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Tales from DC: Latest SBA OSHA/MSHA Roundtable

Posted in on Fri, May 23, 2014

From the Law Offices of Adele Abrams:

On May 16, the Law Offices of Adele Abrams represented ASSE at the bi-monthly meeting of the Small Business Administration’s OSHA/MSHA roundtable. The following matters were discussed:

  1. Overview of MSHA’s New Lowering Miners’ Exposure to Respirable Coal Mine Dust Rule: Shelia McConnell, MSHA Acting Director of Standards.

MSHA recently issued its final rule designed to lower miners’ exposure to respirable coal mine dust in all underground and surface coal mines. The final rule is designed to end black lung disease, a debilitating illness that continues to affect coal miners and their families.  The final rule lowers levels of miners’ exposure to respirable coal mine dust and further reduces dust exposure by closing loopholes and improving sampling practices to better reflect actual working conditions and protect all miners from overexposures, and increases sampling and makes use of cutting-edge technology developed for the mining environment to provide real-time information about dust levels.  This is a timely topic for small business as the final rule will take effect beginning on August 1, 2014.

There are three phases to the rule that permit operators to transition into compliance. The major changes with Phase 1 become effective August 1, 2014 with full shift sampling requirements for both MSHA and the operator. If overexposure is found, immediate action is required. Each sample taken by the operator will be reviewed by MSHA for compliance. The exposure limit in the overall dust standard is reduced from 2.0 to 1.5 milligrams per cubic meter of air (mg/m3) at underground and surface coal mines.

According to MSHA, the rule will also require mine operators to collect respirable dust samples for the full shift a miner works, rather than stopping measurement after eight hour. Respirators are still required but rotation of miners is not permitted to reduce exposure. The next phase of lower levels goes into effect on August 2013, under Phase 3. A question and answer period followed the presentation.

  1. What is MSHA’s plan relative to the OSHA silica rule, what is msha’s plan? Are there any problems differentiating between respirable coal dust and silica?
    1. New device does not measure for quartz, so old device will still be used to measure for quartz. No other comments made.
    2. Is there a timeline for a separate silica rule.
      1. Yes, but no update.
    3.  What is the compliance assistance for small coal mines?
      1. Information is accessible to all. At stakeholder meetings, MSHA made a transcript of questions and answers, reviewed it, and then updated policy. This information will be embodied in a compliance guide.
    4. The rule is being challenged in court, what can you tell us?
      1. The rule is being challenged in multiple circuits and may be consolidated under one circuit.
  2. Overview of OSHA’s New Electric Power Generation, Transmission, and Distribution: David Wallis, Directorate of Standards and Guidance, Occupational Safety and Health Administration

OSHA recently issued its final electric power rule that revises OSHA’s 40-year-old construction standard for electric power line work to make it more consistent with the corresponding general industry standard and is also making some revisions to the construction and general industry requirements. The updated standards for general industry and construction include new or revised provisions for host and contract employers to share safety-related information with each other and with employees, as well as for improved fall protection for employees working from aerial lifts and on overhead line structures. The rule will impact numerous small firms that work on electric power lines and engage in other construction activities.  Wallis provided a background briefing on the new rule and answer questions about how the rule will affect small businesses across the country.  This is a timely topic for small business as the final rule will take effect beginning on July 10, 2014.

The goal for this rule is to make a uniform standard for businesses to follow. There are several differences between the old and new rule. First, the information transfer requirement is unchanged, but reorganized to permit ease of understanding. Second, the sub-contractor provision requires contractor/primary to provide information to subcontractors about site specific and job information. The host contractors must provide coordination so employees are protected. The facility may perform some of these duties and the method of information dissemination is not prescribed. Some options may be creating secure websites where sub-contractors can download information prior to site arrival

  1. Recap of OSHA’s Informal Public Hearing on its Proposed Occupational Exposure to Respirable Crystalline Silica Rule: What Were the Key Issues for Small Business? Bruce Lundegren, SBA.

OSHA’s proposed “silica” rule could lead to significant changes in how small businesses in the manufacturing, shipyard, and construction industries protect their employees against occupational exposure to respirable crystalline silica.  OSHA’s proposed rule would cut the current permissible exposure limit (PEL) in half, establish a new action level, and require a host of ancillary measures to control exposures.  Following the close of the public comment period, OSHA held an informal public hearing on the proposed rule that lasted nearly three full weeks.  Participants who testified at the hearing provided insights into the process and discuss how the proposed rule could impact small businesses across a host of industries.  Bruce Lundegren, Assistant Chief Counsel led an open discussion of the proposed rule and OSHA’s informal public hearing.  This is a timely topic for small business as the deadline for filing post-hearing comments closes on July 18, 2014.

A few individuals made comments on their experience at the hearing. The hearing was a marathon experience, and the room was divided between business community and health advocates.  One ALJ restricted what attendees could ask and limited their time to ask questions. Several questions were not permitted and the time limit on questioning was unreasonable. Small businesses must have accessible resources to deal with the rule. The Construction industry had a large panel at the hearing that lasted about seven hours.

  1. NIOSH Safety Culture/Safety Climate Workshop Follow Up – Special Considerations for Small Business Rob Matuga, Assistant Vice President for Labor Safety & Health Policy, National Association of Home Builders

Last summer, NIOSH co-hosted a Safety Culture/Safety Climate Workshop in Washington, DC.  The workshop was attended by NIOSH staff, safety and health professionals, business and labor representatives, academia, and others.  There were also representatives from several trade associations with large small business memberships.  Now that the report of the workshop proceedings has been released, Rob Matuga provided an update on the report and efforts by the small business community to focus on the special considerations for small business with respect to what a safety culture or safety climate means to small businesses and how small business can achieve a safe and healthy workplace within the limits of their technical  expertise and resources.

The main criticism of the report was that it didn’t examine or include impact to small business. Small businesses do not have the resources for safety and health management and rely on assistance from government. Matsuga commented that OSHA cited the report during a recent construction activity update. Small businesses want to be profitable and safe, but often can not manage the requirements imposed in the report. With small businesses still suffering from the economic downturn, the proposals place an unattainable burden on them without resource assistance.

  1. Open Discussion/Other Small Business Issues

The open discussion focused on the recent wage and hour changes to the minimum wage and the upcoming crane rule hearings. The Department of Labor has proposed rules to manage the increase in minimum wage for federal contractors to $10.10 per hour. The rules become effective October 1, 2014. Questions remain on how the rules will interact with the GSA and how subrogation can be managed. There were no updates to rulemaking as of the meeting because SBA is awaiting publication of schedules.

The next meeting is July 18, 2014.

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