Combustible Dust

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By Eric J. Conn, Head of the OSHA Practice Group

Pursuant to the Regulatory Flexibility Act, the federal government and its agencies, such as OSHA, are required to give notice of significant rulemaking and other regulatory activity by publishing “semi-annual” regulatory agendas that outline the status of on-going and intended federal regulations and standards.  Someone needs to tell the Administration that “semi-annual” means twice yearly, not every other year.

Historically, the Office of Information and Regulatory Affairs (OIRA) issues a Spring regulatory agenda sometime during the summer, and a Fall regulatory agenda sometime in the winter.  Before last week (the final week of 2012), however, there had been no regulatory agenda published for 2012.  The only regulatory agenda published during 2012, was for Fall 2011.

Congressional Republicans had been hounding the Administration for a regulatory agenda since well before the Election, believing the long delay was because the President feared bad press and negative public reaction to the Administration’s continued aggressive regulatory plans.

Senator Rob Portman (R-Ohio) sent a letter to the President in late August calling for an Spring Reg Agenda, and Congressman John Kline (R-MN), Chairman of the U.S. House Committee on Education and the Workforce, followed up with a November 1, 2012 press release stating:

“The Obama administration continues to play a game of regulatory hide-and-seek with the American people. Current law was designed to protect the public’s right to know about rules and regulations being crafted behind the closed doors of the federal bureaucracy. However, on a range of issues including health care, retirement security, and workplace safety the president seems determined to keep his plans for new regulations secret.”

The wait is finally over, as the Fall 2012 Regulatory Agenda was released last week (Friday, December 21, 2012) — just in time for 2013.  Here are the OSHA-related highlights.  OSHA projects that during 2013, final agency action will be taken on 10 regulations, including the following:

1. A new Confined Spaces in Construction standard (by July 2013)

  • For more than a decade, OSHA has been developing a counter-part to the general industry confined space standard (29 CFR 1910.146).
  • The Final Rule for the construction industry is expected this summer.

2. An updated Electric Power Transmission and Distribution standard (by March 2013)

  • Based on a high incident rate among electric line workers, forty years ago, OSHA developed a standard to address safety during the construction of electric power transmission and distribution lines.  Early in 2013, OSHA expects to implement a series of revisions to this standard intended to address non-construction work performed during maintenance on electric power installations, and to update PPE and Fall Protection requirements for work on power generation, transmission, and distribution installations.
  • The final rule is expected early this year.

3. Gutting Cooperative Programs (by April 2013)

  • OSHA has proposed to amend its cooperative Safety and Health Achievement Recognition Program (SHARP) to eliminate most of the exemptions from enforcement inspections historically available to facilities that have qualified for the program.
  • This change could effectively eliminate most of the incentives for employers to participate in this recognition program, which OSHA has historically administered to incentivize and support small employers to develop, implement, and continuously improve effective safety and health programs.

4. An updated Walking Working Surfaces standard; i.e., Fall Protection (by August 2013)

Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog.  On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog.  We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you.  Thank you for that.

Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013.  Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:

1.  Heavy-handed enforcement will continue to trend up:

During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue.  OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers.  The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement.  As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term.  Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.

In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history).  As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation).  OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation.  We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%.  Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M.  That trend is also expected to continue.

The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.

The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.”  Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.

Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions).  We anticipate a doubling down on programs and strategies like:

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