• What to Expect from OSHA in 2016: Michaels Discusses Hazard Alerts, Silica Rule, Reporting, and Other Priorities
  • March 7, 2016 | Author: John F. Martin
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
  • On February 11, 2016, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health and the head of the Occupational Safety & Health Administration (OSHA), spoke to 170 members of the oil and gas well servicing industry at the Association of Energy Service Companies’ (AESC) Winter Meeting in Horseshoe Bay, Texas, about what the public can expect to see from OSHA in 2016.

    New Hazard Alert for Hydrocarbon Tank Sampling

    Michaels announced the release of a new Hazard Alert, timed to coincide with his speech. The Hazard Alert—Health and Safety Risks for Workers Involved in Manual Tank Gauging and Sampling at Oil and Gas Extraction Sites—identifies the potential hazards for employees opening and gauging tank hatches on oil and gas extraction sites. Tanks at some locations may contain concentrated hydrocarbon gases and vapors that could potentially suffocate workers.

    Silica Rule Delayed

    Michaels conceded that the final rule for respirable crystalline silica will not be issued in February of 2016, in spite of the agency’s regulatory agenda setting this month as its due date. But he promised a final rule would come out “soon.” Michaels said OSHA estimates that 47 percent of the upstream oil and gas industry is currently in violation of the present silica standard, and 74 percent do not meet the National Institute for Occupational Safety and Health’s (NIOSH) Recommended Exposure Limit (REL) for respirable crystalline silica. OSHA is proposing to lower the silica standard further. Michaels praised the industry for helping OSHA draft a Hazard Alert for exposure to silica during fracking operations.

    Michaels also mentioned a new potential source of injuries from silicosis, which is a lung disease caused by silica inhalation, namely manufacturing, finishing, and installing artificial marble countertops. He reported that these popular products generally consist of about 94 percent silica. European safety officials have reported a dozen cases of silicosis among fabricators of the countertops, and the first case in the United States recently popped up in Texas.

    Severe Injury Reporting Rule Garnered Thousands of Reports in 2015

    Michaels discussed how the nationwide fatal work injury rate, which was approximately 37 deaths per day in the late 1960s and early 1970s, has fallen to the current rate of approximately 13 per day. “That’s great progress,” Michaels said, “but it’s still 13 too many.” Michaels lamented that the fatality rate has plateaued over the last 10 years. “We have to do something dramatically different” to continue pushing the fatality rate down to zero, he said.

    Michaels told the crowd about OSHA’s relatively new severe injury reporting rule and the changes to OSHA’s reporting requirements that went into effect in January of 2015. OSHA received approximately 200 to 250 reports per week from 21 states in 2015, and between 10,000 to 11,000 total reports over the course of the year. About 35 to 40 percent of reports resulted in the agency launching an investigation. About half resulted in a Rapid Response Investigation, in which OSHA asks employers to report the root cause of an injury and the steps being taken to prevent a recurrence. Michaels said OSHA does not want to see a “blame-the-worker” response. “Human error is not a cause of the injury, but a consequence of the system,” Michaels told the audience. He exhorted employers to “think about the system instead,” and how it can be improved.

    Michaels mentioned Congress’s recent approval of increased penalties for OSHA citations. Fines will be going up “about 80 to 90 percent in the spring,” he said, noting that OSHA would likely continue to impose lower penalty amounts on smaller employers. The increase “will have more of an impact on larger employers.”

    OSHA Would Target Well Operators (If It Could)

    With respect to the upstream oil and gas industry, Michaels suggested that OSHA seeks to target exploration and production companies for citations. “We’re interested in targeting companies that own the wells.” But during the subsequent question-and-answer session, Michaels conceded that unspecified “legal issues” keep the agency from presently targeting operators. Michaels was probably alluding to OSHA’s Multi Employer Citation Policy and its checkered history in decades of litigation.

    Employers Must Make Safety a “Precondition,” Not Merely a Priority

    Michaels raised eyebrows when he said he was tired of hearing employers brag about how “safety is a priority” in their organizations. He explained that calling safety a “priority” suggests that, when times are tough, employers may deprioritize safety. “Safety is not a priority,” Michaels said. “It’s a precondition.” Michaels urged employers to develop cultures of safety within their organizations. Critically important, according to Michaels, is a culture where employees feel comfortable stopping work if the workplace is unsafe. “If employees can’t do that, your culture is broken,” he said.

    Michaels urged employers to go above and beyond OSHA standards. “Complying with OSHA standards will make the workplace safer, but not ‘safe,’” he said. Some fatalities and injuries will not be prevented by simply complying with present OSHA standards because, Michaels explained, OSHA standards “can’t cover everything.” Many are also out of date, he said. Other standards are obsolete as soon as OSHA issues them.

    Walking Working Surfaces Final Rule Likely Before End of 2016

    After his speech, Michaels said that the Walking Working Surfaces and Personal Fall Protection Systems final rule, which is aimed at preventing slips, trips, and falls, is far from dead despite some media reports to the contrary. He indicated that the final rule will likely come out before he leaves office at the conclusion of the Obama administration.