Blogs

Our last blog about the Costa Concordia and its relationship with OSHA safety standards, written by Dustin, got me thinking about safety standards specific to construction, our core business client. Although many of the standards addressed by Dustin in his blog are required of all California employers, what specific actions should contractors take?  Clearly, contractors must ensure compliance with the Cal/OSHA requirements for which there is a section in Title 8 devoted solely to construction activities.  I, however, don't believe contractors should limit their safety and health programs solely to regulatory compliance; there are many non-governmental standards that, at the very least, should also be evaluated and incorporated into the over safety program as appropriate.  For example, the American Society of Safety Engineers (ASSE) has developed and published numerous standards.  Recently, ASSE announced the approval of two standards aimed at enhancing safety on construction sites, titled, Pre-Project and Pre-Task Safety and Health Planning for Construction and Demolition Operations and Emergency Procedures for Construction and Demolition Sites. What makes these two standards unique is that they encourage contractors to make safety and health a part of the pre-planning process and provide guidance for establishing emergency procedures, including, fire, collapses, rescue, medical, etc.  These are excellent technical guidance documents that assist the contractor in establishing a safe and healthful workplace beyond OSHA and we encourage all contractors to read them.  Let us know if you need help obtaining copies.

This month, the world news reported about the cruise ship Costa Concordia which hit ground and tipped on its side near an Italian island.  Onboard over 4,000 passengers attempted to board life boats to take them to safety.  In the chaos of the night it was discovered that the captain of the cruise ship, along with some of the ship crew, had abandoned their posts and boarded life boats leaving passengers to fend for themselves on the sinking ship.  When it was discovered that the captain had left the ship, he was ordered to "get back in the boat" and fulfill his responsibility as captain to help the remaining passengers get off the ship safely.  The captain never returned to his duties and many people lost their lives in part due to the captain's lack of managing the emergency. 

Several laws and regulations require designating competent persons to be responsible in the event of problems or accidents on jobsites.  How much effort did you put into considering who you named as a 'competent person' or 'responsible person' or 'program administrator'?  Can these individuals adequately handle the responsibility?  Have they been provided the additional training needed?  The disaster of the Costa Concordia demonstrates the importance of ensuring that appropriate individuals in your company have been identified, trained, and are competent to serve in their roles to ensure safety at your workplace.

I guess we shouldn't have been surprised to recently read that after last summer's unsuccessful effort, Governor Brown is still proposing to eliminate the Cal/OSHA Standards Board.  The section of his proposed budget for 2012-13 called "Making Government More Efficient" states that his comprehensive package of "measures to reduce waste and make the state more efficient" includes "eliminating unnecessary boards, commissions, and advisory groups".  Among the proposed efficiency and cost-saving measures in this category (and there are many) is to "Eliminate the Occupational Safety and Health Standards Board and Transfer its Functions into the Department of Industrial Relations."  (see http://www.dof.ca.gov/budget/historical/2012-13/governors/summary/documents/FULL_2012-13_Summary-WEB.pdf)  After we reported last June on the governor's proposal to eliminate the Board in last year's budgeting process, that effort died in legislative committee.  So it appears that the Governor's office didn't see last year's proposal as a defeat and they are trying once again to dismantle the Board and roll its functions into DIR.  The Standards Board continues to have the strong support of both industry and labor and there is no stakeholder group we know of that is lobbying for the Board's demise.  And we continue to believe it is unthinkable that a rulemaking body as important and successful as the Standards Board would be dismantled under the pretense of saving a very small amount of money.  So once again we urge you to contact your state legislator and let him or her know how you feel about the governor's 2012-13 budget plan to eliminate the Cal/OSHA Standards Board.

This month Federal OSHA released their long-awaited Injury and Illness Prevention Programs White Paper.  The 19 page white paper presents the reasons behind OSHA's desire to establish Injury and Illness Prevention Program legislation, but did not give a timetable looking forward.  Along with the release of this white paper, OSHA also initiated a small Business Regulatory Enforcement Fairness Act Panel Process to give small entities (small businesses and local governments) the opportunity to provide input on the impacts of this legislation prior to releasing a proposed rule.  We have been involved creating Injury and Illness Prevention Programs for many of our clients and have long realized the benefits of these programs.  California began requiring these programs in 1991 which according to OSHA, resulted in a net 19 percent decrease in injuries and illnesses after five years.  

According to the White paper 4,500 workers are killed on the job nationwide and an additional 4.1 million workers suffer a serious job-related injury or illness.  Citing data compiled from published literature, OSHA contends that Injury and Illness Protection Programs have been shown to help identify hazards before injuries, illnesses or deaths occur and thereby reduce incidences of each event.  Workplace injuries, illnesses and deaths not only cause damage to the personal lives of those involved but the paper also cites that the direct cost of the most disabling workplace injuries in 2008 was $53 billion.  Working with our clients we can create well designed and effective programs that will, as OSHA contends, greatly reduce the number and cost of workplace injuries and illnesses.  The link below will direct you to OSHA's Injury and Illness Prevention Programs White Paper.

http://www.osha.gov/dsg/InjuryIllnessPreventionProgramsWhitePaper.html

As the first blog of 2012, I thought I would use this space to summarize the status of Fed-OSHA's pending regulations of 2011.  Simply put, nothing was passed, but here is a quick rundown.  GHS (Globally Harmonized System), which many countries have already adopted and has been in the pending mode for the past five years, remains with the Office of Management and Budget (truly sad).  MSD (Musculoskeletal Disorders) changes for OSHA 300 log reporting is off the table, but may return (stay tuned).  I2P2 (Injury and Illness Prevention Program) which was Numero Uno on the OSHA Wish List is still waiting for Small Business Review (badly stalled).  Combustible Dust is dead, I think (at least don't hold your breath).  And, Silica...who knows?  I don't expect much progress during this coming election year, so maybe by 2013 or 14, we'll see some real action by OSHA.  Happy New Year.

The holiday season and end of the year have come again.  Hopefully for all of you 2011 was an improvement over 2010 and certainly over 2009.  Looking forward to 2012 there are several pending issues being addressed by Federal OSHA that could make the coming year interesting.  Here are a few items that we have touched on this year and will continue to follow in the future.

SILICA:

OSHA has proposed lowering the existing silica exposure level through a regulatory amendment.  However, the issue is not moving at this time. The proposal was sent to The Office of Management and Budget (OMB) in February and OMB has continually delayed action.  OMB has held meetings with labor and industry to discuss the proposal but no word on what OMB might conclude.  A committee of the AIHA, on which Tim Bormann from our office sits, recently sent a letter to OMB requesting the proposal be sent back to OSHA with a recommendation one way or the other.

INJURY AND ILLNESS PREVENTION PROGRAM (I2P2):

Following several stakeholder meetings including one in California to discuss this issue, as well as OSHA publicly stating this is the agency's number one priority, the issue seems to have slowed down. The next scheduled effort is a required small business regulatory review. However, there is not yet a scheduled time for this review. While this remains the number one priority, it is also clear OSHA believes the effort will take several years.

Look for our January newsletter when we will do a more thorough update on all Fed/OSHA and Cal/OSHA upcoming activities.  Happy Holidays. 

In OSHA's most current newsletter, they published the top ten most frequently cited standards during 2011.  Scaffolding and fall protection standards were the top two, and according to OSHA, this is a repeat of 2010.  HazCom and Respiratory Protection make up numbers 3 and 4.  My question is why?  I've spent plenty of time on construction sites since at least 1980 and scaffolding and fall protection must be close to the top of the list on every superintendent's mind whenever they walk the job.  Why are construction companies not getting it right (according to OSHA) or what are they missing, when I know it is constantly being evaluated.  Next, HazCom; A standard that has been around since 1985.  Yes, it's cumbersome, and yes, there are many nuances to the standard, but come on now.  OSHA states they publish the list "to alert employers...so they can take steps to find and fix recognized hazards."  If that is truly the case, then I propose OSHA should indicate what sections within each of these regulations pose the most frequent problem so that employers know what needs to be fixed.  Each and every one of these standards is important, so why doesn't OSHA give us the full story so employers know what is needed so that the right steps can be taken.  Everyone wants a safe workplace.

A recent study has shown that as many of 20% of Americans aged 12 and older are affected by hearing loss.  The study published in the Archives of Internal Medicine is the first nationally representative study of hearing loss and it suggests that many more people than originally thought have loss of hearing.  Last year in another study, researchers found that one in five teens suffered from some form of hearing loss, a 30% increase from adolescent hearing loss rates noted in 1988-1994.  The vast majority of the population develops hearing loss with age.  Most of us do not notice hearing loss because it progresses very slowly and is easy to ignore because people have become accustomed to it. 

It has been thought that environmental noise may be a major contributor to hearing loss though according to this recent study, certain groups (women and blacks) appear to have lower incident rates.  How does our 21^st century lifestyle contribute to hearing loss? Does the use of "ear buds" for music and phone affect hearing?  Headlines like "1 in 5 Americans has Hearing Loss" are likely to increase awareness among the public, but will that cause a lifestyle change?  Will manufacturers of portable music sources such as ipods limit the volume music can be played to a more reasonable limit?  

What about workplace factors? Because of the difficulty in recognizing hearing loss without regular testing, it has been long felt that hearing loss is an under-reported health effect in the work place.  Will these recent studies lead to increased audiometric testing in the workplace, a further review of permissible noise levels in the workplace, increased training and use of hearing protective devices?  What is clear, is that we are seeing more hearing loss and there are many possible sources, including lifestyle, that need controls.

I was reading a safety and health newsletter article about a recent public hearing before the Cal/OSHA Standards Board to discuss comments on a proposed change to Section 3276 of the GISOP regarding the required frequency of portable ladder inspections and was stuck by what I thought was a foolish argument.  The issue before the Board was whether to further define the requirement for "frequent" ladder safety inspections with more specific language such as "at least monthly".  The petitioner believes that the word "frequent" is too ambiguous and since the Cal/OSHA regulations (§3207(a) - Definitions) state that "frequent shall mean more than twelve times each year unless specifically stated otherwise in individual orders," the ladder standard should be revised accordingly.  But a change to an "at least monthly" requirement would seem to imply that an employer would need to demonstrate that all ladders used by the employer are inspected more than 12 times a year, which would be an unreasonable administrative burden for many employers, to say the least.  Isn't there a more common sense solution?  I agree with at least two hearing attendees who commented that a ladder is just a tool that should be inspected before it is used.  Do we really need to debate how frequent is frequent in such a simple matter?  The standard (§3276(e)(1)) clearly states "Ladders shall be maintained in good condition at all times, the joint between the steps and side rails shall be tight, all hardware and fittings securely attached, and the movable parts shall operate freely without binding or undue play".  It further states "Ladders with broken or missing steps, rungs, cleats, safety feet, side rails, or other defects shall not be used".  It doesn't take a highly trained person (e.g., a "qualified person") to quickly check a ladder for those basic functional aspects and determine whether it's safe for use.  It seems to me that every ladder user should be able to do that after receiving some simple instruction and that appropriate language could be incorporated into the standard to require portable ladders to simply be inspected before use.  Am I missing something here?

The California Department of Toxic Substances Control (DTSC) attempted to clarify the definition of "the practice of geology" in its September/October and November/December editions of the Registered Environmental Assessor (REA) e-newsletter.  In the newsletters DTSC states that, "Soil or groundwater sampling, boring logging, geologic mapping, well design, sampling and analysis plan for soil and ground water, and any other subsurface data collection and interpretation which constitute the practice of geology as defined in the Geologists and Geophysicist Act Section 7802 must be performed under a Professional Geologist or Professional Engineer - Civil - who maintains responsible charge of work."

The section DTSC referenced from the Geologist and Geophysicist Act states, "Geology, as used in this chapter, refers to that science which treats of the earth in general; investigation of the earth's crust and the rocks and other materials which compose it; and the applied science of utilizing knowledge of the earth and its constituent rocks, minerals, liquids, gases and other materials for the benefit of mankind."

Those working under REA licenses should take notice not to perform work as described above unless under the supervision of a Professional Geologist or Civil Engineer.  What remains unclear in my mind is, the collection of any soil, e.g., surface sampling, considered work that must be performed under a geologist? If so, the geologists have carved a unique niche in the environmental sampling arena.  Below is the link that DTSC provided in the newsletter to its webpage of citations and administrative actions taken against those conducting the "practice of geology" incorrectly.  It appears that DTSC wants us to learn government regulations by reading other peoples' mistakes. 

http://www.geology.ca.gov/consumers/enforcement/admin-actions.shtml  

A dumb question you say?  Some would say we don't warn enough. The question came up during a presentation on OSHA in which I was a speaker and it was specifically directed at California's Prop 65 warnings.  For those who may not know, Prop 65, the Safe Drinking Water and Toxic Enforcement Act, was passed by the voters in 1986.  According to its authors, one part of the act was intended to protect the public from exposures to chemicals.  Getting back to the question raised about over-warning, the answer from those attending the class was a resounding "Yes."  Some attendees even stated that their perspective of the Prop 65 warning was that it had no effect on changing behavior. Others said if it was informational only, the warnings again failed.  Based on this discussion, I started asking my neighbors and others if they saw and read the Prop 65 warnings found in restaurants, gas stations, department stores, and of late at my Starbucks.  Virtually everyone I spoke to stated that they didn't read the warnings and those that did had no reaction to them, even though some of the verbiage mentions exposure to known cancer-causing agents and chemicals known to cause birth defects. In speaking to management at one Starbucks, I was told that not a single person has asked a question regarding the newly posted Prop 65 warning.  So, are we becoming indifferent by these warning in our daily lives? If so, is it because we are over-warning? 

I read an interesting article on-line at www.lifescience.com that discussed a study out of Norway looking at the survival rate from cancer of single men and married men.  Although this study has nothing to do with environmental health, as a married man and a cancer survivor I found the article of great interest.   Briefly, the study showed that in 1970 never-married men with cancer were18% more likely to die of the disease than married men. The risk increased to 35% in 2007 and this was regardless of age, education and cancer stage. Divorced and widowed men were also more likely to die due to cancer than married man, though the risk doesn't increase with time. Never married women were also less likely to survive cancer than married women.  It's nice to know women benefit from being married and not just the men.

Is this just an interesting statistic or is it a valid observation.  Unfortunately, data dealing with cancer sites, cell types, life-style difference (other than the study was limited to Norwegians) were not thoroughly described in the article. The author also suggests that some experts in the U.S. think the disparity could be greater in the U.S. due to difficulty for some to access the health care system in the U.S.  Norway has a national healthcare program  The study also suggests that marriage has a positive effect on the health of men and women, primarily due to the pressure the spouse may apply to lead a healthier lifestyle.  I will leave the interpretation of the study up to you.

The fatal shootings last week by a "disgruntled" employee at a Cupertino cement plant brought the normally distant issue of workplace violence directly into our homes and workplaces.  According to one researcher, two workers, on average, are killed at work in a workplace violence incident every day in the U.S.  Bureau of Labor Statistics (BLS) data indicate that more than 3,000 people died and more than 15,000 were injured from workplace violence in the 5-year period from 2006 to 2010.  Deaths resulting from workplace violence have ranked among the top four causes of occupational fatalities in American workplaces over the past 15 years.  The issue is much more pervasive than many of us have been aware.  The question is: can such seemingly random and unpredicatable incidents be prevented from occurring in the workplace when employers cannot simply use the traditional safety management methods of recognition, evaluation and control that are used to address normal work-related hazards?  OSHA has issued guidance documents addressing the prevention of workplace violence in some high-risk occupations, such as work in late-night retail estiablshments and in social service settings, where the risks to employees can be anticipated.  But I would not consider the Cupertino cement plant (nor most other California workplaces, for that matter) a "high-risk" environment for employee-related violence.  NIOSH studies have shown that employers who implement effective safety measures, such as training, violence hazard analyses and encouraging employees to report assaults or threats, can reduce the incidence of workplace violence.  Consider writing a workplace violence program for your workplace and circulating it to all employees.  Maybe it's time we all take a closer look at the possibility of unexpected violence in our own workplaces and the steps we can take to identify potential preventive programs to protect our employees.  What do you think?

A decision by the Cal/OSHA Appeals Board got me thinking about personal and company privacy rights.  I read how the Appeals Board denied an appeal made by an employer who was alleging that a Cal/OSHA inspector had violated the employer's Fourth Amendment rights, which protects from warrantless inspections.  The Cal/OSHA inspector had rightfully entered into a public area of the employer's facility and presented proper identification.  The inspector was then informed that the person in charge of the facility was not present.  The inspector told the employer's secretary that she wanted to continue the inspection without him present and would come back with a warrant if she was denied access to the facility.  The secretary then granted the inspector access to the facility and accompanied the inspector during the inspection.  The Appeals Board found that because the secretary had granted access to the inspector that it became a consensual inspection and the resulting citations remain valid.

If Cal/OSHA, the police or any other government official comes to your workplace or home, you are not required to allow them entry unless presented with a valid warrant.  A procedure should be established for handling government officials when they visit your workplace (private property) prior to receiving a surprise visit like what happened above.  Employees that may be confronted with a governmental official while the "person in charge" is not present should be informed on how to act in such an event.  A suggested inspection policy is provided in The Cal/OSHA Source, written by Joel Cohen and Bob Peterson [see chapter 9] that is worth reviewing.  Respect of privacy rights is important for government, business and individuals alike.

I received a text from the City of San Mateo that they are planning a DUI checkpoint over the weekend.  The text states that "DUI checkpoints are a proven enforcement tool effective in reducing the number of persons killed and injured in alcohol involved crashes, as well as being a valuable means for heightening awareness of the dangers of impaired driving." I agree in concept with these sobriety stops and wonder how many employers use the "checkpoint" concept at the workplace to verify compliance with safety rules.  Cal/OSHA, when conducting its site inspections commonly pulls aside an employee or two to question their knowledge and understanding of the company's safety and health program.  Wouldn't such a concept be a wonderful addition to a company's EH&S program?  Why not add these periodic 'checkpoints' to your program to verify your employees' knowledge of your EH&S program in hopes of preventing workplace injuries and illnesses?  If they flunk the "knowledge checkpoint" test, then maybe it's time to improve your training program effectiveness or provide refresher training.   Just a thought.

In preparation of a newsletter article on site-specific confined space procedures and training, another controversial confined space topic came to mind but was not addressed in the article.  Section 5157 of the Cal/OSHA standards (General Industry) requires the preparation of a permit for entry into a confined space that 1) contains or has the potential to contain a hazardous atmosphere; 2) contains a material that has the potential for engulfing an entrant; 3) has an internal configuration that could cause an entrant to be trapped or asphyxiated (e.g. inwardly converging walls); or 4) contains any other recognized safety hazard.  The entry permit is an employer-generated document that is only required for permit-required confined spaces found in general industry.  Entry permits are not required for construction activities (Section 5158).

It is the nature of the work, not the nature of the employer that determines whether Section 5157 applies.  Even though maintenance and repairs fall under Construction Safety Orders and thus Section 5158), I recommend that the use of an entry permit be considered.  Though not required at construction sites, many construction contractors use permits for entry into confined spaces.  The elements contained in a typical permit provide an excellent checklist to ensure the means, procedures and practices necessary for safe entry into confined spaces.  As a practical issue, it doesn't really matter whether contractors are specifically covered under the general industry safety orders and Section 5157, they should take precautions when entering confined spaces and the use of the permit system, particularly the entry checklist, can help to ensure safe entry procedures are being addressed and followed. On many occasions, I strongly encourage the use of permits for contractors for these very reasons.

I read a poignant article in a recent issue of a national EH&S publication about how we are different now as a result of our individual and collective experiences of the terrorist attacks of September 11, 2001 and it caused me to reflect.  In the article, a number of EH&S professionals told their personal accounts of how they were affected on the day of the attacks and the author that 9/11 had a lasting impact on our profession and that we are different now.  But has the EH&S profession really changed?  A lot has occurred since that fateful day 10 years ago, particularly in the immediate aftermath of the attacks, but much seems to have faded from our memories.  Remember the anthrax mail "attacks" and the anxiety of ensuring safe mail room deliveries?  Remember the color-coded terror threat alert system?  Obviously, our transportation and facility security precautions (particularly for airline travel) have been permanently changed, but outside of heightened security and emergency response preparedness measures, what lasting impacts have we seen on the day-to-day operations of the EH&S community?  From my perspective as a consultant who works with a variety of mostly small, regional clients, I don't see a great deal of change in the way I go about supporting them from what I did 10 years ago.  But maybe it's a matter of perspective.  I can only surmise that EH&S professionals supporting operations in large, multi-national corporations may have a much different perspective.  With the 10-year anniversary of 9/11 and the remembrances upon us, it is certainly a good time to pause and reflect.  As individuals and as a nation, the events of 9/11 changed us forever and we will never forget.  But how have your duties as an EH&S professional been changed as a result of that horrific day 10 years ago? 

On September 8^th the Hollywood horror/thriller movie Contagion staring Matt Damon opens.  The movie chronicles the outbreak of a worldwide viral pandemic and the dramatic events that could possibly follow.  Last week, in a move that almost seems like a public relations stunt for the movie, the United Nations Food and Agriculture Organization (FAO) warned of a possible major resurgence of the H5N1 flu virus.  FAO reported that a new strain of the H5N1 avian flu virus is spreading in Vietnam and China and is resistant to existing poultry vaccines. 

Following the FAO warning, both the World Health Organization (WHO) and the World Organization for Animal Health (OIE) released reports that downplay the significance of the strain of H5N1 virus reported on by FAO.  WHO released statements that they have been tracking the strain since February and that according to available information the strain poses no increased risk to public health.  OEI reported that manufacturing and registration of a poultry vaccine for the new strain is in progress.

The recent news concerning avian flu is reminiscent of the outbreak and resulting public health event that occurred in the winter of 2008 and 2009.  During that outbreak, workers and employers in high risk occupations such as health care and emergency services were scrambling to ensure that they had the training and equipment to adequately protect themselves and the public.  While the current situation appears to be under control, it serves as a reminder to review your plans to ensure you will be adequately prepared with supplies and training materials "when" the next viral pandemic event occurs.     

I have, with great interest and a certain amount of bafflement followed the issue of global warming and how it has become such a politically charged issue over the past few years.  One side indicates that it's a clear and present problem while another side claims it's only a scientific theory and that we as a country should not be spending money on exploring the possible problem and cause. An overwhelming majority of scientists believe that pollution released from the burning of fossil fuels is heating up the planet.  I also recall a trip I recently took to Glacier Park in Montana/Canada where I learned the park currently has 27 glaciers versus 150 in 1910.  The average temperature around the world has reportedly risen 1.4 degrees since 1880 according to NASA. According to the multinational Arctic Climate Impact Assessment report, the average temperature in Alaska and eastern Russia has risen at twice the global average.

Yet some groups feel that scientists are manipulating the numbers. I have to ask, for what purpose?  The science community which often disagrees over most anything is pretty much in agreement that global warming is real and the only debate is how much and how fast warming will continue as well as it is caused by man. Each side of the debate has its own spin on the facts.  Most agree that long term effects of global warming, if it will continue as opposed to a climate artifact, may be devastating.  That being the case and recognizing that there is difference of opinion, shouldn't we as a country, as a worldwide society at least encourage researching this phenomenon and study causes and potential solutions? I personally don't see the benefits of escalating the emotionally and political charged rhetoric.  Why not establish a multinational scientific committee to research the issue to help the public and governments make informed decisions.  This was attempted by the United Nations but their reports to date have come under heavy criticism. We may never find a reasonable approach, until it's too late. Time will tell.

We are frequently asked to write or review product labels and warnings, so when I read about the new warnings the US Food and Drug Administration is requiring for tobacco producers, it caught my eye.  If you haven't heard, the FDA is requiring cigarette packages to contain not only warning language but also images of decaying bodies, rotted teeth, etc. as an indication of the effects from smoking.  Not surprisingly, the tobacco industry filed a lawsuit arguing that the new product labels are unconstitutional under the first amendment right of free speech.  We are not talking about Joe Camel; these are horrible and disgusting images.  I hate tobacco smoke and I think cigarette smoking is a horrible habit.  That said, I'm not in favor of our government's approach of requiring these incredible warnings on cigarette packages.  Clearly, there are two camps on this topic.  I agree that warnings should be clear and understandable.  But, have we gone too far when we require producers to place this type of warning on their packaging?  If you are of the camp that loves these warnings in hopes of stopping this horrible habit, than why not put similar labels on other products that potentially cause fatal outcome?  For example, automobiles cause deaths.  The US Department of Transportation reports that, on average, there are 100 deaths per day due to car accidents.  So why not put a label on the inside visor of vehicles showing pictures of mutilated bodies from car accidents?  We could require the same labels on alcohol bottles in hopes of preventing auto accidents from DUIs.  Isn't this all the same as the cigarette warning? Or is this type of argument regarding warnings simply a slippery slope?  Again, I am not a cigarette smoker and don't like cigarette smoke, but the FDA-mandated warnings just seem out of line and may not have the intended result.

Once again, Cal/OSHA is defending one of its "at least as effective as" standards against the Federal requirements.  The concept is simple.  Cal/OSHA can establish a standard different than the feds as long as the standard is as 'stringent' as the federal requirement.  This time it's the portion of the fall protection standard that applies to residential construction that's at issue; in particular the trigger height of 15 feet that applies to roofers working on new homes in California.  In an effort to reduce the number of fatalities that have occurred in residential construction nationwide in recent years, Fed-OSHA has rescinded an interim fall protection policy that was implemented during the Clinton administration.  That policy had relaxed the OSHA fall protection requirements to allow employers to use alternative procedures, such as fall protection plans, in order to give employers greater flexibility in providing fall protection for their employees.  Now that Fed-OSHA has decided to go back to enforcing its original standards for residential fall protection, with its universal trigger height of six feet, there is renewed scrutiny of the Cal/OSHA requirements for roofers and a real concern among California employers that the Feds may try to require the state to fall in line with the 6-foot trigger.  For the time being, however, it appears that DOSH will be able to successfully fend off Dr. Michaels and company.  Because of Cal/OSHA's continued emphasis on conventional fall protection measures rather than allowing the use of fall protection plans that Fed-OSHA had permitted under its interim policy, Federal OSHA has recognized our California rule for roofing work as being "at least as effective as" the Federal fall protection regulations.  Let's hope that remains the case, since the Cal/OSHA standard setting the 15-foot limit has been a popular and successful rule that was crafted through a series of stakeholder meetings with the construction industry.  We have recognized the success of this particular Cal/OSHA standard in our work with residential construction clients and fully support its continuation.  Let this be another instance when "being different" in California also means being "just as good."

As industrial hygienists, we visit and evaluate many different workplaces which offers us the luxury of comparing and contrasting was how different employers deal with health and safety issues.   It is unquestionable that employers we work with care about the health and safety of their employees, but each worksite we visit and each plan we evaluate are different.  I recently read an article in one EH&S magazine where the contributor called safety in the workplace a social determinant.  The author was referencing a US Department of Health and Human Services agenda (People 2020) in which, interestingly, safety on the job was listed under the title of "social determinants of health".  I've never thought of safety at work as a socially responsible action, but maybe so.  After all, we want safe neighborhoods, good schools, so why not a safe job?  This past year, the International Standards Organization (ISO) issued a new standard, 26000, titled, Guidance on Social Responsibility.  ISO standards are reviewed and adopted by employer stakeholders from around the world. This ISO document interestingly addresses labor practices and how they inter-relate with social issues, including human rights, consumer issues and the environment.  In a meeting I attended a few weeks ago, Ellen Widess, the new Cal/OSHA Chief, made it clear that employers who do not recognize their responsibility to ensure a safe and healthful workplace will be cited with larger penalties and, if necessary, their actions will be turned over to the local DA.  She even made reference to two or three companies where such action is taking place.  Fortunately, the vast majority of companies recognize, and I think we will all agree that unsafe work sites and work practices are unacceptable.  Health and safety on the job is not only a legal mandate, but it is the socially responsible thing to do.  We must continue to strive for the goal of safe workplaces. Employers should continue to recognize safety in their day-to-day activity.

A federal judge recently upheld a subpoena issued by Federal OSHA requesting inspection records from the Workers' Compensation insurer of a company where two workers were killed in a grain bin accident last fall. The subpoenaed insurance company argued that enforcing the OSHA subpoena could discourage businesses from allowing insurers to conduct safety inspections if the resulting reports can be used against the business during litigation or enforcement proceedings.  OSHA Assistant Secretary David Michaels stated that worker' compensation loss control activities overlap with OSHA efforts to bring about safe and healthful workplaces. 

The court's ruling may have far reaching implications for both insurers and their clients.  Many insurers provide health and safety services, often including site inspections with findings documented in written reports, with the insurance loss control representative often asking for a response for correction of hazards.  With OSHA potentially accessing these reports there is certainly a potential liability for the business with respect to identified safety and health hazards.  How did the business respond? Did they fix the problem? Did they perform the necessary training? Did they document their actions to show good faith in correcting the issues identified by the insurer?  Will businesses discourage inspections by the insurance company?  Will the insurer alter their inspection and finding reports, or possibly giving the insured a verbal report only?  According to a Cal/OSHA spokesperson, Cal/OSHA has never attempted to subpoena insurer records.  It will be interesting to see what ramifications this ruling may have both nationally and in California.  This situation is unfortunate; both the insurance company and OSHA are seeking the same goal of a safe workplace. It is certainly not in the best interest of the insurance companies and their clients to build defenses against potential OSHA involvement.  Their focus as well as OSHA's should be on the safety and health of workers.  Why can't both organizations work together without fear of retribution?  Are we seeing the start of a change in OSHA?

Over the past year details have continued to come forward about work practices at a West Virginia coal mine where an explosion last year killed 29 workers.  Recent news reports have indicated that official, external records and additional internal records on safety and production were being kept at the mine.  The official records that were being shown to mine inspectors prior to the explosion did not contain all of the required information on safety.

Keeping multiple sets of records is not a violation of regulations.  However, specific items concerning safety must be recorded according to regulations.  Thorough record keeping allows investigators and safety professionals to understand possible problems that may be occurring, and allows them to provide corrective action where needed to increase jobsite safety.  Keeping some or all of the safety information out of official records may have caused the loss of life that resulted from the mine explosion.  We don't know if the explosion would have been prevented with correct record keeping but this type of incident underscores the importance of tracking safety information at a worksite. Cal/OSHA's IIPP regulation mandates that every worksite conduct periodic worksite inspections and record of corrective actions.  We strongly encourage every employer to follow this regulation which is not time consuming or costly.  Rather, such records should be viewed as a means of saving the company money.  We will continue to look for lessons that can be learned from this event to help increase safety of workers.

We've discussed the issue of silica in our newsletters and blogs many times.  It is acknowledged by most that something needs to be done to bring the existing requirements current, but, we only see limited activity at the federal level.  At Cal/OSHA, some activity is seen, but silica has not made its way to the Health Expert Advisory Committee (HEAC) for discussion about a new PEL.  Cal/OSHA does have a Policy and Procedure concerning crystalline silica inspections which I think was specifically written in light of the Dry Cutting of Mortar and Concrete Standard passed in 2008 (see P&P C-51and 8CCR1530.1). 

Federal OSHA last discussed a new standard for silica almost 10 years ago.  To date, the Federal OSHA PEL for crystalline silica is still based on the AGCIH TLV recommendation from 1968.  Cal/OSHA has at least updated its PEL in the past several years, but it may also be out of date in light of the 2006 ACGIH TLV, which lowered the TLV to ¼ of the Cal/OSHA PEL and added an A2 Carcinogen notation.

At the AIHA Annual Conference in Portland this past May, Dr. Michaels made it clear that revising the silica standard was a top priority for his agency, but what is happening? We last heard that OSHA sent a proposal to the Office of Management and Budget this past February and we thought we would see a final draft by April 2011, but nothing surfaced.  We are now hearing that 'additional analysis' is being done by OSHA and OMB through some stakeholder meetings.  So when are we going to see this long awaited final draft?  Who knows, but my guess is not during this administration.

We were certainly encouraged to read the news of several recent positive developments that could ultimately result in the rescue of the Cal/OSHA Standards Board from its proposed demise under the Governor's current budget plan.  A budget subcommittee in the state Assembly has unanimously voted to oppose the Governor's plan to eliminate the Board, but their decision must now be reconciled with the opposite vote of the Senate's budget committee to adopt the Governor's recommendation.  The Assembly subcommittee members apparently heard and sided with the concerns of both labor and employer groups who have joined to adamantly oppose the plan to dissolve the Board and its open rulemaking process.  The Board's supporters have made a point of noting that no general funds are used to finance the Board's operations since it is entirely funded by assessments placed on the workers' compensation premiums paid by employers.  More importantly, any monetary savings realized by eliminating the Board would be insignificant since the Standards Board's budget is quite small.  It is also comforting to know that Proposition 97, approved by voters in 1988, requires a "supermajority" (two-thirds) vote of both chambers of the state legislature to eliminate any of the three pillars of the Cal/OSHA program, such as the Standards Board.  Thus, we remain hopeful that the Board will survive the Governor's budget slashing axe and will continue to be a viable institution for developing consensus-based safety and health rules in California.  If you haven't already done so, let your elected state representative know how you feel about the Governor's ill-advised proposal to dissolve the Board. 

Last night my wife forwards an email to me that was forwarded to her regarding how singer Sheryl Crow's breast cancer was a result of dioxins that formed in plastic water bottles she used. The email, which sounded very credible, stated that the information was retrieved from the Walter Reed Medical Center.  My wife got mad at me for laughing, but my reasoning for doing so, is that she and many others are taking these urban legends as fact.  I went to the Walter Reed Medical Center website and not surprisingly, I could not find a thing about plastic water bottles and dioxins relating to breast cancer.  I've seen similar emails attributed to research at Johns Hopkins, Harvard, you-name-it, and of course, it is all a hoax.

Now, regarding the issue of plastic water bottles and dioxins - as an industrial hygienist, I can say that dioxins are extremely toxic.  The US EPA states that dioxins are both naturally-made and man-made.  The man-made dioxins are generally formed by combustion, unfortunately, much of the time from incinerating our waste.  Everyone is exposed to low levels of dioxins.  Human exposure occurs most often from eating fatty foods (some meats and fish).  Animal testing indicates that exposure to elevated levels of dioxins cause ill health.  Correlating animal tests results to humans is not an easy task and it is outside of my expertise so I will not comment.

There are no dioxins in plastics.  Dioxins do not diffuse into the water of plastic bottles when one freezes the water.  Regardless of what you may read, this simply will not occur.  Regarding cooking or microwaving with plastics, my advice is, use plastic products intended for microwave use and follow the manufacturer's warnings.  Interesting as they may seem, in lieu of reading emails like the one about Sheryl Crow, I recommend going to the US Department of Agriculture Food Safety website, where there is excellent factual information about microwave cooking with plastics.  Bottom line for me - I would be more concerned about the quality of the water placed in plastic bottles than the plastic bottles.  Can't wait for my next email health warning!!

We are extremely pleased to announce that The Cohen Group has been approved by Cal/OSHA as a training provider for Asbestos Cement (AC) Pipe Training.  As with all training conducted by The Cohen Group, our classes not only cover the required materials, they are also tailored to the training needs of each employer. 

Under Title 8 CCR Section 1529 "Asbestos," employees engaged in Asbestos Cement Pipe Operations must be trained and certified by a Cal/OSHA approved training provider.  AC Pipe Operations include the installation, repair, maintenance and non-destructive removal of AC Pipe.  In addition, all AC Pipe Operations must be supervised or performed by a "competent person," i.e., an individual who on the basis of training and experience is capable of identifying existing asbestos hazards in the workplace and selecting the appropriate control strategy for asbestos exposure, and who has the authority to take prompt corrective measures to eliminate the hazards.  Training classes are 4 hours in length and include classroom and hand-on instruction in all aspects of AC Pipe Operations.  Training must be conducted at the time of initial assignment and at least annually.  The Cohen Group stands ready to assist you in your AC Pipe training needs.

If you haven't heard about AB553, you need to, particularly if you are a health and safety professional in California.  The bill, sponsored by Assemblyman Monning claims that the rights of workers must be protected from exposure to hazardous substances and toxic materials. If passed and signed by the Governor (remember we are talking about Governor Brown) it would require the Cal/OSHA Standards Board to establish PELs that meet specified criteria with "an emphasis on obtaining the highest degree of health and safety protection."  The bill is moving through committee and is scheduled to be heard by the Assembly Labor and Employment Committee on April 13.  The concept is laudable, but the method is out of kilter.  Substantial amendments are needed to make this bill even close to reasonable.  I was particularly struck by several issues raised in this bill, including: 1) Don't we already have a PEL process within Cal/OSHA and doesn't it work? I, for one, have been impressed with the HEAC Committee and their efforts.  More importantly, the HEAC Committee is a science-based committee of members representing all interested parties, so it is truly a consensus approach to setting PELs. 2) How is AB553 going to get around Labor Code Section 147.1 which clearly says that DOSH is the designated body for PEL recommendations to the Standards Board? And lastly, 3) AB553 seems to recommend an approach for standard setting that is completely different than any other occupational health organization I am familiar with.  This bill seems to be a resurrection of AB515 from a few years back, which was driven by an activist group. I guess they are at it again.

The Cal/OSHA Standards Board has scheduled a public hearing for proposed changes to the permissible exposure levels (PELs) for several compounds including toluene.  The proposed changes reduce the PEL for toluene from 50 ppm to 10 ppm, one-half of the corresponding ACGIH TLV which is set at 20 ppm.  Cal/OSHA often relies on the data used by ACGIH to set new PELs.  However, in this case, Cal/OSHA chose to reference studies used by US EPA to set the reference dose (RfD) for toluene as the basis for the new PEL.   

Simply put, the proposed PEL is based on an average no observable adverse effect level (NOAEL) of 34 ppm identified by US EPA.  The NOAEL was derived from a series of studies of occupational exposures to toluene.  An intra-species uncertainty factor of three was then applied to the NOAEL to come up with the proposed PEL of 10 ppm.  When setting the RfD, US EPA divided the NOAEL by an uncertainty factor of 10.  US EPA, however, used the large uncertainty factor to account for sensitive groups such as pregnant women and children.  It appears that because Cal/OSHA is focused on workers, which as a group is considered a healthier population than the whole population, they felt the uncertainty factor of 3 was adequate to protect nearly all workers.  Because the studies cited by US EPA were from occupational exposures, a lower uncertainty factor is adequate, therefore, a 10 ppm PEL makes sense.  If you have any comments or concerns with the proposed changes, the public hearing is set for April 21^st in Sacramento.  

OSHA recently made an about face and announced that it has withdrawn its proposal to change its enforcement policy regarding the use of "feasible" engineering and administrative controls to reduce noise exposures in America's workplaces.  As we discussed here back in October, the agency was poised to begin mandating that employers begin implementing "feasible administrative or engineering controls" to reduce noise exposures before being allowed to control exposures through the use of hearing protection (PPE) by employees and hearing conservation programs, a reversal of the policy they had maintained for nearly three decades.   

As expected, a strong outcry from business and industry groups (and some apparent Congressional political pressure as well) caused OSHA to reconsider going forward with their proposal.  Orginally slated for a 60-day comment period, the agency added another 90 days to accomodate the large number of responders who wanted to formally comment.  Many stakeholders predictably expressed their concern about the difficulty and expense of complying with the proposed policy change.  OSHA stated that it realized that the noise control issues it raised "requires much more public outreach and many more resources than we had originally anticipated" and it had "decided to suspend work on this proposed modification while we study other approaches to abating workplace noise hazards."  It was not difficult to see this result coming, especially in the current climate of cost-cutting and concerns about new regulations that might restrict the ability of businesses to create new jobs. 

In addition to reviewing the comments receiving on its proposal, holding stakeholder meetings, and consulting with NIOSH experts and others, OSHA stated that it would "initiate a robust outreach and compliance assistance effort to provide enhanced technical information and guidance on the many inexpensive, effective engineering controls for dangerous noise levels."  This seems to us like the one area where the agency should focus its resources and may be able to produce "the most bang for its buck."  Employers, particularly small and medium sized business owners need a place where they can go to find those "many inexpensive and effective" control solutions to their noise problems.  We think a centralized, clearing house of information on noise controls, especially simple measures that employers could readily implement, would be a great step forward and one that would be in line with the agency's professed efforts to provide outreach and compliance assistance.  How 'bout it OSHA?

The Cal/OSHA Asbestos Unit has scheduled a public hearing for February 28, 2011 in order to discuss proposed rule changes to Title 8 sections 341.13 through 341.17.  The sections cover rules the Asbestos Unit must follow when approving, denying or suspending registration and approval for asbestos related work, asbestos consultants and/or site surveillance technicians, and asbestos training and course providers.  Though many of the proposed changes are cosmetic, some of the changes could greatly affect businesses registered to handle asbestos as well as asbestos-training providers.  For example: 

• Proposed changes would no longer include specific time procedures for denial, suspension or revocation of registrations, but would refer to the General Rules of Practice and Procedures in sections 340.40 through 240.52
• Worker and craft worker courses like ac pipe training or roofing work may be approved in languages other than English
• Examples of "Good Causes" for denying, suspending or revoking training courses and certificates are listed

The one change that I found particularly interesting was that Cal/OSHA would no longer be required to hold a hearing before denying or revoking licenses or registrations.  The proposed rules appear to only require Cal/OSHA to have found good cause and then give notice of the denial, suspension or revocation to the entity affected.  The entity receiving the notice would then be required to notify the Division if it would like a hearing concerning the notice, within the appropriate time frame.  Below is a link to the proposed changes.

http://www.dir.ca.gov/DOSH/DoshReg/AsbestosTraining/M%20341%20final%20revision.pdf  

Cal/OSHA is taking steps towards possibly revising the medical monitoring and removal sections of its comprehensive lead exposure standards.  The current standards - General Industry Safety Orders § 5198 and Construction Safety Orders § 1532.1 - were adopted back in 1978.  Since then, additional medical evidence suggests that health effects occur at blood lead levels well below the current regulatory levels at which workers must be temporarily "medically removed" from work place locations and activities that could result in lead exposure.  Currently, blood lead testing is required when the worker is exposed to airborne lead levels at or above the airborne action level (30 ug/m³) and workers must be medically removed when 3 consecutive blood tests show a lead level equal to or greater than 50 ug/dl (micrograms of lead per deciliter of whole blood).  Cal/OSHA's recommendations (based on current medical literature) are now calling for medical removal at 30 ug/dl.  Proposed regulatory changes may also include monthly blood monitoring for new workers in their first 3 months on the job or when tasks change to result in a higher exposure. 

Whereas on the surface these may not seem like significant changes, a few questions come to mind: Will the basis for medical testing still be exceedance of the airborne action level? Will the action level change? Would testing for new employees include baseline testing at the time of hire?  Also, there are numerous environmental factors not related to a person's employment which may lead to elevated blood levels, including hobbies, home repair work and various food sources.  At the very least, changes to the blood lead testing and medical removal requirements would likely require more investigation on the part of the employer with regard to potential non-work-related sources for elevated blood lead levels.  The proposed changes are still at the Cal/OSHA advisory board level and a written proposal has not yet been released.  While I am not necessarily opposed to the reduction to 30 ug/dl, I am concerned as to how some of these potential issues will be addressed and what their impact on employers will be. 

Maybe the title of this blog should be "To What Extent Will Governor Brown Put His Imprint on Cal/OSHA?"  Some changes have already been made.  First, we see a new Secretary of the Labor and Workforce Development Agency.  This position was previously held by Vickie Bradshaw, an extremely knowledgeable and competent administrator.  Governor Brown has appointed Marty Morgenstern of Oakland.  Since 2003, Mr. Morgenstern has consulted for the University of California on labor relations matters.  Prior to that, he was the Director of the Department of Personnel Administration.  I know nothing about Mr. Morgenstern, only that he will have big shoes to fill with Vickie's departure.  When I last checked, John Duncan was still the Director of Industrial Relations and Len Welsh was still the Director of DOSH (Cal/OSHA).  Both are superb administrators and I hope they both remain in their existing positions.  The Cohen Group and Joel Cohen, in particular, have had the good fortune of working with Len for many years.  We have always found Len to be extremely competent, knowledgeable and fair through our work with him both in his current position as well as in his former positions with Cal/OSHA.  We think it would be a great loss to the Division if Len was not re-appointed.  Cal/OSHA is the premier occupational safety and health regulatory agency in the country.  Even Federal OSHA follows Cal/OSHA's lead, most recently attempting to duplicate our IIPP regulation, which was promulgated more than 20 years ago.  We encourage you to write a letter of support for Len. 

The dreaded AB 2774 became law on January 1.  Some are calling it California's most important piece of occupational safety and health legislation in the past decade, and one of the most significant changes made since Cal/OSHA was originally formed.  The new law changes DOSH's approach to issuing serious violations to employers and prescribes specific steps that DOSH must follow in establishing its case for the violation.  As we last reported back in early October - when the Governor signed the bill - the bar that must be met by DOSH to establish the serious classification has been lowered.  DOSH is now only required to show that a "realistic possibility" exists that death or serious physical harm could result from the hazard created by the violation.  The changes will also make it more difficult for employers to appeal serious citations.  Still, there is some good news contained in the bill - employers can rebut the allegation by demonstrating that they "did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation."  To do this, the employer needs to assert an affirmative defense and show that it took "all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation."  So it appears that employers with active safety programs and good documentation of their program implementation will have a much better chance of defending themselves from a serious allegation than companies who only have "paper" programs and can't show that their training and hazard inspection programs are complete and current. 

At the January 6 Advisory Committee meeting, Cal/OSHA stated that they are developing a new P&P detailing how this will all work.  Based on what was said by Amy Martin, Cal/OSHA Legal Unit, we understand that the employer will be provided with a form regarding the alleged serious citation prior to issuing the citation.  The employer, in turn, will have time to respond to the allegation.  Following receipt of the employer's comments, Cal/OSHA will pursue the 'serious' citation or not.  The question remains whether it behooves the employer to respond to the form or not; that is, is the employer providing greater evidence for the citation?  We cannot answer this question, but it is clearly worthy of debate and discussion. 

Consider attending the CSSG Cal/OSHA Update Seminar where this topic and the P&P will be extensively discussed by Bob Peterson, past chief counsel for the Cal/OSHA Appeals Board and the practice that handles most of the Cal/OSHA appeals for California employers.