EDISON ELECTRIC INSTITTUE SAFETY AND HEALTH COMMITTEE. Stephen C. Yohay October 6, 2008 Cleveland, Ohio

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1 EDISON ELECTRIC INSTITTUE SAFETY AND HEALTH COMMITTEE Stephen C. Yohay October 6, 2008 Cleveland, Ohio

2 QUICK TAKES OSHA still says it will soon reopen record on 2005 proposal to revise 29 CFR 1910 and 1926, Subpart V to address IEEE Report on Clearance Distances Combustible dust inspections have begun As of last week, no decisions in: Summit Contractors (multi- employer issue) LE Myers - appeal of criminal decision Hearing conducted on proposal re confined spaces in construction

3 EEI v. OSHA, 3 rd Circuit Hex Chrome case ORAL ARGUMENT SET FOR NOVEMBER 21, 2008 EEI challenge to OSHA standard on hexavalent chromium EEI is the sole, remaining industry petitioner EEI argument is that there is no basis for applying the standard in coal-fired power plants OSHA never considered need or impact EEI will not dispute adverse health effects of hex chrome, and will not challenge exposure limit Public Citizen Health Research Group will argue that the standard is not sufficiently protective in the industries where exposure is ongoing

4 OSHA Rulemaking Remember the Bolton memo? The federal OSHA rulemaking activity comes despite a directive from Josh Bolton, Bush Chief-of Staff Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008 Seems to give OSHA an out in terms of proposing rules BUT political pressure from Dems on Capitol Hill has been relentless

5 OSHA Rulemaking Proposed changes to crane and derrick standards Proposal to make it easier to issue per employee or violation-by-violation penalties for violations of PPE, respirator and training provisions Proposed risk assessment standard for health standards

6 OSHA Rulemaking Revised Crane Construction Standards (Subpart N) History 2002: Negotiated rulemaking announced 2004: Committee releases proposal 2006: Proposal approved by ACOSH September 18, 2008: Proposal issued; will be published in the Federal Register shortly (over 1100 pages!) Comments due 60 days after publication AGC probably will ask for 30 additional days

7 CRANE PROPOSAL BRIEF SUMMARY Would apply to the estimated 96,000 construction cranes in the U.S., including 2,000 tower cranes. Addresses ground conditions, the assembly and disassembly of cranes, the operation of cranes near power lines, the certification and training of crane operators, the use of safety devices and signals, and inspections of cranes. Would establish four options for the qualification or certification of crane operators: (1) certification through an accredited third-party testing organization, (2) qualification through an audited employer testing program, 3) qualification issued by the U.S. military and (4) qualification by a state or local licensing authority

8 OSHA Crane Proposal Significant Provisions Mobile lifting devices designed specifically for use in the power line and electric service industries to augur holes to set power and utility poles or to handle associated materials to be installed or removed from utility poles are not covered ( (c)) This type of equipment is current covered under Section (c) Exempted because narrow, specialized range of activities and circumstances in which such trucks are used

9 OSHA Crane Proposal Significant Provisions Subpart V (Section (c)) revised All equipment covered by the Crane standards that is used for Subpart V construction work must meet requirements of Crane standards With the exception of equipment certified for work on the proper voltage, mechanical equipment shall not be operated closer than the clearance distances in (c) UNLESS 1) requirements in Section regarding work closer than MAD in Table A are met; and mechanical equipment is insulated OR mechanical equipment is considered as energized

10 OSHA Crane Proposal Significant Provisions Multi-Employer Provisions Obligations of the controlling entity Ensure that necessary ground preparations are performed, e.g. firm, drained, graded surface ( (b) and (c)) Supervisor or operator must discuss inadequate ground conditions with controlling entity ( (e)) Controlling entity must inform crane user/operator of hazards below set-up area such as ( voids, tanks, utilities ) that are identified in documents (site/as-built drawings, soil analyses) IF they are available to controlling entity

11 OSHA Crane Proposal Significant Provisions Controlling entity is a prime contractor, general contractor, construction manager or any other legal entity which has overall responsibility for the construction of the project OSHA argues that it can impose compliance obligations on controlling employer Commission was mistaken in deciding Summit Contractors (8 th Circuit has not yet ruled on appeal) Commission did not say that OSHA lacked authority to impose obligations

12 Revisions to State Crane Standards Maryland Proposal will be published on October 10, 2008 According to briefing materials, revised standards will apply to construction, maintenance, and demolition Washington Proposal to revise construction crane standards Includes certification and training requirements New York City Revised provisions apparently apply only to construction on buildings Preemption?

13 OSHA Violation-by-Violation Proposal OSHA has been issuing egregious or violation-by-violation penalties since 1986 Example: Employer fails to provide 10 employees with respirators = 10 separate citations with 10 separate penalties Purpose: Use huge fines to deter other potential violators Arcadian: These types of penalties are not permitted under the General Duty Clause

14 OSHA Violation-by-Violation Proposal Erik Ho Decision Employer hires illegal immigrants to demolish building full of asbestos Employer provides no respirators or training After city building inspector catches them in the act, employer requires employees to work at night, and some employees live in the building with no potable water or bathrooms Because of lack of water, employer orders them to tap into a line; turns out to be a gas line, which explodes and causes injuries

15 OSHA Violation-by-Violation Proposal OSHA issues separate citations for each of 11 employees who did not have training or respirators Commission and 5 th Circuit vacate 10 of the 11 citations (2005) Language in the asbestos standard does not support per instance or per employee penalties Standard requires only a single training and respirator program General Motors (2007) Commission holds that LOTO standard requires employer to train each authorized employee

16 OSHA s Proposal OSHA proposes adding general provisions clarifying that compliance obligation to provide PPE, respirators, and training extends to each employee Specific language in respirator and asbestos standards would also be added Training obligation seems obvious (why would you train some employees and not others?) Issue is with PPE/respirators

17 OSHA s Proposal For situations like Ho, per employee penalties are obviously justified Issue is Monday-morning quarterbacking when an accident happens Employer has tried in good faith to determine which PPE is necessary OSHA decides on an ad hoc basis that employer was wrong Penalties could be $7000 x number of employees (serious) or $70,000 x number of employees (willful)

18 OSHA s Secret Risk Assessment Proposal On August 29, 2008, DOL issued a NRPM regarding best practices for risk assessments Draft sent to OMB was leaked, and Democrats in Congress were furious Proposal had not been on regulatory agenda Seen as a midnight attempt to make it more difficult to issue health standards during the next Administration

19 OSHA s Secret Risk Assessment Proposal Threshold criteria for health standards is the same: Significant risk that can be eliminated through a standard Proposal establishes factors agency must consider in determining whether significant risk standard is met Also questions assumption that exposure should be considered over a 45-year working life; working-life may vary by industry/occupation

20 The Tree Care Directive and ANPRM OSHA issued Tree Care Compliance Directive on June 25, 2008 Directive applied to line-clearance tree trimming Any tree removal or cutting of tree sections greater than six feet is subject to the Logging standard If Logging and Section address the same hazard, the more stringent standard applies TCIA and ULCC were not pleased Many meetings and phone calls, Congressional involvement, threats of lawsuits (clear-cut backdoor rulemaking)

21 The Tree Care Directive and ANPRM OSHA withdrew the Directive and issued a new one on August 18, 2008 (just before the deadline for filing a lawsuit) Logging standard applies to large scale tree removal in rural areas Logging standard does not apply to small scale tree removal in residential areas Section and Logging standard may both apply Removal of trees for the purpose of line construction is logging

22 The Tree Care Directive and ANPRM Problem: Gray area in the middle What about tree/brush removal in rural/exurban areas? What about storm removal work? Directive says that National Office approval must be sought before logging citations are issued to a treecare employer: What about a utility that does its own trimming? May look for additional clarification from OSHA

23 The Tree Care Directive and ANPRM ANPRM TCIA petitioned for a standard ANPRM asks questions about the industry and current practices and training costs OSHA expected to use ANSI Z133.1 as an initial starting point Will OSHA attempt to apply the Logging standard to tree care and line-clearance work?

24 State Rulemaking Initiatives Virginia OSHA Tree Care Standard Not yet published, but draft is available Draft is a redline of Z133.1 Based on the draft, specific provisions for line clearance that differ somewhat from Z Michigan OSHA Aerial Lift Standards Revised standards became effective on June 18, 2008 Training requirements (looks like the forklift training requirements Minimum approach distances that differ from 1910/269 and Subpart V

25 State Rulemaking Initiatives Michigan OSHA Aerial Lift Standards (Cont d) Fall protection provisions require safety harness with a lanyard OR body belt with a restraint device that exposes the employee to no fall distance Different than / , which permit body belts with lanyards