Will OSHA Expand Authority Without Legislation?


By: Jacqui Fatka, Feedstuffs Newspaper

With controlling majority in the House switching from Democrats to Republicans next month, the Occupational Safety & Health Administration (OSHA) will lack the congressional support needed to pass the sweeping changes to OSHA as proposed in the Protecting America’s Workers Act (PAWA). 

Under the Obama Administration the new OSHA has already increased enforcement measures. Moving forward, Jonathan Snare, a partner in the labor and employment practice group for Morgan, Lewis & Bockius LLP in Washington, D.C., said he expects OSHA to continue to implement as many policies as it can through non-legislative means. OSHA is also undertaking other dramatic changes in its programs under new leadership including increased attention on enforcement (Table).

Snare, a former OSHA administrator, pointed out that many of the top officials — including U.S. Department of Labor assistant secretary David Michaels and deputy assistant secretary Jordan Barab — have backgrounds in academia or government rather than private-sector experiences. So far their policies have aimed to change behaviors by strict enforcement, which could have an adverse effect on employers.

OSHA supported the objectives of PAWA which would dramatically amend the OSH Act and represent the first major legislative change to the law in 40 years. Specifically it would allow OSHA to increase both civil and criminal penalties for every type of violation of the OSH Act and would increase penalties for willful or repeat violations.

The legislation did not move forward in Congress, but OSHA is looking at taking non-legislative steps to achieve many of the same objectives drawn out in PAWA.

The combustible dust rule-making is an example of government officials’ previous background having an impact on regulations.  For instance, Barab worked on Capitol Hill while combustible dust legislation was being drafted and at the Chemical Safety Board and now works at OSHA, where the elements of the bill could be implemented in a regulation without a vote from Congress.

Combustible dust came into the limelight in 2008 after a combustible dust explosion at an Imperial Sugar plant. That year, OSHA conducted an investigation of the incident and launched a national emphasis enforcement program on combustible dust.

Under new the new administration, OSHA undertook a new rule-making on combustible dust. In October 2009, OSHA issued an advanced notice of rule-making on combustible dust. Of interest to the grain handling industry, which already is governed by a combustible dust standard, is whether this new proposal will change that standard. Among the issues in this advanced notice, OSHA said dust was still a risk to the feed and grain industry and questioned whether the 1/8 in. dust standard should be lowered.

Another example of a hot issue in the grain industry is a letter of interpretation OSHA released that prohibits an employee from working inside a bin while an unguarded sweep auger is in operation.

Paul Luther, an environmental, health and safety manager at Land O’Lakes, noted that it isn’t a regulation, but OSHA can interpret that letter however it wishes. So far, OSHA issued at least three citations this past year.

The National Grain & Feed Assn. met with OSHA to review the letter in October.

During the meeting, Luther said the agency was made aware that a sweep auger can sometimes take an entire day to circle a bin and does not, as an example, go at a speed of 10 mph, which was a misconception the agency had.

“We’re hoping for a response from OSHA probably early next year,” Luther said. “We’re not certain of what their solution will be, but many sweep augers just don’t work unless you put someone in the bin with them.”

Snare said another existing OSHA standard that the agency is proposing to reinterpret is the noise standard. For nearly 30 years, the enforcement policy allowed an employer to satisfy hearing conservation rules if employees were given ear plugs rather than investing in costly engineering changes to cut down on noise.

OSHA’s reinterpretation proposes to require employers to implement noise engineering or administrative controls and “if it doesn’t threaten the ability to stay in business,” employers would be required to make the upgrades. A public comment period closes March 21, 2011.

“Depending on how the rule is implemented, it could have a staggering impact depending on what they ultimately do and how it is applied,” Snare said.

Snare discussed after the mid-term elections, the landscape will change on Capitol Hill. With a Republican-controlled House next year, it is expected that the new House leaders will enact an additional amount of authority to investigate and conduct oversight of the agencies.

What recourse does the industry have if OSHA goes beyond its bounds to match the Administration’s policy desires?

Snare said if OSHA interprets the law outside of its discretion, it could be challenged legally and court action filed. If OSHA puts out a proposed change for public comment, employers, trade associations and others can submit comments on the proposed change.


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