OSHA Releases Spring 2010 Regulatory Agenda

OSHA has released its most recent Semiannual Regulatory Agenda. A complete list of OSHA’s regulatory agenda items is provided at the end of this article.

Selected actions included in OSHA’s agenda include:

• OSHA will complete the analysis of comments submitted concerning a proposed construction confined space rule and will initiate a scientific peer review of the draft risk assessment for a standard limiting workers’ exposure to diacetyl by October 2010.
• OSHA anticipates publishing a February 2011 Notice of Proposed Rulemaking for a comprehensive standard for workers’ exposure to crystalline silica, and OSHA anticipates publishing a February 2011 final rule to complete revisions of the general industry and construction standards for electrical power transmission and distribution, including PPE requirements for electrical protection and foot protection.
• A proposed rule addresses moving OSHA’s Hazard Communication Standard (HCS) toward harmonization with the U.N. Global Harmonization System (GHS). Proposed changes involve changing the criteria for classifying health and physical hazards, adopting standardized labeling requirements, and requiring a standardized order of information for MSDSs.
• A program included in the pre-rule stage would require employers to develop an Injury and Illness Prevention Program involving planning, implementing, evaluating, and improving processes and activities to protect employee safety and health. This program is a paradigm shift for OSHA because it will require employers to ‘find and fix’ the hazards in their workplaces. Specific information such as the scope of this standard and which industries it will cover are not yet available. OSHA’s Administrator, Dr. David Michaels, has stated this standard will not be a substitute for other OSHA standards, but that it will instead offer “a mechanism to achieve the culture change needed in this country to effectively address workplace safety and health issues.” OSHA will hold stakeholder meetings in June to solicit input on this proposed standard, with further details regarding this standard being published in upcoming Federal Register notices.
• Pre-rule stage for the new “Occupational Injury and Illness Recording and Reporting Requirements—Modernizing OSHA’s Reporting System,” which will address moving to a more modern, electronic system of reporting occupational injuries and illnesses. Stakeholder meetings concerning this standard are planned for July.
• The recordkeeping requirement of adding a musculoskeletal disorders (MSD) column to the OSHA 300 log, which was introduced in the Fall 2009 agenda, is anticipated to become a final rule in July.

Following is the comprehensive list of OSHA’s action items in the Spring 2010 Regulatory Agenda.

OSHA Issues Directive on Protecting Non-English Speaking Workers from Hazards

It directs compliance officers to ensure they check and verify that workers are receiving OSHA-required training in a language they understand.

“This directive conforms with Secretary Solis’ clear and urgent goal of reducing injuries and illnesses among Latino and other vulnerable workers,” said Assistant Secretary of Labor for OSHA, Dr. David Michaels. “These workers represent an integral and essential part of the key industries that keep our country running every day.”

OSHA requires that employers provide training to their workers on certain job hazards and safe methods for performing work. Investigators will now check and verify that training was provided in a language and vocabulary that the workers understand.

OSHA Releases Data on Worker Exposure to Toxic Chemicals

In keeping with President Obama’s memorandum on open government, OSHA is releasing 15 years of data providing details of workplace exposure to toxic chemicals. The data is comprised of measurements taken by OSHA compliance officers during the course of inspections. It includes exposure levels to hazardous chemicals including asbestos, benzene, beryllium, cadmium, lead, nickel, silica, and others. The data offers insights into the levels of toxic chemicals commonly found in workplaces, as well as insights into how chemical exposure levels to specific chemicals are distributed across industries, geographical areas, and time.

“We believe this information, in the hands of informed, key stakeholders, will ultimately lead to a more robust and focused debate on what still needs to be done to protect workers in all sectors, especially in the chemical industry,” said Assistant Secretary of Labor for OSHA, Dr. David Michaels.

With an understanding of these data and their limitations, it can be combined with other related data to target further research into occupational hazards and illness. In addition to this raw data, OSHA will soon make available an easy to use online search tool allowing easy public access to this information. 

CSB Requests Public Comment to Study Use of Toxic Methyl Isocyanate (MIC)

The highly toxic chemical intermediate MIC is used at the Bayer CropScience pesticide manufacturing complex in Institute, West Virginia, just to the west of Charleston, West Virginia. An explosion at the complex on August 28, 2008, which resulted in two worker fatalities, occurred within 80 feet of a 37,000-pound capacity storage tank of MIC, the chemical which resulted in thousands of public fatalities when it was suddenly released into the air from a pesticide manufacturing plant in Bhopal, India, in December 1984.

Congress appropriated $600,000 to the CSB for fiscal year (FY) 2010 specifically “for a study by the National Academy of Sciences to examine the use and storage of methyl isocyanate including the feasibility of implementing alternative chemicals or processes and an examination of the cost of alternatives at the Bayer CropScience facility in Institute, West Virginia.” Prior to the Congressional action, Bayer had publicly committed to reducing its inventory of MIC at Institute from approximately 200,000 pounds to 40,000 pounds by discontinuing the production of two MIC-derived pesticides and strengthening inventory controls over its remaining pesticide manufacturing processes.

“Following the Bhopal disaster in 1984, other chemical companies largely phased out the use and bulk storage of MIC due to safety concerns,” said CSB Chairman John Bresland. “The goal of the NAS study is to determine whether further reductions or the elimination of MIC use are achievable at Bayer, and what are the costs of doing so. The study will also lay the foundation for better understanding how chemical companies across the country could adopt inherently safer technologies to protect the public and their workers from chemical accident hazards.”

Mr. Bresland said that depending on the public comments received and the availability of funding, the CSB could request the NAS to examine additional topics such as the use of hydrofluoric acid (HF) in refinery alkylation processes or chlorine in water treatment. The CSB is currently investigating two releases of toxic HF from U.S. oil refineries in 2009.

NIOSH Revises Carbon Monoxide Breakthrough Levels for Gas Masks

The National Institute for Occupational Safety and Health (NIOSH) approves gas masks with carbon monoxide (CO) protection for escape purposes under 42 CFR 84 and Statement of Standard for Chemical, Biological, Radiological, and Nuclear (CBRN) Air-Purifying Escape Respirators (APER). A policy statement, dated November 20, 1996, was written describing an additional test to be imposed for devices in which the temperature of the effluent gas reaches 100? C during required, constant-flow testing. The policy statement established a maximum allowable breakthrough concentration of 10 ppm carbon monoxide during the additional test.

NIOSH has revisited this policy and believes that the breakthrough concentration of 10 ppm incorrectly accounted for the fit factor of the respirator and was therefore too conservative. The breakthrough concentration is now established at the current NIOSH Recommended Exposure Limit (REL) of 35 ppm. This change does not affect previously certified carbon monoxide respirators. Questions about this change may be directed to NIOSH at 412-386-4000.

DIR Honors California’s Workforce While Improving Workplace Safety

The California Department of Industrial Relations (DIR) saluted California workers on Worker’s Memorial Day, April 28, 2010. DIR recognizes the dedication and sacrifices workers make while contributing to the success of the state. In remembering and honoring those who have been injured or who died on the job in California, DIR strives to continuously strengthen workplace safety.

California is one of 26 states and territories that administers a federally-approved occupational safety and health state plan. Cal/OSHA also develops and promulgates its own workplace safety and health standards in addition to complying with federal standards—one of only three programs in the nation to do so.

“We develop our standards through open dialogue with business, labor unions, the public and academia,” said Cal/OSHA Chief, Len Welsh. “Our workers deserve the opportunity to do an honest day’s work and return home safely to their families. With the broad and diverse industry base that exists in our state, we know we have to continue to find new approaches to safety with each new work environment.”

California has a long history of improving workplace safety and health. Workplace protections instituted in California include:

• An Injury and Illness Prevention Program standard adopted in 1991, to ensure employers have safety and health programs tailored to their specific establishments;
• Permissible Exposure Limits, setting limits of exposure to contaminants in the workplace;
• Strict requirements to prevent tower crane catastrophes
• Specific rules for mining operations
• Tight controls over asbestoses abatement work
• Groundbreaking regulations to protect outdoor workers from heat illness adopted in 2006, and
• Adoption of the Aerosol Transmissible Disease Standard in 2009 to protect healthcare workers and others from airborne pathogens.

Cal/OSHA is currently partnering with state agencies and the flavor-manufacturing industry to adopt the nation’s first standard for limiting worker exposure to diacetyl. Diacetyl, an artificial food flavoring, has been linked with a debilitating and deadly lung disease.

“Our Strategic Vision is to promote workplace safety and health by motivating employers and employees to be actively involved in preventing hazards,” added Welsh. “From past injury and fatalities suffered on the job, we have learned what is needed to provide greater protections for future workers in California.”

California’s Heat Illness Prevention Standard—the first in the nation—demonstrates the effectiveness of this collaborative approach. Following implementation, workplace fatalities attributed to heat illness declined from 12 in 2005, to one in 2009.

“Education and outreach are a vital part of our success,” said Welsh. “When this regulation was first implemented employer compliance was 32.5%. That level of compliance increased to 74% in 2009 following four years of partnering and outreach.”

“Our efforts to protect California’s most vulnerable workers continue,” added Director Duncan. “As we improve workplace safety and help employers gain compliance, we know that more workers will be returning home safely to their families after their day’s work—and that is the way it should be.”

AFL-CIO Study Reveals Dangerous Workplaces and Inadequate Enforcement

The nation’s workplace safety laws and penalties are too weak to effectively protect workers, according to the new AFL-CIO annual report released: Death on the Job: The Toll of Neglect. As the country reels from the loss of the 29 miners at the Massey Upper Big Branch coal mine in West Virginia, the report shows that there were a total of 5,214 fatal workplace injuries in 2008. Because underreporting of workplace-related injuries and illness remains a persistent problem, the true toll is estimated to be as many as three times the 4.6 million reported incidents.

On average, 14 workers were fatally injured each day in 2008. This statistic does not include death from occupational diseases, which claims the lives of an estimated 50,000–60,000 more workers each year. The report shows that Latino and Hispanic workers continue to face much higher risks of death on the job. In 2008, the fatality rate among these workers was 4.2 per 100,000 workers, 13.5% higher than the fatal injury rate for all U.S. workers.

The report also examined job safety enforcement in cases of worker deaths, finding that the median penalty in fatalities investigated by federal OSHA and the OSHA state plans was just $5,000. Utah had the lowest median penalty in fatality cases with $1,250 in penalties assessed, followed by Washington with a median penalty of $1,600, and Kentucky with a median penalty of $2,000.

Both OSHA and MSHA are moving to step up enforcement against employers with repeated violations, and the Administration has increased the job safety budget and is hiring hundreds of new inspectors. However, as the Death on the Job report reveals, there are only 2,218 OSHA inspectors (885 federal and 1,333 state inspectors) for the approximately 130 million workers in the United States today. At this rate, federal OSHA inspectors are only able to inspect workplaces, on average, once every 137 years, and state OSHA inspectors on average once every 63 years.

“In less than 3 months time, 42 workers have been killed in 3 major industrial.disasters—at Massey’s Upper Big Branch Mine, the Tesoro Refinery in Washington State, and the Kleen Energy plant in Connecticut. And eleven workers are missing and likely dead following last week’s catastrophic explosion at the Transocean oil rig off Louisiana,” said AFL-CIO President, Richard Trumka. “There’s no question that eight years of neglect and inaction by the Bush Administration seriously eroded safety and health protections, and put workers’ lives in danger. Wall Street was allowed to do as it pleased with little oversight or accountability. And now, with 11 million jobs and thousands of lives lost, we’re fighting to create the jobs—good jobs, safe jobs—that America’s working families so desperately need.”

FDA Warns Users to Seek Alternatives to Faulty External Defibrillator Models

About 280,000 external defibrillators used worldwide in health care facilities, public places, or in the home may malfunction during attempts to rescue people in sudden cardiac arrest, the U.S. Food and Drug Administration (FDA) has warned.

External defibrillators can send an electric shock to the heart to try to restore normal heart rhythm when sudden cardiac arrest occurs. Sudden cardiac arrest is a condition in which the heart suddenly and unexpectedly stops beating. When this happens, blood stops flowing to the brain and other vital organs, leading to death if not treated within minutes.

Faulty components in defibrillators manufactured by Cardiac Science Corp., of Bothell, Washington, may cause the devices to fail to properly deliver a shock. In addition to failure to deliver needed shocks, other problems with the affected models may include interruption of electrocardiography (ECG) analysis, failure to recognize electrode pads, and interference or background noise that makes the device unable to accurately analyze heart rhythm.

The 14 models, which include automated and semi-automated devices, include:

• Powerheart models 9300A, 9300C, 9300D, 9300E, 9300P, 9390A, and 9390E
• CardioVive models 92531, 92532, and 92533
• Nihon Kohden models 9200G and 9231
• GE Responder models 2019198 and 2023440

The FDA recommends that hospitals, nursing homes, and other high-risk settings obtain alternative external defibrillators and arrange for the repair or replacement of the affected defibrillators. For all other users, including those who use the device at home or as part of public access programs, the FDA recommends using alternative external defibrillators if they are available, and arranging for the repair or replacement of the affected models.

If alternative external defibrillators are not immediately available, then FDA recommends continuing to use the affected devices if needed, because they may still deliver necessary therapy. The potential benefits of using the available external defibrillators outweigh the risk of not using any of the affected external defibrillators or the risk of device failure.

“The FDA is issuing this notice so that users can take the proper steps necessary to assure they have access to safe and effective defibrillators,” said Jeffrey Shuren, M.D., J.D., director of the FDA’s Center for Devices and Radiological Health.

Cardiac Science recalled its Powerheart and CardioVive models, manufactured between August 2003 and August 2009, on November 13, 2009. Since then, the FDA has learned that additional Cardiac Science models, two marketed under the Nihon Kohden name, and two marketed by GE Healthcare as GE Responder have similar problems.

Cardiac Science issued a software update for two of its Powerheart defibrillators in February 2010 and plans to issue similar software updates for other affected devices. However, FDA’s review of the updated software indicates that the software detects some, but not all, identified defects.

OSHA Fines Birdair Inc. $45,000 Following Worker Fall Injuries at Dallas Cowboys Stadium Worksite

OSHA has cited Birdair Inc., headquartered in Amhurst, New York, following an investigation at the company’s worksite in Arlington, Texas, at the Dallas Cowboys Stadium where two workers fell and were injured. Proposed penalties total $45,000. The two injured workers slid about 260 feet down the side of the dome roof before falling into the gutter system. Both workers sustained life threatening injuries.

“Employers must provide a safe and healthful workplace for their workers,” said Zachary Barnett, OSHA’s Area Director in Fort Worth, Texas. “If OSHA’s standards for fall protection had been followed, it is possible these employees would not have been seriously injured.”

The company was cited with one alleged willful and one alleged serious violation of the OSHA standards. The willful violation was issued for failing to ensure that employees were wearing the required fall protection equipment. OSHA defines a willful violation as one committed with intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act.

The serious violation was issued for failing to provide employees with training on the hazards associated with falls. Serious citations are issued when death or serious injury could result from a hazard about which the employer knew or should have known.

OSHA Fines Lowe’s Home Center $110,000 for Continually Failing to Document and Report Employee Injuries and Illnesses

. OSHA requires employers to record and maintain occupational injuries and illnesses on the OSHA 300 log.

As a result of an October 2009 inspection in Cincinnati, OSHA issued Lowe’s four willful citations with a proposed penalty of $40,000. Based on a November 2009 inspection, OSHA issued the Dayton store seven willful citations with a proposed penalty of $70,000.

“Accurate injury and illness records are vital to protect workers’ health and safety,” said OSHA Area Director Richard Gilgrist in Cincinnati. “Accurate records are an important tool that employers and workers can use to identify hazards in the workplace, and they also enable OSHA to better target its resources.”

OSHA Fines Ohio-based Tireman Auto Service Centers Ltd. $177,800 for Willful and Serious Safety Violations

OSHA has cited Tireman Auto Service Centers Ltd., in Maumee, Ohio, with $177,800 in proposed penalties for alleged serious and willful violations for failing to protect workers. After an accident in which four employees were injured when an agricultural tire exploded, OSHA cited the company with three alleged willful violations carrying a proposed penalty of $168,000. The company failed to provide a cage or barrier to protect workers servicing large agricultural tires, failed to ensure employees worked outside the trajectory path, and exceeded the maximum tire pressure while seating the tire.

Tireman Auto Service Centers Ltd., has also received two serious violations and a proposed penalty of $9,800 for failing to ensure safety glasses were worn by workers when servicing tires and failing to have an inline valve pressure gauge.

“Employees that work with agricultural tires and high pressure air face serious injury or even death if proper OSHA safety regulations are not followed,” said OSHA Area Director Jule Hovi in Toledo, Ohio. “Those who ignore these safety regulations are inviting tragedy into the lives of their workers.”

OSHA Proposes Total of $158,780 in Penalties for National Standard Co.

OSHA has cited National Standard Co., in Stillwater, Oklahoma, with alleged serious and repeat citations following a safety and health inspection at the company’s worksite in Stillwater. Proposed penalties total $158,780.

“This company has a history of safety and health violations dating back to 1988,” said David Bates, OSHA’s Area Director in Oklahoma City, Oklahoma. “OSHA’s standards must be followed to avoid illness and injury.”

OSHA’s Oklahoma City Area Office began its investigation October 27, 2009, at the company’s facility on Perkins Road in Stillwater. The inspection was part of OSHA’s Site-Specific Targeting Program, which is used to focus on industry sectors experiencing high injury and illness rates.

The serious citation includes 25 safety and 13 health violations. The safety violations include failing to clean settled combustible dust on floors and piping, to place covers on electrical equipment, to provide adequate machine guarding, to provide fall protection equipment such as standard guardrails and to follow manufacturer’s instructions on forklift operations. Health violations include failing to ensure employees were wearing personal protective equipment and to follow safety procedures for controlling lead.

A repeat citation was issued for failing to properly install and mount receptacle boxes as listed and labeled for use. Under this condition, an electrical shock hazard can occur. In 2007, OSHA cited the company for a similar hazard at this facility following a workplace fatality. A repeat violation is issued when an employer previously was cited for the same or similar violation of any standard, regulation, rule or order at any other facility in federal enforcement states within the last three years.

National Standard Co., headquartered in Niles, Michigan, is owned by Heico Cos. LLC in Downers Grove, Illinois, and employs about 92 workers in Stillwater.

OSHA Proposes $96,500 in Penalties against Packaging Corporation of America for Safety Violations

OSHA has cited Packaging Corporation of America in Milwaukee with $96,500 in proposed penalties for alleged serious and willful violations of federal workplace safety standards. As a result of an October 2009 inspection, OSHA has issued the company one willful violation, with a proposed penalty of $70,000, for failing to provide adequate personal protection equipment to workers responding to a caustic solution spill.

OSHA also has issued the company six serious citations with proposed penalties of $26,500. Some of the violations include failing to provide proper employee training for a caustic solution spill, failure to implement decontamination procedures for a caustic spill, and failure to implement an emergency response plan.

“There is no excuse for a company that deals with caustic material not to have proper protective equipment and procedures in place to protect its workers,” said OSHA Area Director George Yoksas in Milwaukee. “Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”

The Packaging Corporation of America plant in Milwaukee manufactures corrugated and solid fiber boxes. It has been inspected by OSHA more than 40 times and received in excess of 90 citations in the past 10 years, including an inspection that was the result of an accident in Tomahawk, Wisconsin, where three workers were killed in an explosion.

OSHA Proposes $60,000 in Penalties against Chicago-based National Wrecking Co.

OSHA has cited National Wrecking Co., in Chicago with $60,000 in proposed penalties for alleged willful and serious violations of federal workplace safety standards. As a result of a November 2009 inspection, OSHA has issued a willful citation to the company for failing to provide fall protection to employees working 16 feet above ground level.

OSHA also has issued the company one serious citation for failing to protect workers exposed to struck by and caught in between hazards while working in a hydraulic excavator.

National Wrecking Co., has been inspected 46 times by OSHA since 1975 and has been issued numerous serious, repeat, and willful violations.

Antorino Sewer & Drain Cited for Cave-in Hazards after Employee is Caught in 16-foot Deep Hole

OSHA has cited Antorino Sewer & Drain, a contractor in Islandia, New York, for seven alleged serious violations of workplace safety standards following a December 8, 2009, incident in which a worker became trapped in a 16-foot hole while installing a cesspool at a residential worksite. The contractor faces a total of $11,700 in proposed fines.

The citations were issued after OSHA’s investigation found that the excavation lacked cave-in protection, did not have a ladder or other safe means of exit, had excavated material stored at its edge and had not been inspected by a competent person with knowledge and authority to identify and correct such hazards. In addition, the employee lacked a protective helmet and had accessed the excavation by riding in the bucket of a backhoe.

“Although no worker was seriously injured in this particular instance, the possibility of death or severe injury was real and present,” said Anthony Ciuffo, OSHA’s Long Island Area Director. “An unprotected excavation can become a grave in seconds and nearly did so here. This incident is a stark example of how dangerous it can be inside an excavation that lacks proper sloping or shoring, especially in the low cohesive and sandy soil we have here on Long Island.”

“Warmer weather will bring an increase in excavation work and an increase in excavation hazards if employers fail to follow basic, common sense and legally required safeguards,” said Robert Kulick, OSHA’s Regional Administrator in New York. “I urge all employers conducting excavation work to assign a trained and competent person to examine each excavation and ensure it adheres to OSHA standards before they have workers enter them.”

OSHA standards require that all excavations five feet or deeper be sloped or shored or otherwise protected against collapse. 

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