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2010: OSHA gets down to the nitty-gritty "process of determining" (1/27)

January 27, 2010
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Year one of the new OSHA regime – 2009 – was a time for laying down markers: The sheriff is back on the job, said Labor Secretary Hilda Solis. More inspectors will be hired. VPP may not be all that glitters – stronger oversight is needed. Recordkeeping under-reporting is a concern and must be investigated. Special inspection SWAT teams swoop down on Texas contractors. Ergonomics is a political football OSHA is ready to tackle, said acting OSHA chief Jordan Barab.

All this saber-rattling and OSHA did not even have an Congressionally-confirmed full-time administrator.

Now as year two begins, the tone has been cranked down. New OSHA chief Dr. David Michaels has given but one public speech since taking the reins at the agency December 9. His lieutenant Barab answered questions after OSHA’s most recent regulatory agenda was published late in 2009.

The feisty Barab back-pedaled on earlier ergo comments. “I called musculoskeletal disorders a ‘huge health and safety problem.’ I also called it a ‘huge political issue’ and that we are in the process of determining how we are going to address it.

OSHA’s regulatory agenda has an entry at the proposed rule stage to add requirements to record musculoskeletal disorders in a separate column on the 300 log. But “this is not a prelude to a broader ergonomics standard,” said Barab. “At this time, OSHA has no plans for regulatory activity (regarding ergo).”

“In the process of determining” might be what OSHA is largely about in 2010. The agency is making much ado about its open house February 11 to listen to stakeholders march to the microphone to declare what the agency should and shouldn’t do regarding standards and policies and new initiatives.

There is no shortage of standards proposals waiting to be debated:

Regarding the combustible dust rule, OSHA does not yet have a date for final issuance. OSHA published an Advance Notice of Proposed Rulemaking to obtain information and comment. The agency says it anticipates obtaining good information on combustible dust programs, the use of effective engineering and work practices to mitigate hazards and information about what makes sense in a standard. Of course, prior incidents serve to inform this discussion. OSHA plans to use this information, along with comments submitted in response to the advance notice of proposed rulemaking, to identify the most effective approaches for developing a combustible dust proposed rule.

What about increased regulation of reactive chemicals in process safety management regulations, something the Chemical Safety Board wants to see?

Barab: “It is too early to say how or when we will be addressing the issues of reactive chemicals or management of change in the PSM regulations.”

How will OSHA move the confined spaces in construction standard forward?

Barab: We conducted a hearing on this issue in July 2008 and OSHA is continuing to analyze the comments submitted during the hearing and subsequent comment period. Once the analysis is completed and comments are addressed, the agency will move forward with a final standard.”

Why does the OSHA regulatory agenda omit any mention of standards-setting plans for: a) updating 400+ permissible exposure limits; b) a workplace injury-illness prevention program; and c) a workplace ergonomics program?

Barab: “These are very important and complex issues. While the agency has not made a determination about how to proceed at this time, we continue to look at strategies that protect workers from chemical hazards.”

“The cranes and derricks standards for construction is one of our highest priorities> said Barab. “We issued a proposed rule and held hearings last year and plan to issue the final standard in July 2010.”

And what of developing a hearing conservation program for construction workers?

Barab: “This is one of many issues that has not received adequate attention. As OSHA finishes up some of the items on the existing agenda we will evaluate other safety and health issues to see if we can make progress on the highest priority items within our budget constraints.”

Note: beware whenever a regulator slips in a reference to its budget restraints. Translation: There is only so much we can do.

What about the Walking-Working Surfaces second proposed rule, which has been on the past few agendas?

Barab; “The subpart D rulemaking is very important as it deals with slip, trip and fall hazards found in many workplaces. We plan to issue a new proposal in March 2010. The proposal is expected to prevent 20 workplace fatalities per year and over 3,500 injuries serious enough to result in days away from work.”

“The peer review of OSHA's draft risk assessment on silica will provide the agency with valuable scientific input on the strengths and comprehensiveness of our analysis,” said Barab. “After receiving the reviewers' comments, OSHA must address them in the risk assessment to be published with the proposed rule. In addition, OSHA is completing the rest of its work to evaluate feasibility of the proposed rule, and will need to clear the proposal with the Department and OMB prior to publication.”

And what about diacetyl? “At this time it is too early in the process to say when the next opportunity for public comment will be. Our next step is to conduct the peer review of health effects. When the agency proceeds to the proposal stage, there will be ample opportunity for stakeholder notice and comment.”

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