September 22, 2019

September 20, 2019

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Occupational Safety and Health Administration's (OSHA) Regulatory Agency Holds Surprise

OSHA’s latest regulatory agenda is “aggressive,” but it downplays an issue that until recently the agency had committed itself to regulate, according to attorney Tressi Cordaro.

In its regulatory agenda released last month, OSHA listed action planned on 29 different items. Yet one issue it previously ballyhooed as a rulemaking priority – its Injury and Illness Prevention Program initiative, popularly known as I2P2 – has been relegated to “long-term action,” which some may regard as regulatory-speak for “whenever.”

“They’re trying to get a lot in, and to me it comes down to a lack of staffing to move forward on the rest of the agenda,” Cordaro told BLR. “They’ve prioritized and moved I2P2 to the back burner for now.”

Cordaro described OSHA’s current agenda as “aggressive.” It also may be unrealistic. She expressed doubt OSHA would be able to meet its deadlines for final rules, and, to make her point, called attention to a six-month delay in releasing a recent final rule on electric power generation and transmission.

OSHA has plans to issue three final rules between now and October. They involve changes to reporting and recordkeeping rules, confined space in construction and walking/working surfaces in general industry. Cordaro, who is experienced in handling OSHA issues, believes that by moving these three ahead of I2P2, OSHA decided to see existing rulemakings through to completion before starting new rulemaking on injury prevention.

OSHA also said it would publish a direct final rule by September updating references in its eye and face

protection rule to incorporate the 2010 edition of the ANSI Eye and Face Protection consensus standard (ANSI Z-87.1). By next March, the agency wants to issue a final rule requiring affected employers to submit certain information electronically from the OSHA 300 Log, OSHA 301 Incident Report and OSHA 300A summary. Currently, employers are required to provide this information to OSHA only upon request.

July is OSHA’s target date for release of a proposal on beryllium and a second proposed rule to make corrections and amendments to its standard for cranes and derricks in construction. The agenda set no date for release of a controversial proposed rule on crystalline silica.

OSHA’s immediate regulatory horizon also includes a request for information on a possible new regulation for communication tower safety, set for release this month. A recent spate of fatalities has beset the communications tower industry, and OSHA has been encouraging employers to use best practices to curb it. Requesting information for a possible standard should put affected employers on notice, Cordaro said. She urged the industry to participate in the rulemaking and provide information to OSHA “so that a rule is developed based on accurate facts.”

Listed in the “prerule stage” are regulatory actions on combustible dust, bloodborne pathogens, infectious diseases, preventing backover injuries and fatalities, chemical management and permissible exposure limits, process safety management and prevention of major chemical accidents, and emergency response and preparedness.

Jackson Lewis P.C. © 2019


About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

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Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions by the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Environmental Protection Agency (EPA), Department of Transportation (DOT), National Transportation Safety Board (NTSB), National Institute for Occupational Safety and Health (NIOSH) and other federal and state agencies, as well as in related tort claims and criminal cases, and in EH&S whistleblower or discrimination claims.

To achieve an integrated defense strategy at the initiation of a government investigation or enforcement action, Mr. Chajet coordinates forensic accounting and technical experts, insurance issues, government interviews, document production and public relations experts. He has extensive experience representing clients in cases involving fatal or serious injuries, explosions, chemical releases, fires, manufacturing, transportation and construction accidents, mine disasters and allegations of product toxicity or community harm. Mr. Chajet has served as co-lead counsel in successful, multimillion dollar recovery cases for corporate clients that were “direct purchasers” of commodities and products for which prices were artificially increased through monopoly price manipulation, violating antitrust law.