has been inspected by OSHA within the previous five years and has not been issued any serious, willful, repeat, or five years and has not been issued any serious, willful, repeat, or failure-to-abate citations will receive a 10 percent reduction for failure-to-abate citations will receive a 10 percent reduction for history.history.

History Increase: History Increase: An employer that has been cited by OSHA for An employer that has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate any high gravity serious, willful, repeat, or failure-to-abate violation within the previous five years will receive a 10 percent violation within the previous five years will receive a 10 percent increase in their penalty, up to the statutory maximum. increase in their penalty, up to the statutory maximum.

Employers who have not been inspected and those who have received Employers who have not been inspected and those who have received citations for serious violations that were not high gravity will receive citations for serious violations that were not high gravity will receive neither a reduction nor an increase for history.neither a reduction nor an increase for history.

Gravity-Based Penalty (GBP): Gravity-Based Penalty (GBP): The gravity of a violation is the The gravity of a violation is the primary consideration in calculating penalties and is established primary consideration in calculating penalties and is established by assessing the severity of the injury/illness which could result by assessing the severity of the injury/illness which could result from a hazard and the probability that an injury or illness could from a hazard and the probability that an injury or illness could occur. occur.

OSHA is adopting a gravity-based penalty structure for serious OSHA is adopting a gravity-based penalty structure for serious citations which will range from $3,000 to $7,000.citations which will range from $3,000 to $7,000.

OSHA Revised PenaltiesOSHA Revised Penalties Size ReductionSize Reduction: OSHA amended its penalty reduction structure : OSHA amended its penalty reduction structure

based on the size of employers, allowing for a penalty reduction based on the size of employers, allowing for a penalty reduction between 10 and 40 percent for those with less than 250 employees. between 10 and 40 percent for those with less than 250 employees.

No size reduction will be applied for employers with 251 or more No size reduction will be applied for employers with 251 or more employees.employees.

Good Faith: Good Faith: The old good faith procedures in the FOM were The old good faith procedures in the FOM were retained, to permit a penalty reduction in recognition of an retained, to permit a penalty reduction in recognition of an employer's effort to implement an effective workplace safety and employer's effort to implement an effective workplace safety and health program. health program.

Employers must have a safety and health program in place to get any 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 good faith reduction. Good faith reductions are not allowed in the cases of high gravity serious, willful, repeat, or failure-to-abate violations.of high gravity serious, willful, repeat, or failure-to-abate violations.

Quick Fix:Quick Fix: The 15% Quick-Fix reduction, which is currently allowed The 15% Quick-Fix reduction, which is currently allowed as an abatement incentive program to encourage employers to as an abatement incentive program to encourage employers to immediately abate hazards identified during inspections, remains immediately abate hazards identified during inspections, remains unchanged. However, the 10% reduction for employers with a unchanged. However, the 10% reduction for employers with a strategic partnership agreement will be eliminated.strategic partnership agreement will be eliminated.

Minimum Penalties: Minimum Penalties: The minimum proposed penalty for a serious The minimum proposed penalty for a serious violation was hiked to $500. violation was hiked to $500.

The proposed minimum penalty for a posting violation will increase to The proposed minimum penalty for a posting violation will increase to $250 if the company was previously provided a poster by OSHA$250 if the company was previously provided a poster by OSHA

National Emphasis National Emphasis ProgramsPrograms

RecordkeepingRecordkeeping: 2010 program audited 2007/2008 for targeted : 2010 program audited 2007/2008 for targeted employers (those with lower than average incidence rates in employers (those with lower than average incidence rates in high hazard industries) and focused on underreporting due to high hazard industries) and focused on underreporting due to incentive programs and disciplinary threatsincentive programs and disciplinary threats Program ended early but may resume in 2011 with new criteriaProgram ended early but may resume in 2011 with new criteria

Combustible DustCombustible Dust: Intended to gather information for : Intended to gather information for rulemaking and to educate employers with CD hazards; to rulemaking and to educate employers with CD hazards; to date, 24 percent of citations issued have been under General date, 24 percent of citations issued have been under General Duty ClauseDuty Clause

Process Safety ManagementProcess Safety Management: Focus on industries with highly : Focus on industries with highly hazardous chemicals. Inspectors will gather facts related to hazardous chemicals. Inspectors will gather facts related to PSM requirements and verify that employers' written and PSM requirements and verify that employers' written and implemented PSM programs are consistent implemented PSM programs are consistent

Other NEPs that are ongoing (or under development) include: Other NEPs that are ongoing (or under development) include: crystalline silica, lead, amputations, oil refineries, crystalline silica, lead, amputations, oil refineries, shipbreaking operations, trenching, primary metals, shipbreaking operations, trenching, primary metals, occupational asthma, flavorings and diacetyl, and oil and gas occupational asthma, flavorings and diacetyl, and oil and gas well drillingwell drilling

Severe Violator Enforcement Severe Violator Enforcement ProgramProgram

CPL 02-00-149 (SVEP) took effect 6/18/2010 and sets forth CPL 02-00-149 (SVEP) took effect 6/18/2010 and sets forth parameters of program.parameters of program. Focuses enforcement efforts on employers who willfully Focuses enforcement efforts on employers who willfully

and repeatedly endanger workers by exposing them to and repeatedly endanger workers by exposing them to serious hazards. serious hazards.

Establishes procedures and enforcement actions for SVEP, Establishes procedures and enforcement actions for SVEP, including increased inspections, mandatory follow-up including increased inspections, mandatory follow-up inspections of a workplace found in violation and inspections of a workplace found in violation and inspections of other worksites of the same company where inspections of other worksites of the same company where similar hazards or deficiencies may be present.similar hazards or deficiencies may be present. Targets those who commit willful, repeated or failure-Targets those who commit willful, repeated or failure-

to-abate violations in one or more of the following to-abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to industry operations or processes that expose workers to severe occupational hazards; exposing workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement hazardous chemicals; and all egregious enforcement actions. actions.

SVEPSVEP Will trigger inspections at all worksites based on certain types of Will trigger inspections at all worksites based on certain types of

violations found during initial inspectionsviolations found during initial inspections Repeat citations or failure to abate notices based on a serious Repeat citations or failure to abate notices based on a serious

violation related to the death of an employee or three or more violation related to the death of an employee or three or more hospitalizations. hospitalizations. Violations under this section do not need to be classified as Violations under this section do not need to be classified as

“High Emphasis Hazards.”“High Emphasis Hazards.” A “High Emphasis Hazard” is one based on a fall or a specific A “High Emphasis Hazard” is one based on a fall or a specific

National Emphasis Program (NEP)National Emphasis Program (NEP) Non-Fatality/Non-Catastrophic High Emphasis Hazards. An Non-Fatality/Non-Catastrophic High Emphasis Hazards. An

inspection which finds two or more Willful or Repeat violations inspection which finds two or more Willful or Repeat violations or failure to abate notices based on high gravity, serious or failure to abate notices based on high gravity, serious violations due to a High Emphasis Hazard.violations due to a High Emphasis Hazard.

All “egregious” enforcement actions (cases where OSHA has All “egregious” enforcement actions (cases where OSHA has alleged instance-by-instance violation of a particular standard) alleged instance-by-instance violation of a particular standard) will be considered SVEP cases.will be considered SVEP cases.

Where circumstances warrant, at the discretion of the Area Where circumstances warrant, at the discretion of the Area Director, high gravity serious violations related to standards and Director, high gravity serious violations related to standards and hazards identified in the SVEP will not normally be grouped or hazards identified in the SVEP will not normally be grouped or combined, and will have individual proposed penalties.combined, and will have individual proposed penalties.

MSHA Emerging IssuesMSHA Emerging Issues Expect emphasis on health standards (e.g., coal dust) Expect emphasis on health standards (e.g., coal dust)

development (but OSHA will take lead on silica);development (but OSHA will take lead on silica); MSHA is also developing a version of “I2P2”MSHA is also developing a version of “I2P2” Other rulemaking initiatives:Other rulemaking initiatives:

Metal/Nonmetal Dams and ImpoundmentsMetal/Nonmetal Dams and Impoundments Modified assessment of civil penalties (NPRM 3/2011)Modified assessment of civil penalties (NPRM 3/2011) Examination of work areas in underground coal mines Examination of work areas in underground coal mines

(proposed rule issued 12/10)(proposed rule issued 12/10) Emergency temporary standard for proximity detection in Emergency temporary standard for proximity detection in

underground minesunderground mines Expect increased use of Pattern of Violations and injunctions to Expect increased use of Pattern of Violations and injunctions to

shut down mines;shut down mines; New POV guidance was issued in 2010, but a POV rule was New POV guidance was issued in 2010, but a POV rule was

proposed 2/1/2011proposed 2/1/2011 Heavier use of “flagrant” penalties, more criminal referrals, Heavier use of “flagrant” penalties, more criminal referrals,

increased issuance of citations and new applications of subjective increased issuance of citations and new applications of subjective standardsstandards FMSHRC has 19,000 case backlogFMSHRC has 19,000 case backlog

What About Congress?What About Congress? Shift of power raises questions about Shift of power raises questions about

whether OSHA reform will have whether OSHA reform will have momentum … and what form it will take!momentum … and what form it will take!

Rep. Kline (R-MN) becomes new chair of Rep. Kline (R-MN) becomes new chair of House Education & Labor Cmte; Rep. House Education & Labor Cmte; Rep. Miller (D-CA) becomes ranking minority Miller (D-CA) becomes ranking minority membermember

House subcommittee on workforce House subcommittee on workforce protections will be chaired by Rep. Tim protections will be chaired by Rep. Tim Walberg (R-MI), a new House memberWalberg (R-MI), a new House member

Leadership of Senate HELP Committee Leadership of Senate HELP Committee remains stable …remains stable …

What About Congress?What About Congress?

OSHA Reform, MSHA Reform, Regulatory OSHA Reform, MSHA Reform, Regulatory Reform legislation all introduced to dateReform legislation all introduced to date

OSHA VPP funding likely to be hot topic OSHA VPP funding likely to be hot topic (as well as continuing MSHA’s small (as well as continuing MSHA’s small mines office)mines office)

House may attack the OSHA MSD House may attack the OSHA MSD recordkeeping program through recordkeeping program through appropriationsappropriations

Status of NIOSH within CDC may be Status of NIOSH within CDC may be examinedexamined

New Legislation - OSHANew Legislation - OSHA

HR 128: Directs the Secretary of Labor to HR 128: Directs the Secretary of Labor to revise regulations concerning revise regulations concerning recording/reporting of occupational injuries recording/reporting of occupational injuries and illnesses – Rep. Green (D-TX)and illnesses – Rep. Green (D-TX)

HR 190: New “PAW Act” … Would amend OSH HR 190: New “PAW Act” … Would amend OSH Act of 1970 to expand coverage under the Act, Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to to increase protections for whistleblowers, to increase penalties for high gravity violations, increase penalties for high gravity violations, to adjust penalties for inflation, and to provide to adjust penalties for inflation, and to provide greater rights for victims and their families – greater rights for victims and their families – Rep. Woolsey (D-CA) Rep. Woolsey (D-CA)

New Legislation - MSHANew Legislation - MSHA S. 153 – introduced 1/25/2011 by Sen. S. 153 – introduced 1/25/2011 by Sen.

Rockefeller and three cosponsors (all Rockefeller and three cosponsors (all democrats)democrats)

Contains same provisions as in the Byrd Contains same provisions as in the Byrd Mine Safety bill offered in 111Mine Safety bill offered in 111thth Congress Congress

Includes OSHA reform provisions at end of Includes OSHA reform provisions at end of billbill

Unlike version approved by House Ed & Unlike version approved by House Ed & Labor Committee in 2010, does NOT Labor Committee in 2010, does NOT exempt aggregates industry and other exempt aggregates industry and other surface and non-gassy underground minessurface and non-gassy underground mines

Regulatory Reform Regulatory Reform LegislationLegislation

HR 10 (introduced with over 100 republican HR 10 (introduced with over 100 republican cosponsors) – “REINS Act”cosponsors) – “REINS Act”

Provides that major rules of executive branch Provides that major rules of executive branch will not have effect unless a joint resolution of will not have effect unless a joint resolution of approval is enacted by Congressapproval is enacted by Congress

Purpose: increase accountability and Purpose: increase accountability and transparency in federal regulatory process and transparency in federal regulatory process and provide more Congressional oversight on provide more Congressional oversight on rulemaking activitiesrulemaking activities

Would require submission of rules and their Would require submission of rules and their C/B analysis, actions under the APA, and other C/B analysis, actions under the APA, and other relevant info to both houses of Congress, for relevant info to both houses of Congress, for review by committee(s) with jurisdiction.review by committee(s) with jurisdiction.

Regulatory Reform Regulatory Reform LegislationLegislation

Comptroller General of Congress would submit report on all major Comptroller General of Congress would submit report on all major rules to committees within 15 calendar days of submission, rules to committees within 15 calendar days of submission, assessing agencies’ compliance with procedural stepsassessing agencies’ compliance with procedural steps

No determinations under HR 10 would be subject to judicial No determinations under HR 10 would be subject to judicial review, except that a court can determine whether the federal review, except that a court can determine whether the federal agency completed the necessary requirements under this law for a agency completed the necessary requirements under this law for a rule to take effect. rule to take effect.

Major rule: greater than $100 mil. in annual economic effect, Major rule: greater than $100 mil. in annual economic effect, cause a major cost/price increase for consumers, individual cause a major cost/price increase for consumers, individual industries or government, or significantly and adversely effect industries or government, or significantly and adversely effect competition, employment, investment, productivity, innovation or competition, employment, investment, productivity, innovation or ability of US-based enterprises to compete in domestic and export ability of US-based enterprises to compete in domestic and export marketsmarkets

Major rule could only take effect upon enactment of the joint Major rule could only take effect upon enactment of the joint resolution of approval by Congress – otherwise, rule is deemed resolution of approval by Congress – otherwise, rule is deemed “not approved” and cannot take effect.“not approved” and cannot take effect.

Senate and House debate on resolutions limited to 2 hrsSenate and House debate on resolutions limited to 2 hrs Exceptions: rules necessary because of imminent threats to Exceptions: rules necessary because of imminent threats to

health, safety or other emergency, criminal law enforcement, health, safety or other emergency, criminal law enforcement, national security, or international trade agreements.national security, or international trade agreements.

Non-major rules: can be subject to process, unless agency Non-major rules: can be subject to process, unless agency provides finding that notice and public procedure are provides finding that notice and public procedure are impracticable, unnecessary or contrary to the public interest.impracticable, unnecessary or contrary to the public interest.

QUESTIONS?QUESTIONS?

Adele L. Abrams, Esq., CMSPAdele L. Abrams, Esq., CMSPLaw Office of Adele L. Abrams PCLaw Office of Adele L. Abrams PC

safetylawyer@aol.comsafetylawyer@aol.com301-595-3520301-595-3520