OSHA has issued a memorandum on its Policy Background on the Temporary Worker Initiative to its regional administrators. From Tom Galassi, Director of Enforcement Programs, the memo was posted July 21 on the OSHA web site. Temporary workers has been a key initiative of OSHA this year, as the Agency’s web page on the issue indicates.
ASSE’s Government Affairs Committee met May 5-7 in Washington, DC, for the Committee’s annual Capitol Hill Visits, combining a Committee meeting with a day visiting key occupational safety and health agencies in which ASSE is a stakeholder and Congressional committee offices that impact occupational safety and health.
Agency meetings were held at OSHA, NIOSH and the US Chemical Safety Board (CSB).
The Committee met with NIOSH leadership to discuss a variety of issues, including ASSE interest in advancing research on effectiveness of safety management systems as well as research to help better understanding of training and professionalism among safety and health professionals in advancing workplace safety. The work of the NIOSH Center for Workers’ Compensation Studies was a key NIOSH initiative discussed, and connections were made to build a relationship with Center staff.
At OSHA, among many topics, OSHA’s latest enforcement efforts and proposed policy changes, as well as ASSE’s intention to advance the discussion about risk-based approaches to both safety and the regulation of workplace safety and the role of qualified safety and health professionals in advancing safety were discussed.
At CSB, ASSE expressed support for the agency’s budget request, CSB’s efforts to deal with ongoing efforts to clarify its investigation authority with regard to other agencies and its Tesoro recommendation to adopt the safety case in the oil and gas industry.
On Capitol Hill, ASSE met with House Education and Labor Subcommitee on Workforce Protections staff on both the Republican and Democrat sides, Senate Health, Education, Labor and Pensions staff on both sides of the aisle and House and Senate Labor/HHS/Education Appropriations Subcommittees. Given the lack of occupational safety and health issues advancing currently, discussion in these meetings focused on future leadership on safety and health issues with the impending retirements of Senator Harkin (D-IA) and Representative George Miller (D-CA), both with long history of interest in workplace safety, ASSE’s positions on recent OSHA activities, efforts to advance the issues of risk-based approaches to regulation and the profession, and concern over the recent rejection by the Office of Personnel Management of FACOSH recommendations to raise the professionalism of the GS-0018 Safety and Occupational Health Job Series. At meetings with appropriations staff, ASSE shared its support for OSHA and NIOSH budgets, including funding for ERCs and the NORA agriculture, farming and fishing research program.
At its meeting, ASSE met with government affairs staff of the National Safety Council to discuss working together to advance common goals and, among its agenda items, focused on identifying key issues for which the Committee will build white papers, preparing for expected OSHA efforts to advance exposure limits, and finding ways to raise safety and health professionals’ voices in the variety of issues involving chemical safety and security.
ASSE joined with 158 other Friends of NIOSH to urge leaders in both the Senate and House Appropriation Subcommittees on Labor, HHS, and Education to include in the Fiscal Year 2015 federal budget at least the Fiscal Year 2014 program level of $332.86 million for the National Institute for Occupational Safety and Health (NIOSH). That funding level would counter the Administration’s effort again this year to eliminate NIOSH’s Education and Research Centers (ERCs) and the NORA Agriculture, Forestry and Fishing Program (AFF) in research. The Administration’s justification to Congress (at page 273) for eliminating these programs is the following:
CDC’s FY 2015 request of $100,954,000 for NORA is an overall decrease of $11,046,000 from the FY 2014 Enacted level and reflects elimination of the Agriculture, Forestry and Fishing (AgFF) program, a reduction of $24,000,000. AgFF is one of 10 current CDC sectors. Although this program has made positive contributions, given the relation to CDC’s mission and the ability to have a national impact on improved outcomes, the AgFF has been proposed for elimination in a limited-resource environment. CDC will use FY 2015 funds to address high priority occupational hazards in the other nine industry sectors, as well as emerging issues that may require new approaches to prevention, such as nanotechnology. Examples of high-priority occupational hazards include chemicals used or generated in healthcare establishments, noise in manufacturing, and stress in public safety.
ASSE and its Construction Practice Specialty are supporting fully OSHA’s June 2-6 National Safety Stand-Down to Prevent Falls in Construction. ASSE urged its chapters and members to embrace this opportunity to demonstrate safety and health professionals’ leadership in reducing the leading cause of death in construction. What ASSS members already do to help save workers lives should be done on every construction worksite.
ASSE has encouraged each chapter to hold a meeting on falls and to reach out to OSHA area offices to build partnerships on outreach efforts. Members are encouraged to make sure their employers participate in the Stand-Down and to spread the word about the Stand-Down to other safety and health professionals and companies and try to get them involved.
More about the Stand-Down can be found at https://www.osha.gov/StopFallsStandDown/
In letters to US Senate and House of Representatives appropriations subcommittees with funding oversight for OSHA and NIOSH, ASSE joined with AIHA and NSC to back adequate funding for the agencies, including a rejection of the Administration’s repeated proposal to cut funding for NIOSH Education and Research Centers and the NORA Agriculture, Forestry and Fishing Sector Research Program.
You and the members of your chapter can join in the effort. April 1 and 2 Deadlines
In both the Senate and House, “Dear Colleague” letters are being circulated to get Senators and Representatives to sign on to indicate their support for FY15 NIOSH funding, including the Education and Research Centers and the Agriculture, Forestry and Fishing Program. The National Safety Council has set up a CapWiz alert that you can use to contact members of Congress to encourage them to sign onto these letters. The deadline to sign both letters is April 1st.
Also, Senators Sherrod Brown (D-OH) and Richard Blumenthal (D-CT), and Rep. George Miller (D-CA), Joe Courtney (D-CT) and Robert Scott (D-VA) are circulating Dear Colleagues in the Senate and House supporting the President’s requested level of $565.01 million for OSHA. The deadline to sign these letters is April 2nd. The National Safety Council also has a CapWiz alert you can use to encourage support for the OSHA letters.
At the March 21, 2014 session of OSHA’s informal public meeting for its proposed rule on occupational exposure to respirable crystalline silica, Adele Abrams, Esq., represented ASSE with testimony that summarizing ASSE’s full comment for the record of the rulemaking. ASSE and AIHA testified together on the same panel, as a report on the day’s hearing describes. The hearings are scheduled to end on April 4, as OSHA’s schedule of appearances indicates. (Photo: AIHA Vice President Daniel Anna and Adele Abrams)
In comments submitted for the record, ASSE urged OSHA to withdraw its proposed rule Improve Tracking of Workplace Injuries and Illnesses until it develops clearer objectives and a stronger rationale for requiring establishments with 250 or more employees to submit quarterly electronically their injury and illness records and summary data annually; establishments with 20 or more employees to submit electronically the annual summary form; and certain employers to submit electronically other information on notification from OSHA. ASSE stated that it did not believe OSHA has explained adequately how collecting the information will actually improve workplace safety or how OSHA will manage the information collected. ASSE also said that publishing the information collected will make more difficult the efforts of safety professionals to focus companies on preventing hazards instead of reporting of injuries. On January 9, ASSE Government Affairs Committee Chair James Thornton said similar comments at OSHA’s public meeting on the proposed rule.
In a letter to Subcommitee on Workforce Protections Chairman Tim Walberg for the record of its February 4 hearing on OSHA policies and the rulemaking process, ASSE urged the adoption of specific measures to improve the rulemaking process. “ASSE has never been an organization that believes a new standard is the answer to a workplace risk,” President Kathy Seabrook wrote. “From that measured perspective, ASSE has no difficulty in telling the Subcommittee that the time has long passed when Congress needed to give OSHA better tools to advance more reasonably its rules.” Measures ASSE identified from its Draft Occupational Safety and Health Reform Bill included moving towards risk-based regulatory approaches, encouraging better use of collaborative rulemaking, and enabling OSHA to update its standards with voluntary consensus standards. ASSE also said that, if no other measure can be advanced, Congress should build on bipartisan agreement that OSHA’s Permissible Exposure Limits (PELs) need to be updated.
In comments submitted for the record, ASSE generally supported OSHA’s proposed rule on Occupational Exposure to Crystalline Silica. If adopted, a new standard would lower OSHA’s PEL for exposures to silica in the workplace to 50 micrograms per cubic meter of air (µg/m3), putting into place a long-standing NIOSH recommendation. It would also set an action level of 25 µg/m3, the TLV set by ACGIH. Implementation of feasible engineering and administrative controls, improved medical surveillance and proactive exposure monitoring in situations where exposures above the PEL can be anticipated are also covered. These requirements are generally consistent with the recommended best practices established in the ASTM E1132 Standard Practice for Health Requirements Relating to Occupational Exposure to Respirable Crystalline Silica, (general industry) and the ASTM E2625 Standard Practice for Controlling Occupational Exposure to Respirable Crystalline Silica for Construction and Demolition Activities. The rulemaking covers the three forms of crystalline silica – quartz, cristobalite, and tridymite – and applies to general industry as well as the construction and maritime industries.
In a November 7 teleconference for news media and leading stakeholders, OSHA announced a proposed rule to amend its recordkeeping standards to require employers to submit electronically the injury and illness data OSHA already requires them to keep. The proposal was published the next day. Under the proposal, employers with more than 250 employees would be required to submit records quarterly to OSHA. Employers with between 250 and 20 employees in certain industries with high injury and illness rates would submit annual summaries. Of interest:
A 90-day comment period ends February 6, 2014. OSHA will hold a public meeting on January 9 in Washington, D.C.
ASSE President Kathy Seabrook called for an end to the government shutdown, saying that federal agencies like OSHA, NIOSH, MSHA, CSB and the EPA were “established by Congress in response to calls by the American people for help in protecting them from workplace-related risks. No American worker should lose their life because of the inability of those who lead our government to work together to provide those protections.”
ASSE provided comments in response to the National Institute for Occupational Safety and Health’s (NIOSH) proposed Strategic Goals for its Traumatic Injury Research and Prevention Program. ASSE commended NIOSH, saying that, overall, the goals reflect an appropriate intention to develop greater understanding of the most important risks our members face in this nation’s workplaces. ASSE’s comments included suggestions to enhance NIOSH’s abilities in reducing falls in the construction industry, in expanding understanding of biotechnology-based fall control measures, reducing occupational injuries and deaths due to motor vehicle incidents, and reducing occupational injuries and deaths from stationary machine entanglements.
UPDATE: On September 12, OSHA published the proposed rule in the Federal Register.
OSHA has announced publication of the long-awaited proposed rule to set a standard aimed at addressing workplace risks posed by silica. As indicated in an ASSE-prepared summary of the proposed rule, OSHA proposes to lower its Permissible Exposure Limit (PEL) for silica to 50 micrograms per cubic meter of air, which is 50 percent of the current PEL and consistent with NIOSH’s Relative Exposure Limit (REL). ASSE issued the following response to the proposed rule on its announcement:
This statement is attributable to Kathy A. Seabrook CSP, CMIOSH, EurOSHM, President, American Society of Safety Engineers
“Now that the Occupational Safety and Health Administration (OSHA) has moved forward rulemaking on a possible standard to address the occupational exposure to silica, the American Society of Safety Engineers (ASSE) looks forward to the opportunity to bring the expertise and experience of its member safety, health and environmental (SH&E) professionals to an open debate about the appropriate regulation of this risk.
“Our members already manage successfully the risks posed by silica in practical, cost effective ways and work with employers committed to protecting workers from those risks. By finally moving this rulemaking forward, the entire occupational safety and health community will have the opportunity to share best practices and varied perspectives on how best to protect workers from a risk that, despite advances in protecting workers from silica risks, still kills more than 150 workers and harms the health of thousands more every year. Our hope is that this debate and the information shared can help encourage more employers to provide better protections to their workers as this rulemaking proceeds.”
The first step in the rulemaking process for this standard was completed in 2003. Concerned that not all stakeholders were involved in closed-door discussions at the White House on a possible rule, ASSE in 2011 urged the Obama Administration to move forward a rule so all stakeholders could be involved.
New Secretary of Labor Thomas Perez has been appointed and is on the job. You can find out more about Secretary Perez from the Department of Labor website at http://www.dol.gov/_sec/. ASSE responded with the following statement from President Kathy Seabrook on his confirmation by the Senate:
“The American Society of Safety Engineers (ASSE) congratulates Thomas Perez on the confirmation of his appointment as the next Secretary of the Department of Labor. ASSE fully expects Mr. Perez’ leadership will support continuing positive relationships with the Department and agencies under his direction with which ASSE members are most often engaged – the Occupational Safety and Health Administration and the Mine Safety and Health Administration.
“ASSE is encouraged that the Administration has chosen someone with experience in leading a state occupational safety and health plan. The perspective Mr. Perez gained in that role, we trust, will help him in ensuring that OSHA and MSHA have the resources they need to help protect workers and that the measures these agencies take are fairly balanced between enforcement and cooperative efforts. ASSE is also confident that, from his experience, Mr. Perez recognizes the importance of seeking out the perspective of safety, health and environmental professionals on the front lines of protecting workers in any effort the Department undertakes to advance workplace safety and health. We look forward to working with Mr. Perez.”
On August 1, President Obama issued an Executive Order intended to bring OSHA, the Environmental Protection Agency, and the Department of Homeland Security and other agencies together to address various issues related to the safety and security of chemical facilities. The order can be found at http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security. Earlier this summer, ASSE had urged Congress to require the Administration similarly to bring federal agencies together to address difficulties agencies faced in cooperating at chemical explosion investigation sites. That letter can be found at http://www.asse.org/en/index.php/govt_affairs/asse-backs-csb-fy-14-budget-request-asks-help-in-setting-investigation-priorities-among-fed-agencies/.
This statement is attributable to Kathy A. Seabrook CSP, CMIOSH, EurOSHM, President, American Society of Safety Engineers
“The American Society of Safety Engineers (ASSE) applauds and supports President Obama’s Executive Order to improve federal agency coordination of this nation’s chemical facility safety and security oversight. While the causes of each chemical incident are unique and require careful investigation to help ensure similar incidents do not reoccur, common to every incident are the often overlapping and sometimes confusing layers of regulatory responsibility over facilities where potentially harmful chemicals are produced or stored. Requiring the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA) and the Department of Homeland Security (DHS) to lead an effort to improve coordination and work together to improve safety and security with a specific timeline of expectations is the best approach in addressing a significant threat to the American people.
“ASSE is also pleased that the importance of cooperation with industry, consensus standards organizations and other stakeholders in identifying safety and security best practices is embraced in the Executive Order. ASSE’s member safety, health and environmental (SH&E) professionals include leading experts in OSHA’s Process Safety Management standard, EPA’s Risk Management Plan Standard, and DHS’s Chemical Facility Anti-Terrorism Standards (CFATS). Their importance in the success of this effort cannot be overlooked, especially in any re-examination of OSHA’s Process Safety Management (PSM). As with every other OSHA standard, PSM deserves re-examination and updating. However, our members view the advancement that resulted from the standard’s adoption as a significant step forward, largely due to the standard’s reliance on best practices SH&E professionals had already put into practice. Any changes to PSM, RMP or CFATS must again involve SH&E professionals on the front lines of understanding the strengths and weakness of the standard.
“Finally, ASSE thanks President Obama for addressing the troubling difficulties the Chemical Safety Board and other federal investigative agencies have experienced in coordinating investigations of chemical facility explosions. Earlier this year ASSE called on Congress to require this Administration to bring these agencies together to develop a solution that respects each agency’s valuable contributions. We are confident that this Executive Order will help them achieve a more cooperative approach.
“President Obama’s action appropriately takes needed steps to improve the protections from chemical explosions and other incidents that American workers, their families and the public deserve. ASSE and its members look forward to working with each agency, employers and other stakeholders to advance those protections.”
On July 25, the Chemical Safety Board (CSB) held a meeting to reiterate its concern over several recommendations to OSHA the Board has made over the years to encourage OSHA to amend and adopt certain standards related to chemical safety but have not been addressed. The Board also voted on “Most Wanted Chemical Standard,” which it determined was combustible dust. Information on the CSB meeting can be found at http://www.csb.gov/events/csb-public-meeting-to-vote-on-key-safety-recommendations-and-initiate-most-wanted-program/. ASSE provided the following comment for the meeting:
Thursday, July 25, 2013
ASSE STATEMENT ON U.S. CHEMICAL SAFETY BOARD MEETING
Safety and health professionals appreciate CSB effort to bring attention to need for advance protections from the risks posed by chemicals in workplaces
This statement is attributable to: Kathy A. Seabrook, CSP, CMIOSH, EurOSHM, ASSE President
“The American Society of Safety Engineers (ASSE) appreciates the leadership demonstrated by the U.S. Chemical Safety Board (CSB) in holding a public meeting July 25, 2013, to bring attention to the need for the Occupational Safety and Health Administration (OSHA) to advance standards that can help ensure all employers take responsibility for managing the risks of explosions in the workplace. This meeting not only is an opportunity for the occupational safety and health community to come together and discuss needed changes in standards. It also should help remind us of our shared responsibility to provide employers, workers, safety and health professionals, and emergency responders with the necessary tools for helping manage the risk of workplace explosions, whether or not OSHA is able to advance these standards.
“Realistically, any call to advance OSHA standards must take into account that the key obstacle to improving those standards is not necessarily OSHA. Our nation’s process for adopting or even improving workplace safety and health standards is broken and in dire need of a significant overhaul. As a community, we must join in finding a way to give OSHA the ability to move effective standards forward in a reasonable way.
“ASSE has included several suggestions to improve OSHA’s standard development abilities in our Draft Occupational Safety and Health Reform Bill. Encouraging cooperative rulemaking, ensuring OSHA relies on consensus guidelines when promulgating new rules, freeing OSHA to update referenced voluntary consensus standards are just a few ways the process can be fixed. ASSE is open to other ideas and hopes this public meeting will be a catalyst for discussion on how best to support a more functional OSHA standards-setting process.
“ASSE also appreciates CSB’s plan to use this meeting to identify a ‘Most Wanted Safety Improvement.’ While ASSE considers an appropriate combustible dust standard vitally important, the safety improvement we believe can have the widest positive impact on the overall management of workplace safety and health risks is a truly risk-based OSHA injury and illness prevention program (I2P2) standard. An effectively written I2P2 standard has the potential of changing the very foundation of our nation’s approach to regulating workplace safety and health by moving employer focus from simply meeting prescriptive standards to taking active responsibility for identifying risks in each workplace and then establishing a plan to address each risk. An appropriate I2P2 standard would give every employer the opportunity to manage safety in the same way our safest, most successful employers and safety and health professionals achieve safe and healthy workplaces. ASSE encourages CSB to consider the I2P2 standard as the “Most Wanted Safety Improvement.”
“ASSE thanks CSB for its leadership and hopes our comments can expand the discussion to efforts that, if achieved, can help meet CSB’s goal of more effective oversight of workplace safety and health from OSHA.”
In a letter to the Chair and Ranking Member of the House Appropriations Subcommittee on Interior, Environment, and Related Agencies, ASSE stated its support for the Administration’s proposal to fund the U.S. Chemical Safety and Hazard Investigation Board (CSB). The Administration proposed funding CSB at $11.484 milion, an 8.8% increase over its current funding. ASSE also requested report language to accompany a final appropriations bill that would require the Administration to resolve differences among various federal agencies in setting investigative priorities at incident sites where explosions occur as well as in sharing information gathered at these sites. CSB created a Facebook page that, in part, includes various newspaper articles representing CSB’s perspective on the difficulties it faced in carrying out an investigation at the site of the April fertilizer explosion in West, Texas. An October 2010 CSB letter to Congress outlines a variety of investigations where it faced difficulties in carrying out investigations.
ASSE’s Government Affairs Committee (GAC) conducted its annual Capitol Hill visits and meeting in Washington, DC, May 4-7 in conjunction with ASSE NAOSH Week activities hosted by OSHA at the Department of Labor. The GAC meets twice a year, in the spring in DC and in the fall in Des Plaines, typically.
On Capitol Hill, in two half days of meetings, the GAC met with lead Republican staff members on occupational safety and health issues of the House Education and Workforce Committee, lead Democratic and Republican staff members on the same issues for the Senate Health, Education, Labor and Pensions Committee, and the lead Democratic staff of the House Appropriations Subcommittee on Labor and Health and Human Services issues. The meetings serve to further ongoing, positive conversations the GAC has on various issues in play that impact ASSE members.
Dominating this year’s meetings was the concrete stalemate in Congress on occupational safety and health issues. As in previous Congresses, the Protecting America’s Workers Act and mine safety reform legislation have been reintroduced, but there is no indication these major pieces of legislation as well as the codification of VPP, a bill to require an OSHA combustible dust standard, and others are likely to move forward. On budget issues, both sides of the aisle are sympathetic to ASSE’s concern that OSHA and MSHA receive adequate funding and that NIOSH not lose the Education and Resource Centers and the NORA Research Program in Agriculture, Farming and Fishing proposed by the Administration. It was particularly evident that the voices of ASSE and 194 other stakeholders in support of these programs had been heard. But, again, the fractured nature of current DC politics and a budget process that no one can predict how and when it will be played out make it difficult to feel confident about what an eventual appropriations bill will contain.
The GAC also continues to raise its draft OSH reform bill in discussions. Containing ideas from both sides of the aisle that would help address OSHA’s ability to do its job, one positive idea that came from the discussions was that updating permissible exposure limits (PELs) may be one element of the bill that could receive bipartisan support. ASSE will continue to explore this possibility.
On the Administration side, ASSE met with Assistant Secretary David Michaels and Deputy Assistant Secretary Jordan Barab to discuss various issues, including the impact of sequestration, prospects of an I2P2 and other standards, temporary workers and ASSE members’ recent contributions to OSHA’s understanding of the issue, and OSHA’s efforts at advancing best practices in whistleblower protections, among other issues.
The GAC also met with the US Chemical Safety and Hazard Investigation Board’s (CSB) Chairman, Rafael Moure-Eraso and Dan Horowitz, the CSB’s managing director. Of key interest was the CSB’s investigation in West, Texas, and the issue of which agency had priority in investigations, an ongoing concern for CSB. The GAC is considering a response to that issue.
With John Howard, NIOSH’s Director, the GAC discussed the impact of sequestration on NIOSH capabilities, the importance of wellness in the context of the Affordable Care Act, continuing concerns of how best to advance safety in research and education programs funded by NIOSH and efforts to support ASSE member understanding of resources available through NIOSH’s Center for Motor Vehicle Safety. As a result of that conversation, a session on the Center’s work has been included in this year’s PDC.
Finally, the GAC met with lead staff of the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to discuss both further cooperation, given the growing membership in the oil and gas industry, as well as PHMSA’s efforts to work with standards development organization (SDO) like ASSE to meet a DOT appropriations bill provision that barred the agency from citing standards that were not free. This has been a concern of ASSE, and the GAC will continue to address the issue.
Photos Top: (l to r) GAC Chair Jim Thornton, Bob Andrews, Ron Sokol, President Elect Kathy Seabrook and Ernie Harper. Middle: ASSE Arizona Member Jeremy Bethancourt receiving the first ASSE Triangle Award for Heroism at OSHA-sponsored NAOSH Week event, with ASSE President Rick Pollock and OSHA Assistant Secretary David Michaels. Bottom: (l to r) Andrews, Sokol, Seabrook, Thornton, Harper, Asst. Secretary Michaels, ASSE Federal Rep. Adele Abrams, Cindy Roth, Michael Wood and Deputy Asst. Secretary Jordan Barab
In a May 16 letter, ASSE urged President Obama to direct his Administration to move forward OSHA rulemaking on an injury and illness prevention program (I2P2) standard as an appropriate response to the April 19 fertilizer plant explosion in West, Texas, that took 15 lives as well as the nearly 13 lives lost each day in US workplaces. A well-written standard that require every employer to develop an I2P2 program would help ensure that every employer takes responsibility both for identifying safety and health risks in each workplace and establishing specific controls to manage those risks, ASSE President Rick Pollock wrote. Stakeholder meetings on the rulemaking were held in June 2010, and the Department of Labor’s latest Unified Agenda stated that the SBREFA process was to begin in January of this year. “A national debate on that standard is much needed and long overdue,” Pollock wrote.
For the third year, the Obama Administration has proposed eliminating funding for the National Insitute for Occupational Safety and Health (NIOSH) Education and Research Centers (ERCs) and the NORA Agriculture, Forestry and Fishing (AgFF) research program. In response, ASSE has joined with 220 other stakeholders in NIOSH and these programs to oppose the programs’ elimination in letters to leaders of the Senate and House Appropriations Subcommittees on Labor, HHS, Education. To date, this growing list of Friends of NIOSH have succeeded in saving these programs. NIOSH is valued on both sides of the political aisle on Capitol Hill. Given the uncertain fiscal environment in the political process, however, nothing is certain. In the recent meetings ASSE’s Government Affairs Committee had on Capitol Hill May 6-7, support for NIOSH was one of the key talking points. ASSE will continue that work.
Citing concerns over the agency’s lack of appropriate resources with the Centers for Disease Control (CDC), ASSE and AIHA in a letter to Senator Tom Harken, Chair of the Senate Committee on Health, Education, Labor and Pensions, to request a Government Accountability Office (GAO) study on whether National Institute for Occupational Safety and Health (NIOSH) should remain within CDC and, if not, where it should be placed. NIOSH is the nation’s only resource for significant research and training in occupational safety and health. Its already inadequate resources have increasingly gone to CDC overhead, and ASSE and other stakeholders have repeatedly opposed CDC’s repeated efforts to eliminate funding for research in farming, fishing and forestry and for Education Resources Centers, which educate significant numbers of health and safety professionals, in the Administration’s federal budget proposals.
ASSE provided comments for the record of OSHA’s Standards Improvement Project – Phase IV Request for Information based significantly on its role as Secretariat to the ANSI-accredited A10 Committee for Construction and Demolition Operations and the ANSI/ASSE Z9 Committee for Health and Safety Standards for Ventilation Systems. The comments included a detailed matrix of changes ASSE is urging OSHA to make to the 29 CFR 1926 Safety and Health Regulations for Construction to update consensus standards refernces in the regulations, along with copies of the standards for OSHA’s use. Also included was a copy of the recently updated Construction Safety Management and Engineering, the widely respected, comprehensive reference for managing risks on construction sites, and asked that it be referenced in 1926 appendices.
Secretary Solis’ comments on her resignation can be found at http://www.dol.gov/opa/media/press/opa/OPA20130053.htm
From a January 11, 2013, ASSE press release –
American Society of Safety Engineers (ASSE) President Richard A. Pollock, CSP,
responds to the recent resignation of U.S. Secretary of Labor Hilda L. Solis:
“On the announcement of her resignation, ASSE thanks and congratulates Secretary of Labor Hilda L. Solis for her service to the nation. We are pleased that, under her leadership, the Occupational Safety and Health Administration (OSHA) has been a positive partner in the discussion about how to energize and move forward this nation’s commitment to occupational safety and health. While ASSE and its members may not agree on every direction the current OSHA has taken, we do appreciate that under her leadership there has been willingness at OSHA to share ideas and listen to what our members have to say about the best ways to protect this nation’s workers on the job. Secretary Solis should be given
credit for supporting that environment. We have no doubt that Secretary Solis
will provide similar positive leadership in her future endeavors and wish her
good luck. As we do with every Administration’s choices to lead the Department
of Labor and OSHA, ASSE looks forward to working with a new Secretary of Labor who we trust will continue to provide thoughtful, cooperative leadership at the Department of Labor.”
ASSE has nominated Ron Sokol, CSP, to serve as a public member on OSHA’s Advisory Committee for Construction Safety and Health (ACCSH). Ron is the organizational leader for the Safety Council of Texas City, Texas, which works with employers and contractors to train construction workers in the petrochemical industry. He is a member of the NIOSH NORA Construction Council and serves as the Council on Professional Standards representative on ASSE’s Government Affairs Committee, among many of his achievements.
In response to ASSE’s effort on behalf of its Arizona members to see that the Arizona Division of Occupational Safety and Health enforce federal OSHA’s residential fall protection standard, ASSE received a letter from OSHA’s Phoenix Area Office outlining OSHA’s Complaint About State Program Administration (CASPA) investigation. ADOSH has 30 days to respond to OSHA’s findings and requirements. In the last minutes of its session this year, the Arizona legislature passed into law of Senate Bill 1441 that made sure Arizona employers cannot be required to protected construction workers from falls under elevations of 15 feet, which is 9 feet more than OSHA’s standard.
ASSE has been working with its local members in the New York and New Jersey areas to get help to those impacted by Hurricane Sandy. At the personal request of Assistant Secretary David Michaels, ASSE, NSC and AIHA have reached out to companies to encourage them to donate PPE and other safety equipment to nonprofits in New York and New Jersey who can distribute the donations to workers.
ASSE has also begun a grass roots effort to reach out to members connected to ASSE through government affairs to reach out to suppliers, their employers and others to donate PPE and other safety equipment for distribution to workers in the impact area.
In addition, the ASSE Foundation has stepped up to serve as a repository of financial contributions, 100% of which will be given to ASSE’s New York City Chapter for the purchase of PPE that Chapter members will distribute to workers. The New York City Chapter is holding a fundraiser November 29 and offered to match up to $2500 in contributions.
But, the need is great and will not end soon. You can still help –
ASSE’s power is in its members. Thanks for proving that once again.
In an effort to help make sure the purpose and value of OSHA and NIOSH is not lost in the fervent and highly political debate on the federal budget now underway in Washington, DC, ASSE joined with the National Safety Council (NSC) and the American Industrial Hygiene Association (AIHA) to raise a united voice in support of the budgets for those agencies. The letter to Chairman Tom Harkin of the Senate Labor‐HHS‐Education Appropriations Subcommittee also addresses several appropriations riders that would limit OSHA’s capabilities and argues for the protection of the NIOSH Agriculture, Forestry and Fishing (AgFF) sector research program and Education and Research Centers (ERCs). The organizations will also lobby together for the agencies on Capitol Hill.
ASSE is asking its members to reach out to employers and other organizations to join the Society as members of the 85-3 Campaign. As the invitation from the campaign indicates, the 85-3 Campaign recognizes organizations and employers that, as part of their hearing protection strategy for workers, have adopted the 85 dBA noise protection level.
On joining the campaign this year, ASSE President Richard A. Pollock, CSP, said in a statement, “On behalf of its nearly 35,000 member safety, health and environmental (SH&E) professionals, ASSE is pleased to join the 85-3 Coalition and looks forward to working with the coalition’s members to support the adoption of the 85-dBA average exposure limit for an 8-hour day measured with a 3-dB exchange rate. The appropriateness of the 85-3 level is widely accepted in practice by our members and many of the employers with whom they work throughout the world.”
Early in the year, ASSE urged the Occupational Safety and Health Administration (OSHA) to focus its efforts to improve hearing protection on lowering OSHA’s permissible exposure limit (PEL) for noise from the current 90 dBA (decibel) to 85 dBA. 85-3 is also required in the ANSI/ASSE A10.46 Standard “Hearing Loss Prevention for Construction and Demolition Workers” , and NIOSH has known the gains in hearing protection 85-3 can achieve for decades.
ASSE has joined the 85-3 Campaign, which recognizes organizations and employers that, as part of their hearing protection strategy for workers, have adopted the 85 dBA noise protection level. “On behalf of its nearly 35,000 member safety, health and environmental (SH&E) professionals, ASSE is pleased to join the 85-3 Coalition and looks forward to working with the coalition’s members to support the adoption of the 85-dBA average exposure limit for an 8-hour day measured with a 3-dB exchange rate,” ASSE President Richard A. Pollock, CSP, said in a statement. “The appropriateness of the 85-3 level is widely accepted in practice by our members and many of the employers with whom they work throughout the world.” Earlier this year, ASSE urged the Occupational Safety and Health Administration (OSHA) to focus its efforts to improve hearing protection on lowering OSHA’s permissible exposure limit (PEL) for noise from the current 90 dBA (decibel) to 85 dBA. 85-3 is also required in the ANSI/ASSE A10.46 Standard “Hearing Loss Prevention for Construction and Demolition Workers” , and NIOSH has known the gains in hearing protection 85-3 can achieve for decades.
On September 20-21, OSHA, BSEE, EPA, PHMSA and the Coast Guard came together with stakeholders in the oil and gas industry in Texas City, Texas, to discuss regulatory issues facing the industry at the “Expert Forum on the Use of Performance-Based Regulatory Models in the US Oil and Gas Industry, Offshore and Onshore.” Government Affairs Committee and Oil and Gas Practice Specialty members Gene Barfield and Ron Sokol represented ASSE at the meeting. In its comments, ASSE commended the agencies and OSHA Assistant Secretary David Michaels’ leadership for taking the unprecedented step of bringing together 5 agencies to discuss an issue of common concern. From member input, ASSE’s comments addressed specific questions posed by the agencies aimed at gathering more information on how best to bring together risk-based with needed prescriptive approaches. Among its detailed comments, ASSE shared members’ experience with Process Safety Management (PSM) and expressed its encouragement in the risk-based approach taken in the Safety and Environmental Management Systems (SEMS) being implemented off shore.
Recognizing ASSE members’ responsibility for managing interactions with OSHA for their employers, the Government Affairs Committee thought it important that members understand as much as possible about the variety of administrative actions OSHA is taking to focus the agency’s enforcement efforts. A summary of those various actions has been prepared by Adele Abrams, Esq., ASSE’s Federal Representative. The intent is to provide ASSE members with a broad understanding of how the current OSHA is undertaking its enforcement responsibilities. You can find the document at Federal OSHA’s Increased Focus on Enforcement.
In a letter to Assistant Secretary David Michaels, ASSE commended OSHA for its report, Voluntary Protection Programs (VPP) Review. ASSE said the report was thoughtful, frank and helpful and that the report validated the value of VPP. ASSE supported most of the report’s recommendations, including continuing to provide exemptions from programmed inspections for participants, expanded use of special government employees, the reporting of participants’ best practices, and establishing a cooperative way to identify effective lagging indicators, leading indicators, and outcome measures to track VPP performance. ASSE urged caution in pursuing the recommendation to place participants on inactive status in case of a fatality, urging a more nuanced, cooperative approach.
On behalf of ASSE’s members, President Rick Pollock congratulated John Bresland on his retirement from the U.S. Chemical Safety and Hazard Investigation Board (CSB). His letter thanked Bresland for his leadership in helping CSB achieve deserved levels of respect and support. Bresland’s commitment to CSB’s mission has given ASSE members insight and information into workplace risks that they have used to help employers prevent worker deaths, injuries and illnesses, Pollock said.
ASSE nominated James Thornton, CSP, CIH, for reappointment as Chair of OSHA’s Maritime Advisory Committee for Occupational Safety and Health(MACOSH) in a letter to Assistant Secretary for OSHA David Michaels. Jim has had a long and distinguished career committed to protecting workers in the shipbuilding industry and has demonstrated similar leadership in his profession. As Chair of ASSE’s Government Affairs Committee, he is engaged in building ASSE’s voice in public affairs issues and is a former President of AIHA. He is a well recognized proponent of OSHA’s Voluntary Protection Program and is the current Chair of MACOSH.
In a letter to Assistant Secretary David Michaels, ASSE nominated Rixio E. Medina, CSP, CPP, to continue to serve as a member of OSHA’s National Advisory Committee on Occupational Safety and Health (NACOSH). Rixio is a leading expert in protecting workers and property in the petrochemical industry and a widely respected leader in the occupational safety and health community. He is a current member of NACOSH, the second time he has served under two different Administrations. He has served on the U.S. Chemical Safety and Hazard Investigation Board. As a Professional Member of ASSE, he has served on ASSE’s board, as a founding member of Safety Professionals and the Latino Workforce, and as a trustee of the ASSE Foundation. He also been on the Board of Certified Safety Professionals and involved in organizations in the petrochemical industry, in education and training, in security, and in emergency response.
In a letter to U.S. Office of Personnel Management Director John Berry, ASSE urged adoption of recommendations made by OSHA’s Federal Advisory Committee for Occupational Safety and Health (FACOSH) to upgrade federal safety and health positions. ASSE expressed full support FACOSH’s May 2011 recommendations to upgrade the GS-0018, Safety and Occupational Health Management job series:
Today’s safety and health professional confronts complex risks that did not exist a decade ago, much less in 1980 when the GS-0018 series was written, ASSE said. Organizations must place safety and health professionals in positions that allow them to provide leadership in meeting these risks. The FACOSH recommendations are specifically aimed at helping make sure that federal safety and health professionals are able to provide organizational leadership in protecting workers and serving the American people efficiently and effectively.
On June 27, the House Subcommittee on Workforce Protections held a hearing entitled “Promoting Safe Workplaces Through Voluntary Protection Programs.” Among several issues its comments addressed, ASSE urged consideration that an OSHA standard requiring all employers, as in VPP, to have in place an injury and illness prevention plan (I2P2) may be the only way OSHA’s overall approach to workplace regulation can be in line with how the best results in workplace safety are achieved. As an ASSE member said, “All of OSHA should be VPP.” ASSE also reiterated its strong support for VPP, backed continued research into the effectiveness of all OSHA programs, and stated its agreement that incentives designed to discourage workers from reporting injuries cannot be part of VPP. You can watch the hearing at http://edworkforcehouse.granicus.com/MediaPlayer.php?view_id=2&clip_id=99.
In a letter to Assistant Secretary David Michaels, ASSE urged OSHA to ensure that the Arizona Division of Occupational Safety and Health (ADOSH) meets its obligation as a state plan to be “at least as effective as” federal OSHA and enforce fall protection for residential construction workers at 6 feet. ASSE’s Arizona members requested the Society’s help in addressing the passage into law of Senate Bill 1441 that made sure Arizona employers cannot be required to protected construction workers from falls under elevations of 15 feet. ASSE also urged OSHA to work with ADOSH outreach efforts to advance understanding of the importance of a 6-foot standard. SB 1441 bars enforcement of less than a 15-foot standard but not the sharing of best practices on how to protect construction workers from falls.
OSHA’s HazCom/GHS final rule has been challenged in the US Court of Appeals, DC Circuit, by the American Petroleum Institute, the American Tort Reform Association, CropLife America and a coalition of five other industry groups, including American Chemistry Council (ACC). The Chamber of Commerce has expressed support for the Petitions for Judicial Review. The Petitions do not provide specifics about the basis for each challenge. Such information will be included in later filings. However, there are concerns about conflicts between OSHA’s and EPA’s labeling requirements for fungicides and rodenticides. Prior to the final rule, ACC expressed concern about the inclusion of combustible dust and use of “hazards not otherwise classified” in the rule.
Questions about This Action
1. Does this delay implementation of the rule?
Not likely. There is no automatic stay from filing an appeal – the parties would have to file a motion to stay with the Court of Appeals (all of the lawsuits challenging the rule have were filed with the D.C. Circuit). The Rules of Appellate Procedure require that, in most cases, a party asking the Court of Appeals to stay an administrative agency order must first file a motion for stay with the agency, then with the Court of Appeals. The criteria for a stay in the court of appeals is (1) whether the petitioner has made a strong showing that it is likely to prevail on the merits, (2) that without the stay, petitioner will be irreparably harmed, (3) a stay is in the public interest. Given the time periods for implementation of the GHS in the rule, it is not likely that a court would find irreparable harm if a stay is not granted, even if the parties do request one.
2. Assuming plaintiffs win, what is the effect on the rule? Would the Court throw the whole rule out or strike specific items?
Most likely strike specific items. Only the “barebones” petitions for appeal have been filed thus far, so what relief the petitioners will ask for is not known. But, according to reports, the petitioners will ask for relief on specific provisions of the rule (e.g. CropLife America’s challenge is to pesticide labeling, American Tort Reform Association pertains to non-preemption, ACC to combustible dust, and API to the definition of hazardous mixtures). Even if the petitioners did ask for the whole rule to be thrown out, it is unlikely the Court of Appeals would do so. Generally, in challenges to OSHA standards, if the petitioners complaints are with specific provisions (as compared to the overall legal criteria that OSHA applied or procedural errors in the rulemaking), the Courts of Appeals have not “thown out” the entire rule but returned the “offending parts” to the agency for changes.
Prepared by the Law Offices of Adele Abrams, Esq., ASSE’s Federal Representative
On May 7, ASSE President Terrie Norris and NIOSH Director John Howard signed a partnership agreement between ASSE and NIOSH. The wide-ranging agreement aims to bring ASSE members and NIOSH staff closer together to advancing research and understanding of the value occupational safety and health brings to business and the American people, develop and disseminating information on worker safety and health, and support opportunities for NIOSH staff and researchers and ASSE members to share information and develop cooperative relationships, among other goals.
In a comment to the Office of the Federal Register (OFR), ASSE strongly opposed possible rulemaking to amend OFR’s regulations defining “reasonably available” or change current requirements related to materials incorporated by reference (IBR) in regulations published in the Federal Register, as sought in a petition to OFR. At issue is whether and how voluntary consensus standards should be made available when cited in a regulation. ASSE said any action risks overlooking the value consensus standards play in protecting workers, ignores the positive conversation that is already changing how voluntary consensus standards are being made available, and, ultimately, threatens the ability of independent SDOs like ASSE from hosting the development of such standards.
ASSE has joined with 127 other NIOSH stakeholders to voice opposition to the Obama Administration’s proposed elimination of funding for Education and Resource Centers and the NORA Agriculture, Forestry and Fishing (AgFF) research program in letters to leaders of the Senate and House Appropriations Subcommittees on Labor, HHS, Education and Related Committees. Congress rejected these same cuts in the FY 2012 budget, but the Administration is once again using the same justification (at page 40 of the document) in its proposal.
On March 16, ASSE President Terrie Norris and Assistant Secretary David Michaels signed a renewed Alliance agreement between ASSE and OSHA. The overall goal of the two-year Alliance is to promote best practices for reducing and preventing worker exposures to health and physical hazards. More specifically, ASSE and OSHA will continue work together to address non-English or limited English-speaking workers especially through the efforts of ASSE’s Safety Professionals and the Latino Workforce (SPALW); advancing awareness of workplace safety through NAOSH Week; motor vehicle safety; and awareness of workplace safety and health for public sector employees. The achievements of the Alliance are documented on OSHA’s website at ASSE. ASSE’s press release for the renewal is at ASSE press release and OSHA’s at OSHA news release. For more information about OSHA’s Alliance Program, go to OSHA Alliance Program.
ASSE submitted a comment on an EPA proposed rule to set significant new use rules (SNURs) for chemical substances, 7 of which included carbon nanotubes. For those substances involving nanotechnology, ASSE told EPA it could not ignore established industrial hygiene and safety practice, NIOSH and its own research by not requring the hierarchy of controls to be followed in protecting workers under the SNURs. ASSE said, “An appropriate risk assessment based on the hierarchy of controls requires that engineering controls be considered first, and if deemed feasible, implemented before considering the use of personal protective equipment (PPE) such as respirators, gloves and clothing. Yet, no mention is made of engineering controls in EPA’s required protections.”
In light of the criticism and complaints that have followed the OSHA’s directive rescinding the Interim Fall Protection Compliance Guidelines for Residential Construction, ASSE in a letter to Assistant Secretary David Michaels stated its support for the change in policy as a needed step forward in protecting workers. ASSE also commended OSHA for its efforts to work with residential contractors in the implementation of this policy both by extending its temporary enforcement measures (https://www.osha.gov/doc/residential_fall_protection/residential_guidance.html) and in providing extensive resources to help employers implement the policy (http://www.osha.gov/doc/topics/residentialprotection/index.html).
Adding to previous comments opposing OSHA’s Interpretation of Provisions for Feasible Administrative or Engineering Controls of Occupational Noise, ASSE suggested in a letter to Assistant Secretary David Michaels that a more valuable measure to reduce noise exposures would be lowering OSHA’s permissible exposure limit (PEL) for noise from 90 dBA to 85 dBA. At the lower PEL, however, engineering controls can become exponentially more expensive and difficult to achieve, adding to the reasons OSHA should not pursue a new economic feasibility interpretation. ASSE also urged OSHA to communicate more widely its stated practice of working cooperatively with employers to achieve incremental improvement in noise levels over reasonable periods of time.
ASSE nominated Gary Lopez to OSHA’s Advisory Committee on Construction Safety and Health (ACCSH). Gary is a widely respected Professional Member of ASSE with strong experience in managing workplace safety and health risks in the construction industry. He is a founding member of the committee that oversaw and continues to manage the development of the ANSI/AIHA Z10-2005, Occupational Health and Safety Management Systems and, since 2005, has served as the Chair of ASSE’s Standards Development Committee, which oversees the ANSI/ASSE A10 construction standards.
In a letter to Director John Howard, ASSE commended NIOSH for the publication of its National Assessment of the Occupational Safety and Health Workforce report (http://www.cdc.gov/niosh/oshworkforce/), the first look at occupational safety and health workforce issues since the Institute of Medicine’s Safe Work in the 21st Century (http://www.nap.edu/openbook.php?isbn=0309070260) study in 2000. The report addresses how SH&E professionals are educated and trained, the means by which they demonstrate professionalism, the resources available for their education and training, how their education and training meet the needs of employers who will hire them, and a better understanding of the future need for SH&E professionals as well as this nation’s ability to meet that need. ASSE said this report can serve as a foundation for determining how best to support the need for SH&E professionals over the next decade and beyond and looks forward to working with NIOSH, its other partners, and our member educators to address the variety of issues raised by this report.
In a letter to Cass Sunstein, Administrator of the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) in the White House, ASSE urged his office to do everything possible to advance OSHA rulemaking on Occupational Exposure to Crystalline Silica so that ASSE’s members can play a meaningful part in seeing that OSHA promulgates an appopriate standard. While ASSE has no position on the rulemaking at this time, the Society expressed concern that OIRA is engaged in a conversation about the rulemaking with only select stakeholders, as the OIRA meeting record indicates. ASSE said its members already know how to protect workers from silica risks far above the current standard without being overly burdensome to employers. As it stands, its members are not being given the opportunity to tell OSHA how a standard can do the same.
In a comment for the record, ASSE said it could not support proposed changes to OSHA’s reporting rules from the current requirement that employers report within 8 hours fatalities and in-patient hospitalizations of 3 or more employees to 1 or more employees and to add the requirements that amputations be reported within 24 hours. ASSE said it does not believe, given OSHA’s resources and the practical difficulties employers face in reporting, that these enhanced reporting requirements will result in the kind of improved safety and better data that OSHA intends.