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“US House of Representatives Seeking to Make OSHA VPP Permanent”

Washington – Several members of the House have joined forces to reintroduce bipartisan legislation that would make permanent OSHA’s Voluntary Protection Programs.

Reps. Todd Rokita (R-IN), Gene Green (D-TX) and Martha Roby (R-AL) claim the Voluntary Protection Program Act is “sound policy that is not only good for the employers and employees but for the American economy overall,” Rokita said in a March 9 press release.

The proposed legislation would denote a long-term commitment to OSHA’s program, which recognizes worksites that achieve exemplary occupational safety and health performance. To be accepted into the program, worksites must implement safety and health management systems that yield below-average injury and illness rates. Successful worksites involved in VPP then gain exemption from certain OSHA inspections.

More than 2,200 worksites covering approximately 900,000 employees have participated in VPP since its 1982 inception. The VPP Act would codify the program, meaning Congress would be unable to withdraw its funding.

The legislation has remained before the Senate’s Health, Education, Labor, and Pensions Committee since it was read twice and referred to the committee in late April 2016.

“The Voluntary Protection Program is one of the few programs that has achieved unified support from both union and non-unionized labor, small and large businesses, and government,” Green said in the release. “I am proud to work with colleagues on both sides of the aisle to codify this important safety program that saves money while protecting workers.”

Added Roby: “The best way to ensure worker safety is through partnerships, not penalties. VPP helps companies become compliant with workplace safety rules on the front end to avoid costly fines and harmful penalties on the back end. It’s a smart way to ensure a safe and productive workplace, while also making government smaller and more efficient.”

The House considered similar legislation – also introduced by Rokita, Green, and Roby – in May 2015. It was referred to the Workforce Protections Subcommittee that November.

Given the current political climate,it would not be surprising to see this adopted at some point in the near future. Time will tell.

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“Terrorism Concerns Results in Chemical Storage Rule Delay” #WestTexasFire #Chemicals

The Trump administration is delaying a new rule tightening safety requirements for companies that store large quantities of dangerous chemicals. The rule was imposed after a fertilizer plant in West, Texas, exploded in 2013, killing 15 people.

Scott Pruitt, the administrator of the Environmental Protection Agency, delayed the effective date of the Obama-era rule until June.

Pruitt’s action late Monday came in response to complaints by the chemical industry and other business groups that the rule could make it easier for terrorists and other criminals to target refineries, chemical plants, and other facilities by requiring companies to make public the types and quantities of chemicals stored on site.

The EPA issued a final rule in January, seven days before President Barack Obama left office. The EPA said at the time that the rule would help prevent accidents and improve emergency preparedness by allowing first responders better data on chemical storage.

A coalition of business groups opposed the rule, saying in a letter to Pruitt that it would do “irreparable harm” to companies that store chemicals and put public safety at risk.

Chet Thompson, president and CEO of the American Fuel and Petrochemical Manufacturers, an industry group, praised Pruitt’s delay of the EPA rule.

“The midnight rulemaking in the final days of the Obama administration would not enhance safety, create security vulnerabilities and divert resources from further enhancing existing safety programs,” Thompson said.

Environmental groups questioned industry claims as “self-interested” and misleading.

Hazardous chemical incidents like the explosion in West, Texas, are “frighteningly common,” according to the Environmental Justice Health Alliance, an advocacy group. More than 1,500 chemical releases or explosions were reported from 20014 to 2013, causing 58 deaths and more than 17,000 injuries, the group said.

Instead of bowing to industry complaints, the EPA should “stand with the first responders, at-risk communities, safety experts, workers, small businesses and others who live at daily risk of a catastrophic chemical release or explosion,” the group wrote in a letter last month to members of Congress.

The Obama-era rule came after a three-year process that included eight public hearings and more than 44,000 public comments, the group said.

The Obama administration said the rule would help prevent chemical incidents such as the 2013 explosion in Texas, while enhancing emergency preparedness requirements, improving management of data on chemical storage and modernizing policies and regulations.

Sen. Jim Inhofe, R-Okla., said the Obama-era rule gives “a blueprint to those who would like to do us harm,” adding that existing regulations will remain in place to continue ensuring the safety of chemical plants and other facilities.

Source: Insurance Journal

“CSB Releases New Safety Video Detailing Investigation into 2013 Fatal Fire and Explosion at the Williams Olefins Plant in Geismar, LA”

January 25, 2017, Washington, DC –

Today the U.S. Chemical Safety Board (CSB) released a safety video of its investigation of the June 13, 2013 explosion and fire at the Williams Olefins Plant in Geismar, Louisiana, which killed two workers and injured an additional 167.  The deadly explosion and fire occurred when a heat exchanger containing flammable liquid propane violently ruptured.

The CSB’s newly released 12-minute safety video entitled, “Blocked In,” includes a 3D animation of the explosion and fire as well as interviews with CSB investigator Lauren Grim and Chairperson Vanessa Allen Sutherland. The video is based on the CSB’s case study on the Williams incident and can be viewed on the CSB’s website and YouTube.

Chairperson Sutherland said, “Our investigation on the explosion at Williams describes an ineffective process safety management program at the plant at the time of the incident. We urge other companies to incorporate our recommendations at their facilities and to assess the state of their cultures to promote safety at all organizational levels to prevent a similar accident. ”

The CSB’s investigation found many process safety management program deficiencies at Williams, which set the stage for the incident. In particular, the CSB found that the heat exchanger that failed was completely isolated from its pressure relief valve.

In the video, Investigator Lauren Grim said, “When evaluating overpressure protection requirements for heat exchangers, engineers must think about how to manage potential scenarios, including unintentional hazards. In this case, simply having a pressure relief valve available could have prevented the explosion.”

The CSB investigation concluded that in the twelve years leading to the incident, a series of process safety management program deficiencies caused the heat exchanger to be unprotected from overpressure.  As revealed in the investigation, during that time Management of Change Reviews, Pre-Startup Safety Reviews, and Process Hazard Analyses all failed to effectively identify and control the hazard.

In addition, the CSB found that Williams failed to develop a written procedure for activities performed on the day of the incident, nor did the company have a routine maintenance schedule to prevent the operational heat exchanger from needing to be shut down for cleaning.

Finally, the video describes CSB’s recommendations made to the Williams Geismar plant which  encourages similar companies to review and incorporate into their own facilities. These include:

– Conduct safety culture assessments that involve workforce participation, and communicate the results in reports that recommend specific actions to address safety culture weaknesses

– Develop a robust safety indicators tracking program that uses the data identified to drive continual safety improvement

– And perform comprehensive process safety program assessments to thoroughly evaluate the effectiveness of the facility’s process safety programs.

“Managers must implement and then monitor safety programs and encourage a strong culture of safety to protect workers and the environment,” Chairperson Vanessa Allen Sutherland said,

The CSB is an independent federal agency charged with investigating serious chemical accidents. CSB investigations examine all aspects of chemical accidents, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.

The Board does not issue citations or fines but makes safety recommendations to companies, industry organizations, labor groups, and regulatory agencies such as OSHA and EPA. Please visit our website, http://www.csb.gov.

For more information, contact Communications Manager Hillary Cohen at public@csb.gov or by phone at 202.446.8095.

 

“West Virginia Senate Bill Eliminates Mine Safety Enforcement”

By Ken Ward Jr. , Staff Writer, Charleston Gazette-Mail

State safety inspectors wouldn’t inspect West Virginia’s coal mines anymore. They would conduct “compliance visits and education.”

Violations of health and safety standards wouldn’t produce state citations and fines, either. Mine operators would receive “compliance assistance visit notices.”

And West Virginia regulators wouldn’t have authority to write safety and health regulations. Instead, they could only “adopt policies … [for] improving compliance assistance” in the state’s mines.

Those and other significant changes in a new industry- backed bill would produce a wholesale elimination of most enforcement of longstanding laws and rules put in place over many years — as a result of hundreds of deaths — to protect the health and safety of West Virginia’s coal miners.

Opponents are furious about the proposed changes but also fearful that backers of the bill could easily have the votes to push through any language they want. Longtime mine safety experts and advocates are shocked at the breadth of the attack on current authorities of the state Office of Miners’ Health, Safety and Training and the Board of Coal Mine Health and Safety.

“It’s breathtaking in its scope,” said mine safety expert Davitt McAteer, who ran the U.S. Mine Safety and Health Administration during the Clinton administration and led a team that called for strengthening — not weakening — the state’s mine safety efforts after the deaths of 29 miners at Massey Energy’s Upper Big Branch Mine just seven years ago next month.

Senate Bill 582 is billed as legislation “relating generally to coal mining, coal mining safety and environmental protection.”

Various lobbyists and advocates, even many lawmakers, are still trying to sort out and understand its many provisions, which range from language rewriting the state’s program for holding mine operators responsible for cleaning up abandoned strip mines and properly classifying streams that are trout waters to consolidating existing state mine safety boards into one panel and creating a new mandate for state-funded mine rescue teams.

A legislative committee lawyer indicated that some provisions intended for the bill didn’t make it into the initial text, including a rewrite of language in water quality standards that has been the subject of much litigation aimed at reducing water pollution from large-scale surface mines. Those provisions would have to be amended into the bill or added through a committee substitute, the lawyer said.

The heart of the legislation is a section that simply eliminates the ability of state mine safety office inspectors to issue notices of violation or levy fines for mine operators or coal companies for any safety hazards unless they can prove there is an “imminent danger” of death or serious physical harm.

Language in the bill offers somewhat confusing answers about what inspectors would do if they found imminent danger. One part of the bill maintains the current law, which says that inspectors must issue an order to pull all miners out of the affected part of the mine until the hazard is corrected. Another section, though, refers to a new type of process involving a “notice of correction,” that appears to carry no monetary penalty.

One thing that is clear is that the bill would maintain and encourage the use of “individual personal assessments,” which target specific mine employees — rather than mine operators or coal companies — for violations, fines and, possibly, revocation of certifications or licenses needed to work in the industry. In addition, the requirement for four inspections every year for each underground coal mine would be reduced to one compliance assistance visit for each of those mines.

And, the bill would require that, by Aug. 31, the state rewrite all of its coal mine safety standards so that, instead of longstanding and separate state rules, mine operators would be responsible for following only U.S. Mine Safety and Health Administration regulations. The list of areas covered by this provision includes electrical standards, mine ventilation, roof control, safety examinations, dust control and explosives.

“It completely guts the state law,” said Josh Roberts, international health and safety director for the United Mine Workers union. “You’re taking back decades of laws.”

Roberts and McAteer agreed that the notion of deferring almost all state mine safety standards to the federal government is especially concerning, given the promises made by President Donald Trump to remove regulations the coal industry says have been hampering production and employment. McAteer noted that West Virginia led the nation in coal-mining deaths last year and has had two deaths already in 2017.

“It is shocking that, after all these years and the numbers of West Virginians who have died in the mines, for the state to even consider this,” McAteer said Monday, after reviewing the legislation. “The state needs to be involved in making sure we are protecting our citizens. This should be one of the primary goals of the state government.”

Word that the coal industry was planning to have one of its supporters in the Legislature drop such a bill has been circulating since the start of the session in early February.

Chris Hamilton, senior vice president of the West Virginia Coal Association, said Tuesday that he isn’t sure that his organization fully supports the reduced enforcement authority spelled out in the legislation.

Asked if that meant the industry feels the bill goes too far, Hamilton said, “We’re okay with it the way the bill is, but we just think it can be tweaked and maybe improved on.”

Hamilton said federal inspectors spend plenty of time at West Virginia’s coal mines and that having state inspectors doing the same thing is duplicative.

The current version of the bill was introduced during a Senate session on Saturday. The lead sponsor is Sen. Randy Smith, R-Tucker. Smith chairs the Senate Energy, Industry and Mining Committee and is employed as a safety manager for Mettiki Coal. Officials from Mettiki’s parent corporation, Alliance Resource Partners, were major contributors to Smith’s campaign. Alliance bills itself as the second-largest Eastern U.S. coal producer. Its Mettiki arm operates a large underground mine in Tucker County.

On Tuesday, with a near-packed committee room full of industry officials and some rank-and-file coal miners, and with the legislation on the agenda, Smith announced that he was sending the bill to a three-person subcommittee that would be chaired by EIM Committee Vice Chairman Dave Sypolt, R-Preston. Other subcommittee members will be Sen. Chandler Swope, R-Mercer, and Sen. Glenn Jeffries, D-Putnam, Smith said.

In an interview, Smith said he doesn’t necessarily support all provisions of the bill he introduced. For example, he said he doesn’t really support taking away so much of the state mine safety office’s enforcement power.

See the rest of the story: http://www.wvgazettemail.com/news-politics/20170314/wv-senate-bill-eliminates-mine-safety-enforcement#sthash.A8oevOgJ.dpuf

Source: Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

More Information:

Map: West Virginia Leads Nation in Coal Mining Deaths Since 2004

“Addressing Safety Challenges for Disabled Workers” – “How Do You Get Through Your Day?”

Richie Parker, HMS Engineer -“How Do You Get Through Your Day?” – Video Courtesy of Hendrick Motorsports® ESPN®

Employees in today’s workplace face many challenges. Work forces have been cut, and in many cases, workdays have been extended. Older workers are unable to retire, while younger workers are unable to find work. New technology is introduced into the workplace, requiring all to relearn how to perform their jobs. This is difficult for the average worker, but it is extremely difficult if an employee is further hindered by disabilities.

Disabilities of all types affect employees and can pose various mental or physical challenges. In many situations, a disability may impact the amount of time it takes for an employee to complete a task or get from one part of a facility to another. Some disabilities may be known while others remain unknown to an employer. Thanks to the Americans with Disabilities Act (ADA), employees with disabilities can continue to work without fear of losing their jobs1.

All employees with disabilities deserve the right to support their families. If otherwise qualified for a job, a disability should not take away an individual’s opportunity to work. Existing laws protected those discriminated against for race, sex, national origin and color, but the ADA was the first law to speak for those with disabilities in the workplace.

The ADA disallows discrimination against otherwise qualified individuals in an employment setting because of mental or physical disabilities2. This means that in many situations, the employer has to adjust a work environment to allow an employee to function. In 2009, the ADA was amended to include additional information and coverage. This amendment required the Equal Employment Opportunity Commission (EEOC) to make changes to their regulations regarding the term “substantially limits” and how it is defined2. It also broadens the definition of “major life activities” to include many new activities.

Workplace Adaptations

As with any law that changes the workplace, some fight or avoid it while others fully embrace and promote it. One major compliance concern deals with accessibility. Because of this, many workplaces have adjusted or created more accessible entrances and exits to their facilities, allowing more independence for persons in wheelchairs. Other subtle changes may include the height of water fountains, width of bathroom stalls, hand rails inside the stalls and long ramps instead of stairs. The path of travel that employees take should never be obstructed; there should be no barriers to prevent someone from getting to safety in an emergency3.

Making accommodations in the workplace is important, yet one must avoid making a spectacle of employees with disabilities. One concept being utilized in workplaces is universal design, which is best defined as designing products and work spaces to allow use by everyone, regardless of disability4. This eliminates many cases of employees standing out or requiring special assistance to be able to complete their tasks. Better designed work spaces can increase function for all employees, regardless of age4. This still is a relatively new idea and few examples exist in the workplace despite multiple studies proving the effectiveness.

The goal is to remove all barriers and allow everyone to concentrate on completing job tasks.

Workstations easily can be adapted to follow this universal design. Many companies now use slide-out keyboard trays and monitors on swinging arms to allow employees to adjust to their needs. Desks can accommodate wheelchairs in place of regular chairs, and general work spaces can be lowered to allow easier access. All workplaces eventually will follow the universal design approach3. The main goal is to remove all barriers and allow everyone to concentrate more on completing their tasks.

The biggest challenge with universal design is accommodating the multitude of challenges that different disabilities present. Not all disabilities are the same, and not all will present the same challenges for employees. Some employees may have issues with their right hand while others have issues with their left. For some, it may involve not being able to stand or sit. Some may need low lighting, while others need bright lighting. Designing a facility to accommodate all is always going to be a challenge.

Some disabilities require a service animal to be able to get around or reach materials. ADA protects those that need such animals. This can create another complication for an employer if other employees are allergic to such animals. The employer must work with all parties involved to find a solution.

Companies using older facilities often have the most trouble complying with guidelines of the ADA. Designing a building from the ground up is much easier than attempting to retrofit existing facilities. Some of the complications with retrofitting facilities include adding adequate doorways. Depending on the design of the structure, adding doorways can be complicated and require an extensive amount of remodeling. Other complications include retrofitting areas with stairs and restrooms with stalls that are too narrow. Moving plumbing may require the existing floor to be torn out and require a lot of time.

Read the remainder of the story here: http://ehstoday.com/safety/addressing-safety-challenges-disabled-workers

Source: EHS Today®

“The 2017 Workplace Safety Puzzle” #OSHA #Safety

From 2015 to 2017, OSHA fines increased almost 80%, making the cost of noncompliance too expensive for most organizations to ignore.

This new infographic, created for the 2017 Safety Summit, aims to help safety pros, like you, strengthen compliance, reduce costs, and improve operational efficiency.

 

“Top 10 OSHA Citations of 2016: A Starting Point for Workplace Safety”

OSHA inspection-1

Every October the Department of Labor’s Occupational Safety and Health Administration releases a preliminary list of the 10 most frequently cited safety and health violations for the fiscal year, compiled from nearly 32,000 inspections of workplaces by federal OSHA staff. One remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.

More than 4,500 workers are killed on the job every year, and approximately 3 million are injured, despite the fact that by law, employers are responsible for providing safe and healthful workplaces for their workers. If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations, and hospitalizations would drastically decline.

Consider this list a starting point for workplace safety:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

It’s no coincidence that falls are among the leading causes of worker deaths, particularly in construction, and our top 10 list features a lack of fall protection as well as ladder and scaffold safety issues. We know how to protect workers from falls, and have an ongoing campaign to inform employers and workers about these measures. Employers must take these issues seriously.

We also see far too many workers killed or gruesomely injured when machinery starts up suddenly while being repaired, or hands and fingers are exposed to moving parts. Lockout/tagout and machine guarding violations are often the culprits here. Proper lockout/tagout procedures ensure that machines are powered off and can’t be turned on while someone is working on them. And installing guards to keep hands, feet and other appendages away from moving machinery prevents amputations and worse.

Respiratory protection is essential for preventing long-term and sometimes fatal health problems associated with breathing in asbestos, silica or a host of other toxic substances. But we can see from our list of violations that not nearly enough employers are providing this needed protection and training.

The high number of fatalities associated with forklifts, and a high number of violations for powered industrial truck safety, tell us that many workers are not being properly trained to safely drive these kinds of potentially hazardous equipment. Rounding out the top 10 list are violations related to electrical safety, an area where the dangers are well-known. Our list of top violations is far from comprehensive.

OSHA regulations cover a wide range of hazards, all of which imperil worker health and safety. And we urge employers to go beyond the minimal requirements to create a culture of safety at work, which has been shown to reduce costs, raise productivity and improve morale. To help them, we have released new recommendations for creating a safety and health program at their workplaces.

We have many additional resources, including a wealth of information on our website and our free and confidential On-site Consultation Program. But tackling the most common hazards is a good place to start saving workers’ lives and limbs.

Source: OSHA -Thomas Galassi is the director of enforcement programs for OSHA.

“What Should You Do When OSHA Shows Up At Your Door” #OSHA #Inspection

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1/27/2017 by Krista Sterken  | Foley & Lardner LLP

You arrive at work bright and early, only to find that someone beat you there — OSHA is waiting to perform an inspection. Now what? Many employers think they have little say in what happens next. Actually, employers have many choices to make, starting as soon as OSHA arrives.

The first thing step is simply bringing the compliance officer to a conference room or other appropriate location. You should select a location that is private and located close to the entrance, so you do not have to walk the compliance officer through any more of your facility than necessary. If the compliance officer happens to see something that may be a violation, this could provide the basis for a citation and/or expansion of the inspection.

Next, it is time to collect some information — you need to understand why OSHA is there. There are three main types of inspections: complaint inspections (conducted in response to a safety complaint), report inspections (conducted in response to a report of an employee death, injury, or illness), and program inspections (conducted under one of OSHA’s emphasis programs, which focus on particular industries or hazards). In some cases, a previous citation might provide the basis for a follow-up inspection.

You also need to know what OSHA intends to do. The inspection should be tailored to the reason for the visit. For example, a complaint inspection should be limited to areas related to the complaint. Program inspections are dictated by the focus of the program — you can obtain more information from OSHA’s website. All inspections should follow OSHA’s Field Operations Manual.

Finally, you must decide whether to agree to OSHA’s inspection plan. If OSHA identified a legitimate basis for the inspection and an appropriate inspection plan, then you might decide to allow the inspection to begin. However, if you have concerns, you have the right to refuse entry and require OSHA to return with a warrant (unless there is an imminent danger, in which case OSHA must be permitted immediate entry). If you require a warrant, OSHA will have to persuade a judge that its intended inspection is appropriate.

Employers are often nervous about requiring a warrant. However, you have the right to do so. OSHA understands this, and is not permitted to retaliate against you in any way. Requiring a warrant can be an effective way to impose fair parameters for the inspection.

Once the inspection has started, you are only at the very beginning of the process. Because there will be countless other important decisions, involve counsel early (preferably, as soon as OSHA arrives). Every company should also give some advance thought to its “OSHA plan,” identifying specifically how a request for inspection will be handled long before a compliance officer shows up on the company’s doorstep.

“Oakland Warehouse Dance Party Fire a Rare Disaster, But Troubling Trend Continues”

screenshot-www-ktvu-com-2016-12-03-14-04-22

In this age of modern building construction and fire codes, large loss-of-life fires in assembly occupancies just aren’t supposed to happen. But, for some reason, they continue to. I noticed a trend following The Station fire; I thought to myself, “Seems like it’s been about ten years since we’ve seen a fire like this.” I was close; it was 13 years.

The trend started with the Beverly Hills Supper Club fire in Southgate, KY, which killed 165 people in 1977. Thirteen years later, in 1990, 87 people died in a fire at the Bronx, NY Happy Land social club. Another thirteen years later, in 2003, The Station nightclub fire in West Warwick, RI, killed 100.

And here we are, thirteen years later, counting the dead in an electronic dance music party fire at a warehouse turned artist collective/residence/performance space in Oakland, CA known as “Ghost Ship;” the death toll currently stands at 36 and is expected to rise.

NFPA president Jim Pauley spoke to the New York Times about the role fire codes have played in making fires, such as the one that occurred Friday night, rare occurrences. There is no question that codes have come a long way over the last 40 or so years, and if they’re followed, the probability that a fire will have such devastating consequences is low. Today’s codes, like NFPA 101, require automatic sprinkler systems, fire alarm systems, and multiple, protected means of egress from large assembly spaces. (News outlets report the Oakland warehouse was not sprinklered, and means of egress from the second-floor assembly space was limited to a single stair; it is still very early in the investigation.)

So the question we, as fire protection and life safety professionals, must ask is, “Are we doing enough to prevent these tragedies?” Do the codes, as they stand today, provide a “reasonable” level of protection? If we do nothing, is it reasonable to expect that in thirteen years we will see another tragedy like the one this past weekend? Maybe it will be eight years, maybe eleven, but I think the answer is, “most likely.” The alternative is to do “something.” I don’t know what that “something” is. Do we pile more requirements onto the codes, effectively penalizing those who diligently comply with the requirements already on the books? And how effective would new requirements be? If building owners aren’t complying with today’s requirements, should we expect them to comply with new ones? What about enforcement? I know very well the budget constraints faced by municipal fire departments. State and local fire prevention agencies do tremendous work with their limited resources. It’s probably not reasonable to expect code enforcers to catch every illegal large assembly gathering.

The answer eludes me. And it’s troubling. I recently became the staff liaison for NFPA’s Technical Committee on Assembly Occupancies, so this hits close to home. It’s my hope to get the conversation going so we can put an end to this trend. Or we can carry on, status-quo. If we do, history suggests we’ll see another large loss-of-life assembly occupancy fire. Probably in about 13 years, around 2029. I hope I’m wrong.

Source: by Gregory Harrington NFPA xChange

“OSHA Responds to Manufacturers’ Lawsuit on New Workplace Injury and Illness Reporting Rule”

OSHAupdate

 

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA asserts that its new injury illness reporting rule is fully within OSHA’s mandate.

This is in follow-up to our earlier blog on OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The new rule concerned drug-testing, retaliation claims, and accident reporting.

The National Association of Manufacturers filed a lawsuit seeking to enjoin the new rule. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Thereafter OSHA announced that it was delaying the effective date for enforcement of the rule until November 1, 2016.

In TEXO ABC/AGC the Plaintiffs alleged that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.” The lawsuit sought a declaratory judgment finding that the rule was unlawful to the extent that it prohibited or otherwise limited incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

On August 19, 2016 OSHA responded to the request for a preliminary injunction, filing its opposition. OSHA argues that as the “Plaintiffs have not established a likelihood of success or irreparable harm, the Court need not consider the balance of equities or public interest. Even if it did, though, they tip sharply against injunctive relief in this case. Plaintiffs have established no harm at all, much less irreparable harm. OSHA, by contrast, has determined that the anti-retaliation provision is necessary for the viability of its broader recordkeeping Rule, which takes effect January 1, 2017.”

We anticipate that the Plaintiffs will file a reply brief shortly, followed by oral arguments before the Court. We will keep you updated as this fast moving issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 Source: Seyfarth Shaw LLP

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