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.

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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.