- OSHA’s Latest Regulatory Agenda: Silica, Tree Care, Powered Industrial Trucks, Lockout/Tagout . . . and Much More
- November 27, 2015 | Authors: Melissa A. Bailey; John F. Martin
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
- The U. S. Department of Labor (DOL) recently released its Fall 2015 Regulatory Agenda, its semi-annual status report of all regulatory actions underway or being contemplated by the DOL’s agencies. Included in the agenda were the Occupational Safety and Health Administration’s (OSHA) announcement that many of its standards nearing final rule status, such as Silica and Walking Working Surfaces, will have delayed deadlines. A few new surprises were included in the agenda, such as OSHA’s announcement to begin rulemaking on new standards for Tree Care, Powered Industrial Trucks, and Revocation of Obsolete Permissible Exposure Limits (PELs).
Respirable Crystalline Silica Standard
The agency finally revealed that it expects to release the Respirable Crystalline Silica standard final rule in February of 2016. The early date reflects that silica is OSHA’s top regulatory priority. At a safety conference in Maryland on June 3, 2015, OSHA Deputy Assistant Secretary Jordan Barab told the audience to expect the issuance of a final rule in 2016. Assistant Secretary Dr. David Michaels echoed this sentiment in several speeches throughout the country. Deputy Secretary of Labor Christopher Lu also told union advocates at a “Workers Memorial Day” event on April 28, 2015, that “I guarantee you that we will get [the proposed silica rule] done.” A February 2016 release date is ambitious, but barring any setbacks (internal, legislative, or otherwise), OSHA will undoubtedly issue the final rule sometime in 2016.
Not surprisingly, OSHA delayed many rules near completion. The controversial rule to compel employers to electronically file OSHA logs, which the agency intends to publish online, will be now published in March of 2016. A final rule for “Walking Working Surfaces and Personal Fall Protection Systems” is now expected to arrive in April of 2016, instead of by August of 2015, which was the deadline announced last spring.
No Final Rule Dates for Beryllium or Volks Workaround
The standards for PELs to beryllium did not receive an estimated date for a final rule. Neither did the agency’s controversial proposed rule to “clarify” recordkeeping regulations, aimed to circumvent the United States Court of Appeals for the D.C. Circuit’s decision in AKM, LLC dba Volks Constructors v. Secretary of Labor, which rejected OSHA’s efforts to extend the Occupational Safety and Health Act of 1970’s six-month statute of limitations.
Combustible Dust Standard and PSM
The agenda did not set a date to commence rulemaking to develop a combustible dust standard, but OSHA intends to convene a Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) panel by August of 2016. For its planned update to the Process Safety Management standard, OSHA plans to complete SBREFA review by April of 2016. These panels are required by law to give small business a larger voice on regulatory impacts imposed by OSHA and other federal regulations.
New Item: Tree Care Standard
Several new items appeared on the agenda. The agency is reviving its efforts to create a Tree Care standard. OSHA issued an Advanced Notice of Proposed Rulemaking for a Tree Care standard in 2008, but withdrew it. In the agenda, OSHA points out that there is currently a “patchwork of standards to address the serious hazards in this industry,” and that “[t]ree care continues to be a high-hazard industry.” OSHA’s motive—at least in part—likely stems from its difficulty in applying the current Compliance Directive entitled Citation Guidance Related to Tree Care and Tree Removal Operations, CPL 02-01-045.
The CPL directs compliance officers to consider certain factors in determining whether the Logging operations standard, 29 CFR Section 1910.266, applies to tree removals performed during line-clearance tree trimming operations. The facts in the CPL are vague and difficult to apply, and OSHA has lost at least two cases attempting to apply the Logging operations standard to line-clearance operations based on the CPL. Both are on appeal before the Occupational Safety and Health Review Commission.
OSHA’s standard for electric utilities, 29 CFR Section 1910.269, contains provisions relating to line-clearance tree trimming, but the standard does not address the hazards of tree removal. OSHA is likely to focus on those hazards at stakeholder meetings and during any future rulemaking. OSHA intends to conduct initial stakeholder meetings in June 2016 but has not yet scheduled specific dates and locations.
Powered Industrial Truck Standard
Encouraged by the Industrial Truck Association, OSHA expressed its intention to update and expand the Powered Industrial Truck standard, “to account for the substantial revisions to ANSI standards on powered industrial trucks over the last 45 years.” The current regulation at 29 C.F.R. § 1910.178 incorporates an out-of-date consensus standard, ANSI B56.1-1969. OSHA also noted there are now 19 classifications of trucks, whereas the current standard only covers 11. OSHA has scheduled the issuance of a Request for Information (RFI) for October of 2016.
The agency also is exploring a facelift for the Lockout/Tagout standard. Spurred by an increase in requests for variances for computer-based controls and modern equipment designs, OSHA expressed concern over whether new technology may conflict with OSHA's existing standard at 29 C.F.R. § 1910.147. OSHA believes either an RFI or stakeholder meetings may “be useful in understanding the strengths and limitations of this new technology, as well as potential hazards to workers.” The agency expects to conduct either an RFI or stakeholder meeting by September of 2016.
Chemical Management and Permissible Exposure Limits
OSHA also indicated that it intends to revoke “a small number” of permissible exposure limits (PELs) for chemicals in the 29 CFR 1910.1000 Table Z-1, which the agency believes are obsolete. The agency did not give examples, but placed priority on PELs “for which the OSHA PEL substantially exceeds other recommended occupational exposure limits and for which the agency has evidence that workers are not generally being exposed at a level approaching the OSHA PEL (e.g., employers have not been cited for violation of the PEL for some time).” OSHA scheduled an RFI for July 2016.
Proposed Rule Dates
OSHA scheduled proposed rule dates for Crane Operator Qualification in Construction for March of 2016, Amendments to the Cranes and Derricks in Construction standard for April 2016, Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection for March of 2016), and its Standards Improvement Project IV, which is focused on eliminating redundant, unnecessary, or inconsistent safety and health standards, primarily in Part 1926 for Construction—for May of 2016.
The agenda suggests a very ambitious 2016 for OSHA. But the agency is notorious for missing regulatory deadlines. No consequence follows for missing a deadline, other than perhaps sinking morale at the agency in staff who see the process drag on from year to year and sometimes decade to decade. Many, if not all, of these rulemaking items will be delayed further. The best bet for a final rule is the silica standard, which has been the agency’s top priority for years. With the sun setting on the Obama administration in January of 2017, the legacy of several officials at OSHA depends on issuing a final silica rule before that time.