In a recent report titled Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting, the Government Accountability Office (GAO) found that between 1981 and 2010, the time it took OSHA to develop and issue safety and health standards ranged from 15 months to 19 years and averaged more than seven years. Experts and agency officials cited several factors that contribute to the lengthy time frames for developing and issuing standards, including increased procedural requirements, shifting priorities, and a rigorous standard of judicial review.
GAO also found that, in addition to using the typical standard-setting process, OSHA can address urgent hazards by issuing emergency temporary standards, although the agency has not used this authority since 1983 because of the difficulty it has faced in compiling the evidence necessary to meet the statutory requirements. Instead, OSHA focuses on enforcement activities—such as enforcing the general requirement of the Occupational Safety and Health Act of 1970 (OSH Act) that employers provide a workplace free from recognized hazards—and educating employers and workers about urgent hazards.
Experiences of other federal agencies that regulate public or worker health hazards offered limited insight into the challenges OSHA faces in setting standards. For example, EPA officials pointed to certain requirements of the Clean Air Act to set and regularly review standards for specified air pollutants that have facilitated the agency’s standard-setting efforts. In contrast, the OSH Act does not require OSHA to periodically review its standards. Also, MSHA officials noted that their standard-setting process benefits from both the in-house knowledge of its inspectors, who inspect every mine at least twice yearly, and a dedicated mine safety research group within the National Institute for Occupational Safety and Health (NIOSH). OSHA must instead rely on time-consuming site visits to obtain information on hazards and has not consistently coordinated with NIOSH to assess occupational hazards.
In the report, experts and agency officials identified several ideas that could improve OSHA’s standard-setting process:
Improve coordination with other agencies. Experts and agency officials noted that OSHA has not fully leveraged available expertise at other federal agencies, especially NIOSH, in developing and issuing its standards. OSHA officials said the agency considers NIOSH’s input on an ad hoc basis but OSHA staff do not routinely work closely with NIOSH staff to analyze risks of occupational hazards. They stated that collaborating with NIOSH on risk assessments, and generally in a more systematic way, could reduce the time it takes to develop a standard by several months, thus facilitating OSHA’s standard-setting process.
Expand use of voluntary consensus standards. According to OSHA officials, many OSHA standards incorporate or reference outdated consensus standards, which could leave workers exposed to hazards that are insufficiently addressed by OSHA standards that are based on out-of-date technology or processes. Experts suggested that Congress pass new legislation that would allow OSHA, through a single rulemaking effort, to revise standards for a group of health hazards using current industry voluntary consensus standards, eliminating the requirement for the agency to follow the standard-setting provisions of section 6(b) of the OSH Act or the Administrative Procedure Act (APA). One potential disadvantage of this proposal is that any abbreviation to the regulatory process could also result in standards that fail to reflect relevant stakeholder concerns, such as an imposition of unnecessarily burdensome requirements on employers.
Impose statutory deadlines. OSHA officials indicated that it can be difficult to prioritize standards due to the agency’s numerous and sometimes competing goals. In the past, having a statutory deadline, combined with relief from procedural requirements, resulted in OSHA issuing standards more quickly. However, some legal scholars have noted that curtailing the current rulemaking process required by the APA may result in fewer opportunities for public input and possibly decrease the quality of the standard. Also, officials from MSHA told GAO that, while statutory deadlines make its priorities clear, this is sometimes to the detriment of other issues that must be set aside in the meantime.
Change the standard of judicial review. Experts and agency officials suggested OSHA’s substantial evidence standard of judicial review be replaced with the arbitrary and capricious standard, which would be more consistent with other federal regulatory agencies. The Administrative Conference of the US has recommended that Congress amend laws that mandate use of the substantial evidence standard, in part because it can be unnecessarily burdensome for agencies. As a result, changing the standard of review to “arbitrary and capricious” could reduce the agency’s evidentiary burden. However, if Congress has concerns about OSHA’s current regulatory power, it may prefer to keep the current standard of review.
Allow alternatives for supporting feasibility. Experts suggested that OSHA minimize on-site visits—a time-consuming requirement for analyzing the technological and economic feasibility of new or updated standards—by using surveys or basing its analyses on industry best practices. One limitation to surveying worksites is that, according to OSHA officials, in-person site visits are imperative for gathering sufficient data in support of most health standards. Basing feasibility analyses on industry best practices would require a statutory change, as one expert noted, and would still require OSHA to determine feasibility on an industry-by-industry basis.
Adopt a priority-setting process. Experts suggested that OSHA develop a priority-setting process for addressing hazards, and as GAO has reported, such a process could lead to improved program results. OSHA attempted such a process in the past, which allowed the agency to articulate its highest priorities for addressing occupational hazards. Reestablishing such a process may improve a sense of transparency among stakeholders and facilitate OSHA management’s ability to plan its staffing and budgetary needs. However, it may not immediately address OSHA’s challenges in expeditiously setting standards because such a process could take time and would require commitment from agency management.
How to Prepare for OSHA’s Globally Harmonized Hazard Communication Standard (GHS)
- May 18
- June 26
- July 18
- August 15
- October 2
How to Author GHS Safety Data Sheets
- June 27
- October 3
How to Label Hazardous Chemicals Using OSHA’s New GHS Hazcom Standard
- June 28
- October 4
St. Louis RCRA and DOT Training
Charlotte DOT/RCRA Update Training and SARA Title III Workshop
40-Hour and 24-Hour HAZWOPER Training
New OSHA Directive Explains Communications with Victims’ Families Following a Workplace Fatality
A new OSHA directive guides OSHA representatives in communicating investigation procedures with family members following a workplace fatality. The guidance ensures that OSHA representatives speak to the victim’s family early in the inspection process, establish a point of contact, and maintain a working relationship with the family.
“OSHA is committed to working with families to explain the circumstances surrounding the deaths of their loved ones,” said Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels. “This directive ensures that OSHA receives the necessary information from the family to assist in the investigation, and keeps the family informed throughout the investigation and settlement processes.”
Under the new directive, OSHA representatives will contact the victim’s family to explain the investigation process, timeline, and provide the family with updates throughout the investigation. Once the investigation is closed, OSHA will explain findings to the family and address any questions. If an employer has been issued citations, OSHA will provide a copy of the citation(s) to the family.
Employers must notify OSHA within eight hours of a workplace fatality, including fatal heart attacks that occur at work. These reports may be made by telephone or in person to the nearest area office or by calling OSHA’s toll-free number, 1-800-321-6742.
CSB Releases New Safety Video on Fatal Hot Work Explosion at DuPont
The US Chemical Safety Board (CSB) released a new safety video detailing a fatal 2010 hot work accident that occurred at the DuPont facility near Buffalo, New York.
CSB Chairperson Rafael Moure-Eraso said, “This is another in our series of safety videos in wide use in industry throughout the world; our hope is that this dramatic depiction will result in greater emphasis in safety during hot work activities like welding and grinding.”
In the video, Dr. Moure-Eraso notes that, “The tragic explosion at the DuPont facility exposed weaknesses in how process hazards were analyzed and controlled. The result was the death of a welder in a preventable hot work accident.” In the video Chairperson Moure-Eraso emphasizes that hot work is often seen as a routine activity, but it can prove deadly if fire and explosion hazards are overlooked.”
The 11-minute video details the events leading up to the accident noting that although DuPont personnel monitored the atmosphere above the tank, no monitoring was done to see if any flammable vapor was inside the tank. The CSB investigation found the hot work ignited the vapor as a result of the increased temperature of the metal tank, sparks falling into the tank, or vapor wafting from the tank into the hot work area. The welder died instantly from blunt force trauma, and a foreman received first-degree burns and minor injuries.
CSB Investigator Mark Wingard says in the video, “We found that the contractors did obtain hot work permits for welding, but those permits were authorized by DuPont employees who were unfamiliar with the specific hazards of the process and did not require testing the atmosphere inside the tanks.”
Delta Air Lines Signs Agreement with OSHA on Seat Belt Compliance Measures
The agreement covers approximately 90 of the Atlanta, Georgia-based company’s airport sites that fall under federal OSHA’s jurisdiction, as well as 16,000 Delta employees, and 6,000 baggage handling vehicles. Under the agreement, Delta will come into compliance with applicable requirements for the use of seat belts by ensuring that all types of the company’s baggage handling vehicles are equipped with them and that employees use the seat belts while operating the vehicles on specified airport routes.
The agreement is the result of a citation issued to Delta following a workplace fatality in which an employee operating a baggage tug vehicle without wearing a seat belt was ejected from the vehicle and died. OSHA cited Delta for violating 29 CFR 1910.132, which requires employers to provide employees with personal protective equipment, including—in this case—seat belts.
According to the agreement, Delta has committed to an abatement schedule that will result in full compliance within two years. During the first year, Delta will train its employees on the proper use of seat belts and install seat belts on those pieces of equipment that currently lack them. During the second year of the agreement, the company will fully enforce seat belt use among its employees, as well as hire safety consultants to monitor the company’s implementation of its seat belt use program and report the results to OSHA.
In addition to entering into the agreement with Delta, OSHA will address this hazard throughout the airline industry. The agency recently sent a hazard alert letter to airlines across the nation reminding them that they are obligated to comply with applicable seat belt use requirements.
Dis–Tran Steel and Dis–Tran Wood Products Fined for Exposing Workers to Combustible Dust, Electrical and Welding Hazards
OSHA has cited Dis–Tran Steel LLC, and Dis–Tran Wood Products Holdings LLC, two subsidiaries of Pineville, Louisiana-based Crest Industries Inc., with a total of 14 safety and health violations for exposing workers to combustible dust, electrical, welding, and other hazards. Proposed penalties for both companies total $72,000.
OSHA opened an inspection on October 18, 2011, at the companies’ shared facility on Cenla Drive in Pineville as part of the agency’s Site-Specific Targeting Program, as well as its national emphasis programs on amputations, primary metals, hexavalent chromium, and combustible dust.
Dis–Tran Steel, which employs about 295 workers who manufacture steel utility poles, was cited for six serious violations including a lack of required machine guarding, strain relief on the cords of electric hand controls, and screens to protect workers from rays produced by welding operations in adjacent areas. One other-than-serious violation is failing to ensure electrical cords are equipped with ground pins.
Dis–Tran Wood Products, which employs about 10 workers who manufacture wood cross arms for utility poles, was cited for five serious violations, including failing to provide dust-tight electrical enclosures to prevent wood dust explosions, provide access to an emergency eyewash station, and ensure that the live parts of an appliance are enclosed. Two other-than-serious violations are failing to provide guardrails on fixed stairs and properly maintain exposed electrical wiring.
A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. An other-than-serious violation is one that has a direct relationship to job safety and health but probably would not cause death or serious physical harm.
Metal Fabricator Escofab Inc. Cited for 11 Safety and Health Violations; Nearly $68,000 in Penalties
OSHA has cited Escofab Inc., for 11 safety and health—including one willful—violations at the company’s metal fabrication shop in Atmore, Alaska. OSHA opened an inspection in October 2011 under the agency’s Site-Specific Targeting Program, which directs enforcement resources to workplaces with higher-than-average rates of injuries and illnesses. Proposed penalties total $67,970.
The willful safety violation, which carries a $35,000 penalty, is failing to correct overhead gantry crane deficiencies. Escofab had the cranes inspected by a private consultant in 2008 and 2011 but failed to correct problems identified, including electrical hazards, and missing and broken parts. A willful violation is one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health.
Nine serious safety and health violations, with penalties of $32,970, include failing to conduct a load test on a gantry crane and on an underhung crane to ensure that operators were not exposed to falling loads, protect workers from exposure to electrical hazards while conducting machinery maintenance, protect workers from hazards associated with rotating machinery parts and fan blades, properly adjust a table grinder posing an amputation hazard, mark containers of hazardous chemicals, and effectively train employees regarding potential chemical hazards.
One other-than-serious health violation with no monetary penalty is failing to implement a respiratory protection program necessary for those employees who voluntarily choose to wear respirators while working.
Contractor American Building LLC, Cited for Safety Violations in Connection with Fatal Fall
OSHA has cited American Building LLC, a Trumbull, Connecticut-based steel erection contractor, for alleged violations—one willful and one serious—of workplace safety standards following the October 25, 2011, death of a worker at a site in Stamford, Connecticut. American Building employees were installing metal roofing onto a prefabricated steel building at the former Clairol campus at 1 Blachley Road when one of the workers fell 35 feet to the ground and sustained fatal injuries.
An investigation by OSHA’s Bridgeport Area Office found that employees lacked proper fall protection and were not adequately trained to recognize and avoid fall hazards. The safety harnesses of three of the four employees working on the roof, including the victim, were not tied off to anchorage points to prevent falls, and the fourth employee’s safety lanyard was too long to protect him against a fall.
As a result of its inspection, OSHA has cited American Building with one willful violation for the lack of fall protection and one serious violation for the lack of training. American Building faces a total of $51,700 in proposed fines.
American Biltrite Cited for Repeat and Serious Violations Following Worker Fatality
OSHA has cited American Biltrite Inc., for one repeat and nine serious safety and health violations at its Moorestown, New Jersey, facility. An OSHA investigation was initiated in November 2011 following the death of a worker who was crushed in a coating machine while attempting to clear a jam. The company failed to use energy control, or lockout/tagout, procedures prior to allowing the employee to enter the machine’s danger area.
The serious violations include failing to provide a lockout/tagout program for the energy sources of equipment, provide appropriate working space around electrical equipment, provide an eyewash station, ensure that proper equipment guards were in place to prevent workers from coming into contact with moving parts, ensure the proper use of flexible cords, take adequate precautions to prevent the ignition of flammable vapors, and require employees to wear goggles when handling corrosive chemicals.
The repeat violation is permitting Class I flammable liquids to be dispensed into containers without the nozzle and the container being electrically connected, which creates the potential for ignition. The company was cited for the same violation in 2010. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule, or order at any other facility in federal enforcement states within the last five years.
Wellesley Hills, Massachusetts-based American Biltrite Inc., manufactures and distributes commercial flooring and performance sheet rubber throughout America, and employs 130 workers at the Moorestown site. Proposed penalties total $51,300.
Safety News Links