Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA
Rulemaking, Process Safety Management
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Major Changes Proposed for the PSM Standard: OSHA Issues Request for Comment on 14 Potential Revisions to the PSM Standard that Could Fundamentally Alter Industry Practices

OSHA is seeking public comment on fourteen significant changes it is considering making to its Process Safety Management (PSM) standard, plus potential updates to its Explosives and Blasting Agents, Flammable Liquids, and Spray Finishing standards. The request is in response to Executive Order 13650, which directed OSHA and several other federal agencies to improve chemical safety and security. Public comment must be submitted to OSHA within 90 days of publication of its request for information (“RFI”) in the Federal Register, which is expected to take place within the next several days. Responses may be submitted at www.regulations.gov, the Federal e-Rulemaking Portal, or by mail and facsimile.

OSHA’s request for information includes, in most instances, an explanation and examples of possible revisions that it is considering to the PSM standard. These proposed changes represent an enormous expansion of coverage and compliance requirements for employers. Both the fiscal and administrative burdens of complying with such dramatic changes could prove to be enormous.

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Rulemaking, Recordkeeping
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OSHA’s Proposed Changes to the Recordkeeping Rule Will Lead to Significantly More Inspections – How Employers Can Submit Comments to OSHA Concerning This Aggressive Change

OSHA has a very ambitious regulatory agenda this year.  Most recently, it announced a proposed regulation to require electronic reporting of injuries and illnesses quarterly and the creation of an online searchable database for those reported injuries and illnesses.  While OSHA emphasizes that the proposed regulation will not alter employers’ basic recordkeeping duties, it will dramatically change the way that OSHA uses injury and illness data to select employers for inspections, and provide unions, community activists, plaintiffs’ lawyers, and competitors with easy access to that data as well.

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Presentations
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Properly Evaluating an OSHA Citation: Should You Contest the Citation?

For the last twenty-five years, I have defended companies in OSHA enforcement actions. No matter how large or small the action, employers should always begin by evaluating the potential financial impact the OSHA citation could have on the company. From that evaluation, employers can then decide the amount of resources that are needed to defend it.

Some factors like the proposed monetary penalty are straightforward to calculate. But there are five other factors which really turn on the specific facts of each case and need to be evaluated carefully to determine the true potential financial impact: 1) the cost in time and capital to abate the alleged hazard in the citation, 2) the impact that the OSHA citation could have upon collateral litigation and parallel regulatory inspections, 3) the potential for repeat OSHA citations, 4) the characterization of the citation as "willful," and 5) the impact that safety violations may have upon the company in competing for new projects.

By considering these factors, you can evaluate the potential financial impact of the citation and allocate the appropriate resources to defend it, accordingly.

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Privilege, Significant Legal Decisions, Audits
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OSHA Can and Will Use Employers’ Internal Safety Audit Reports as a Roadmap to Cite Them: What Employers Can Do to Protect Themselves

Since a July 28, 2000 Final Policy was published in the federal register, OSHA has maintained it will not use an employer’s own, voluntary safety and health audit as a roadmap to identify and issue citations against it. According to the Final Policy, while OSHA may in some circumstances request internal audit reports, “the Agency will not use [them] as a means of identifying hazards upon which to focus during an inspection.” Employers are thereby encouraged to proactively identify and then correct hazardous conditions in the worksite without fear of self-incrimination.

In a recent initial Review Commission decision (Sec. of Labor v. BP Products North America, Inc. et al.), however, the evidence showed that OSHA intentionally violated its Final Policy by making “extensive use” of the employer’s own audit report to identify and issue the contested citations. Despite being “troubled” by OSHA’s “blatant contravention” of its Final Policy, the Administrative Law Judge (ALJ) permitted the evidence, in effect, condoning the practice for future use.

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Significant Legal Decisions
ruling
Protecting Your Company from OSHA Liability for Supervisor Misconduct

Recently, the Eleventh Circuit Court of Appeals joined the Third, Fourth, Fifth, and Tenth Circuits in finding that an employer is not necessarily liable for OSHA violations committed by its supervisors.  See Comtran Group, Inc. v. U.S. Dept. of Labor, No. 12-10275 (11th Cir. July 23, 2013).  In order to establish that an OSHA regulation has been violated, the Secretary must show four elements: (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and at the heart of this case (4) that the employer knowingly disregarded the OSH Act’s requirements. 

The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.  But a growing number of Circuit Courts have held that there is an exception to the general rule: when a supervisor knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not imputed to his employer unless it was foreseeable.

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Rulemaking, Process Safety Management, Chemical Safety Board
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OSHA Indicates Regulatory Changes are Coming to Fix “Gaps” in PSM Standard

Recently, OSHA unveiled a new regulatory agenda that included proposed rulemaking on “Process Safety Management and Flammable Liquids.”  This decision is hardly a surprise given the catastrophic explosions in West, TX, Geismar, LA, and Donaldsonville, LA, all of which have occurred within the past few months.

At the same time, OSHA has faced increased public scrutiny, most recently from US Chemical Safety Board (CSB) Chairperson, Rafael Moure-Eraso, who, on July 25th, publicly criticized OSHA’s lack of response to several PSM-related CSB recommendations as “unacceptable.” Shortly thereafter, President Barack Obama issued an Executive Order re: “Improving Chemical Facility Safety and Security” on August 1st, calling for regulatory updates to cover additional hazardous chemicals (including reactives), interagency cooperation on information sharing, and identification of best practices for chemical facility safety and security.  

If OSHA follows through with its regulatory agenda, employers can expect several changes to the PSM standard that will undoubtedly affect their operations.

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Process Safety Management, Significant Legal Decisions
ruling
ALJ Rejects OSHA’s Attempt to Create Requirements Not Found in the Text of the PSM Standard

In a recent initial decision by an Administrative Law Judge from the Occupational Safety and Health Review Commission, the ALJ rejected OSHA’s attempt to specify how process safety information must be maintained by an employer. 

Among the issues before the judge in Sec. of Labor v. BP Products North America, Inc. et al. was whether 29 C.F.R. § 1910.119(d)(3)(i) requires process safety information for equipment in a PSM covered process to be presented in a specific format, specifically whether 119(d)(3)(i) requires an ASME Form U-1 for a covered pressure vessel.  In its opinion vacating the citation, the ALJ criticized OSHA for “impermissibly creat[ing] a significant requirement not found in the cited standard.”

The decision reinforces the position that in a performance based standard like PSM, an employer has significant latitude regarding how process safety information should be maintained.

For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.

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Agency News & Initiatives
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Attwood Confirmed for Review Commission – Restores Quorum

On August 1, 2013, the U.S. Senate confirmed President Barack Obama’s nomination of Cynthia Attwood for commissioner on the Occupational Safety and Health Review Commission (OSHRC). This will be Ms. Attwood’s second term on the OSHRC, which will run until April 27, 2019.

Ms. Attwood’s confirmation restores a quorum in the OSHRC, allowing the independent agency to rule on cases under its review once again.    

For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.

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Enforcement News & Trends, Agency News & Initiatives
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OSHA Means Business on New Initiative to Enforce Exit Route Standards

Last month, we reported on a recent OSHA memorandum directing inspectors to target workplace exit routes and discussed the ways employers can achieve compliance. This week we bring you related news out of Region 2 where on July 16th, OSHA announced that Duane Reade, Inc. was cited for blocked exit routes and fire safety hazards.  The drugstore chain was issued three repeat citations, totaling $71,500 in proposed penalties where OSHA alleges that “an emergency exit door, sprinkler system heads and an electrical panel in the store were all blocked or obstructed by piles of boxes and crates of merchandise” at the chain’s 598 Broadway location.

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Rulemaking, Significant Legal Decisions, Agency News & Initiatives
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OSHA Intends to Use Rulemaking to Undo D.C. Circuit’s Decision to Limit Recordkeeping Statute of Limitations

On July 3, 2013, the Obama administration released its spring 2013 regulatory agenda, which includes new deadlines for significant OSHA rulemaking.  One of those new items includes OSHA’s proposed recordkeeping rule change, titled “Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses.”  The proposed rule is to be unveiled by November of this year.

Under the new rule OSHA will attempt to clarify that: (1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place.  This is consistent with OSHA’s original interpretation of the OSH Act’s statute of limitations for injury and illness recordkeeping before the District of Columbia Circuit Court of Appeals rejected it in 2012.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.