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OSHA Finally Releases Its Watered-Down Fall 2011 Regulatory Agenda

By Paul H. Burmeister and Eric J. Conn

At the end of January 2012, OSHA finally released its Fall 2011 regulatory agenda, which is intended to be an overview of what OSHA plans to accomplish in the next few months.  The agenda includes updates about the status of several major OSHA rulemaking efforts.  Below is a brief summary of the Reg Agenda.

This Reg Agenda was far less ambitious than each of the previous agendas set forth by the Obama Administration’s OSHA, but it does reveal the agency’s top priorities that will continue to be pressed even during an election year.  The highlights include:

  1. The Injury and Illness Prevention Program (I2P2) Rule going before a Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel review;
  2. Continued revision of OSHA’s permissible chemical exposure limits (PELs);
  3. Changes to OSHA’s Hazard Communication Standard are growing closer; and
  4. A projected date for Silica exposure regulations; and

I2P2 –SBREFA Panel is Imminent:

The most significant update in the Reg Agenda is the much-anticipated call for a SBREFA panel review of the I2P2 Rule.  The SBREFA Panel process provides an opportunity for small business representatives to offer input to OSHA on the potential impact of proposed regulations and to propose alternative regulatory approaches.

If implemented, the I2P2 Rule would require employers to “find and fix” workplace hazards, regardless whether the hazards relate to an existing OSHA standard.  More importantly, like OSHA’s “General Duty Clause,” an I2P2 rule would provide another means for OSHA to impose fines against employers in the absence any existing hazard-specific standard (i.e., in practice, if any injury occurs, the employer will likely be cited for failing to identify or correct the hazardous condition).

An I2P2 Rule has long been identified as the top regulatory priority for today’s OSHA, but to date, the public has not seen proposed regulatory language for the Rule.  That is about to change because under the SBREFA process, small business representatives will review and comment on an actual draft of the I2P2 regulatory text that OSHA would intend to publish as a proposed rule.  OSHA began the SBREFA process for the I2P2 rule on January 6, 2012, and announced that the SBREFA panel would be held within two months of that time (i.e., by the beginning of March 2012).  In anticipation of the I2P2 SBREFA Panel, OSHA published an Injury and Illness Prevention Programs White Paper describing OSHA’s expectations about injury and illness prevention programs, how they protect workers, existing I2P2 requirements under various OSHA-approved state programs, and costs associated with implementing I2P2 programs.

Permissible Exposure Levels To Be Re-Set:

The Fall Reg Agenda also reiterates OSHA’s continued efforts to re-evaluate permissible exposure limits (PELs), many of which have not been updated since1971.  PELs are the limits for how long an employee can be exposed to a hazardous substance without experiencing harmful effects.  OSHA’s new Reg Agenda indicates that OSHA is preparing a Request for Information, due out in August 2012, to seek “input from the public to help the Agency identify effective ways to address occupational exposure to chemicals.”  OSHA’s expectation is that more advanced research in this area will find that the current exposure limits are outdated.

HazCom Alignment with GHS Getting Closer:

The overhauled Hazard Communication Standard, which is intended to align the current OSHA Hazard Communication Standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), is growing closer to becoming a final rule.  The recently released Reg Agenda indicates that a final action for the Standard is due in February 2012, but the Rule remains under review at the Office of Management and Budget, where it has been stuck since October of last year.

Silica Rule Also Held Up at OMB:

Delays at the Office of Management and Budget have also held up OSHA’s proposed new standard for exposure to crystalline silica.  OSHA submitted the rule for review all the way back in February 2011, where it has remained buried since.  Nevertheless, OSHA plans to release the proposed work rule on silica exposure this month.

What’s Missing from the Reg Agenda:

While I2P2, Silica, PELs and HazCom remain on the agenda, and remain top priorities for today’s OSHA, the new Reg Agenda is remarkable for what is missing.  With no explanation, several items that had been featured in previous Reg Agenda updates were changed by OSHA in this Reg Agenda from active status to the “Long-Term Actions” category, effectively putting them on the backburner with the designation: “Next Action Undetermined” and completion dates of “To Be Determined.”

The two most notable items moving from active rulemaking to “Long Term Actions” in the new Reg Agenda include:

  1. Combustible Dust Standard, which has been in the works since 2009, following a recommendation from the U.S. Chemical Safety & Hazard Investigation Board.  See our previous post on the OSHA Law Update Blog regarding the status of the Combustible Dust Rulemaking.
  2. Musculoskeletal Disorder (MSD) Column on Recordkeeping Forms.  In January 2010, OSHA proposed to revise its Injury & Illness Recordkeeping Rule to add a column to check on the OSHA Form 300 if a recordable case is an ergonomic/MSD injury.  MSDs, for recordkeeping purposes, are disorders of the muscles, nerves, tendons, ligaments, joints, cartilage or spinal disc not caused by a slip, trip, fall, motor vehicle accident or similar trauma.  The Assistant Secretary of Labor for OSHA gave a speech in 2010 announcing that “OSHA’s field staff will be looking for ergonomic hazards in their inspections, and we will be providing them with the support and tools they need to enforce under the general duty clause.”  OSHA intended for this MSD Recordkeeping rule to be that ergonomics enforcement tool, as it would allow OSHA to characterize more ergonomic hazards as “recognized,” and therefore, more Ergonomic Citations issued under OSHA’s General Duty Clause.  Congress finally passed OSHA’s 2012 budget, however, and it included an addendum that stated: “None of the funds made available [in the entire budget] may be used to promulgate, administer, enforce, otherwise implement the [MSD] Column being developed by OSHA.”