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Tales from DC: February 12 NACOSH Meeting

Posted in on Wed, Feb 26, 2014

From the Law Offices of Adele Abrams, Esq. –

On February 12, 2014, Adele Abrams, Esq., represented ASSE at a meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH). Due to an impending storm, the meeting was ended early and only 10 members were present (plus one via conference call). There were three presentations, discussed below, plus one working group report concerning safety of temporary workers.

Dr. David Michaels was the first speaker and he gave a summary of OSHA initiatives and regulatory activities. First, he discussed the impact of sequestration and the 16-day government shutdown on OSHA. The agency tried to avoid furloughs during sequestration but did so at the expense of cutting activities such as training (other than for inspectors), VPP recertification that involved travel, worker center assistance, and meetings with state partners that involved travel. About one-third of consultation visits were stopped due to lack of funding. OSHA also discontinued the use of outside contractors to field calls from its 800 “help line” and used OSHA personnel instead, which is said was more effective. There is now a heightened demand for training in 2014 due to the cutbacks in 2013, and inspector training will increase due to hiring of many new CSHOs. Despite this, OSHA still conducted 30,000 onsite visits during 2013.

Michaels discussed briefly the crystalline silica rulemaking, which is an effort he said began with Frances Perkins in the 1930s. The comments are closed now and hearings will begin in March and probably last two to three weeks. He also referenced the proposal to modernize recordkeeping by requiring electronic submission of data. He said this will be useful to help OSHA identify facilities with high injury rates, especially those considered small employers (for whom data are typically not reviewed by OSHA0. More importantly, he said, this standard will function as “behavioral economics”: it will encourage employers to look at and change what is going on in the workplace because of public exposure, adding that people do not want to work for employers with high injury rates. This is similar to the EPA requirement for public disclosure of toxic chemical storage, he said, noting that after EPA required this, companies started storing smaller quantities on site. Other regulatory activities include a final rule on general industry fall protection due later this year, and a recordkeeping shift from SIC Codes to the NAICS system.

Michaels reported on enforcement activities, saying that the goal is 40,000 inspections per year (57% programmed, most of which come from employee complaints, and 43% unprogrammed). The agency did more health inspections during 2013 than in previous years and they will be counting inspection activity “credits” in a new way going forward when benchmarking area office performance – fatalities or extended site visits will get more “credit” than very quick inspections of small construction sites.

There was extended discussion of the temporary, or “contingent,” worker safety issue by Michael and NACOSH members. Their injury rates continue to be higher than average and OSHA is working with staffing agencies and other associations that represent host employers who use “temps.” When OSHA opens an inspection, the CSHO will ask if any temporary employees are on site and will look at what hazards they are exposed to and their level of training (and whether it was done in a vocabulary and language they can understand). Michaels observed there is a difference between temporary workers from an agency and “contract” workers, but data is not readily available on the scope of the problem. He asked NACOSH for recommendations and whether NIOSH is better equipped to survey on the issue. There is also a recordkeeping issue and generally those present supported the idea of having the host employer report all injuries/illnesses including those of temporary workers, even if they have their own supervisor on site. During Q&A, the issue of those working multiple temporary jobs was raised insofar as it is hard to quantify their exposure to toxic substances.

The next subject discussed with Dr. Michaels was chemical exposure issues and NACOSH members praised OSHA for putting up the “Annotated Table Z-1” (which includes current OSHA PELs, CalOSHA PELs, 2013 NIOSH RELs and 2013 ACGIH TLVs) and the “Transitioning to Safer Chemicals” pages on the OSHA website. This helps employers to see what 2013 recommendations are for best practices in chemical protection. It was noted that these other agencies have PELs/RELs for substances that OSHA does not currently regulate. Michaels stressed that the charts are not legally binding but that they still make a contribution to safety. With respect to the “Transitioning” page, product substitution involves seven phases: Engage, Inventory and Prioritize, Identify, Assess and Compare, Select, Test, and Evaluate.  OSHA says that workers suffer 190,000 illnesses and 50,000 deaths per year related to chemical exposures, causing cancer or affecting the lung, kidney, skin, heart, stomach, brain, nervous system and reproduction system. As part of this initiative, OSHA is soliciting “best practices” from employers. During the Q&A, there was discussion of utilization of control banding as  reason to use safer alternatives, and the Johnson & Johnson representative said that the pharmaceutical industry has used control banding for years. The AFL-CIO’s Peg Seminario supported OSHA’s efforts, but was critical of Congress holding a hearing and calling this “subregulatory activity.” She added that the problem of ineffective PELs has been recognized for years and this effort will lead employers to protect workers. There was a motion for NACOSH to commend OSHA on this project.

Other OSHA initiatives include worker safety in hospitals (including a related NIOSH monograph), cell tower safety (the sector has an extremely high fatality rate, mostly from worker falls), and whistleblower protection (OSHA has had a significant increase in cases since putting a complaint form on-line, and it is now going to use Alternative Dispute Resolution in a few regions to deal with the case backlog. OSHA just filed an “historic” case against AT&T for having a policy (which OSHA wants changed) wherein any injured employee was suspended without pay. OSHA also plans to continue its residential fall protection initiative, and is working on “safety stand down” days with the on-shore oil and gas sector. He added that advances in safety have been made in the grain industry, with a 74% reduction in fatalities since 2010. The “big picture,” he concluded, is “workplace deaths are not accidents – they are preventable and predictable events” and should be treated as such in reframing the national conversation.

The next speaker was Dr. John Howard of NIOSH, who reported briefly on the budget ($292 million for NIOSH, with the rest of the funding listed dedicated to mandatory programs and health care delivery), but the ERCs are being continued. The comment deadline closes 2/13/14 on the NIOSH draft document, “Update of NIOSH Carcinogen Classification and Target Risk Level Policy for Chemical Hazards in the Workplace” and comments can be submitted via (Docket No. CDC-2013-0023-0001). There is also a NIOSH criteria document on occupational exposure to heat and hot environments, and a “Safe, Skilled and Ready Workforce” initiative that is targeting youth workers at the high school and middle school level. It started as a pilot program but will be rolled out for all 50 states. Dr. Howard also discussed the agency’s “Total Worker Health Initiative” and there will be a conference on this at NIH on October 6-8, 2014. He mentioned that the BSC was sked to look at how NIOSH does research in the “new world” (21st century) and BSC issued a report, which the author will help implement as  contractor to NIOSH. He also discussed climate change as a human occupational health issue. Finally, he discussed NIOSH’s use of social media, and sid that they have 250,000 Twitter followers and over a million retweets. NIOSH has also posted about 100 videos on YouTube. During the Q&A, there was some discussion of whether registrants for the Affordable Care Act might be able to access safety and health information and whether the use of ACA would offer NIOSH opportunities for surveillance and health/safety assessments. Dr. Howard stressed the need for predictive analytics. NIOSH has inserted occupational safety and health questions (paid for) into Gallup and other surveys as part of its surveillance activities. He also noted that integration of “total worker wellness” is viewed as relating to productivity, but it was not yet well integrated with occupational safety and health, and this will be part of the NIOSH intitiative.

The final presentation was by Jordan Barab, on OSHA’s role in the chemical safety activities under Executive Order 13650. He said there were problems with information exchange among agencies and OSHA, DOJ, USDA, ATF, DHS are all part of the pilot program in NJ on this subject. OSHA is also looking at first responder protection issues, which is complicated by the fact that federal OSHA has no authority to investigate public sector fatalities among first responders (which was a complication in its investigation of the West, TX, incident). EPA and DHS have a lot of information on who has what chemicals where, and OSHA can use this to help target inspections if the information is shared. There is also some cross-training, so that EPA, DHS etc. can recognize OSHA violations and do a referral to the agency so it can investigate.

OSHA is responsible for Section 6 of the Executive Order Task Group project, covering policy and standards modernization. Part of this is looking at revamping PSM, HAZWOPER, reactive hazards, and combustible/flammable materials regulations. EPA and OSHA are also looking at ANFO standards on what needs to be added, as well as eliminating the retail exemption. OSHA will also examine reporting forms, and whether to make facility owners responsible for coordination with emergency responders. During Q&A, Barab was asked about CSB’s role in the task group and he said that it was not involved because it is an independent agency, but they are examining the MOU with CSB regarding information sharing. OSHA is hampered because it only has 6 months following an incident to investigate and issue citations, whereas the other agencies do not have a time limitation. OSHA has published a Request for Information on possible changes to PSM and chemical safety regulations and the comment deadline is March 10, 2014. The agency has already held some “listening sessions” and issues raised include transparency, the tension between environmental justice and national security regarding chemical storage etc. They also want to address inherently safer technologies but there are questions about the extent to which the government should be involved in this and they want comment on the issue.

Finally, the NACOSH work group on temporary workers adopted a summary statement, but it was not available to the audience. I have asked to have it emailed to me and will forward it when it becomes available. It was just generally referenced and was not read to participants. The next NACOSH meeting will be scheduled in September 2014 (date TBA). Eight of the 12 members’ terms will expire in 2014, and some “new faces” are expected, but the chair reminded members that they can continue to serve after their term ends until they are replaced.

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