ACC Environmental Legal Quick Hit Webinar

Transcription

1 U.S. Federal and State Developments in Occupational Health and Safety Regulation and Enforcement: A Look Back at 2017 and Look Ahead to 2018 ACC Environmental Legal Quick Hit Webinar Jayni A. Lanham Marshall R. Morales February 6, 2018

2 Introduction and Overview Leadership and Funding Rulemaking Enforcement Court Decisions State Plan Developments Recommended Actions for Employers 2

3 Leadership and Funding

4 OSHA Leadership January 10, 2017 Former Assistant Secretary of Labor for OSHA, David Michaels, resigned July 24, 2017 Loren Sweatt appointed as Deputy Assistant Secretary October 27, 2017 President Trump nominated Scott Mugno for Assistant Secretary December 13, 2017 Senate Committee on Health, Education, Labor, and Pensions forwarded nomination to full Senate with a vote January 18, 2018 Senate Committee forwarded nomination for a second time (because Dec. 13 approval did not carry over to new year) 4

5 OSHA Leadership Scott Mugno Former Army attorney and major Started working at FedEx in 1994 Currently, Vice President of Safety for FedEx Ground Frequently sought changes to OSHA rules while at FedEx Active in business organizations Thought to favor compliance assistance and cooperative programs over enforcement Loren Sweatt Served as a Senior Policy Advisor at the U.S. House of Representatives Committee on Education and the Workforce for the last 15 years In role with the House, she worked with OSHA and MSHA on workplace safety issues Served as a lobbyist for Associated General Contractors prior to working with the House 5

6 OSHA Funding and Staffing Funding $552,787,000 budget for FY 2017 $543,257,000 requested for FY 2018 Proposal seeks cuts to a $10.5 million training program Proposal seeks increase in compliance assistance specialists and federal assistance efforts Staffing OSHA staffing decreased from 2,087 in December 2016 to 1,954 as of September inspectors lost to attrition after President Trump took office In August, Labor Secretary Alexander Acosta granted blanket approval to hire new compliance safety and health officers 6

7 Rulemaking

8 Rulemaking: A Look Back at 2017 Delayed Improve Tracking of Workplace Injuries and Illnesses Occupational Exposure to Respirable Crystalline Silica Occupational Exposure to Beryllium Cranes and Derricks in Construction: Operator Certification Revoked Clarification of Employer s Obligation to Make and Maintain Injury and Illness Logs Proposed Revisions to Final Rule to Improve Tracking of Workplace Injuries and Illnesses Revisions to Final Rule for Occupational Exposure to Beryllium Legal Challenges Improve Tracking of Workplace Injuries and Illnesses Occupational Exposure to Respirable Crystalline Silica Occupational Exposure to Beryllium Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) 8

9 Rulemaking: A Look Ahead to 2018 Improve Tracking of Workplace Injuries and Illnesses Proposed rule anticipated Occupational Exposure to Beryllium Final rule anticipated Target date of September 2018 Cranes and Derricks in Construction: Operator Certification Proposed rule anticipated Occupational Exposure to Silica On remand for reconsideration of medical removal protections Pre-Rule Stage Communication Tower Safety Mechanical Power Presses Powered Industrial Trucks Lockout/Tagout 9

10 Enforcement

11 Enforcement: A Look Back at ,000 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 0 OSHA Inspections 39,228 36,163 35,820 31,948 32,396 FY 2013 FY 2014 FY 2015 FY 2016 FY

12 Enforcement: A Look Back at 2017 Top 10 Most Frequently Cited Standards in FY 2017 Fall protection, construction (29 CFR ) Hazard communication standard, general industry (29 CFR ) Scaffolding, general requirements, construction (29 CFR ) Respiratory protection, general industry (29 CFR ) Control of hazardous energy (lockout/tagout), general industry ( 29 CFR ) Ladders, construction (29 CFR ) Powered industrial trucks, general industry (29 CFR ) Machinery and Machine Guarding, general requirements (29 CFR ) Fall Protection Training Requirements (29 CFR ) Electrical, wiring methods, components and equipment, general industry (29 CFR ) 12

13 Enforcement: A Look Back at 2017 Maximum Civil Penalties Type of Violation Serious Other-Than-Serious Posting Requirements Failure to Abate Prior to August 1, 2016 As of August 1, 2016 As of January 13, 2017 As of January 2, 2018 $7,000 $12,471 $12,675 $12,934 Willful Repeat $70,000 $135,709 $126,749 $129,336 Average Civil Penalties Type of Violation Amount Serious $3,553 (48% increase over FY 2016) Willful $65,228 (57% increase over FY 2016) Repeat $11,359 (30% increase over FY 2016) 13

14 Enforcement: A Look Ahead to 2018 Targeted efforts based on injury and illness data Continued increases in penalties Response to increase in worker fatalities Focus on compliance assistance 14

15 Court Decisions

16 Court Decisions: A Look Back at 2017 North America s Building Trade Unions v. Occupational Safety & Health Administration, No (D.C. Cir. Dec. 22, 2017) Rejected industry challenges to respirable crystalline silica standard Remanded to OSHA for reconsideration re medical removal protections 16

17 Court Decisions: A Look Ahead to 2018 Acosta v. Hensel Phelps Construction Co. (5 th Cir., No ) OSHA has filed appeal seeking to preserve the Multi- Employer Citation Policy Public Citizen Foundation v. U.S. Department of Labor (D.D.C, No. 18-cv-117) Challenge to OSHA s denial to provide injury and illness reports under the Freedom of Information Act Secretary of Labor v. Integra Health Management, Inc. (OSHRC, No ) Challenge to use of general duty clause to cite employer for workplace violence 17

18 State Plan Developments

19 Map of Federal/State Enforcement 19

20 Top Ten States by Penalties # State Average Penalty (+250 employees) 1 CA $10, WY $8, KY $5, WA $4, HI $3, NC $3, IA $3, VA $3, UT $3, NV $3,

21 State Plan Inspections 60,000 50,000 40,000 Total Annual State Plan Inspections 51,133 50,436 47,217 43,471 43,105 43,551 30,000 20,000 10,

22 Process Safety Management California New CA PSM standard Effective Oct Expands a range of internal reviews and programs for refineries Predicted to expand to more state-plan states 22

23 Process Safety Management Washington New WA PSM standard Proposed Jan Discussion draft stage Mirrors recent CA changes 23

24 Hazard Communication Enforcement Full Globally Harmonized System (GHS) alignment in June 2016 Requires labeling, documentation, and training Hazard communication was top citation in WA, MN, and MI and consistently in top 10 citations in other states 24

25 Recommended Actions

26 Recommended Actions for Employers Review health and safety program/osha compliance Review injury and illness data and recordkeeping practices Maintain good documentation of safety protocols and training Continue to be aware of obligations on multiemployer worksites Be aware of state plan developments Be proactive in addressing safety and health issues 26

27 Thank you! Jayni Lanham Principal Baltimore, MD (410) Marshall Morales Associate Seattle, WA (206)