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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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“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

“11 Tips for Handling Hazardous Materials”

Don’t become a target for one of these avoidable citations! Join us on March 29 for an in-depth webinar presented by Meaghan Boyd, a seasoned environmental litigation partner at Alston & Bird, as she discusses best practices for hazardous materials transportation.

You’ll learn:

  • How to identify hazardous materials ahead of transport
  • What type of training is required for people who offer transport of hazardous materials
  • How to determine appropriate packaging, marking and labeling when transporting a hazardous material
  • Penalties for not properly labeling or shipping a “hazardous material”
  • How to apply for DOT special permits
  • “Hot topics” in hazmat transportation, including lithium batteries, that could lead to compliance risks

Save my seat.

Source: BLR

“N95 Day: A NIOSH-Approved Holiday”

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Today is the 5th annual N95 Day, which focuses on respiratory protection awareness and proper use of N95 respirators. Here are some ways you can participate:

  • Social media. Look for N95-related information on Twitter (@NIOSH, @NPPTL, #N95Day) Facebook, Instagram and Pinterest as well as the annual N95 Day NIOSH Science Blog. Share NIOSH’s infographics, and be sure to follow ASSE (@ASSE_Safety) and other campaign partners to find free training, resources, and safety tips.
  • Hospital respiratory protection program resources. NIOSH has launched a web page of resources dedicated to hospital respiratory protection programs.
  • Webinars. NIOSH is presenting two webinars this year: 1) The Science Behind Respirator Fit Testing in the Workplace: Past, Present and Future; and 2)  Why Do We Have to Fit Test? And Why Every Year? Although registration is now closed, the agency will post the webinar videos and slides after the event. Check the campaign page for updates.
  • ASSE materials. Check out ASSE’s Tech Brief on ANSI/ASSE Z88.2-2015, Practices for Respiratory Protection and visit our respiratory protection standards page.

Source: ASSE, NIOSH, CDC

“Despite Two-Thirds of Organizations Naming Active Shooter as a Top Threat, 79 Percent Are Not Fully Prepared”

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by Jeff Benanto

Everbridge recently partnered with Regina Phelps and Emergency Management and Safety (EMS) Solutions, a provider of professional consulting services in the area of incident management, business continuity planning and exercise design, to conduct research into the security challenges facing today’s companies, especially when it comes to active shooter situations. The “Active Shooter Preparedness” research report was conducted in July, 2016. A total of 888 individuals were surveyed about their safety plans and ability to manage an active shooter situation.

The key findings? Respondents were overwhelmingly concerned about violent acts – such as active shooter situations – taking place at their company or organization. Despite that worry, a majority of respondents also said that they were not properly prepared for an active shooter situation, highlighting communication to affected employees and individuals as one of the major issues. Here’s some more of the data:

  • 69 percent of organizations view an active shooter incident as a potential top threat, but 79 percent replied that their organizations were not fully prepared for this type of event.
  • Communicating with and confirming the safety of those in an impacted building were seen as the biggest challenges during an active shooter situation by 71 percent of organizations. Despite that, 39 percent still said they didn’t have a communications plan in place.
  • 61 percent do not run any active shooter preparedness drills at all.
  • 73 percent said that employees or students are willing to exchange some aspects of privacy for enhanced security.

Download the full report below and stay tuned for more from Everbridge and EMS Solutions, as we will detail the results further, along with prescriptive best practices, in future resources and webinars.

Download (PDF, 507KB)

For more information, including upcoming webinars covering this subject, visit theEverbridge website here.

“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

“Transforming EHS Performance Measurement Through Leading Indicators”

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The National Safety Council, Campbell Institute performed a survey and study called “Transforming EHS Performance Measurement Through Leading Indicators” The information for the report was obtained from EHS & Safety Managers from across the country.

The report is an excellent compilation of the survey and the findings are intriguing. You can download a copy of the report here: http://goo.gl/KYAIxi

“Infographic: OSHA’s Multiemployer Citation Policy”

Do you work on a multiemployer worksite? If so, do you understand your safety responsibilities?

When OSHA inspects multiemployer workplaces, inspectors determine who should be cited for violations based on whether employers are “creating employers,” “exposing employers,” “correcting employers,” or “controlling employers.”

This infographic will give you an overview of what these terms mean and help you understand your safety responsibilities depending on your role on a worksite.

OSHA's Multiemployer Citation Policy

OSHA’s Multiemployer Citation Policy by Safety.BLR.com

“NFPA 70E – 2017” – “LOTO & Arc Flash Proposed Changes From Second Draft Meeting “

NFPA-70E-2015

The second draft meeting for NFPA 70E was held in Salt Lake City on July 18th through July 21st. There were 173 public comments acted on at the meeting. There are a few proposed changes to the standard that were acted upon that may garner the most attention.

NOTE:  The official position of the committee has not been given through the formal ballot. This blog only addresses preliminary revisions proposed by the public and committee.

The first is that the layout of Article 120 Establishing an Electrically Safe Work Condition has been reorganized to better address the logical sequence of events. The steps, principles, and program for lockout/tagout have been moved to be the first sections of Article 120 since these are necessary before verifying the condition.  The verification steps have been moved to the end of Article 120 since these are the last steps for establishing the electrically safe work condition.

A second change is to place further emphasis on the risk assessment and put the hierarchy of controls into mandatory language.  The use of personal protective equipment (PPE) has always been and remains to be the last method selected when providing protection for the worker exposed to hazards when conducting justified energized work. The revised text clarifies this principle.

The third changes clarifies how the standard should have always been used when justified energized work is to be conducted. It essentially is not adding new requirements but will assist in preventing the misuse of the standard. The change is that Table 130.7(C)(15)(A)(a) [that many call the task table] has become a new table applicable to both the PPE category method or the incident energy analysis method. It no longer determines whether PPE is required but whether or not there is a likelihood of an arc flash occurrence. The user conducts a risk assessment and determines the protection scheme to be employed to protect the worker using the hierarchy of controls (same as in the past editions).

The last big change is that the references to PPE equipment standards have been changed to informational notes. The equipment must still meet the applicable standards but the verification process has been changed to one of a conformity assessment where the PPE manufacturer should be able to provide assurance that the applicable standard has been met by one of three methods. The previous edition of the standard did not require any verification method. The three methods are; self-declaration with a Supplier’s Declaration of Conformity, self-declaration under a registered Quality  Management System and product testing by an accredited laboratory and a Supplier’s Declaration of Conformity, or a certification by an accredited independent third-party certification organization.

The committee’s official position will be taken by ballot in early September.  If you want to keep up on the process visit the NFPA 70E web page at www.nfpa.org/70E. The next edition tab will carry all the current information throughout the process. NFPA 70E – 2017 is slated to be voted on at the association meeting in Boston, MA in June 2017.

“Safety Photo of the Day” – “Who Should Be Tied Off In This Photo?”

Who Should Be Wearing Fall Protection &  Tied Off In This Photo?

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OSHA issued a letter of interpretation that addresses the requirements for use of a body-restraint system on aerial lifts (body restraint is required) versus scissor-lifts (body restraint not required as long as standard guardrails are in place). One last thing about scissor-lifts to keep in mind; in some cases, the manufacturer of a scissor-lift may install a tie-off point(s) in the work platform. In those cases, you should consult their instructions for recommendations as to when it might be necessary to tie-off while using their equipment.
Why is fall protection important?

Falls are among the most common causes of serious work related injuries and deaths. Employers must set up the work place to prevent employees from falling off of overhead platforms, elevated work stations or into holes in the floor and walls.

What can be done to reduce falls?

Employers must set up the work place to prevent employees from falling off of overhead platforms, elevated work stations or into holes in the floor and walls. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoring operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

To prevent employees from being injured from falls, employers must:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guard rail and toe-board around every elevated open sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and hand rails.

OSHA requires employers to:

  • Provide working conditions that are free of known dangers.
  • Keep floors in work areas in a clean and, so far as possible, a dry condition.
  • Select and provide required personal protective equipment at no cost to workers.
  • Train workers about job hazards in a language that they can understand.
Additional Fall Protection Resources
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