REPORT: OSHA FINES BP $87 MILLION

An extraordinary report from the New York Times says OSHA will announce later today an $87 million fine against petroleum refiner BP for failing to correct safety problems stemming from the highly chronicled 2005 Texas City, TX explosion that killed 15 workers.

The newspaper report, citing anonymous sources, noted that the fine is the largest levied in OSHA history -- more than four times the size of a $21.4 million fine BP agreed to pay the government after Texas City.

The magnitude of the fine will reverberate in Washington and globally and dramatically raises the stakes for all employers facing OSHA enforcement actions. Confirming the fine to the Times in advance of a formal announcement is intended to have maximum news-cycle impact.

Over several weeks since September, OSHA and BP have waged a de facto public relations skirmish over OSHA's determination that BP failed to carry out the promised safety improvements at its U.S. facilities as part of the settlement agreement. In recent days, OSHA denied BP's request for more time to document improvements. BP has said it has been diligent in making changes.

OSHA likely will have amassed significant evidence to substantiate its claims of BP's alleged intransigence in the matter. Since June 2007, the agency has operated a National Emphasis Program, targeting process safety management hazards in the refinery industry with stepped up enforcement resources.

Under the Occupational Safety and Health Act, BP will have the opportunity to contest the penalty.

More: New York Times article, Update: Labor Secretary Hilda L. Solis statement

HEARING TARGETS OSHA STATE PLANS

The House Education and Labor Committee convenes a key hearing at 10 a.m. October 29 to examine OSHA’s recently released review of Nevada OSHA -- a beleaguered workplace safety and health state plan program beset by negative publicity surrounding fatalities and injuries in Las Vegas’ booming construction industry.

In what is normally an unusual occurrence, the star witness on the panel will be Nevada’s Democratic Sen. Harry Reid, the highest-ranking officer in the Senate as majority leader. Facing what pundits are saying possibly will be a difficult re-election in 2010 for a fifth term, Reid has little choice but to participate and get on the record on workplace safety or face claims of inattentiveness to the needs of constituents back home. Expect the panel to treat the majority leader with much accommodation and conviviality.

While the focus of the hearing will target Nevada OSHA, the background chatter will be about OSHA’s announced intention to review all state plans in light of the report. This aspect of the hearing will be of great interest to two Education and Labor leaders, the committee chairman George Miller and Workforce Protections Subcommittee chair Lynn Woolsey, both Democrats from California, a state plan state.

For fiscal 2009, Congress allocated about $92.5 million for OSHA-funded state plan programs, or about a fifth of the agency's $513 million budget. In its FY 2010 budget request, the Obama administration is seeking a sizable increase in State Plan funding to $106.4 million.

With those kinds of dollars floating around, OSHA acting administrator Jordan Barab has said he wants to ensure that all state plans functioning the way they should – matching or exceeding federal OSHA efforts. Twenty-seven states and territories operate state plans, per the Occupational Safety and Health Act, and 22 of those operate comprehensive programs.

Education and Labor first examined construction safety in Nevada at a June 2008 hearing, including receiving testimony about deaths during the building boom on the Las Vegas strip.

• 
  

More: Hearing/Webcast information, Nevada OSHA report, Education and Labor's June 2008 construction hearing.

MAIN CONFIRMED TO LEAD MSHA

Finally, the Mine Safety and Health Administration has a new boss man on board.

The Senate voted unanimously Oct. 21 to confirm the nomination of Joseph Main (photo) as assistant secretary of labor for MSHA, installing the former United Mine Workers of America safety and health director as the nation’s lead voice on mining safety.

Main’s confirmation is being widely hailed by mining activists who had faulted the Bush administration for allegedly giving operators too much sway over the agency. UMWA President Cecil Roberts, said in a statement that Main "will bring a refreshing change to an agency that for too long has favored production over strong enforcement of workplace safety and health in America’s mines."

Main takes over an agency that has been rudderless since the end of Bush’s first term when Dave D. Lauriski resigned in November 2004. The administration then nominated Richard E. Stickler to replace Lauriski, but could not achieve a vote in the full Senate over Democratic objections. In a quirk of Washington politics and bureaucratic finagling, Stickler nonetheless ran the agency in an acting capacity through the end of Bush’s second term.

Main will have a considerable agenda at MSHA. The agency is still implementing provisions of the landmark Mine Improvement and New Emergency Response (MINER) Act of 2006, bipartisan legislation spawned out of a spate of high-profile, fatal mining accidents that year. Many activists and political officials alleged a diminished focus at MSHA on mining enforcement during the Bush administration.

Additionally, Main will need to remake the MSHA bureaucracy into a more user-friendly agency, ensure staffing levels among mining inspectors are adequate due to retirements, and approve a plan to reduce miners’ exposure to coal dust.

MSHA regulates more than 2,100 coal mines and 12,700 metal and non-metal mines on an annual budget of about $350 million.

President Obama nominated Main in July, and, in a somewhat unusual occurrence for Washington, Republicans largely echoed Democrats’ support for Main. Generally, Republicans will scrutinize a labor union officials more closely, just as Democrats will look more warily at a nominee coming from industry.

But with Main, there was no controversy. Why? Perhaps Main was too pristine to oppose, even in the face of the Democrats' marginalizing of the Stickler nomination. Perhaps a deal was cut in exchange for some other political priority, which happens regularly in Washington.

Or perhaps the GOP realized that a fresh approach was needed at the agency -- even with the leader coming out of the UMWA. HELP Committee Ranking Member Sen. Mike Enzi and longtime committee member Sen. Orrin Hatch are from mine-rich western states in Wyoming and Utah, respectively. And Utah was the home of the nation’s last major mining disaster at the Crandall Canyon mine in Emery County that killed 6 miners and 3 rescuers in August 2007, the handling of which was a public relations nightmare for the agency.

Bottom line for Main is he will have the benefit of an extended honeymoon period to shape dramatically U.S. mining safety policy.

More: Main's 2003 congressional testimony on coal dust (page 9)

Photo: Joseph Main (Source: Charleston, WVA, Gazette)

BUSY WEEK ON OSHA FRONT

A flurry of news on OSHA is breaking this week. Here are some of the developments, along with some perspective and sources for additional information:

Michaels Nomination Stalls
The Senate Health, Education, Labor and Pensions Committee declined Oct. 21 to take up the controversial nomination of David Michaels (photo) to head OSHA. The committee pulled Michael’s name at the last minute from nominees it was considering during an executive session. Conservative and industry organizations have vehemently opposed Michaels’ nomination, arguing his views on applying science to business regulation were out of the mainstream. Michaels, an epidemiologist, is interim chair of the Department of Environmental and Occupational Health at the George Washington University’s School of Public Health and Health.

Perspective: Removing Michaels’ name from consideration of nominees Oct. 21 is seen as more procedural than anything else -- perhaps also a political attempt by supporters on the panel to lower the noise level over the nomination. The belief is that the nomination will go through, particularly given the Democrats’ 13-10 majority. Key to the controversy now is that the committee chairman, Sen. Tom Harkin, D-IA, is willing to advance Michaels without benefit of a confirmation hearing, arguing that Michaels’ views and record already are widely circulated. Some liberal Michaels backers, however, are saying perhaps there should be a hearing as a way to counter charges against the nominee.

More: Earlier Michaels posting from this blog, U.S. Chamber of Commerce letter opposing Michaels.

• 
  

Combustible Dust Rulemaking
OSHA Oct. 21 published an advance notice of proposed rulemaking to address hazards associated with combustible dust explosions. The move is a procedural rulemaking step that will allow the agency to gather and analyze information formally. The trigger for the action was a disastrous 2008 explosion at the Imperial Sugar plant in Port Wentworth, GA that killed 14 workers. The U.S. Chemical Safety Board, one of the first entities to call for a combustible rule, said in a November 2006 report that 280 dust fires and explosions at U.S. industrial facilities over the past 25 years caused 119 deaths and more than 700 injuries. In conjunction with the rulemaking, OSHA released a status report on its Combustible Dust National Emphasis Program, noting that an unusually high number employers have been cited under the General Duty Clause of the Occupational Safety and Health Act since the NEP was implemented in 2007. The public comment period for the ANPR is 90 days, and OSHA plans to conduct stakeholder meetings.

Perspective: OSHA’s action surely delights critics of the previous administration. Political officials and labor activists contended OSHA under former President George W. Bush had dragged its feet on seeking solutions. While a member of Congress, Labor Secretary Hilda L. Solis was vocal in her support of a standard. The ANPR will target issues such as data collection, dust hazard assessment and regulatory approaches. It is interesting that OSHA decided to initiate the ANPR rather than the notice of proposed rulemaking, which is an actual statutory step. OSHA under Bush was criticized for using the ANPR as a way of unnecessarily extending the rulemaking process.

More: OSHA's combustible dust ANPR, OSHA's combustible dust NEP status report, U.S. Chemical Safety Board You Tube video on combustible dust.

High-Visibility Workzone Apparel Required
In a Letter of Interpretation released Oct. 20, OSHA affirmed that highway construction workers are required to wear high-visibility warning garments for safety under the Occupational Safety and Health Act. This interpretation follows a 2004 OSHA ruling on the same matter, but the Occupational Safety and Health Review Commission decided OSHA’s 2004 letter was limited and required that the Federal Highway Administration's Manual on Uniform Traffic Control Devices governed use of high-visibility apparel in highway construction. In the Oct. 20 letter, OSHA emphasized Section 5(a)(1) of the OSH Act, the General Duty Clause, as the threshold, stating, in effect, that it supersedes any MUTCD requirements.

Perspective: The ruling means employers will need to ensure their highway workers have and are wearing high-visibility garments or face sanction under the General Duty Clause. OSHA noted in its announcement that Bureau of Labor Statistics show 425 road construction workzone fatalities between 2003 and 2007. Workzone safety long has been an agency priority. Use of the General Duty Clause, which requires, in part, that employers provide a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm," is part of a more aggressive approach to enforcement by the new OSHA regime.

More: OSHA high-visibility apparel Letter of Interpretation

Las Vegas Strip: CenterCity Project (Source: Flickr.com)

States Face Scrutiny After Nevada Findings
In releasing a scathing report Oct. 20 detailing deficiencies of Nevada OSHA’s state plan program, OSHA said it will conduct a comprehensive review of all 27 state plan programs. The report on Nevada's occupational safety and health program, spotlighted by intense media coverage to the deaths of construction workers at the massive CenterCity Project along the Las Vegas strip, revealed a number of serious concerns with the program's operation, OSHA said. They included the failure to issue appropriate willful and repeat citations, poorly trained inspectors and lack of follow-up to determine whether hazards were abated. Nevada promised it would reorganize its program to ensure accountability. "As a result of the deficiencies identified in Nevada OSHA's program … we will strengthen the oversight, monitoring and evaluation of all state programs," OSHA acting administrator Jordan Barab said.

Perspective: In most cases the states are praised for taking on occupational safety and health regulation. There is even an organization of state plan states that issue an annual report on their efforts. In crafting the OSH Act, Congress believed that states should have the opportunity to run their own programs – with federal OSHA funding – because they knew the intricacies of hazards in their jurisdictions better than federal bureaucrats. Under the act, the proviso for state plans is that they match or exceed federal OSHA efforts. However, the results from Nevada do not bode well for what else OSHA might find lacking in other states.

More: Nevada OSHA report, Occupational Safety and Health State Plan Association 2008 annual report.

OSHA READIES DIRECTIVE ON H1N1

As concern deepens in the country over the spread of the H1N1 virus, OSHA is moving with dispatch to issue a compliance directive aimed at ensuring healthcare workers and emergency responders receive necessary and appropriate protections.

The agency said Oct. 14 that the directive would outline uniform procedures when it conducts inspections of workplace deemed to be high to very high risk for occupational exposures to the 2009 H1N1 influenza A virus.

Healthcare employers such as hospitals, nursing homes, personal care facilities and other businesses should prepare for a relatively quick receipt of the directive. Usually when a federal agency takes the step of announcing that a directive is imminent, it means the document likely has been formulated and is undergoing through final internal reviews.

Not a Standard
An OSHA compliance directive is not a legal standard that compels employers to adhere to certain workplace rules, but nonetheless carries considerable weight within the agency. In effect, compliance directives offer guidance to employers on how the agency expects them to tackle a particular workplace issue. OSHA said its H1N1 directive will follow closely interim guidance already released by the Centers for Disease Control and Prevention.

A key component of the directive will be to incorporate the use of Hazard Alert Letters, according to OSHA’s announcement. Hazard Alert Letters will give the agency a greater measure of control to push for additional protections at a workplace where no formal violations of OSHA standards have been found following an inspection.

OSHA uses Hazard Alert Letters as a regular function of its enforcement activity, particularly in ergonomics compliance. The letter will advise the employer to report any controls it may have implemented to address hazards, particularly those recommended by inspectors. Clearly, employers are wise to be proactive in reporting back to OSHA so they do not expose themselves to a General Duty Clause violation, the catchall provision in the Occupational Safety and Health Act that allows the agency to act when there is no specific standard.

Labor Unions Urged Action

In May, shortly after Jordan Barab was named acting OSHA administrator, Peg Seminario, the AFL-CIO safety and health director, wrote to Barab on behalf of several labor union requesting that OSHA "immediately issue a hazard alert and/or compliance directive that makes it clear that exposure to the H1N1 virus in health and emergency response settings poses a recognized hazard to workers and requires protective measures." The unions were concerned that many states and workplaces were not following these CDC guidelines on H1N1, Seminario wrote.

Respiratory protection will be at the core of the directive. In inspecting healthcare facilities, OSHA said employers will need to implement what it call a "hierarchy of controls," including encouraging workers to receive H1N1 vaccinations. Respiratory protection is another one of those controls, and OSHA expects employers to adhere to its respiratory protection standard, which covers protocols such as training and fit testing. CDC guidelines recommend respirator use when healthcare are within 6 feet of H1N1 patients.

Workers' Objections

OSHA and other federal agencies clearly will be challenged with H1N1 enforcement. While few doubt the potential seriousness of the virus, some healthcare workers have objected to having to submit to mandatory seasonal flu and H1N1 vaccinations. And some parents are balking at having their young children vaccinated.

In New York, for instance, healthcare workers are required to be vaccinated against the virus by Nov. 30 or face the potential of losing their jobs. But many are balking, worried that vaccinations may not be safe, and see mandatory vaccination as an invasion of privacy or infringement of religious principles. A judge Oct. 16 issued a temporary injunction halting implementation of the order.

Additionally, a poll released Oct. 8 by the Associated Press reported that more than a third of parents surveyed said they do not want their children vaccinated. The survey cited parents as saying they were about side effects from the new H1N1vaccine, believing it is untested.

More: CDC guidelines on H1N1, AFL-CIO letter, New York State mandatory vaccination requirements

ERGONOMICS IN PLAY AGAIN

On the surface, OSHA’s Site Specific Targeting program usually is an unremarkable regulatory exercise.

SST is the agency's primary programmed inspection plan for non-construction workplaces with the highest rates of injuries and illnesses. OSHA typically will tweak the plan each year, and changes arrive largely with very little fanfare.

But not this year.

Judging by a number of significant changes recently announced to the program, OSHA’s new leadership, buoyed by sweeping new approaches to labor policy by the Obama administration after eight years of GOP control, seems intent on using the SST process to address a number of its enforcement priorities -- particularly ergonomics.

Jordan Barab, who is running the agency as acting administrator, has expressed his frustration publicly in the past that OSHA dropped the ball on moving employers to ergonomics compliance during the Bush administration.

SST Protocol

Under SST, OSHA compiles inspection lists via its annual Data Initiative that surveys 80,000 employers with in industries with historically high injury and illness rates. The agency then develops primary and secondary inspections lists calculating case rates based on "days away from work, restricted work activity or job transfer," called the DART rate, or "days away from work injury and illness," the DAFWII rate.

OSHA staff then forwards the lists to its regional and area directors throughout the country to proceed with inspections. Always haunting for business owners and employers is the letter from OSHA informing them that their establishments are on the lists. Typically, about 4,000 workplaces receive inspection visits.

Effective July 20, OSHA began implementing a number of significant changes to SST, including using the program to advance ergonomics compliance.

SST Program Changes
Here are some key changes in the SST program for 2009-2010, which were announced in a Sept. 4 OSHA news release:

• Unlike in the past, establishments selected for the primary and secondary lists are divided into three sectors with specific DART and DAFWII thresholds. The sectors are manufacturing, non-manufacturing and nursing homes. The SST primary list includes 3,100 manufacturing workplaces with a DART rate of 8 or more or a DAFWII rate of 6 or more; 500 non-manufacturing worksites with a DART of 15 or more or a DAFWII of 13 or more, and 300 nursing homes with DART or DAFWII rates of 17 or more or 14 or more, respectively. The secondary list will have incrementally lower DART and DAFWII rates and includes nursing homes for the first time.
• OSHA’s recently announced Recordkeeping National Emphasis Program is replacing inspections of low-rate establishments in high-rate industries that formerly were conducted under SST. This change will free up resources for SST while placing greater scrutiny on through the recordkeeping initiative on workplaces that OSHA suspects might be "cooking the books."
• Adds to the primary inspection list some establishments that did not respond to the 2008 OSHA Data Initiative survey. This change means OSHA will be aggressive at ferreting out workplaces that did not return injury and illness data. By placing them on the primary list, it increases their chances for an inspection. "The agency's intent is to deter employers from not responding to avoid inspection," OSHA said in its SST directive.
• Clarifies how establishments will be selected for industries that do not have permanent workplaces. OSHA area offices will visit the employer’s central office to determine which worksites are available based on the type of work scheduled and the length of time remaining before the worksite closes up shop.
• Changes the threshold of workplaces subject to SST inspections as establishments with 40 or more employees rather than 10 or fewer. OSHA will direct its inspections to larger worksites -- thus creating the potential for greater enforcement sanctions.
• Changes the way it addresses employers with multiple worksites under SST. When two or more establishments of the same employer are included in the same Data Initiative survey sheet returned to the agency, OSHA will make its selections based on each establishment’s DART and DAFWII rates.
• Clarifies that OSHA compliance officers will not wait until the employer’s records are produced to begin the walkaround part of the inspection. This change is in keeping with the Recordkeeping National Emphasis Program. While employers have four hours to provide the required records, that won’t stop inspectors from getting started with the inspection.

When OSHA talks about SST, it emphasizes that the program helps the agency direct its precious enforcement resources to workplaces where workers are getting hurt the most. Manufacturing and nursing homes are viewed as refuges for musculoskeletal disorders, and OSHA intends to use SST to address these. In the manufacturing sector, meatpacking, automotive and poultry processing are among industries likely to receive greater scrutiny.

Impatience on Ergo
Barab, a former organized labor official and more recently an adviser on workplace issues for Democrats on the House Education and Labor Committee, is impatient with industry’s contention that ergonomics compliance is costly and based on shaky science.

Barab recalls 2001 when he served at OSHA during the Clinton administration. OSHA promulgated an ergonomics standard during Clinton’s waning days, only to have the Republican-controlled Congress repeal it under the Congressional Review Act shortly after President Bush’s first term began. The act allows Congress the opportunity to overrule new federal regulations.

That move delighted industry, but drew eight years of complaints among organized labor and others that Bush had let industry off the hook on ergonomics.

Despite the Democrats returning to power under President Obama, Barab cannot summarily reinstate the ergonomics standard because under statute once repeal occurs it "may not be reissued in substantially the same form," according to the act.

But adept use of enforcement programs like SST shows indeed there there is more than one way to skin a cat.

More: OSHA's Site Specific Targeting directive

Photo: Jordan Barab (Source: OSHA)

HARKIN AT THE HELM

HELP HEARING: Sens. Mike Enzi, R-WY, ranking member, left,. and Tom Harkin, D-IA, at Harkin's first hearing as chairman.

Photo: HELP Committee

Sen. Tom Harkin, D-IA, presided over his first meeting Sept. 30 as new chairman of the catchall Health Education Labor and Pensions Committee, a pivotal moment for the veteran legislator considering he was replacing the late Sen. Edward Kennedy who died in August after a lengthy illness.

Replacing a transcendent figure as Kennedy who was respected on both sides of the aisle puts Harkin in an enviable – and powerful – position in the Senate.

Certainly Harkin, the longest-serving Democratic senator in Iowa history and a 1992 candidate for the Democratic presidential nomination, long has been viewed publicly as an "upper-tier" senator in terms of power, influence, stature and popularity -- like contemporaries that include a John McCain, Chuck Schumer, Arlen Specter, Dick Durbin, Tom Coburn, Olympia Snowe or Max Baucus, for instance.

With such standing among his colleagues, you don’t imagine Harkin getting bullied by some of the committee’s heavy hitters, which include Ranking Member Mike Enzi, R-WY, Orrin Hatch, R-UT, who served as chair in the early 1980s, or even fiery supporter Barbara Mikulski, D-MD. Harkin, who won’t have to seek reelection in Iowa until 2014, has the name to push back when he needs to.

With HELP firmly under his control, Harkin now gets to put his stamp on U.S. domestic policy in wide ranging areas, including education, labor, human services and healthcare. Other than defense, these areas command the largest share of the federal budget each year, though their funding is authorized through the congressional appropriations committees. Kennedy had come to symbolize the committee’s legislative work, and, as such, had a hand in shaping most major domestic proposals considered by the Congress over many years.

Harkin: "Enormous responsibility"
At a committee session Oct. 7, Harkin pronounced, "We have an enormous responsibility to our fellow citizens, and it is one I intend to deliver on."

In taking the reins at HELP, Harkin gives up the chairmanship of another powerful Senate committee, Agriculture, to Sen. Blanche Lincoln, D-AR.

Surely lacking some of Kennedy’s Yankee sophistication, Harkin’s challenge at HELP will be to replicate and build on the work of his predecessor. Harkin is an affable, folksy, true-to-the-core progressive, so expect him to approach his challenge in his own unique way.

After it was announced that Harkin rather than the next ranking Democratic member on the committee, Sen. Chris Dodd, D-CT, would take the helm of HELP, liberals were ecstatic. One online posting described the move as "terrific news" and "finally someone in the Senate that will speak up strongly and loud for our side."

Harkin’s ascension to the top of the 23-member HELP Committee announced on Sept. 9 comes at a particularly sensitive time in Congress and the country – the riveting debate over healthcare reform. Harkin is an unabashed supporter of a government insurance option, and his influence will weigh heavy as the Senate seeks to reconcile a healthcare proposal passed during the summer on a straight party-line vote in HELP with a dramatically different one – without a public option – passed this week by Baucus’ Finance Committee.

Where Kennedy was considered relevant and strong on most if not all issues before the committee, Harkin’s niche has been focused on healthcare and human services. He gets credit for getting passed the Americans with Disabilities Act in 1990. And Harkin is a big proponent of legislation targeted at HIV and the AIDS prevention and treatment. Additionally, one of his pet projects is the promotion of wellness in the workplace as a way to reduce healthcare costs.

Stance on Workplace Safety
Workplace safety and health typically isn’t the hottest of hot-button issues as it falls under the greater labor category. Surely, Harkin, as Kennedy did, will abdicate much of that realm to Sen. Patty Murray, D-WA, who chairs HELP’s Subcommittee on Employment and Workplace Safety. Only Kennedy still pushed personally on worker protections until his death and had pursued OSHA reform legislation vigorously in recent sessions of Congress.

While Harkin certainly supported those efforts and was a member of Murray’s subcommittee, the safety community should be eager to see if his approach will be as high-profile as Kennedy’s now that he is chairman.

Kennedy’s signature legislation on occupational safety and health, the "Protecting America's Workers Act," was reintroduced in Congress shortly before his death. The bill would remake the Occupational Safety and Health Act by substantially raising civil penalties on employers and dramatically expand OSHA protections to cover 8.5 million additional workers. At some point during the current session of Congress -- especially now with a sizable Democratic majority at least through 2010 and a president who would sign it -- Harkin and Murray can be expected to aggressively push the bill after tackling more weighty labor issues such as "card check."

Main's MSHA Nomination Approved
At the Oct. 7 session, Harkin managed to get some Obama candidates through to the full Senate for upcoming votes, though there is key work remaining. The most significant for the safety and health community is that of Joseph Main, former administrator of the United Mine Workers union’s Occupational Health and Safety Department, to head up the Mine Safety and Health Administration.

Interestingly, Enzi and other HELP Committee Republicans supported Main, allowing the nomination to go through without a confirmation hearing. On the face of it, that could be viewed as surprising given that Democrats would not budge on the nomination of Richard Stickler in previous administration and Stickler never officially assumed the title of assistant secretary.

But it appears that Enzi and others may be more willing to expend political capital instead on trying to block OSHA nominee David Michaels, a George Washington University professor and former Clinton administration official. Already, Michaels has been targeted as being extreme by pro-industry organizations. How Harkin handles the Michaels nomination in committee might be a harbinger of his approach to workplace safety going forward.

The other nominees cleared by the committee Oct. 7 were M. Patricia Smith, the New York labor commissioner, to be Labor solicitor, Dr. Regina Benjamin to be Surgeon General and William Spriggs to be assistant Labor secretary for policy.

Enzi, however, has said he is blocking Smith’s nomination, who would be Labor Secretary Hilda Solis’ key legal adviser.

Enzi has been unusually public in his denouncement of Smith, calling her "candor" during her confirmation hearing into question over issues involving her tenure in New York. Harkin has called Smith an "outstanding" choice.

How far Enzi is willing to go to keep Smith from the position certainly sets up an interesting dynamic in his relationship on committee matters with Harkin. Enzi also raised concerns about Solis during her confirmation process in the spring, complaining she refused to answer his questions about labor issues, but didn’t take the step of blocking the nomination.

More: HELP Committee Web site, Harkin on taking over HELP Committee (audio clip).

SAFETY'S CHANGING HEADLINES

In the nearly 10 months since the start of the Obama administration, a new era of safety and health policy is taking root. Sweeping policy changes are occurring with dispatch at agencies like OSHA and others. Here are five headlines to consider, followed by my perspective along with additional information sources:

Headline: OSHA Making Point With Sizable Proposed Fines

Perspective: Maybe they were clearing the books approaching the end of the 2009 federal fiscal year Sept. 30, but it seems – anecdotally at least – that OSHA regional and area directors were pushing out more sizable proposed penalties in August and September. Clearly, acting OSHA administrator Jordan Barab has signaled that the agency would place greater emphasis on enforcement, delighting proponents who had claimed the agency under the previous regime was focused too much on voluntary compliance.

Some of the heftier proposed fines, announced in OSHA news releases, included $576,750 on Aug. 20 levied against a bark and stone plant company operating in Alabama, Georgia and Mississippi; $304,200 on Aug. 31 against a Rochester, NY solid waste collection firm for failing to correct hazards cited in 2008 inspection; $275,000 on Sept. 4 against a Lombard, IL metal coatings company for alleged electrical and fire safety violations; and $294,950 on Sept. 24 against a Canton dairy after receiving information alleging numerous safety violations.

Additionally, a Bloomer, WI underground construction contractor agreed Sept. 30 to pay $474,000 in penalties as part of a settlement agreement addressing hazards cited during three inspections. In their news releases, OSHA officials are using tough language, such as "It's time for this indifference to employee health and safety to stop" and the company displayed a "systemic indifference to the safety and health of their own employees, resulting in a dangerous work environment."

When proposed penalties reach the $300,000 mark, they are pretty significant. Among OSHA’s Top 10 dollar cases during fiscal year 2008, the highest proposed penalty was $8.8 million against Imperial Sugar Co. where 14 employees were killed in a sugar dust explosion. The 8th, 9th and 10th largest proposed penalties on the list were $330,000, $328,500 and $321,500, respectively.

Already in October, after the start of the 2010 fiscal year, OSHA already has announced proposed penalties to companies of $231,600, $364,350 and $237,500 in three instances.

MORE: OSHA enforcement information.

Headline: Globally Harmonized System Getting Ever Closer
Perspective: If there ever was a rulemaking scheme that highlights entrenched federal regulatory bureaucracy (besides, maybe, cranes and derricks), it has to be GHS – the Globally Harmonized System of Classification and Labeling of Chemicals. An international effort developed under the aegis of the United Nations, GHS seeks to promote a common criteria for classifying chemicals according to their health, physical and environmental hazards. OSHA is at the head of the effort in the United States on GHS because a new rule would affect its Hazard Communication standard.

OSHA published a long-anticipated Notice of Proposed Rulemaking on GHS in the Federal Register Sept. 30, saying it would be the first in a series of aggressive steps to get a rule on the books. In fact, OSHA is putting up GHS as a demonstration of a new day at the agency where important health and safety standards will make the light of day.

OSHA's Hazard Communication standard, 1910.1200, addresses hazards from both chemicals produced and imported into the workplace and governs the communication of those hazards to workers. Employers are required to maintain a hazcom program for workers, including making available material safety data sheets. The United States is among countries and international organizations that helped develop the GHS, which includes the use of universally recognized pictograms (right).

The European Union, China and Japan already have adopted GHS, while the United States has been mired in the regulatory process. Now that the proposed rulemaking has been published, OSHA is promising that following a 90-day comment period through Dec. 29 it will hold public hearings nationally during first quarter 2010 on how to phase in the standard.

OSHA published an Advance Notice of Proposed Rulemaking on GHS in Sept. 2006, an initial step to begin the process of seeking public comment. GHS long has been viewed widely in health and safety circles as a "feel-good" effort because both labor and industry agreed it was needed, but OSHA was not able to advance the rulemaking in 2007 or 2008 as it had indicated in its regulatory agenda.

MORE: OSHA guide on GHS.

Headline: Dr. Howard back at NIOSH
Perspective: It seems that the entire safety and health community – friend and foe alike -- is pleased as punch that Dr. John Howard has been restored to the helm of the National Institute of Occupational Safety and Health for another six-year term. Health and Human Services Secretary Kathleen Sebelius made the announcement on Howard Sept. 3. NIOSH is a sub-agency of the Centers for Disease Control and Prevention, which comes under HHS.

Despite wide protests, then-CDC director Dr. Julie Gerberding declined to reappoint Howard to the position in July 2008. It had been widely chronicled that Howard had drawn Gerberding’s ire during his first term for failing to support a controversial CDC restructuring plan that would have diminished NIOSH’s influence. A number of safety organizations, such as the American Society of Safety Engineers and American Industrial Hygiene Association, went so far as to appeal to former HHS Secretary Mike Leavitt to overrule Gerberding, but to no avail.

But in the end, Howard, who had headed California’s Division of Occupational Safety and Health, or CalOSHA, proved to be too popular and too valuable to NIOSH. He was such with progressives and conservatives and labor and industry. During the past year, Howard had remained on NIOSH’s payroll as coordinator for HHS’ critical programs on New York’s World Trade Center programs following the 9/11 terrorism.

During his first stint, Howard, both a medical doctor and lawyer, was credited with being a tireless advocate for improving responsiveness to NIOSH research through strong partnerships with labor and industry. He also has been a leading researcher to identify and address occupational hazards associated with nanotechnology and led the agency’s efforts on the concept of Prevention through Design as a way to institutionalize worker health and safety concepts.
MORE: My 2004 interview with Dr. Howard about NIOSH research on workplace driving.

Headline: OSHA’s Rescinds ‘de Minimis’ Policies in Steel Erection Standard
Perspective: This major change in policy is a big win for construction union activists, notably ironworkers, concerned about falls from elevation in the sector. In a directive issued Oct. 1, OSHA will not longer allow construction contractors to disregard the so-called 30-foot rule in the standard that let them to use their discretion in utilizing decked floors or nets within two stories or 30 feet if workers also wore fall protection.

The directive also changes requirements in the standard when workers use shear connectors, such as steel studs or bars, to bind I-beams to concrete. Union activists believe the change will decrease the potential for fall from tripping because floor decks will be required to be built before workers can install the connectors.

That OSHA issued the directive within a few months of the Obama administration taking office is telling politically. The policy giving contractors the option over decked floors and nets and where to connect I-beams was put into place in 2002, shortly after the start of the Bush administration.

Unions claimed the previous policy was too favorable to industry at the expense of safety, pointing to highly publicized deaths of construction workers during the period from during a spate of incidents at frenzied construction activity at the Strip in Las Vegas as part of the ambitious, multi-billion CityCenter hotel and casino project. More than a third of 1,204 construction fatalities in 2007 were attributed to falls, according to the U.S. Bureau of Labor Statistics.

Before the change, OSHA’s policy was to view the provision in the standard as "de minimis" – violations of safety rules that have no direct or immediate relationship to safety, health or property damage -- when the employer required that all workers be protected by fall protection. Now, OSHA’s policy is that use of 100 percent fall protection is not a basis for considering a failure to comply with these steel erection provisions as de minimis. Thus, if there is an incident, even with fall protection, scrutiny will increase.

MORE: OSHA's directive outlining the changes.

Headline: Feds Expect Employer Cooperation on H1N1
Perspective: While no federal regulatory standard compels employers to prepare their workplaces for possible H1N1 influenza outbreaks, smart employers are putting plans in place, even small firms. When it comes to public health issues like H1N1, OSHA has corralled the issue pertaining to the workers and believes it is the agency’s duty to provide leadership to the workplace component. It might seem the agency is stepping out the box of its mission, but it has taken a similar aggressive stances on other issues like emergency preparedness when they touch on the workplace.

So far, what employers have to go on are guidelines, which are not rooted in statute. But guidelines are like a subtle hint of sorts. The agency is expending considerable resources for outreach and information and expects employers to take heed and get with it. (Remember, there is something called the General Duty Clause in the OSH Act that virtually covers everything that OSHA standards do not).

On Sept. 30, OSHA presented a forum, "Workplace Preparedness: How Small Businesses Can Prepare for H1N1 Influenza," to help employers prepare for the potential impact the virus could have. In August, several federal departments, including Commerce, Health and Human Services and Homeland Security announced guidance for businesses to plan for and respond to the arriving flu season.

The guidance, issued by the Centers for Disease Control and Prevention (CDC), addressed employer plans, such as encouraging employees with flu-like symptoms or illness to stay home. Employers are encouraged to review sick leave policies and ensure employees understand them, according to the guidance, and should try to make sick leave policies flexible for workers who may have to stay home with ill family members or if a child's school is closed.

Clearly, these guidelines can cause substantial disruptions to workplaces, but employers need to act. Already, some public health advocates would prefer that OSHA issue an emergency temporary standard to ensure workers are being treated appropriately in the event of an outbreak.

MORE: OSHA page on H1N1.

• 
  

OSHA TARGETS UNDERCOUNT

OSHA’s announcement Oct. 1 to initiate a National Emphasis Program (NEP) on recordkeeping accuracy will have a profound impact on employers required to report injury and illness data to the federal government.

When OSHA implements an NEP, usually run over a specified period, it means the agency is directing additional financial, operational and staff resources to an issue it perceives to be a problem. The NEP, in effect, tells OSHA regional and area offices – thus OSHA compliance officers across America – to elevate recordkeeping to the top of their checklists when they inspect workplaces.

Growing Scrutiny
Why do an NEP on recordkeeping now? The agency has been subject to damning scrutiny in recent years over the implication that the data it collects from employers are vastly inaccurate and misleading – often resulting in an untenable underreporting of workplace injuries and illnesses.

An NEP is a powerful enforcement mechanism and can lead to new workplace rules because OSHA will examine data it collects during the process and draw conclusions about how to approach the issue going forward. OSHA cannot possibly inspect every workplace, but the NEP signals the agency intends to place greater emphasis on recordkeeping in regulation.

The whole issue of underreporting for OSHA has been like walking around with a stone in your shoe – discomfort for an agency whose primary responsibility is to ensure that employers provide safe and healthful places of employment for workers. Agency critics contend that OSHA cannot formulate effective workplace injury and illness policies if it does not know where, how and how often workers are being hurt or sickened.

Many severe injuries never make it into the OSHA recordkeeping system, according to critics, though many in academia and other circles stress that the undercount problem is multifaceted because different data systems capture different types of data, such as hospital or workers’ compensation records versus data on OSHA logs.

Politically, both the Senate Health, Education, Labor and Pensions Committee and the House Education and Labor Committee have tackled underreporting in congressional hearings and through independent staff research. The Government Accountability Office and other organizations also have studied workplace recordkeeping.

Politicians Critical of Agency
Rep. George Miller, D-CA, who chairs Education and Labor, was particularly critical of OSHA during the last administration when agency leaders would come before the committee and exhort that injury and illness rates were falling – ostensibly because of their policies. Miller questioned those claims in the face of acknowledged shaky recordkeeping.

In June 2008, former OSHA manager Bob Whitmore, who had directed the OSHA’s national recordkeeping system since 1988, stunned the agency by testifying before Education and Labor that OSHA information was inaccurate because it willingly accepts underreported and falsified data from employers (OSHA annually collects injury and illness records from about 85,000 workplaces nationwide from employers who report the information on OSHA logs).

Even industry representatives have had a difficult time explaining underreporting, choosing to focus rebuttals on unintentional actions and confusion on the part of employers.

Taking some heat over underreporting also has been the U.S. Department of Labor’s Bureau of Labor Statistics because it helps OSHA and others draw conclusions about the nation’s state of workplace safety and health. A June 2008 report from the majority staff of the House Education and Labor Committee claimed that as much as 69 percent of injuries and illnesses occurring in U.S. workplaces may escape counting into the BLS’ annual Survey of Occupational Injuries and Illnesses.

OSHA will focus the recordkeeping NEP on "selected" industries with high injury and illness rates, according to the agency – specifically "low rate establishments operating in historically high rate industries."

Workers To Be Interviewed
That means if companies are in industries like meat packing, passenger air transportation, iron, copper and steel foundries, nursing homes, marine cargo handling and motor vehicle seating manufacturing and they consistently show low rates on their OSHA 300 Logs then they should expect to be targeted. OSHA will conduct limited safety and health inspections under the recordkeeping NEP, but will interview and survey workers and perform detailed reviews of logs, making this program different than some others.

The agency will base its inspection criteria on Days Away From Work case rates, or the DART rate. Generally, approved participants in OSHA’s Voluntary Protection Programs (VPP) and Safety and Health Achievement Recognition Program (SHARP) will be exempt from inspections.

Employers can expect citations to be issued under the NEP if they are in violation of recordkeeping procedures, but they typically will be labeled as "other-than serious" for first-time offenders. However, "willful," "repeat," or "failure to abate" cases will draw the attention and scrutiny of OSHA regional administrators or regional solicitors.

More: OSHA recordkeeping NEP instruction, House committee report on undercounting.

Photo: Rep. George Miller, D-CA

THE FUSS OVER MICHAELS

President Obama’s nomination in July of George Washington University professor David Michaels to head OSHA is being met with just about everything in the satchels of opponents. Michaels’ critics are throwing it all his way -- slingshots, bows, arrows, missives, and, yes, the kitchen sink.

In fact, Michaels’ nomination, pending in the Senate Health, Education, Labor and Pensions Committee, is shaping up as a cause celebre for pro-business, conservative interests, like the U.S. Chamber of Commerce and Manhattan Institute. Not too often in Washington does a prospective sub-Cabinet leader meet with such virulent opposition. Given all the rhetoric, Michaels’ foes are aiming to show they are serious about blocking him.

Will it be enough to stop the confirmation of the epidemiologist and research professor at the Department of Environmental and Occupational Health at George Washington’s School of Public Health and Health Services? Short of an unforeseen scandal, probably not.

Political Tit-for-Tat
Washington is a place of political tit-for-tat. Opponents seem to be forgetting that their guys – John Henshaw at the start of the administration of President George W. Bush and Edwin Foulke Jr. at Bush’s second term – were confirmed to lead OSHA easily and without much of the expected usual opposition from Democrats, labor unions and others.

The progressives abdicated eight years of workplace safety and health policy formulation under Henshaw, a business executive, and Foulke, an industry labor attorney, and believe now it is their turn. Additionally, the intent of Obama to nominate Michaels, who served as assistant secretary of energy for Environment, Safety and Health during the waning years of the Clinton administration from 1998 to 2001, was never a secret.

Many names were being floated during the spring following Obama’s ascension to the presidency. But the choice always seemed to circle back to Michaels, whose academic ideas were shaped during graduate and doctoral work at Columbia University in New York.

So with political tit-for-tat, how can you deny the president’s choice for OSHA when HELP Committee Democrats – including the late Edward Kennedy, Patty Murray, Barbara Mikulski, Chris Dodd and Tom Harkin – let the nominations of Henshaw and Foulke get through on unanimous voice votes?

Would GOP senators on the committee, such as Ranking Member Mike Enzi and Orrin Hatch, Judd Gregg and Johnny Isakson really want to expend the political capital needed to even place a hold on the nomination when they enjoyed nearly eight years of Henshaw and Foulke?

Expect HELP to take up the nomination as soon as the legislative process for health-care reform runs its course – certainly by November. Judging by precedent that is about a typical timeline for OSHA nominations at the start of new presidential terms.

Big labor and others are feeling pretty good with the timeline -- comforted that Jordan Barab, formerly the senior labor policy advisor for health and safety for the House Education and Labor Committee and a former union official, is already running the agency as acting assistant secretary. They also know that Democrats hold an unmistakable voting majority in the Senate, should such a nomination reach the absurdity of a floor debate.

Laying on the Tar
Opponents are laying the tar on Michaels on a number of fronts – that he is a leading "junk science" proponent; that his zeal to promote workers’ safety and health at nuclear weapons facilities while at Energy may have harmed national security; that he plans to use OSHA’s broad statutory authority to restrict firearms ownership and possession; or that he has unusually close ties to liberal financier George Soros.

Opponents are particularly pushy on Michaels’ approach to the use of science in setting public policy and say his organization, the Project on Scientific Knowledge and Public Policy, or SKAPP, is a shill for promoting "jackpot-justice lawsuits," as the conservative Washington Times newspaper put it.

Opponents’ claims on gun control seem a novel kitchen-sink argument – that Michaels would use OSHA’s General Duty Clause to tie gun violence with public health and thus promulgate stricter regulation aimed at private gun ownership.

Through his body of written work, congressional testimonies and associations, Michaels is pretty clear about where he would take OSHA. Opponents see where it is heading and do not like it.

Among ideas, Michaels has supported a workplace injury and illness prevention program rule that would require all employers to develop and follow hazard identification and abatement plans; increase workplace health and safety dollars for training down to the shop-floor level; develop protocols for an electronic recordkeeping and reporting system, and pursue strong public outreach programs to get citizens to think more about safety and health.

Already under Barab, OSHA is reviewing many of these issues, particularly more aggressive development and enforcement of safety and health standards. Michaels’ ideas are not as new as they would seem as many have been part of the progressives’ stance on occupational safety and health during the Bush years.

Generally, the last thing pro-business interests want is a federal agency in OSHA that will have more sway over industry. Already, they hold the view that the agency has lost its way through abuse of its authority and original purpose.

Power Versus Bureaucracy

While the head of OSHA holds considerable power, opponents might ask if that power trumps the Washington bureaucracy. Things get done in Washington, but usually not overnight. Remember Henshaw’s stated desire early in his term to expand the OSHA Voluntary Protections Programs to 8,000 participants? It never happened, despite greater agency focus on voluntary compliance. The bureaucracy simply did not allow it.

When he gets in, Michaels will find the same bureaucracy facing him. Short of some radical remaking of the Occupational Safety and Health Act (efforts are out there to do so), perhaps the best Michaels may hope for is to be able to drive fundamental change in approach and philosophy at the agency.

Domestic issues like healthcare reform, cap and trade, union "card check," education and others are still ahead on agendas in Washington.

More: David Michaels' bio, Washington Times editorial, Views on OSHA, including from Michaels.

Photo credit: George Washington University