OSHA Continues “Frenzy” of Rulemaking Activity

by Brad Sant

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As the Obama Administration nears its final year in office, the Occupational Safety and Health Administration (OSHA) has proposed a string of regulations that could have wide-ranging impacts on the transportation construction industry. Contractors will have to become educated about new regulations, train employees and ensure compliance with the agency. In an effort to keep ARTBA members apprised of these activities, here is a brief summary of some of the key new rules and proposed changes:

Confined Spaces in Construction: OSHA’s Confined Spaces in Construction final rule became effective Oct. 2.  It includes several new provisions that address construction-specific hazards that require widespread changes to construction operations for many employers. The rule was originally scheduled to become effective Aug. 3, but ARTBA and industry allies petitioned for additional time to fully review and understand the requirements, and develop the resources needed to properly comply with it. ARTBA’s Sept. 9 webinar to explain the rule drew interested attendees from across the U.S.

Chemical Management and PELs Rulemaking: OSHA has proposed an updated rule on Chemical Management and permissible exposure limits (PELs), with comments due Oct. 9. According to the agency, it plans to explore new ways to control exposure to chemicals in the workplace and consider other approaches to reduce or eliminate harmful chemical contacts.

Silica Rulemaking: Efforts to develop a more comprehensive rule regulating silica exposure are still underway. Among other things, the new rule would reduce the PEL to crystalline silica to half the current standard, with a requirement to begin certain preventative measures when exposures reach 25 percent of the current limit.

ARTBA and its industry partners have been working to ensure the new rule is designed to meet the needs of the construction sector. In June, the Senate Appropriations Committee passed the FY 2016 Labor, Health and Human Services, and Education Appropriations bill, which contains language that may ultimately stop OSHA from implementing the new silica rule. The bill contains an amendment that prevents the silica rule from moving forward until OSHA convenes a new small business panel review and the National Academy of Sciences conducts a study to answer why there should be a new regulation when the mortality rate in the U.S. is vanishing under the current standard. Silica deaths fell from 1,157 in 1968 to 123 in 2007, according to federal data.

OSHA Recordkeeping Clarification Rulemaking: The agency in July issued a Notice of Proposed Rulemaking to clarify an employer’s continuing obligation to document each recordable injury and illness throughout the five-year period employers are required to keep the records. OSHA is issuing this proposed rule to counteract a decision of the U.S. Court of Appeals for the D.C. Circuit, which said OSHA cannot cite employers for failure to record work-related injuries and illnesses more than six months after the initial obligation to document the cases. OSHA wants to raise that statute of limitations from six months to five years.

Walking-Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention): On July 2, OSHA sent a final rule to the Office of Management and Budget (OMB) to update its regulations covering Walking Working Surfaces and Personal Fall Protection Systems to include new technologies and procedures to protect employees from these hazards and to make the rule more consistent with other OSHA standards. The agency published this proposed rule on May 24, 2010, and has been reviewing and responding to comments since that time.

Extended Authority to Collect Information: A federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to such a request unless it is approved by OMB. But OSHA has proposed extending its authority to request and obtain information from employers on the following standards:

  1. Blasting and the Use of Explosives standard information collection requirements (29 CFR 1926, subpart U;
  2. Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (29 CFR 1910.120);
  3. Cadmium in Construction standard information collection requirements (29 CFR 1926.1127);
  4. Asbestos in Construction standard information collection requirements (29 CFR 1926.1101);
  5. 13 Carcinogens standard information collection requirements (29 CFR 1910.1003); and
  6. Hazard Communication standard (29 CFR 1910.1200; 1915.1200; 1917.28; 1918.90; 1926.59; and 1928.21).

In a similar vein, for those members who operate quarries, the Mine Safety and Health Administration (MSHA) is seeking
to continue its information collection authority for Occupational Noise Exposure information collection (30 CFR part 62).

Officials at OSHA are working hard to conclude other new regulations, some of which have been languishing at the agency for several decades. Some of the proposals are fairly routine updates to the existing rules. Others would have significant impacts on the transportation construction industry both in terms of cost and time required to comply.

OSHA’s ability to complete the regulations is partially tied to how industry perceives the need for new rules. For example, the new confined spaces rule was met with little resistance, other than the request for more time for employers to get up-to speed on compliance. In general, the industry felt the new rule was well-designed and needed. The proposed silica rule, on the other hand, is viewed as costly and unnecessary.

These are only a few of the more pressing rulemaking efforts of one agency. ARTBA is also keeping an eye on the Federal Highway Administration, Environmental Protection Agency and other federal regulators to make sure the voice of the transportation construction industry is heard at agency headquarters and on Capitol Hill. We want to make sure any new standards or rules support our members’ interests, or minimize the regulatory impact so our industry can remain competitive at home and abroad.

ARTBA will remain vigilant on this front regardless of whether it’s an election year or the middle of an administration’s term.

Brad Sant is ARTBA senior vice president of safety and education.

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