By Andi Kenney
On January 19, 2018, OSHA issued a citation to Spirit Aerosystems, Inc., alleging one willful and five serious violations of the OSHA hexavalent chromium standard (29 CFR 1910.1026) and assessing $194,006 in penalties.
In the citation, OSHA alleges that the manufacturer of aerostructures (including portions of fuselages) willfully failed to prevent employee exposures to levels above the permissible exposure limit (PEL) of 5.0 ug/m3 8 hour time weighted average (TWA) and to implement feasible engineering and work practice controls “to reduce employee exposure to the lowest achievable level.” The citation notes an employee who was sanding and grinding was exposed to hexavalent chromium at 9.0 ug/m3 on a time weighted average, 1.8 times the PEL.
The citation further alleges that Spirit Aerosystems did not perform periodic monitoring every three months, did not perform monitoring when process changed, did not demarcate a regulated area for hex chrome, allowed employees to leave the hex chrome work area without removing contaminated clothing and equipment, and did not adequately train employees regarding the OSHA hex chrome standard.
The citation is notable for several reasons. First, it is an indication that OSHA is still actively enforcing the hex chrome standard. Second, it underscores OSHA’s position that an increased scheduled work load is a process change that would require additional exposure monitoring. Third, it affirms that the aircraft painting exception, which establishes a 25 ug/m3 exposure limit, does not apply to grinding and sanding operations. Finally, it raises questions about how far an employer has to go to reduce exposures—does the employer’s obligation to implement controls require it to reduce exposure “to the lowest achievable level” as alleged in the citation or does the employer meet its obligation if it reduces exposure to the PEL?
By Andi Kenney
On October 26, 2017, EPA published a proposed rule requiring manufacturers and importers of mercury and mercury-added products or any other person who intentionally uses mercury in a manufacturing process to provide EPA with both quantitative and qualitative information about the elemental mercury and mercury compounds involved in their activities. 82 FR 49564 (October 26, 2017).
Under Section 8(b)(10)(B) of the Toxic Substances Control Act (TSCA), EPA must publish an inventory of mercury supply, use, and trade in the United States” in 2017 and every year thereafter. This reporting rule is authorized by Section 8(b)(10)(D) of TSCA which requires covered persons to provide EPA with the information the Agency needs to prepare that inventory.
The list of potentially affected industries is wide ranging and includes, among many others, mining, chemical manufacturing, plastics and resin manufacturing, medicinal and pharmaceutical manufacturing, coating and adhesive manufacturing, tire and rubber product manufacturing, fabricated metal products (including ammunition) manufacturing, circuit board and semiconductor manufacturing, office and industrial equipment manufacturing, watch and measuring equipment manufacturing, lighting and household appliance manufacturing, battery and electrical equipment manufacturing, boat and RV manufacturing, toy and jewelry manufacturing, and hazardous and non-hazardous waste facilities.
The reporting requirements focus on those who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process. The proposed rule would not apply to persons generating, handling or managing mercury-containing waste, unless that person manufactures or recovers mercury and uses it or stores it for use. Nor would it apply to those merely engaged in the trade of mercury, those importing mercury-added products for personal use and not for commercial purposes, those manufacturing mercury incidentally (such as by burning coal) or those importing a product that contains mercury solely as a component in a mercury-added product (such as a toy with a mercury-added battery). It would, however, apply to mercury or mercury-containing by-products manufactured for commercial purposes and to the storage of mercury and mercury-added products after manufacture.
EPA is proposing an initial reporting deadline of July 1, 2019, with subsequent reports due every three years thereafter. Each report would cover only the preceding calendar year.
EPA is accepting comments on the proposed rule until December 26, 2017.
On January 18, 2017, the Department of Labor published a final rule adjusting civil penalties under the Occupational Safety and Health Act for inflation as required by the Federal Civil Penalties Inflation Adjustment Act of 2015. As required by the Act, the adjustment is based on changes to the Consumer Price Index for all Urban Consumers. Unlike last year’s catch-up adjustment, which increased penalties by 78%, this year’s inflation adjustment is a little over 1%. The new penalties compared to the pre-August 2016 penalties can be found here.
By Andi Kenney
On November 18, 2016, OSHA finally published a final rule updating the walking-working surfaces and fall protection standards for general industry. Percolating since 1990 (55 FR 13360), reopened in 2003 (68 FR 23528) and again in 2010 (75 FR 28862), revisions to the walking-working surfaces and fall protection standards were long overdue. OSHA’s 500+ final rule gives employers new options to combat slip, trip and fall hazards (Subpart D) while adding employer requirements to ensure those new options provide for enhanced safety. It adds a new section under the general industry Personal Protective Equipment standard (Subpart I) that specifies employer requirements for using personal fall protection systems and clarifies obligations for several specific industries, including telecommunications, pulp, paper and paperboard mills, electrical power generation, transmission and distribution, textiles and sawmills.
The final rule addresses fall protection options (including personal fall protection systems), codifies guidance on rope descent systems, revises requirements for fixed and portable ladders, prohibits the use of body belts as part of a personal fall arrest system, and establishes training requirements on fall hazards and fall protection equipment. OSHA Administrator Dr. David Michaels stated, "The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries." OSHA notes the final rule also increases consistency between general and construction industries, which it believes will help employers and workers that work in both industries.
Workers Comp: Will the Opt-Out Initiative Alter the 100 Year Old Social Compact Between Employers and Employees for Work-Related Injuries and Illnesses?
Dissatisfaction with existing workers compensation programs seems to be the norm these days. Employers are fed up with the costs of the programs, the sense that they provide incentives for employees to make false claims or to exaggerate real claims, and the bureaucratic process for claims resolution, among other issues. Employees are frustrated by the process for pursuing claims and the compensation schedules. As a result, the majority of states are considering changes to their workers compensation programs.
California employers can now be liable for state labor and wage violations, including violations of wage and hour, workers' compensation and safety laws. Signed by Governor Jerry Brown on September 28, 2014, AB 1897 adds Section 2810.3 to the California Labor Code. The bill requires a client employer to share all civil legal responsibility and liability with the labor contractor and allows the temporary employees to sue the employer directly (with 30 days notice). Notably, the bill prohibits a client employer from shifting worker safety requirements to the labor contractor. This appears to pose a problem for employers who have arrangements with temporary services agencies in which the agency provides basic safety and health training and/or PPE while the employer provides site-specific training and/or PPE.
The bill exempts from the definition of labor contractor certain nonprofit, community-based organizations; labor organizations, apprenticeship or hiring hall programs; motion picture payroll service companies, and certain third-parties to leasing arrangements.
As a result of this change, employers who utilize the services of temporary workers should, at a minimum, reevaluate their labor contractors' compliance with wage and hour, workers' compensation and health and safety laws and review the indemnity provisions of their contracts to ensure that they are covered in the event the labor contractor fails to comply.
On June 5, 2014, Governor Quinn signed a bill amending the Illinois Workers' Compensation Act and limiting protection for third party safety consultants from workers' suits. The Workers' Compensation Act prevents employees who sustain personal injuries or death in the line of duty from suing their employers for damages—establishing the workers' compensation program as the exclusive remedy. Prior to the Amendment, Section 5 of the Act explicitly stated that there is no common law or statutory right to recover damages from the employer, the employer's insurer, broker or "service organization retained y the employer, his insurer or his broker to provide safety service, advice or recommendations to the employer." The Amendment, which became PA 098-0633, limits the scope of protection from civil lawsuits to service organizations that are "wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations." The result is that independent, third-party safety consultants retained by employers in Illinois can no longer claim that they are covered by the workers' compensation exclusivity provision. Those safety consultants are now potentially subject to suit by injured employees who may claim their injuries are the result of the advice the consultants provided to their employers.
Illinois employers and their safety consultants may want to review should consider reviewing their consulting agreements to determine how the agreements address these potential risks, if at all. Likewise, safety consultants should review their insurance coverage to make sure it is adequate.
A copy of PA 098-0633, which amends the Worker Compensation Act and is effective immediately, can be found at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0633&GA=98.
On May 14, Kansas Governor Sam Brownback signed a bill directing the State Secretary of Labor to study and make recommendations by January 2015 regarding whether the State should assume responsibility for regulating workplace safety and health. The move is widely seen as the first step toward the State supplanting the authority of the Federal Occupational Safety and Health Administration (OSHA) to regulate occupational safety and health. Section 18 of the Occupational Safety and Health Act of 1970 allows states and territories to develop and enforce safety and health standards provided the state program is at least as effective as the federal program. Currently 25 states and two territories operate state plans. OSHA is responsible for establishing and enforcing workplace safety and health standards in the remaining states and Washington, D.C.
The bill tasks the Secretary with identifying the agreements necessary to implement a state plan, reviewing methods to finance a state plan, determining what personnel and statutory and regulatory changes are necessary to implement a state plan, and identifying the interactions with the federal government necessary to transfer authority for regulation from the Federal Occupational Safety and Health Administration to the State.
Proponents of state control point to opportunities for a more productive, cooperative relationship between business and a regulatory agency more in touch with local needs. Critics cite additional costs to the State and concerns about weaker enforcement. Whether Kansas ultimately moves forward with a state plan remains to be seen. If it chooses to do so, it will be the first state seeking initial approval of a full state plan in nearly 40 years . . . and the first in the 21st century.
The bill can be found here.
On May 24, OSHA published a proposed rule to amend its walking-working surfaces and personal protective equipment standards, Subparts D and I of the General Industry Standards. The proposed revisions are intended to reduce the number of workplace injuries and fatalities due to slips, trips and falls by requiring the use of updated technologies and current industry practices. Among other changes, the revisions in Subpart D would require employers to provide fall protection to all employees working at heights of four feet or more and would establish specific requirements for the fall protection system used. Revisions to Subpart I would establish criteria and performance requirements for the use of personal fall protection systems.
The revisions would also make general industry requirements more consistent with those in the construction and maritime industries. Like the construction standard, the proposed rule would eliminate the preference for guardrails and would, instead, permit employers to choose from one of several conventional fall protection systems (guardrail systems, safety net systems, travel restraint systems, and personal fall protection systems) or non-conventional means, such as establishing designated areas for work, provided established criteria are met.
This new proposed rule supersedes the proposal published in the Federal Register on April 10, 1990 (55 FR 47660) and republished on May 2, 2003 (69 FR 23528) but retains many of its provisions. One notable difference, however, is that the recent proposal eliminates the option to designate qualified climbers, except in outdoor advertising. OSHA seeks additional comment on that issue as well as on the application of the rule to rolling stock and motor vehicles, fall protection on stacked materials, and building anchorages for rope descent. Comments are due by August 23, 2010.