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Tales from DC: Latest SBA Labor Safety Roundtable

Posted in on Tue, Nov 19, 2013

Prepared by the Office of Adele Abrams, Esq., ASSE’s Federal Representative:

The every-other month Small Business Administration Labor Safety (OSHA/MSHA) Roundtable had a heavier than usual agenda for this meeting.  In addition to an “open mike” discussion of OSHA’s proposed rule on respirable crystalline silica, there were also presentations from OSHA, followed by discussion and questions, on OSHA’s recently posted (on the OSHA website) resources on Hazardous Chemicals, and on OSHA’s proposed rule to require reporting of injury and illness records.

OSHA’s New Resources on Hazardous Chemicals

Staff from OSHA’s Directorate on Standards and Guidance gave a short presentation and walk-thru of two new web resources on the OSHA website. One is what OSHA refers to as the “annotated PELs,” which is a side-by-side comparison of OSHA PELs, Cal/OSHA PELs, NIOSH RELs, and ACGIH TLVs.  The second resource is a “Safer Chemicals Toolkit,” which OSHA staff described as a “framework” for employers to evaluate eliminating and/or substituting chemicals used in the workplace.

There were some interesting points brought out during the discussion of these resources. One is that in conjunction with publishing the “annotated PELs,” OSHA stated that it was doing so in large part because the OSHA PELs are not protective.   That led to questions about the possible use of the “annotated PELs” guidance document in a general duty clause case.  OSHA staff responded that the guidance document created “no new legal obligations” and “did not change any legal obligations.”  A similar disclaimer is included on the website.

The “Safer Chemicals Toolkit” webpage does not directly list or provide specific examples of chemical alternatives or substitutes, but links to other websites and resources that do have lists of alternatives and “safer substitutes.” It also includes a place for users to submit their own examples and “success stories.”  That led to some questions regarding OSHA’s quality control of the information, and how much verification OSHA has or will do.  The OSHA staff indicated that there would be quality control, but it does potentially raise issues under the federal Data Quality Control Act if unverified information is posted.

OSHA’s Proposed Rule to Require Reporting of Injury and Illness Records -

Dave Schmidt from OSHA gave a presentation and answered questions regarding the rule proposed earlier this week to require reporting of injury and illness records.  The proposal has 3 provisions:  (1) all establishments with over 250 employees would be required to electronically submit the OSHA 300 and 301 logs on a quarterly basis and the annual summary which employers must post in their workplace; (2) establishments with over 20 employees in industries with high injury and illness rates (which is defined as a DART rate of 2.0 or higher) would have to submit annual summary data, similar to the current OSHA data initiative, and (3) OSHA would have authority to collect other injury and illness records upon clearance from OMB.

Comments on the proposed rule are due by February 6, 2014.  OSHA will have an “public meeting” on the proposed rule on January 9.  The announcement of the public meeting was in today’s Federal Register.  Requests to attend the public meeting (as either observer or speaker) must be submitted through the Regs.Gov website by December 13, 2013.

The proposal in the Federal Register includes a number of questions to which OSHA asks commenters to respond.  Some of the questions have to do with what information would be displayed on OSHA’s website – Dave Schmidt said that any “personally identifying information” on employees would not be posted, but beyond that OSHA will post information “searchable by firm and industry” from the logs and annual summaries. According to OSHA, there are about 38,000 establishments with over 250 employees that would be affected by the requirement to transmit the logs on a quarterly basis.

OSHA’s Proposed Rule on Respirable Crystalline Silica

The third item was an open discussion about issues of particular concern for small business in the proposed rule on respirable crystalline silica.  It seemed clear that most industry groups are still trying to analyze the bases and the impact of the proposed rule.

One issue that was raised was the variation in exposures in some industries, particularly those that do any type of batch processing.  Another issue raised was the possible “catch 22” with state or EPA environmental permits, if, for example, in order to meet employee exposure limits, employers try to increase ventilation but run against particulate matter permit limits. Another issue raised was the disconnect between giving laboratories two years to meet certification requirements, after employers were responsible for determining whether  samples sent to the labs put them over the action or permissible exposures limits.  Comment was also made that the NIOSH-approved methodology for analyzing dust samples does not accurately measure down to the action level proposed by OSHA.

A  point of concern for many groups was the time frame for submitting comments; it is likely that some groups will request an extension beyond the 47 days that OSHA announced on October 25.  Whether OSHA would give a further extension is unclear.  The current date for submitting written comments is January 27, 2014.  The date for filing a notice of intent to appear is now December 12, 2013, with hearings to begin on March 18, 2014.  Persons who filed written notice of intention to appear will be allowed to submit post-hearing comments.

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