SAFETY AND HEALTH COMMITTEE

Transcription

1 EDISON ELECTRIC Title Goes INSTITUTE Here SAFETY AND HEALTH COMMITTEE Presented By: Stephen C. Yohay April 30, 2012 ALBEQURQUE, NEW MEXICO

2 WE WILL DISCUSS TODAY (A LOT) Status of and Part 1926, Subpart V rulemaking Getting ready for final rules What you and your Company should be doing The Cranes and Derricks settlement a big win Status of settlement and what you should be doing OSHA and state plan enforcement Combustible Dust Where are we now? Avoiding NFPA references in internal procedures Whistleblower, and Safety Incentive Programs DC Circuit decision on recordkeeping violations 2

3 STATUS OF AND SUBPART V RULEMAKING Taken together, these standards comprehensively regulate employee safety in most electric utility work This is potentially a watershed moment for the industry No OSHA standards issued since 1994 that so pervasively regulate electric utility work Those who are relatively new to safety in this industry have not experienced this before There is a lot to understand, and prepare for 3

4 ISSUES FOR YOU AND YOUR COMPANY TO CONSIDER, NOW What will be your plan to evaluate the standards for your Company? We are told: Preamble in Federal Register is to be at least 1,000 pages What kinds of subject-matter experts will be needed to determine how the standards will affect your operations, maintenance and construction? 4

5 STATUS OF AND SUBPART V RULEMAKING 2005: Revisions to standards proposed Dr. David Michaels has said, final standards will be published by Sept. 30, 2012 Between now and then: OSHA must send final draft to OMB/OIRA for review: public notice is given of this action Stakeholders are allowed to meet with OMB, but do not get to see draft standards! Latest report: OSHA says the standards are ready; waiting for OMB to say, send them over here. Unclear why this part is taking so long EEI and IBEW have met with and told OMB: both desire the standards to be issued Not clear how much election year politics are holding up the process 5

6 WHEN OMB RECEIVES OSHA S DRAFT... EEI will meet with OMB/OIRA It is not clear how much will be revealed about the final draft EEI message: expedite publication of the final standards But please realize: We do not know what the standards will say We expect much to be acceptable, but some requirements may not be desirable 6

7 WHEN STANDARDS ARE ISSUED, ISSUES FOR EEI TO CONSIDER What is being required? What do the standards mean? How will they affect operations, maintenance and construction in utilities, and other industries? What will be the burden and cost of compliance? Are requirements achievable? Over what time periods? As to objectionable or unclear areas, if any: Will OSHA be willing to negotiate interpretations and/or Compliance Directive? Will EEI need (again) to file a judicial Petition for Review to persuade OSHA to discuss issues? 7

8 WHEN STANDARDS ISSUED, MANY ISSUES TO CONSIDER How will the rules affect contractors? What are the views of: organized labor? rural co-ops? tree trimmers? What is the reaction of state plans? 8

9 THE LEGAL FRAMEWORK When OSHA standard issued, affected party has 59 days to file a Petition for Judicial Review in a US Circuit Court of Appeals Time cannot be extended Petition is just a placeholder; litigation on the merits comes later, if at all Court will usually hold case in abeyance if parties say they are negotiating settlement Need to determine if, absent settlement, there is a legal basis for challenging standards on issues worth litigating 9

10 THE TIME TO PREPARE? NOW EEI will need member company experts to assess impact of the standard on the industry, and to help EEI provide training to member companies A new approach to marshalling resources within EEI for these purposes: EEI REGULATORY REVIEW GROUP 10

11 WHAT ARE ISSUES OF POTENTIAL CONTROVERSY IN FINAL STANDARDS? We do not know what the standards will say The major issues in the 2005 proposal: FR Clothing EEI has since urged OSHA to follow 2012 NESC Minimum Approach Distances The actual distances required has been an issue within IEEE Committee 516 What precautions when working within MAD? EEI has urged use 2012 NESC Host employer obligations what duties for the host and contractors; how detailed? Job briefings: How detailed? Requirements to keep records? Fall Protection 11

12 CRANES AND DERRICKS CASE When standard was issued in 2010, it would have treated digger derrick trucks like cranes, and their operators as crane operators who need training and certification Made no sense line work already covered by Part 1926, Subpart V EEI needed to convince OSHA to change standard as to digger derricks OSHA would not listen; lots of political pressure to enforce the new rule because of crane collapses 12

13 CRANES AND DERRICKS CASE EEI filed protective Petition for Review in DC Circuit Litigation held in abeyance while parties negotiated EEI members analyzed rule; developed proof of negative impact on the industry; met with OSHA BIG WIN FOR EEI OSHA agreed to unusual Stay of Enforcement Will not cite where digger derrick doing work covered by Part 1926, Subpart V OSHA to amend standard, with a Direct Final Rule Meanwhile, stay of enforcement remains in effect. DO YOU UNDERSTAND WHAT EEI WON? WHY ARE THERE QUESTIONS ABOUT CERTIFYING DIGGER DERRICK OPERATORS AS CRANE OPERATORS? 13

14 COMBUSTIBLE DUST OSHA not now developing a standard Confusion about OSHA National Emphasis Programs and NFPA standards Let s review the law: NFPA standards are not the law under OSHA PRB User Group recommendations are not the law For coal dust in power plants, 29 CFR (v)(11(xii) controls In hazardous (classified) locations, follow (c) Class II, Division II Intrinsically safe equipment, wiring methods and installations of equipment (v)(11)(xii) pre-empts General Duty clause for such locations, so NFPA standards cannot be basis for citations 14

15 COMBUSTIBLE DUST Lessons from recent enforcement concerning coal dust: Federal OSHA Citation withdrawn: Power Plant basement not a classified location A state plan citation (case still in litigation/settlement) Asserts that NFPA standards are mandatory under General Duty Clause (e.g., NFPA 650) State relying in part on company internal procedures that endorse compliance with NFPA standards There is a lot in those standards about process safety and fire protection not required under OSHA standards What your company regards as best practices and chooses to do VOLUNTARILY is not the same as compulsory compliance Be careful about what goes into print you may help build an enforcement case against the Company, and the industry Watch out for Rote references to standards in company documents 15

16 WHISTLEBLOWER ENFORCEMENT THE CURRENT BIG THING In general, OSHA has enhanced whistleblower enforcement program Now reports directly to Dr. Michaels New Whistleblower Manual published to guide Compliance Officers investigations Dept of Labor proposed budget for FY 2103 would increase $ 5 million for WB enforcement 16

17 WHISTLEBLOWER ENFORCEMENT THE CURRENT BIG THING Under OSHA Section 11(c): After the administrative process of investigation, employee can appeal the dismissal of complaint But if appeal denied, employee cannot go to court. If merit found in complaint, only OSHA can initiate court action employee has no private right of action In state plan states, need to see if the law is the same OSHA enforces anti-discrimination provisions in 21 federal statutes, not just OSHA Section 11(c) Examples: Surface Transportation Act Federal Railway Act 17

18 SAFETY INCENTIVE PROGRAMS; ARE THEY STILL VALID? In a March 12, 2012 memorandum, OSHA formalized guidance to compliance officers and whistleblower investigators for examining safety incentive policies and practices. Based upon Section 11(c) of the OSH Act, OSHA believes that certain workplace policies and practices can discourage employees from reporting injuries and illnesses and are thereby discriminatory.. 18

19 SAFETY INCENTIVE PROGRAMS ARE THEY VALID? Some programs provide specific awards for safe behavior Some programs include safety performance as a compensation factor What should you do? Note new Memo does not say that programs are a violation of the Act Instead raises questions does a SPECIFIC program have the effect of discouraging accident or injury reporting, or seeking medical care? 19

20 SAFETY AWARD PROGRAMS- ARE THEY VALID? This issue would arise if an employee files a complaint, or as part of an OSHA inspection for recordkeeping, or other usual reasons Not yet clear how OSHA will address this issue in real-life enforcement, but OSHA may be seeking test cases Obvious examples of potential problem: employee reports injury gets no bonus under safety incentive program Person responsible for injury/illness recordkeeping suppresses reports to preserve group or individual safety reward Your Company should take a hard look at how its programs are operating Are employees hesitating to report injuries or illnesses? Are managers or supervisors leaning on employees to overlook problems and not report them? Consider having neutral third-party review programs Where incentive programs are in collective-bargaining agreements, may be harder for OSHA to be critical 20

21 DC CIRCUIT DECISION IN VOLKS CONSTRUCTORS RECORDKEEPING CASE OSHA cited Volks for failing to properly maintain its injury log between January 2002 and April Citation issue in November 2006, at least six months after the last unrecorded injury occurred. Review Commission had upheld citations, 2-1 Volks appealed to Court of Appeals Volks argued: statute of limitations is six months DOL argued: recordkeeping violations continue as long as employer logs remain inaccurate under an OSHA rule to retain injury and illness records for five years The Court held: The citations are untimely and should be vacated." 21

22 DC CIRCUIT DECISION IN VOLKS CONSTRUCTORS RECORDKEEPING CASE The Court called OSHA s theory madness Court admonished OSHA, Review Commission and Solicitor to pay more attention to intent of Congress in articulating enforcement theories If the decision is accepted by the Review Commission and OSHA, OSHA can't issue citations in which a failure to record a recordable injury occurred more than six months before the citation is issued Not clear how OSHA will react to decision. 22