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New Regulatory Agenda Aims at ‘Good Jobs for Everyone’

Department of Labor Secretary Hilda L. Solis said her agency’s vision is to ensure “good jobs for everyone” via a regulatory agenda that protects workers by improving working conditions.

In a semi-annual statement of regulatory and deregulatory priorities, Solis said this vision includes advancing opportunities for employment, protecting retirement and health care benefits, helping employers find workers, and strengthening collective bargaining.

Regarding OSHA’s Occupational Injury and Illness Recording and Reporting Requirements rule, the new agenda proposes collecting additional data to help employers and workers track injuries at individual workplaces, improving the nation’s occupational injury and illness information data, and assisting the agency in its enforcement of the safety and health workplace requirements.

To achieve all of this, the Secretary has established a series of 12 specific strategic outcomes that span all of the department’s agencies. These outcomes are:

• Increasing workers’ incomes and narrowing wage and income inequality;

• Securing safe and healthy workplaces, wages and overtime, particularly in high-risk industries;

• Assuring skills and knowledge that prepare workers to succeed in a knowledge-based economy, including in high-growth and emerging industry sectors like “green” jobs;

• Breaking down barriers to fair and diverse work places so that every worker’s contribution is respected;

• Improving health benefits and retirement security for all workers;

• Providing work place flexibility for family and personal care-giving;

• Facilitating return to work for workers experiencing work place injuries or illnesses who are able to work and sufficient income and medical care for those who are unable to work;

• Income support when work is impossible or unavailable;

• Helping workers who are in low wage jobs or out of the labor market find a path into middle class jobs;

• Ensuring workers have a voice in the work place;

• Assuring that global markets are governed by fair market rules that protect vulnerable people, including women and children, and provide workers a fair share of their productivity and voice in their work lives; and

• Helping middle-class families remain in the middle class. When she says, “good jobs for everyone,” Solis means vulnerable workers, workers in traditionally less safe industry sectors, farmworkers, health care workers, seniors, and those facing barriers to good employment.

OSHA’s regulatory program demonstrates a renewed commitment to worker health by addressing health hazards and the prevention of construction injuries and fatalities.

First, OSHA is proposing to address worker exposures to crystalline silica through the promulgation and enforcement of a comprehensive health standard.

Exposure to silica causes silicosis, a debilitating respiratory disease, and may cause cancer, other chronic respiratory diseases, and renal and autoimmune disease as well.

Over 2 million workers are exposed to crystalline silica in general industry, construction, and maritime industries, and workers are often exposed to levels that exceed current OSHA permissible limits, which is frequent in the construction industry where workers are exposed at levels that exceed current limits by several fold.

It has been estimated that between 3,500 and 7,000 new cases of silicosis arise each year in the U.S., and that 1,746 workers died of silicosis between 1996 and 2005.

Reducing these hazardous exposures through promulgation and enforcement of a comprehensive health standard supports both the Secretary’s vision and will contribute to OSHA’s goal of reducing occupational fatalities and illnesses.

As a part of the Secretary’s strategy for securing safe and healthy workplaces, the Mine Safety and Health Administration will also be undertaking regulatory action related to silica utilizing information provided by OSHA.

OSHA’s second health initiative would revise its Hazard Communication Standard (HCS) to make it consistent with a globally harmonized approach to hazard communication. The HCS covers more than 945,000 hazardous chemical products in 7 million American workplaces and gives workers the “right to know” about chemical hazards they are exposed to.

OSHA and other Federal agencies have participated in long-term international negotiations to develop the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Revising the HCS to be consistent with the GHS is expected to significantly improve the communication of hazards to workers in American workplaces, reducing exposures to hazardous chemicals, and reducing occupational illnesses and fatalities.

OSHA Administrator Confirmed

Without a nomination hearing or public discussion, the U.S. Senate confirmed last month President Barack Obama’s nomination to lead OSHA, giving the regulatory agency its first permanent administrator since Edwin Foulke, Jr. resigned in November 2008.

The Senate Labor Committee approved as Assistant Secretary of Labor for OSHA professor David Michaels of the George Washington University School of Public Health. Michaels is known for helping craft the federal program to aid former nuclear weapons workers who became sick from radiation.

The approval is subject to the nominee’s commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.

Author of the 2008 book, “Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health,” Michaels is credited with being the chief catalyst of the Energy Employees Occupational Illness Compensation Program, which compensates sick workers and their relatives for illnesses caused by exposure to radiation, beryllium, and other hazards during the production of U.S. atomic weapons.

Michaels directs the Project on Scientific Knowledge and Public Policy Support (SKAPP), which the Chamber of Commerce said aligns with product liability lawyers.

The American Public Health Association (APA) praised Michaels. “Dr. Michaels is eminently qualified to lead OSHA,” said APHA Executive Director George C. Benjamin, M.D. “He has proven his skill at protecting workers in a regulatory setting and has earned the respect of the scientific community for his commitment to science as the backbone of sound public health and environmental regulation.”

The American Industrial Hygiene Association said it’s happy to hear that an OSHA Administrator has been confirmed. We look forward to getting to know Dr. Michaels and assisting him with the OSHA agenda, particularly to help him advance the science and practice of industrial hygiene,” said AIHA President Cathy L. Cole, CIH, CSP.

“One of the issues we hope Dr. Michaels will address is the need to update the Permissible Exposure Limits (PELs). While we are aware that OSHA has limited resources available to update PELs on an individual basis, we do not believe the agency can sit idly by and not address the issue. If PELs are not able to be updated, we hope the agency will offer an alternative,” Cole added.

Last year, AIHA sent a letter to the Obama Transition Team at OSHA listing a few of the qualifications it felt the individual should possess when addressing the complex health and safety problems facing today’s workers.

The letter suggested that a suitable candidate possess qualities such as:

• A lifelong commitment to occupational health and safety;

• Comprehensive training in occupational health and safety;

• At least 15 years of technical experience in occupational health and safety;

• Proven management experience; and

• The vision and ability to build coalitions and consensus among diverse groups to effectively promote occupational health and safety.

“We are hopeful Dr. Michaels continues down the path taken by Jordan Barab while he served as acting assistant secretary: moving forward on many issues that were stalled at the agency for a considerable time,” said Michael T. Brandt, AIHA president-elect. “Some of these include the GHS, combustible dust, diacetyl, silica, and many others. Mr. Barab is owed a great deal of thanks for his efforts on behalf of workers at the agency.”

EPA: Greenhouse Gases Threaten Public Health and the Environment

After a “thorough examination of the scientific evidence and careful consideration of public comments,” the EPA is saying that greenhouse gases (GHGs) threaten the public health and welfare of the American people.

The announcement was made as delegates from 192 countries converged on Copenhagen in December for two weeks to discuss global warming. EPA’s endangerment finding covers emissions of six key greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – that have been the subject of scrutiny and intense analysis for decades by scientists in the United States and around the world.

Ignoring the “climategate scandal” and new concerns about the validity of global warming research and the veracity of the scientists conducting that research, the EPA says GHGs are the primary driver of climate change, which can lead to hotter, longer heat waves that threaten the health of the sick, poor or elderly; increases in ground-level ozone pollution linked to asthma and other respiratory illnesses; as well as other threats to the health and welfare of Americans.

Last month, the head of the Climactic Research Unit at the University of East Anglia, which published some of the foundational data used to support the claim that global warming exists, relinquished his post while the U.K. school conducts an investigation into allegations of scientific and professional misconduct.

Leaked email files show that prominent scientists were so committed to theories of man-made global warming that they ridiculed dissenters who asked for copies of their data, plotted how to keep researchers who reached different conclusions from publishing, and concealed computer code from being disclosed under the Freedom of Information law.

EPA Administrator Lisa P. Jackson, said in her announcement that the EPA’s “long-overdue findings cement 2009’s place in history as the year when the United States Government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform.

“Business leaders, security experts, government officials, concerned citizens and the United States Supreme Court have called for enduring, pragmatic solutions to reduce the greenhouse gas pollution that is causing climate change,” she said. “This continues our work towards clean energy reform that will cut GHGs and reduce the dependence on foreign oil that threatens our national security and our economy.”

Big Dust-Up
Why Did OSHA Initiate a Combustible Dust Rulemaking Now?
BY ERIC J. CONN

Combustible dusts are solids ground into fine particles that can present a fire or explosion hazard when suspended in air. Combustible dust can take many forms, including wood, plastics, rubber, metals, grain and sugar.

Over the past 30 years, there have been almost 300 known dust fires and explosions in the U.S., resulting in hundreds of workplace injuries and fatalities.

Until now, OSHA has regulated the hazards of combustible dust through various general industry standards (e.g., housekeeping and electrical standards) as well as OSHA’s General Duty Clause, which requires employers to protect their employees against serious “recognized” hazards.

However, in an Advance Notice of Proposed Rulemaking (ANPR) published in the October 21, 2009 Federal Register, OSHA announced its intent to develop a comprehensive combustible dust safety standard.

Combustible dust explosions are not a new phenomenon, and OSHA has regulated industries susceptible to hazards of combustible dust for decades. So what is driving OSHA’s decision to promulgate a combustible dust standard? Why now?

There are three reasons why OSHA is engaging in a rulemaking for a comprehensive combustible dust standard:

Following the 2008 catastrophic dust explosion at an Imperial Sugar plant, which took the lives of 14 workers, OSHA has been under pressure from the public, legislators, and the U.S. Chemical Safety and Hazard Investigation Board to develop a combustible dust standard.

OSHA’s inspections under its combustible dust National Emphasis Program have resulted in a high percentage of violations cited under the General Duty Clause, rather than a specific safety standard. This led OSHA to conclude that it needed a new comprehensive combustible dust standard.

OSHA under President George W. Bush emphasized voluntary compliance programs, whereas President Obama’s OSHA has made it clear that rulemaking is a top priority.

Imperial Sugar and the CSB

In 2006, after several high profile industrial combustible dust incidents, the U.S. Chemical Safety and Hazard Investigation Board (CSB) conducted a combustible dust study and reported that over the previous 25 years, there had been more than 275 dust fires and explosions in U.S. industrial facilities, resulting in almost 1,000 injuries or fatalities.

The CSB concluded that industry and safety professionals lacked awareness of combustible dust hazards, National Fire Protection Association (NFPA) and other national consensus standards were not being followed, state and local fire codes were not effectively addressing combustible dust, and OSHA’s focus had been on enforcement activities triggered by incidents rather than on developing a standard to regulate combustible dust.

Then, on February 7, 2008, a catastrophic combustible dust explosion struck the Imperial Sugar plant in Port Wentworth, Georgia, claiming the lives of 14 workers and injuring three dozen more. The CSB investigated the incident, and in its final report, formally recommended that OSHA “proceed expeditiously . . . to conduct rulemaking, to promulgate a comprehensive standard to reduce or eliminate hazards from fire and explosion from combustible powders and dust.”

In addition to the CSB’s recommendation, OSHA has also felt pressure to develop a combustible dust standard from the public, industry and labor organizations, and legislators.

Combustible Dust National Emphasis Program

In October 2007, OSHA initiated a combustible dust National Emphasis Program (NEP) to increase OSHA’s enforcement activities in industries that generate and handle combustible dust. Two years into the NEP, OSHA gave an account of its enforcement efforts, and reported that it had conducted more than 1,000 combustible dust NEP inspections, covering workplaces in 64 industries and the issuance of nearly 5,000 citations.

The most noteworthy statistic from the NEP, however, has been the high percentage of citations issued under the General Duty Clause. Roughly one in every four citations from the NEP has been issued under the General Duty Clause (a rate of approximately 25 percent), as compared to a rate of less than 4 percent from all other OSHA inspections. Accordingly, OSHA concluded that its existing standards do not provide a sufficiently comprehensive set of requirements to address the hazards of combustible dust.

OSHA Rulemaking – A Renewed Effort

For eight years, OSHA under President George W. Bush emphasized voluntary compliance programs more so than traditional rulemaking. Indeed, during the Bush presidency, OSHA promulgated fewer new safety standards than it did during each of the Clinton, George H.W. Bush and Reagan administrations. President Obama’s OSHA, by contrast, clearly prefers mandatory regulations.

The Obama administration has stated that rulemaking will be a priority of OSHA. All industries should expect significant increases in rulemaking activity, including development of the Global Harmonization standard for hazard communication, the revised walking/ working surfaces standard, another attempt at an ergonomics standard, an effort to revise many chemical permissible exposure limits, a safety and health programs standard, and the combustible dust standard.

Interested parties have until Jan. 19, 2010 to offer written comments on OSHA’s combustible dust ANPR. Comments can be submitted electronically at www.regulations.gov. If your company operates one of the nearly 1 million workplaces or employs any of the approximately 22 million workers in the industries that generate or handle combustible dust, now is the time to actively participate in the process that will determine the form and content of this important new standard.

Eric J. Conn is a partner with McDermott Will & Emery LLP, where, he is a member of the Firm’s OSHA & Catastrophe Response Practice Group. He can be reached at 202.756.8248 or econn@mwe.com.