AARON TRIPPLER directs government affairs for more than
70 local sections and serves as AIHA’s chief liaison with Congress and federal agencies.
He can be reached at (703) 846-0730 or
andTrials for OSHA
BY AARON TRIPPLER, DIRECTOR, AIHA® GOVERNMENT AFFAIRS
With the Obama administration well into its final year, it’s unlikely that OSHA will get many new rules moving in 2016. But that doesn’t mean that nothing is happening at the agency. Here’s a look at a few of the big issues for OSHA.
SILICA STANDARD CHALLENGEDThe silica standard was slated to take effect on June 23, with compliance dates of June 23, 2017 for construction, June 23, 2018 for general industry and maritime, and June 23, 2021 for oil and gas hydraulic fracturing. OSHA wants states to adopt the rule’s requirements within six months. Several states have already begun the process.
As of early May, seven lawsuits (five from industry, two from labor) challenging the silica standard had been filed in six different federal appeals courts. The lawsuits have been consolidated and will be heard by the U.S. Court of Appeals for the District of Columbia. The reasons for the lawsuits are varied. Industry claims the rule is not technically or economically feasible and relies on out-of-date data. The unions claim that the rule’s medical surveillance requirements can be improved and that provisions for medical removal protection are insufficient.
In mid-April, a House subcommittee held a hearing that was really an attempt by industry to convince Congress to block the rule and force OSHA to undergo more review before enacting a new one. The House had placed an appropriations rider on OSHA last year that would have prohibited the agency from spending any money on the rule, effectively killing it, but the Senate removed the rider. At the House hearing, plenty of industry witnesses recommended the same thing this year.
The Congressional Research Service has published a 14-page report summarizing issues related to silica, the history of regulating exposure, and recent actions. You can find aPDFof the report on the AIHA website.
So what does this all mean? I believe there will be an attempt in Congress to stop the rule, but I’m not sure it will succeed. And there might be better odds that the courts halt compliance with the rule until the lawsuits are settled.
As of early May, seven lawsuits challenging the silica standard had been filed in six different federal appeals courts.
RECORDKEEPING RULE MOVING FORWARDOn May 11, OSHA finalized its controversial electronic recordkeeping rule. At this point, the only chance to stop the rule will be through the appropriations process, the placing of a “rider” on the bill to effectively defund it, or court challenges.
The rule is intended to provide a better way for OSHA to collect injury and illness data through electronic reporting. The agency claims that businesses will not have to record anything more than they already record. However, the difference for industry is that the data will be made public and require disclosure of all records regardless of value. In addition, industry believes it is unfair to distribute this data if an accident is the result of worker negligence. Another concern is that this rule could result in employers underreporting injuries and illnesses.
OSHA FINES TO INCREASEOSHA fines had been capped at the same amounts for many years, but last year’s omnibus spending measure provided OSHA with the right to increase penalties up to 82 percent as a “catch-up” adjustment. After receiving guidance from the Office of Management and Budget, OSHA has decided to raise penalties by about 78 percent, resulting in a maximum fine of $124,709 for repeat or willful violations compared to the previous $70,000. Fines for serious and other-than-serious violations will now be capped at $12,471, up from $7,000.
OSHA will apply the new penalty levels to any fines assessed on or after August 1. However, because OSHA can wait as long as six months following the start of an inspection to issue citations and propose penalties, employers inspected as early as this past February could be fined the new amounts.
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