Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA
Rulemaking
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The Big Freeze: Trump Administration Halts Key DOL and OSHA Rulemaking Activities

In one of the Trump administration’s first official acts, White House Chief of Staff Reince Priebus issued a memorandum on January 20, 2017 implementing an immediate freeze on all pending regulations until they have been reviewed and further action has been approved by President Trump’s new agency heads. Regulatory freezes during a change in administration are not uncommon, and President Obama issued a virtually identical memorandum upon taking office in 2009. However, the Trump administration’s directive takes on additional significance, as it appears to be the symbolic start of President Trump’s efforts to make good on his campaign promise of eliminating what he has characterized as overly-burdensome regulations. It also marks his first steps toward rolling back key components of President Obama’s regulatory agenda, including a number of labor and employment initiatives put in place by the Department of Labor and the Occupational

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Significant Legal Decisions
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Second Federal Appeals Court Rejects OSHA’s Efforts to Evade OSH Act Statute of Limitations by Alleging Continuing Violation

On December 29, 2016, a three-judge panel from the US Court of Appeals for the Fifth Circuit unanimously vacated two OSHA citation items issued to a Delek Refining Ltd. (“Delek”) facility for alleged safety violations that occurred years prior to its ownership of the refinery. The decision is a significant victory for employers because it marks the second time that a federal appeals court has rejected OSHA’s attempt to allege the existence of a “continuing violation” that suspends the six-month statute of limitations contained in the OSH Act.
 

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Managing OSHA Inspections, Audits
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EVENT: EPA RMP - THE FINAL RULE: How does this affect your facility?

PSM STANDARD – Recent Fifth Circuit opinion limits OSHA’s power to issue citations for failing to address PHA and audit findings.

PSRG Inc. is pleased to announce that we will hold a special PSM/RMP Forum Luncheon Series from January 18, 2017 to February 22, 2017 in various locations. You are cordially invited to attend the program that is most convenient for you. There is no fee to attend this event. A complimentary buffet lunch will be provided.

After more than three years of review and iterations on proposed modifications to the RMP Rule (40 CFR 68), EPA announced on December 21 the long-awaited FINAL RULE. The 372-page final rule bolsters new requirements for third party audits, incident investigations, emergency preparedness and response, and information sharing which will affect every covered facility.

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California Approves First-In-The-Nation Regulation Specifically Addressing the Threat of Workplace Violence in Healthcare Facilities

Recently, the California Division of Occupational Safety & Health Standards Board approved a new safety standard designed to provide comprehensive regulatory protections for workers exposed to workplace violence in healthcare settings. The standard, which was sponsored by several labor unions, will require covered healthcare providers to develop workplace violence prevention plans, training programs, and recordkeeping procedures to track certain incidents of workplace violence. 
 

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Rulemaking, Process Safety Management
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OSHA Warning: DC Circuit Says Expanding Safety and Health Standards Through Informal Guidance Will Face Harsh Scrutiny

In a major blow to OSHA’s ongoing efforts to modify existing safety and health standards through informal agency guidance, a unanimous panel of federal judges recently invalidated a July 2015 OSHA memorandum that had significantly narrowed the Process Safety Management standard’s retail facility exemption. Retail facilities have been exempt from the PSM standard since its May 1992 promulgation, based on the understanding that hazardous chemicals are usually only present in such facilities in small quantities that are not likely to create a risk of a catastrophic release. In 1992, OSHA issued a letter defining retail facilities as those deriving 50% or more of their income from direct sales of highly hazardous chemicals to end users. 
 

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After Hours: Evaluating an OSHA Citation - Should You Contest the Citation?
Partner Mark S. Dreux reviews and analyzes five key factors that influence defense costs when handling an OSHA citation in this edition of After Hours.
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Rulemaking
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OSHA Issues Enforcement Guidance on June 1 HAZCOM Compliance Deadline: What Industry Needs to Know

OSHA substantially revised the 1994 Hazard Communication Standard (HCS) in 2012 and by June 1, 2015 most employers have to be in full compliance with the new requirements. Many employers, especially those who work with chemical mixtures, are concerned about their compliance with the new requirements for container labels and Safety Data Sheets (SDS).
 
According to a recent Enforcement Guidance Memorandum from OSHA, these employers will not be cited provided 1) they are able to demonstrate they exercised “reasonable diligence and good faith to comply,” but were unable to obtain the required hazard information from their respective upstream suppliers in time; and 2) they have labeling and MSDS’s which are in compliance with the 1994 HCS.

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Rulemaking, Process Safety Management, Agency News & Initiatives
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President’s Budget Proposal Seeks Enhanced Civil Penalties under OSH Act

In its budget proposal for Fiscal Year 2016 (“FY 2016”), the Obama Administration has asked Congress to increase civil penalties for violations of the Occupational Safety and Health Act (“OSH Act”). As the proposal notes, OSH Act civil penalties have been increased only once since the law was passed 44 years ago. In addition, the proposal urges Congress to apply the Federal Civil Penalties Inflation Adjustment Act to the OSH Act, which would increase the civil penalties to keep pace with inflation.

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Rulemaking, Recordkeeping
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State Plan Employers: Federal OSHA’s New Reporting and Recordkeeping Requirements May Not Apply at State Level

On January 1, 2015, Federal OSHA’s new reporting and recordkeeping requirements went into effect. In addition to reporting all employee fatalities within eight hours, employers will now also have to report work-related in-patient hospitalizations of one or more employees, amputations, and physical eye loss within 24 hours of the incident. OSHA has also updated the list of partially exempt industries that do not have to routinely keep OSHA injury and illness records. This is great news for newly exempt industries like gasoline stations that no longer have to maintain and post OSHA 300 records.

Before celebrating, employers should know that these federal amendments may not necessarily apply in states with their own state OSHA plans. In fact, many of the 27 state OSHA plans have not yet adopted these changes. Employers in state plan states should therefore confirm the reporting and recordkeeping requirements with their State Plan Office.

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Rulemaking, Recordkeeping
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OSHA Ramping Up for Rulemaking on “Continuing” Recordkeeping Violations

Recent OSHA activity indicates the agency will soon unveil its proposed rule to make recordkeeping violations “continuing” for purposes of OSHA’s six-month statute of limitations (SOL).  In addition to placing the rule on its Spring 2014 Regulatory Agenda, OSHA most recently announced the rule will be on the Advisory Committee on Construction Safety and Health’s (ACCSH) agenda for its December 3-4, 2014 meeting. According to the expected amendment, recordkeeping will become an ongoing obligation. This means the six-month period to issue a citation will restart every day an employer fails to correct an existing violation. If promulgated, the rule could significantly expand OSHA’s window to issue recordkeeping citations.

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