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I am sure many of our readers are aware that Cal/OSHA promulgated an Aerosol Transmissible Diseases standard almost exactly one year ago.  In general, the standard establishes protocols for healthcare facilities to control diseases identified as either requiring "droplet precautions" or "airborne infection isolation."  Among the controls required by the standard are written infection control procedures.  So, in the one year the standard has been in effect, what actions have affected employers taken?  The word we're hearing is not much.  Everyone is "working" on getting into compliance, "updating" their program, etc.  Making matters worse, the deadline for implementing additional requirements regarding vaccination of healthcare and laboratory workers is this week.  Is the vaccine for influenza and H1N1 even available?  And let's not forget the respirator controversy that's been stewing.  Do hospitals have an adequate respirator supply after the last H1N1 scare?  I guess, we'll all wait and see what action Cal/OSHA Compliance takes now that summer is ending and the Heat Illness concerns can wait until next year.  Maybe all of those compliance officers who've been visiting the central valley farms will move into medical offices and hospitals this fall.

There are some Cal/OSHA regulations that are quite unclear as to their intent and compliance requirements and just leave me scratching my head.  One of those confusing regulations recently came up for a company we work with.  The company was told by an insurance company to put in several eyewash stations in accordance with 8 CCR § 3400(d) which simply says where eyes...may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing shall be provided. What is meant by corrosive material is not defined in Section 3400. In addition, this particular company did not use corrosive materials, though there were eye hazards from particles. A corrosive is defined in the Cal/OSHA Hazard Communication Standard (8 CCR 5194 Appendix A) as a substance that causes visible destruction of, or irreversible alterations in, living tissue by chemical action at the site of contact. Would then a chemical which may cause irritation but not likely lead to irreversible harm be considered corrosive for the purpose of the eyewash requirements?  Not according the strict definition. What is the quantity that triggers the requirement? Again not defined in the regulation.

My opinion is that if you are using chemicals which may injure the eye (including irritation) in a manner where a splash to the eye is reasonably anticipated, then provide an eyewash station.  Whether to use a flush or quick drench system, is again not defined (we'll save that for another time). In addition eyewash facilities must be in accessible locations that require no more than 10 seconds for the injured person to reach (8 CCR § 5162).  How do you measure 10 seconds? What about obstructions?  Is it 10 seconds with eyes open or closed (bear in mind that the vision of a person in need of eyewash will likely be impaired)? It is typically noted the average person covers a distance of approximately 55 feet in 10 seconds when walking at a normal pace. For practical application and compliance with this requirement, the regulation is not clear and leaves a lot open to interpretation. Can we simply use common sense?

We recently reported that state Sen. Dean Florez had introduced a bill, SB 477, to legislate changes to the Cal/OSHA Heat Illness Prevention standard (8 CCR 3395) at the same time that the Standards Board is preparing to vote on DOSH-proposed changes to the rule at its August 16^th meeting.  Now we've learned that Sen. Florez is turning up the heat even further by offering amendments to his bill that will lower the "trigger" temperature at which employers must provide shade for all employees present from 85 ºF to 75 ºF.  The amendments also lower the trigger for the "high heat" procedures currently in the standard from 95 ºF to 85 ºF and add another level of requirements, called "extreme heat" procedures, that would go into effect when temperatures reach 95 ºF.  These new procedures would require employers to allow employees to have access to shade at all times and require workers to take mandatory rest breaks after each hour worked, as well as requiring employees to take a 10-minute "cool-down" rest break in the shade when they feel compelled to do so to avoid overheating.  

By introducing these new amendments shortly before Board's August meeting, it seems apparent that Sen. Florez is turning up the heat even further on the Board's regulatory process to attempt to coerce changes to the current standard.  We will be anxiously awaiting the results of the Board's deliberations and vote on the 16^th early next week, and whether any changes they adopt will be sufficient to satisfy Sen. Florez.  It is our belief that the issue of heat illness is very important.  It is also our belief that DOSH and the Standards Board should be the ones best able to make decisions for California workers.  We have perhaps the best state OSHA agency in the country which allows for all stakeholders to participate in the standard-setting process.  It is unfortunate having legislative action attempting to force their hand.  We will keep you apprised of the next developments in this "heated" process. 

Last month I had the opportunity to assist with the Deepwater Horizon oil spill response efforts in the Gulf of Mexico.  It was an amazing experience.  For nearly two weeks I worked aboard a 150-foot research vessel, as part of the Natural Resources Damages Assessment.  Our task was to collect water column samples, beginning from within one mile of the spill and working outward, tracking the oil as it left the leaking well.  The water samples were collected from depths as deep as 1500 meters up to two meters below surface.  The water sampling device used was equipped with oxygen, florescence, temperature and salinity sensors and had the capability of collecting 12 samples with each cast.  The florescence sensor was able to detect areas of high oil concentration within the water column.  My duty while onboard was to monitor the air quality on the vessel, ensuring that the research personnel and ship's crew were not exposed to hazardous levels of volatile compounds released by oil present on the water's surface.  The levels of VOCs measured during the vessel's voyage were generally low or not detectable.

My brief experience participating in the response effort has left a lasting impression on me.  Our first day on the vessel, we traveled directly to the spill site and passed through large areas of surface oil.  The oil sheen visible on the water took on four main forms: silvery sheens, rainbow sheens, brown sheens and thick brown/orange globs.  Large plumes of smoke became more and more visible as we approached the spill site.  Closer to the spill site, we could see that the smoke plumes originated from two large flames at the water surface where gases collected from the leaking well were being burned.  The haze created from the burning gasses gave the entire area a very somber feel.  After several days at the spill site, the flames on the water surface were extinguished as the new cap was fitted onto the well head.  The extinguished flames were a signal of hope that a resolution of the three-month-long disaster may be forthcoming. 

As a nation, I believe we must conduct our energy exploration activities with due caution to ensure that we are adequately protecting the environment, the general population and our workers.  I have returned from my trip to the Gulf with a renewed desire to assist our clients and my community to help ensure that we can all enjoy safe work and home environments.

The California Legislature has now jumped into the fray in an attempt to push forward changes to the Cal/OSHA Heat Illness Prevention Standard.  As you probably know (and which we've discussed here and in our newsletter), proposals to modify the 2006 standard currently before the Standards Board have been mired in debate since last year, when proposed emergency standards to revise the regulation were not approved.  So Senator Dean Florez of Bakersfield has introduced SB 477 to "codify and strengthen the existing regulations."  The Florez bill is quite similar to the DOSH-proposed revisions that are being considered by the Board, particularly with regard to the need for employers to provide adequate shade when temperatures reach 85 degrees and to implement additional "high-heat" procedures when temperatures reach 95.  However, Sen. Florez recently indicated that he is amending SB 477 to mandate that employers provides enough shade to accommodate 100% of its workers, rather than the 25% required by the original bill and by the DOSH proposal.  It remains to be seen if the Standards Board will adopt the proposals now before it at the Board's August meeting (those changes would go into effect as this summer season is winding down), or whether legislative action via SB 477 will be needed to force the issue.  We're betting that changes will be adopted by the Board before any kind of legislation reaches the Governor's desk for signature.  But it is clear that the pressure is being put on DOSH to complete the standard revisions, since Senator Florez just held an oversight hearing in mid-July and grilled DOSH chief Len Welsh on the shade provision issue (strongly arguing for more than the DOSH-proposed minimum of 25%).  Senator Florez is very passionate about keeping farm workers safe and they are a huge part of his Bakersfield constituency.  He also leaves the Legislature at the end of this year, so it's his final opportunity to have an impact.  We will continue to keep you up to date on the results of this "heated" debate.

Ok, I know this is not thought of as an occupational health topic, but based on a recent article in the scientific literature and a NIOSH blog, it very well just might be.  For those of you who have not been watching the World Cup Soccer matches in South Africa (haven't we all become soccer fans?), the sound of a gigantic swarm of buzzing bees can be constantly heard throughout the matches.  The sound is made from many fans using a horn called a vuvuzela.  A report of findings recently published in the South African Medical Journal states that the noise from vuvuzelas averages 113 to 131 dBA (SAMJ, 100(2):99-100, 2010; 100(4):192, 2010).  This is well in excess of virtually every Cal/OSHA noise limit (see 8CCR§5096, Table N-1).  Simply put, soccer fans at the stadium are exposed in excess of Cal/OSHA's 90 dBA workday limit and if you assume that the fans are continually exposed to the sound of vuvuzelas for 2 hours (soccer games run 90 minutes, plus half-time, and additional time added for stoppage), the fans are exposed in excess of Cal/OSHA's 2-hour limit of 100 dBA.  Heck, they may very well be exposed in excess of Cal/OSHA's maximum noise limit of 140 decibels!!  So, if your child wants to buy one of these horns (it has become a very hot commodity) to take to a Giants game or simply to bother their friends or sibs, think twice!

I recently attended a safety meeting in Sacramento with several Caltrans safety representatives from Northern California and from Caltrans Headquarters.  The Caltrans safety representatives indicated that they are requiring all contractors on Caltrans jobs to have at the jobsite the company written Heat Illness Prevention Plan.  The current standard requires that employees prepare plans and that they must be available. However there is no requirement they be on the jobsite. This is simply a "heads up" that if you are working on Caltrans projects in northern California they may require you have a Heat Illness Prevention Plan available onsite. I spoke with a colleague in Southern California who was aware of the Northern California Caltrans requirement, but there has been no such requirement down south.

Earlier this year we reported on OSHA's proposal to add a column for musculo-skeletal disorders (MSDs) to the Injury & Illness Log (Form 300).  An interesting editorial recently appeared in the June issue of Occupational Safety & Health magazine predicting that "OSHA would need a miracle to finalize the rule" based on the comments received by the agency during the public comment period that ended in March (see Docket No. OSHA-2009-0044).  The OH&S editor noted that "the comments in opposition are detailed, substantive, and comprehensive" and "leave virtually no room for OSHA to say that it has addressed the submitted comments yet still promulgate the rule."  Although we have not fully reviewed the extensive comments now in the docket, we have no reason to doubt that the opposition to the proposed MSD column is as strong as it was a few years back when the issue first was raised.  The editorial points out that those in opposition believe that "employers will find it difficult or impossible to show that a reported injury is not work-related" and that both the number of reported injuries and related costs will "skyrocket" as a result.  Here in California, meanwhile, the stakeholder debate on redefining what constitutes "serious physical harm" continues.  Recently amended AB 2774 now before the legislature contains language that would define a serious injury or illness as one that results in "impairment of a part of the body in which part of the body is made functionally useless or is substantially reducing in efficiency on or off the job for more than 72 hours."  Under that definition, any MSD that results in a 72-hour job restriction could become an OSHA-reportable injury and one that could result in a penalty to the employer if not reported to Cal/OSHA in a timely manner.  It would also need to be recorded on the proposed MSD column on the 300 Log.  Thus, there is much interest on the part of California employers in both of these MSD-related debates.  We hope to see a resolution of both regulatory proposals before too long so that some clarity can finally be realized.

Dale Debber, Publisher of the Cal/OSHA Reporter, published an interesting editorial in the June 11, 2010 Reporter.  Two issues were raised in his commentary; first, the Cal/OSHA Appeals Board approach to dealing with serious violations, and second, AB2774, the bill currently in the State Legislature dealing with the definition of a "serious" injury/illness.  As Dale pointed out, both issues seem to be interconnected.  In case you haven't been following the meetings the Appeals Board has been having for the past year, the Board has been criticized for its handling of serious citations and the abatement process (along with other issues).  We've discussed AB2774 in a prior blog, but briefly, AB2774 includes a definition for "serious physical harm" which was previously not defined and goes beyond how the Labor Code defines "serious injury or illness." Under the proposed wording, the bill would expand the Code definition to include injuries that may not require hospitalization or similar professional medical care.  We have not taken a position on 2774 (although many of our clients are opposed to the change for good reason), but find it interesting, as does Mr. Debber, why these two issues are occurring at the same time!

The Appeals Board seems to be criticized for reducing its citations from serious to general.  As Debber points out, Cal/OSHA has "the lowest percentage of serious violations - 19%....while Fed/OSHA issues 60%...."  I completely agree with Debber, however, that there is good reason for the disparity in the numbers and it is primarily due to Cal/OSHA having a far better and comprehensive program than the Fed's.  Why should numbers of serious citations being issued even enter the discussion of whether the program is broken or not?  Cal/OSHA's whole program, from beginning to end, is open to the public.  Employers have the ability to be heard in the standard-setting process (try that with the feds!!) and if cited, there is an appeal protocol that works.  Whether the citation remains 'serious' or not is a function of the facts of the case brought before an administrative law judge.  Besides, does it really matter if the citation remains serious or how many citations remain serious after appeal?  Isn't the bottom line that unsafe conditions, if present in the workplace, are corrected?

Under new U. S. EPA regulations which became effective April 22, 2010, companies that perform work that disturbs more than threshold quantities of lead-based paint in housing and child-occupied facilities built before 1978 must apply to U. S. EPA for certification and must utilize trained and certified supervisors and workers.  Paint in housing and child-occupied facilities built before 1978 is presumed to be lead-based, unless a certified inspector determines otherwise.  These regulations present significant new requirements for certain employers (e.g., residential property managers), previously subject only to Cal/OSHA requirements for lead-related maintenance and renovation work.  Application information for company certification is available at www.epa.gov/lead/pubs/renovation.htm.  More information regarding the new requirements will be provided in our next July newsletter.   In the meantime, call our offices if you need immediate information and/or assistance.

The recent loss of life and continuing environmental disaster in the Gulf of Mexico as a result of an oil rig explosion and fire reinforces the importance of minimizing those risks.  Fires and explosions on jobsites represent an immediate danger to worker safety and can result in huge property losses.  During this time of renewed focus on the fire hazards, Cal/OSHA announced that it is proposing changes to the General Safety Orders Section 4848.

The existing standard requires that employers comply with requirements in National Fire Protection Association (NFPA) 51B-1999, Standard for Fire Prevention During Welding, Cutting and other Hot Work, Chapter 3.  The proposed changes update the standard to refer employers to NFPA 51B-2009 Chapters 3-7.  The 2009 version of NFPA 51B includes new requirements for equipment and materials used during "hot work" and PPE that were not in the 1999 version.  There is also included further explanation of spark control and contractor hazard awareness rules.  The proposed changes also include an added paragraph (b) which states that "Welding blankets, curtains and pads shall be approved for their intended use in accordance with Section 3206 of these Orders."  Comments on the proposed changes are due by June 7, 2010.

Follow the link to see the document detailing the changes by Cal/OSHA.

http://www.dir.ca.gov/oshsb/Welding_Update_15day.pdf 

I have noticed recently while reading through Cal-OSHA Reporters (an excellent resource for what's happening with Cal/OSHA and in the health and safety community) that several appeals were rejected by the Cal/OSHA Appeals Board because the appeal was filed late or was incomplete.  Remember, under Labor Code §6600, an employer has 15 working days from receipt of the citation(s) to file an appeal to the Board.  The Board may extend the appeal period upon showing of good cause only. The appeals board is a bit vague as to what constitutes good cause other than indicating "circumstances beyond one's control which could not have been reasonably anticipated".  Waiting to file an appeal until after consulting with an attorney or health and safety consultant or Cal/OSHA, after holding an informal conference with Cal/OSHA or misunderstanding the appeal process are not considered good cause. Also, remember that the appeal form should be completely filled out and use one appeal form for each citation.  The appeal form must include a copy of each citation that you are appealing.  Interesting that some appeals were rejected because a copy of the citation was not attached.  If you are unsure about appealing the citation, file the appeal.  You can always decide at a later date to withdraw the appeal.  Filing the appeal leaves you many options.

OSHA's recently published semi-annual regulatory agenda demonstrates that the agency has become much more active under the Obama administration and is pushing forward on several important occupational health and safety issues.  Even Congress has been holding more hearings on Capitol Hill pertaining to worker H&S, but some of these are in direct response to the recent mine accident in West Virginia and the offshore oil platform explosion in the Gulf, rather than proactive efforts to address the issues facing workers and employers.  It is interesting to note that several items on the federal OSHA agenda, such the Injury & Illness Prevention Program and a standard to protect workers from infectious diseases, are already regulatory requirements here in California.  The agency is also proposing changes to the standards for exposure to beryllium, methylene chloride, diacetyl (already under investigation by Cal/OSHA), and crystalline silica, and it has taken an initial step (once again) toward the long-overdue task of updating the Permissible Exposure Limits (with which Cal/OSHA is again leading the way with the HEAC meetings).  In addition, Congress is investigating whether to increase civil and criminal penalties resulting from OSHA inspections and has proposed a bill to legally establish the Voluntary Protection Program and ensure its continuation.  Legislation has also been introduced to require OSHA to enact a safe patient handling standard within two years.  Although there seems to be much new activity within the federal agency and within Congress, it remains doubtful that these goings-on will result in new health and safety laws or regulations that would affect us here California any time soon.  The most likely changes to affect Cal/OSHA in the near future appear to be the addition of the MSD column on the 300 log (a blog topic here recently) and a new rule pertaining to cranes and derricks in construction.  Congress may also push through the increase in civil and criminal penalties that is being discussed, which is supported by much of the OH&S community, but is not a "slam-dunk" in Washington.  We will be monitoring these activities through the coming months and will report on the significant developments.

So, if you knew there was a better way to test for airborne asbestos, not only to protect your employees’ health but also to comply with OSHA, would you want to use it?  I bet most would say, “Yes, of course.”  Me too, but that may not be the way OSHA thinks.  As you probably know, there are two methods of testing for the asbestos Permissible Exposure Limit: PCM and TEM.  PCM is identified as the method of choice in the OSHA asbestos regulations.  TEM, however, is more sensitive in detecting asbestos fibers and is specific for asbestos.  TEM also has a method that can effectively replicate the PCM analysis called out in the regulation with the exception that it only identifies asbestos fibers (7402 method).  But OSHA won’t allow you to use TEM for compliance with the asbestos standard even though it is a better method!!  In one of Federal OSHA’s Letters of Interpretation, the agency writes, “OSHA acknowledges….PCM does not count all of the asbestos fibers that may be present in the air…The PCM method also cannot distinguish between asbestos fibers and non-asbestos fibrous particles…While TEM is the best analytical tool to distinguish asbestos fibers from non-asbestos fibers, OSHA believes that PCM provides the best available index of exposure that can be used to assess health risks to workers.”  No other explanation is given. [See June 30, 2005 Letter]  A letter from Cal/OSHA on the same subject states that “because the Permissible Exposure Limits in the regulation for asbestos….are for limits for total fiber exposure, TEM results specific only to asbestos fibers cannot supplant results obtained from samples analyzed by PCM for the purpose of determining compliance.” [See November 4, 2003 Letter]  Does anyone know why a more sensitive method that is specific to asbestos shouldn’t be used as an alternative method of testing for asbestos?  Wouldn’t everyone (regulators, employers, and employees) benefit from knowing whether levels of asbestos are being exceeded or not, particularly in an environment that may have conflicting types of airborne fibers (a common occurrence in demo and abatement)?  I really believe we are missing the point here.  As industrial hygienists, we are trained to look for substances in the workplace that may affect the accuracy of the findings.  It seems odd to me that we are not permitted to use a superior test method.  What do you think?  Is there a desire to petition Cal/OSHA for a change? 

A new bill being brought before the California state legislature is designed to make changes to Section 6302 of the California Labor Code.  The bill, AB2774, includes a definition for "serious physical harm" which was previously not specifically defined in Section 6302.  While the proposed definition includes similar wording previously used to define "serious injury or illness" in the code, it goes further to include injuries that may not require hospitalization or similar professional medical care. 

The proposed definition for "serious physical harm" in Section 6302 is:

(j) (1) "Serious physical harm" means any injury or illness, specific or cumulative, occurring in the place or employment or in connection with any employment, which is the consequence of a condition, practice, means, method, operation, or process that meets any of the following:

(A) Requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation.

(B) Causes an employee to suffer the loss of any member of the body.

(C) Causes an employee to suffer any serious degree of permanent disfigurement.

(D) Could reasonably lead to impairment of a part of the body by substantially reducing its efficiency on or off the job for more than 24 hours.

(E) A single condition, practice, means, method, operation, or process can be properly classified as resulting in "serious physical harm."

The Cohen Group has not taken a stance on this new legislation, but some of our clients and colleagues have voiced a concern.  It has been pointed out that under the proposed definition, any repetitive strain injury that results in a 24 hour job restriction could become an OSHA reportable injury and possible penalty under Title 8 341, if not reported in a timely manner.  We urge our readers to review the merits of this, and all new proposed legislation and make your opinions known to your representatives in Sacramento.  As professionals we have the ability to give relevant and much needed input into the law making process.  To follow the progress of this bill refer to the references link on our webpage or feel free to contact our office.

In a recent blog we discussed the potential health and safety concerns in homes built with drywall produced in China, particularly between 2003 to 2006.  By far, most of the drywall product was used in the Southeast, although there are reports that there was limited use in California.  The US Consumer Product Safety Commission (CPSC), the lead agency in the investigation, has recently completed initial studies although the results are still far from conclusive.  Briefly, results from the preliminary studies suggest that sulfur levels in complaint homes, although low, were higher than those in non-complaint homes and those homes had greater rates of copper and silver corrosion. CPSC goes on to state they are currently looking at long term health and safety implications.  CPSC also published on April 2 an Interim Remediation Guideline for Homes with Corrosion from Problem Drywall. The Guideline for 'problem' homes calls for the replacement of all possible problem drywall, all fire safety alarm devices, all electrical components and wiring and all gas service piping and fire suppression sprinkler systems. While CPSC recognizes potential corrosion and health concerns with Chinese Drywall, they continue to take a reasoned approach without the hyperbole (e.g., media) that often accompanies a problem that attracts 60-Minutes like reporting.  In terms of California homes, we have not heard of problems beyond what has been reported by CPSC.

Since taking over a little more than a year ago, the Obama administration has been shaking things up a bit in the Department of Labor.  The emphasis on regulatory enforcement was the focus of a recent article in The Nation magazine (a "left"-leaning publication) that looked at the early efforts of the new Secretary of Labor, former California Congresswoman Hilda Solis, and her staff.  Based on the actions to date of Obama's Department of Labor (DoL), it is clear that, as Ms. Solis declared at her swearing-in ceremony, "there is a new sheriff in town".  The article indicates that Solis has assembled a team of labor advocates and has hired hundreds of new investigators and enforcers, who have begun to aggressively enforce the country's labor laws.  The author points out that OSHA Administrator David Michaels and his deputy, Jordan Barab, are also both strong labor advocates with experience in the public sector who have espoused a renewed emphasis on OSHA enforcement activities.  Their words have been borne out by OSHA's actions involving a review of Nevada's state program in the wake of the Las Vegas construction fatalities, the largest fine ever issued by the agency against BP after the explosion at their Texas oil refinery, and Michael's indication that he will use the "general duty clause" to issue ergonomics citations when needed.  Furthermore, the new MSHA Administrator, Joe Main, a former union representative with a long history of work in the United Mine Workers' health and safety department, has launched a major national initiative to end black lung disease as well as a safety campaign to identify the top causes of miner deaths.  Main has also vowed to increase enforcement, with a special emphasis on serious violations and large fines. 

It will be interesting to see how things play out within the various branches of DoL over the next three years or more, but it is certainly clear that the Department has taken a new direction.  We agree that consistent and fair enforcement of existing OSHA regulations is desirable, and we are hopeful the Obama administration will make progress on the many regulatory updates that have languished for so long.  Stay tuned. 

An interesting summary article (a commentary really) regarding the importance of good hydrating habits when working in high environmental heat situations appeared in the March 2010 issue of the Annals of Occupational Hygiene.  I found the article to be exceptionally timely since Cal/OSHA is currently in the throws of attempting to finalize its Heat Illness Standard.  The author, who is a principal of a rehydration product company, cites several outdoor worker heat stress studies from around the world published over the past several years and draws the conclusion that except where the culture avoids working during the hotter times of the day, work groups by and large do not remain sufficiently hydrated.  He states, "establishing and maintaining a culture of 'hydration awareness' may require changing habitual behaviors in relation to the timing, type and quantity of fluid ingestion, the aim being to start the work shift in a well-hydrated state and to maintain this by replacing fluid to keep pace with sweat losses."  Obviously, this is not a new or innovative thought, but the demands on supervisors to keep their workers hydrated remains a significant responsibility, particularly in warmer climates.  Some practical recommendations made include:  (1) supply each worker with a personal, insulated 2-liter container, (2) encourage workers to arrive on site already well hydrated, (3) workers should be drinking between 600 ml to 1 liter of water per hour, and (4) during hot weather when sweating is heavy, use an electrolyte replacement beverage and each worker should consume at least one, 2-liter container of the beverage per day.  Not bad recommendations. Maybe some of these concepts should make their way into Cal/OSHA's proposal; or even better, Cal/OSHA should allow employers the latitude to establish good hydration procedures that meet the needs of their work force.

For the first time, the EPA is providing free web access to the Toxic Substances Control Act (TSCA) Chemical Substance Inventory. This action represents another step by the EPA to increase the transparency of chemical information to the public. Until now, the TSCA Inventory has only been available by purchase from the National Technical Reports Library or other databases. There are currently more than 84,000 chemicals manufactured, used, or imported in the U.S. and listed on the TSCA Inventory. However, the EPA is unable to publicly identify nearly 17,000 of these chemicals, because they have been claimed as "Confidential Business Information" under TSCA by the manufacturers. In January, the EPA announced that they intend to reduce "Confidential Business Information" claims. The chemicals that will be affected by this action are those that are submitted to the EPA with studies that show a substantial risk to health and the environment and have been previously disclosed on the TSCA Chemical Inventory.   

Apart from the fact that people living in the U.S. should be allowed to access information concerning chemicals that may pose future health risks or adversely affect the environment, it is quite possible this action may be a first step to a national Green Chemistry movement, similar to actions taken by California when AB1879 and SB509 were adopted last year.  In general, both bills (now law) require the Dept of Toxic Substances Control to establish a Toxics Information Clearinghouse, making more chemical risk information available to the public, along with many other requirements which The Cohen Group is tracking.  In some ways, EPA's actions parallel steps taken by the EU with REACH requirements.  Attempting to establish a global mechanism for risk assessment will certainly be a protracted effort by all involved countries, but quite possibly could establish a process by which chemical or chemical ingredients in products may be identified and prioritized for consideration as being chemicals of concern, so that a process can be established to determine how best to limit exposure or reduce the level of hazard posed.

According to a report released October 2009 by the Government Accountability Office, one third of the occupational health practitioners polled feel pressure to reduce the amount of medical treatment they give to injured workers in order to reduce their employers' number of recordable injuries.  The health practitioners reported that this pressure comes from both employers trying to reduce workers' compensation costs and OSHA recordables, and employees trying to maintain safe-work incentives.  Designing programs that promote productivity along with safety are some of the most difficult challenges faced by occupational health professionals and management.  The statistics from this study point out the need to re-evaluate work-safe incentive programs and highlights the need for greater communication between management, workers and health practitioners.  While excessive medical treatment should not be encouraged, it must be made clear that prudent and satisfactory treatment be given to injured workers and that all injuries regardless of how minor should be reported.  It is the duty of management to clearly communicate to workers that they will not be punished for seeking medical treatment for injuries sustained while at work or for reporting unsafe or unhealthful working conditions.  Profit and incentives may be an inseparable part of business but they should not come at the expense of worker health.

I continue to notice that many companies allow employees to wear respiratory protection (typically dust masks) on a voluntary basis.  That is, the dust mask (filtering face piece) is not required by the company or Cal/OSHA for worker health, but the worker desires to wear one for his/her own protection.  This has led to misconceptions by both employees and employers regarding the regulatory requirements.  In fact, many employers think there are no regulatory requirements for those who wear a dust mask and that it is purely the responsibility of the employee.  There are specific requirements that are being overlooked by employers in the voluntary use of dust masks.  When dust masks (or any respirator) are provided for voluntary use, the employer must first of all determine that respiratory protection is not necessary to protect the health of the employee.  That is to say, the employer must evaluate or monitor the potential exposure and determine whether there is not a need for respiratory protection or other controls to protect worker health. The employer must also determine that the respirator will not itself create a hazard and the respirator is certified (by NIOSH) for use to protect against the contaminant of concern.  A written respiratory protection is not required when employees voluntarily use dust masks, but each user must be provided with and sign a copy of the information contained in Appendix D ("Information for Employees Using Respirators When Not Required Under the Standard") of the Cal/OSHA Standard (8 CCR § 5144).  Bottom line: Don't allow your employees to wear even dust masks on a voluntary basis until you have done your due diligence.

We were recently reminded that "mold happens" when you least expect it.  Old roofing, plumbing leaks and failing window seals can all result in moisture intrusion that accumulates on or in building materials.  Sometimes a leak is not detected until water begins to drip from the ceiling or wall, at which point material deterioration and mold growth may have already progressed.  We have found that the key to preventing and minimizing such problems
is quick response to the moisture condition, aided by having a moisture/mold response plan in place prior to the leak event.

Now that Director of Cal/OSHA Len Welsh has former Fed/OSHA Deputy Regional Administrator Chris Lee onboard as his new Deputy Director, will the Cal/OSHA program change?  Fed/OSHA has traditionally ran its program differently than Cal/OSHA.  Though there have been complaints about Cal/OSHA operations from time to time, it is undisputable that Cal/OSHA has always been very open regarding its operations and proposed regulations.  In my years of experience with Cal/OSHA I have found District and Area Managers to be a pleasure to work with, always readily open for discussion.  Only time will tell and I certainly don't want to pass judgment based on his first few months on the job.

That said, I must pass along a story.  Briefly, one of our clients received quite a few citations following a site inspection.  We met with Cal/OSHA concerning the classification of several of these citations.  Subsequent to numerous lengthy conversations with the inspector, district manager and area manager, a settlement was reached.  No one is ever completely happy with these types of negotiations; everyone wants their pound of flesh, which I think was accomplished.  The settlement was then taken to Mr. Lee for final approval.  His final decision was to deny the settlement and have his staff go to hearing.   I was clearly shocked as was the Cal/OSHA staff.  The basis for Mr. Lee's decision is unknown, particularly in light of the fact that all affected parties were on board with the settlement.  It is quite possible his decision was influenced by Fed/OSHA's current scrutiny of the Cal/OSHA program.  Whatever the reason, I hope we don't see Cal/OSHA changing its way of doing business. Cal/OSHA remains one of the premier safety and health programs in the country and I hope its open and pro-active approach with employers and labor continues unchanged.  If anyone has had similar experiences, we would love to hear about them.  Please email us at admin@thecohengroup.com.

Post-script:  Just before publishing this blog, Cal/OSHA and the employer finally reached a settlement the night before the hearing.  Many Cal/OSHA representatives worked very late with the employer attempting to achieve the final settlement.

Federal OSHA has recently proposed adding a column for musculo-skeletal disorders (MSDs) to the Injury & Illness Log (Form 300), which it had proposed once before in 2001, but was not included in the final recordkeeping changes that were adopted with that rulemaking effort.  The proposed rule change, which can be viewed at www.dol.gov/federalregister/msdcolumn, would simply require employers to place a check mark in a designated column at the far right side of the form for each MSD they record according to the definition proposed by OSHA (which is identical to the definition they proposed in 2001).  MSDs are currently included in the "other injuries" column.  OSHA believes that including the MSD column on the injury log will improve the accuracy and completeness of national occupational injury & illness statistics, provide valuable and industry-specific information to assist in the agency's efforts to address workplace MSDs, and provide useful establishment level information that will help employers and employees readily identify the incidence of these types of injuries.  We agree that this minor change in recordkeeping would be a good thing since it would be consistent with Cal/OSHA's Ergonomics Standard which requires tracking ergonomic injuries to determine if a written plan is required.  Some employer groups are adamantly opposed to this proposal because they see it as the first step in a revised effort by OSHA to promulgate an ergonomics standard (not an issue in California).  But since that effort has failed in the past and is sure to meet with strong resistance for the foreseeable future, this small modification in the process for recording injuries does not appear to place a burden on employers and should only lead to further understanding of the problem.

The Cal/OSHA Standards Board is holding a public hearing on February 18 to discuss proposed changes to the General Industry Safety Orders concerning hot pipes and hot surfaces.  The current regulation states that pipes and surfaces that are hot enough to burn human flesh on momentary contact, and are within seven vertical feet of the floor or 15 inches from stairways, ramps or fixed ladders must be covered with insulation material or guarded against contact.  The proposed changes specify the temperature for the pipes that require insulation or guarding at 140 degree Fahrenheit.  I looked at several studies about the temperatures at which human skin will burn.  Among the studies, 140 degrees Fahrenheit appeared to be the general temperature at which momentary contact with skin would produce a burn.  The increased detail in the proposed changes will help employers who were questioning how hot they could allow surfaces to get before needing to make changes.  For more information on the proposed changes follow the link: http://www.dir.ca.gov/OSHSB/Hot_Surfaces.html

You may recall that about a year ago we reported on concerns that were raised regarding lead contamination in the fibers (grass blades) used in some artificial turf athletic fields.  The limited testing completed at that time identified elevated levels of lead in some artificial turf materials made of nylon and nylon blends, as well as in the "turf dust" collected primarily from older, nylon-based fields that were deteriorating.  The CDC examined the available evidence and concluded that the risk for harmful lead exposure from the fields was low as long as the artificial turf containing the lead was relatively new. 

In response to a recent client request, we revisited this issue to determine what new assessments, if any, have been done since mid-2008 to confirm or dismiss the notion that playing on artificial turf surfaces could pose a health risk.  We found that the Consumer Product Safety Commission (CPSC) had performed limited testing and concluded that young children are not at risk from exposure to lead by ingestion from synthetic athletic fields.  We also learned that New York City had tested 111 synthetic turf fields and found elevated lead levels in the crumb rubber used at just one field.  But we found no other recent studies of lead release or lead exposure associated with artificial turf. 

Another concern that has been raised is the possibility of harmful exposures from the constituents of the crumb rubber infill materials that are used as artificial "soil" for the turf materials.  We will summarize this research in our upcoming Current Issues Newsletter scheduled for release in February.  Please call or e-mail us if you have any questions regarding this issue.

Cal/OSHA is proposing to consolidate the vast majority of its portable ladder standards into one section (section 3276) which would apply to general industry and construction.  One of the proposed provisions that we find most interesting requires that portable ladders be inspected by a competent person prior to the start of the work shift. There have been several comments by representatives of general industry and construction that the inspection provision would force employers to inspect all of its ladders for every shift at each facility - a rather burdensome task, particularly if the ladder is not being used.  In addition documenting that the inspections were performed would require significant paperwork.  While there may be merit to requiring the inspection of portable ladders, the requirement of a pre-shift inspection of a ladder by someone other than the user, particularly if it is not to be used, would be impractical, infeasible and burdensome to enforce.  It will be interesting to see how the Standards Board will respond to this proposed change.  To read all of the proposed changes click the link and feel free to call our office for more information. http://www.dir.ca.gov/oshsb/Portable_Ladders.html.  A summary of all the proposed standard changes for portable ladders will be presented in our upcoming February 2010 Current Issues newsletter.

The US Consumer Product Safety Commission (CPSC), the US Environmental Protection Agency (EPA) and a half dozen more government agencies have partnered to investigate if homes constructed with drywall from China present potential health and safety hazards.  Briefly, the issue is that CPSC began receiving complaints in late 2008 from consumers of odors emanating from the drywall of their newly constructed homes.  They were also noticing corrosion of metal items, particularly air conditioning coils and electrical connections.  The reports first surfaced in Florida, but CPSC now says there are over 30 states reporting similar problems, including California and Arizona.  Generally, home builders use domestically-produced drywall, but the housing boom of 2003 to 2006, as well as the reconstruction work after the Hurricane Katrina disaster, caused a surge in demand which could not be met by the domestic suppliers.  Thus, drywall started to be imported.  The CPSC has become the lead agency in the investigation.  As of a couple of weeks ago, CPSC stated that no firm conclusions have been reached, but some issues initially thought to be the problem have been ruled out.  The industrial hygiene community is also pooling its resources to review studies independently conducted by some of its members.  If one can stay clear of the newspaper articles that seem to sensationalize the problem, we suggest you use the CPSC website (www.cpsc.gov) to stay apprised of the current research.  We are also participating in a white paper on the subject, so feel free to contact us for the latest information.

In a previous blog posting we mentioned that the Cal/OSH Standards Board was reviewing changes to fixed ladder regulations in the General Industry Safety Orders 3277.  The proposed changes took effect on November 21, 2009.  The changes clarify cage extension regulations when a ladder base ends on a surface that is greater than 30 inches off the ground.  The issue was raised after a fatal fall occurred on a ladder that terminated on an elevated platform/walkway.  Any death in the workplace must be a trigger to question established workplace practices and safety procedures.  The changes to the fixed ladder regulation will help make workplace environments safer.  Examine your facilities to see if there are any ladders that fall under new regulations and make the necessary changes.  If you have any questions or comments please call or email our office.

We recently discussed OSHA's proposed rule to align the existing hazard communication standard with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  As part of the major overhaul of its hazard communication rule and specifically material safety data sheets, OSHA is proposing to delete the requirement of including the American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Values (TLVs) on Safety Data Sheets (SDS).  Acting OSHA Administrator Jordan Barab had gone on record, stating the proposed GHS from OSHA will reduce chemical-related injuries, illnesses and fatalities - but will it, if indeed the TLVs are removed?  The American Industrial Hygiene Assocation (AIHA) and California Industrial Hygiene Council (CIHC) have sent letters to OSHA, supporting in general, the adoption of GHS, however requesting that TLVs be included.  Much of the professional safety and health community have long valued TLVs as excellent scientific guidelines in the control of health hazards for many chemical and physical agents.  Though the ACGIH is not a standard setting body, its TLVs reflect current knowledge, based on existing published, peer-reviewed scientific literature.  OSHA is proposing that permissible exposure limits (PELs) would be the only required chemical and physical agent exposure limits on SDS.  It should be noted however, that many OSHA PELs have not been updated in many years and do not reflect current scientific information.  In setting PELs, OSHA is required to include economic and technical feasibility which is not done with the TLVs.  We believe that removing TLVs from SDS would remove a valuable tool for protecting worker health and safety.  We encourage OSHA to reconsider and keep the TLVs part of SDS information.  Mr. Barab will be in San Francisco at the Annual CIHC Conference in December and it is likely this will topic will be discussed.

Coccidioidomycosis (more commonly known as Valley Fever) is a lung infection resulting from inhalation of dust containing fungal spores of Coccidioides immitis, endemic to soil in desert areas such as the San Joaquin Valley of California.  We recently worked on a case involving an individual who contracted coccidioidomycosis while living and working in a non-desert area of California.  Our investigation, including a review of regional incidence data, indicated that coccidioidomycosis occurs in every non-desert as well as every desert region of California, but that the incidence in non-desert regions is very low.  The incidence in non-desert regions is presumed to be the result of exposures occurring in other regions and/or from fungal spores transferred in soil from other regions (e.g., on vehicles, animals or clothing).  Know that if a concern is raised about Valley Fever, the incidence of the disease is tracked by the California Department of Health Services and various county health departments.  In this particular case, the county in question had only 0.9 cases per 100,000 population in one year, while Kern County ("ground zero" for Valley Fever in California) had 145.7 cases per 100,000 in the same year.

OSHA recently announced a proposed rule to align the existing hazard communication standard with the provisions of the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  Acting OSHA Administrator Jordan Barab touted the proposed changes as improving the consistency and effectiveness of hazard communications and reducing chemical-related injuries, illnesses and fatalities.  But, if adopted, will the revised standard result in those claimed safety improvements?  It certainly will be an improvement to have standardized MSDSs that are consistent with those produced in other parts of the world, but manufacturers and producers will still have to provide the information required by the forms and it is likely that large, multi-national corporations will continue to do a much better job of producing MSDSs with much more complete and higher quality data than small companies.  But will a "harmonized" standard eliminate poor quality MSDSs?  Information on container labels may also be improved and made more consistent under the new rule, but will it be enough of an improvement to result in reduced injuries and illnesses when handling hazardous chemicals?  We all know that the safe handling practices utilized by employees are only as good as the information and training (and enforcement) provided by their employers.  There is much to think about when considering the changes that the proposed GHS alignment will bring about.  While we wholeheartedly support the long-needed programmatic improvements that the proposed hazard communication standard modifications will produce, we still are dubious that the changes will result in a significantly lower rate of chemical-related injuries and illnesses.  What do you think?

Not surprising, and certainly as we predicted, the proposed changes to the Heat Illness Standard did not receive a warm welcome from the Standards Board at their October 15 meeting. Farm workers were paraded in front of the board complaining about their work conditions.  One Board member correctly noted that, if conditions are 'that bad,' it was an indication that employers are not complying with the existing standard and a new standard would have little impact.  DOSH is very opposed to convening an Advisory Committee to address changes to the standard for the simple fact that consensus can not be achieved. So the situation remains unchanged.

On another front, AB838, the bill that would require Cal/OSHA to adopt a Heat Illness standard for indoor environments, was vetoed by the Governor, who took the same position two years ago when the same bill (AB1047) was placed on his desk.

Overall, our take is that a Cal/OSHA Heat Illness standard makes sense for the Ag industry and Cal/OSHA's own statistics demonstrate that need.  If Cal/OSHA wants a standard it can more easily defend, then limit its scope to Ag.  Until then, the current standard will remain problematic for Cal/OSHA and employers.  With that said, however, the standard sits in the General Industry Section of the rules, which means it applies to all "outdoor workers" regardless of industry.  We strongly encourage all employers to amend their Injury and Illness Prevention Programs to include provisions for compliance with the Heat Illness rule, EVEN if outdoor work is a collateral duty. Be sure the procedures are clear and specific.  Let us know if you need help.

The National Institute for Occupational Safety and Health (NIOSH) has identified comprehensive research on hazardous exposures to firefighters as a strategic goal.  NIOSH plans to "characterize firefighter exposure and exposure routes for elements, chemicals and particulates, and develop evidence-based interventions based on field studies," with an emphasis on smoke inhalation.  The potential contaminants in smoke vary widely, based on the materials that are combusted.  Rumor has it that NIOSH has invited the San Francisco Fire Department to participate in the study.  We believe this will be an important and interesting study for the entire health community, as the knowledge gained will likely assist in evaluating the potential hazards of smoke inhalation in other occupational and non-occupational settings.

There is much uncertainty regarding the H1N1 influenza virus.  No one can predict right now whether the upcoming fall and winter flu seasons will result in large outbreaks of severe illness from the H1N1 virus (including hospitalizations and death) or whether the influenza cases that develop will more resemble the typical seasonal flu that we have all become accustomed to dealing with each year.  The Centers for Disease Control and Prevention (CDC) agrees and they recommend that employers should plan to be able to respond in a flexible way to varying levels of severity and then be prepared to refine their pandemic influenza response plans if a potentially more serious outbreak of influenza evolves during the fall and winter.  To this end, the CDC has released new guidance with recommended actions that non-healthcare employers should take now to decrease the spread of seasonal flu and 2009 H1N1 flu in the workplace.  In particular are very good recommendations to encourage frequent hand washing and covering coughs and sneezes among employees, and to regularly perform routine cleaning of commonly touched surfaces to reduce transmission of the virus.  For a great deal more information on the H1N1 virus, see the excellent website www.flu.gov.

We have recently received requests to assist clients with preparations for the likely flu outbreaks this fall and winter.  For example, we are currently performing fit testing of respirators for San Mateo County health professionals as they prepare to respond to a possible pandemic and are helping another organization prepare their pandemic flu response plan. We might suggest similar actions by those who may deal with people who are ill or work in close working quarters.

Cal/OSHA has published a new (yes, again) proposed change to the existing Heat Illness Standard (Section 3395).  The 'new' proposal is very similar to the three proposals rejected by the Standards Board a few months ago.  It again includes much of what was published by Cal/OSHA in its 12-page Heat Illness Q&A document (previously discussed in our Newsletter and Blog).  Although I am in favor of a heat illness standard and believe there is ample justification for such a standard, at least for the agriculture industry, I am not sure whether it makes sense as a 'general industry' standard.  A single heat illness standard to fit all circumstances may be the problem, although I believe there is sufficient pressure on the Standards Board to adopt this latest version.  Since virtually all of the health-related issues we hear about seem to occur in Agriculture, why doesn't Cal/OSHA write a Heat Illness Standard for Ag?  After all, isn't Ag used as the justification for the standard in the first place?

Looking at this latest version, it appears action must be taken when temperatures reach 85 degrees.  I do not favor establishing trigger temperatures like we establish PELs; it just doesn't make sense since there are so many other heat-related factors that must be considered, e.g., humidity, work/rest regimen, acclimatization, clothing, etc.  Also, 'hot' in San Francisco is not 'hot' in Fresno.  With that said, there is much that is good about the new standard.  For example, the new standard has increased training requirements and now requires supervisors to encourage their crew to stay hydrated.  I believe it is unfortunate that Cal/OSHA doesn't expand their criteria for employer action to use a temperature/humidity/sun exposure criteria rather than a 'one size fits all' standard based on a temperature that lacks scientific justification.  Such a change would make more sense when evaluating a farm worker in Fresno who may be in full sun with high temp and low humidity verses a construction worker in San Francisco who may be working outdoors in shade, with high temp and high humidity.  Oh well, we will all stay tuned in until this issue is resolved at the October 15 Standards Board meeting.  For more information on the proposed standard, visit http://www.dir.ca.gov/oshsb/Heat_Illness.html. 

With that said, we would love to hear your comments.  Please forward them to admin@thecohengroup.com

We just heard (9/3/09) the selection of John Howard, M.D., as the new Director of the National Institute for Occupational Safety and Health (NIOSH); he'll assume his new role on September 8, 2009. Dr. Howard is not new to this role; He served as the Director of NIOSH from 2002 through 2008 after leaving Cal/OSHA as its Director.  He also served as Coordinator of HHS' World Trade Center Health Programs from 2006 to 2008.  He will again assume a dual role, and serve as the World Trade Center Programs Coordinator for HHS.  We all welcome John back to this position; his support was widespread.  He is the perfect choice.

We cannot wait to hear what John has to say about the appointment process and what's on tap for NIOSH in the coming years - If you haven't heard, he will be the keynote speaker at this year's CIHC Conference in San Francisco.  See the description and link to the CIHC Conference on our website.

As discussed in our May 2009 newsletter, the way we use noise reduction ratings (NRR) for specifying Hearing Protection Devices (HPD) may soon be changing.  On August 5, 2009, the EPA published a proposed rule substantially changing the testing requirements and the methods of computing and using NRR (subpart B of 40 CFR 211).  Under the proposed regulation a new HPD rating system will be used.  It will still be known as the NRR but it will reflect changes in HPD that have evolved since the EPA promulgated the current standard in 1979.  The new rating system will present a range of expected protection as opposed to the single number NRR value, which as we discussed in the newsletter article has come under much criticism over the past 30 years.  If the EPA rule is passed it may affect the evaluation of hearing protection attenuation that is prescribed in the Cal/OSHA Occupational Noise Standard (Title 8, CCR Section 5098  and Appendix E, Methods for Estimating the Adequacy of Hearing Protectors).  According to section 5098, hearing protection attenuation must be evaluated according to the methods described in Appendix E.  Some of these methods may change with the adoption of the pending EPA rule.

According to the EPA the proposed revisions will "provide more accurate, uniform and user-friendly information to all potential purchasers, users and hearing conservation professionals so they can make informed comparisons of product performance."  Hearing protector testing and labeling will reflect current ANSI standards that were established in 2008.  The proposed rule would require recurrent testing for all product categories covered by the regulations to provide a comparison of effectiveness ratings of a product over a period of time and to ensure that labels accurately reflect current effectiveness.  The EPA is accepting public comments through November 4, 2009.  The proposed rule can be accessed at www.regulations.gov.  We will keep you informed of any upcoming developments.

Industrial hygienists are frequently asked to assess current employee exposures to toxic substances during typical or "worst case" work activities and work place conditions.  Such assessments are most commonly performed through air monitoring, with concurrent observations of the details of the work.  In addition, industrial hygienists are often asked to determine exposures to individuals that may have occurred sometime in the past and must utilize methodologies other than direct air monitoring to complete the assessment.   See our upcoming newsletter article "Determining Individual Exposure to Toxic Substances" for information regarding the wide range of information and factors considered in providing a meaningful exposure assessment.

Cage extensions are the main focus of proposed changes to section 3277 concerning fixed ladders.  Cal/OSHA began looking at the changes after a worker fell off a ladder platform and died.  The proposed changes include requiring cage extensions down to the guardrail when a ladder terminates on a platform or walkway that is greater than 30 inches off the ground.  Proposed changes also include definition clarifications and information on how the cage extensions must be built.  To read all of the proposed changes click the link and feel free to call our office for more information:  http://www.dir.ca.gov/OSHSB/fixed_ladders_proptxt.pdf 

President Barack Obama announced last week that he will nominate epidemiologist David Michaels, Ph.D., MPH, to be the Assistant Secretary of Labor for OSHA.  Dr. Michaels is currently a research professor in the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services.  He previously served in the Clinton administration (1998-2001) as Assistant Secretary of Energy for Environment, Safety and Health, which included managing worker health and safety issues at federal nuclear weapons facilities.  Reportedly Dr. Michaels has conducted numerous studies on the health effects of occupational exposure to toxic chemicals and has written extensively on science and regulatory policy, including the 2008 book "Doubt is Their Product: How Industry's Assault on Science Threatens Your Health."  To no one's surpsrise the nomination has been applauded by labor, academia and professional H&S organizations, while the response from industry groups has been less enthusiastic. 

Dr. Michaels' presentation at the June AIHA Conference paralleled his book, which I am confident will become a best seller once confirmed by Congress.  As is quite evident from the title of his book, Dr. Michaels has an ax to grind with industry research.  This was also made clear in his presentation at the AIHA Conference where he had no difficulty in naming names.  The premise of the book is that industry or the consultants hired by industry do not do 'real' research, but rather place doubt on the research done by others to delay the inevitable decision by government to ban or change how a product is handled by the public.  This may be a template of how Dr. Michaels may regulate business once confirmed.  Perhaps it may not be all that bad if we can get OSHA off the dime on updating PELs, Silica, HazCom, Noise in construction and several other regulations that have been sitting dormant for years.  Hold on, this may be a bumpy ride!! 

Frequent visitors to our blog know that we have been tracking Cal/OSHA's Heat Illness Standard for many weeks.  The latest on the standard is that on June 18, 2009 the Cal/OSHA Standards Board rejected emergency amendments to the standard (Title 8 CCR 3395).  The emergency revisions offered by the Division were opposed by both labor and management.  We think everyone recognized that putting a band aide on something that requires major surgery would be unacceptable.  Similar to the 85 dB Action Limit for noise, Cal/OSHA attempted to establish Action Limits on Heat such as setting 85^oF as a "trigger" to require employers to provide shade.  Labor is concerned that the amendments don't go far enough and may weaken the standard, whereas management feels the standard is confusing and lacks adequate enforcement.  The Standards Board may address this again at the July meeting in Los Angeles.  However Cal/OSHA is redrafting portions of the text to the address the concerns raised.  We'll continue to keep you apprised.

The American Industrial Hygiene Association (AIHA) recently sent a letter to the Acting Assistant Secretary of Labor for OSHA, Jordan Barab, urging OSHA to take immediate action to lower the Permissible Exposure Limit (PEL) for occupational noise exposure to 85 dBA (as an 8-hour TWA) and to adopt the 3 dB exchange rate (the "exchange rate" is the number of decibels permitted in a standard or criterion for each doubling or halving of exposure duration and is used as a criterion in measuring noise exposure levels).

Mr. Booher noted that "many agencies and organizations in the U.S. have adopted an occupational exposure limit of 85 dBA, with a 3 dB exchange rate.  Both the National Institute for Occupational Safety and Health (NIOSH) and the American Conference of Governmental Industrial Hygienists (ACGIH) have long recommended such exposure limits."  He further noted that "the vast majority of the nations of the world regulate workers' noise exposures at lower levels than the U.S."

With this letter, the AIHA strongly advised OSHA to "take immediate action on this issue to ensure that American workers are afforded the same level of protection from hazardous noise that the majority of the world's nations provide their workers."  The AIHA obviously believes that the new Obama administration offers a "window of opportunity" to revise the noise exposure PEL, which it and other organizations have advocated for some time.  The amount of support within the occupational safety and health community for this change is not readily apparent.  And since the position of OSHA Administrator has not yet been filled, no one can say what backing may exist inside of the agency for a lower PEL.  But it is certain that a reduction in the PEL from 90 to 85 dBA would affect a vast number of employers of every kind in both general industry and construction.  This petition to OSHA is surely one worth watching to see if it can gain a foothold on the agency's agenda in the coming years.  We will follow this issue and report on any future developments.

The Cal/OSH Standards Board approved two landmark standards dealing with aerosol-transmissible and "zoonotic" diseases on May 21.  These new regulations have been discussed in great detail, particularly during the recent pandemic concerns associated with the swine flu.  The proposed standards, which are aimed at health care facilities, doctor's offices, clinics, homeless shelters, correctional facilities and emergency medical operations, will provide an enforcement mechanism to ensure that all employees are provided with a level of protection from the associated health risks.  The New ATD: General Industry Safety Orders §5199 requires covered employers which include Public Health facilities to implement control measures to protect workers from diseases spread through respiratory secretions, such as coughing or sneezing.  The second new standard, Zoonotic Disease: GISO §5199.1, requires covered employers to control hazards from exposure to animals infected with disease such as Hantavirus, monkey pox, anthrax and avian influenza.

Many medical and other healthcare facilities have started to prepare for a pandemic based on the recent events of SARS and swine flu, but they may not be in compliance with this new standard which has very rigid requirements that will go into effect this September.  We encourage all California employers, whether covered by this new Cal/OSHA requirement or not, to review their strategies for protecting the health of their employees during a pandemic or other public health emergencies.  Employers subject to the requirements should assemble a team and plan if they have not done so already.  The team should develop a coordinated and efficient response plan so that the needed public health information is gathered and transmitted.  The plan should ensure that communications to managers and employees about operations, cleaning protocols, leave and benefits are consistent and effective.  A good plan will address how anticipated disruptions can be managed effectively while avoiding litigation risks and panic within the workplace.

Recently a large retailer was cited for violations of Cal/OSHA's bloodborne pathogens standard.  The investigation was launched after a worker that used tagging guns was diagnosed with Hepatitis B.  Allegedly the worker may have been exposed to pathogens resulting from the tagging gun needle.  The citations included failure to provide training to employees exposed to blood and other potentially infectious materials and failure to establish a Sharps Injury Log to record exposure incidents along with other citations regarding tagging gun controls and needle protection.  This is a good reminder that the bloodborne pathogen standard is being enforced in settings that we may not traditionally consider. 

Several weeks ago I wrote a blog on Cal/OSHA's Heat Illness Standard.  More specifically, I addressed the issue of Cal/OSHA's 12-page Q&A and how the points raised are good, but they are not enforceable.  One question raised in the document deals with the requirement that employers must have a written program.  I cannot encourage employers enough to have a solid and complete written heat illness program.  Unfortunately, compliance with the standard is an issue of the employer's ability to effectively document actions rather than intent.  There are many employers who want to do the right thing, who are concerned about the health and safety of their employees, and make a reasonable attempt to do a good job, but are unable to prove the point to the compliance officer when he/she shows up at the door.  It is for this reason, I say Document, Document and then Document more.  The infamous Q&A document referenced above states that "It is up to the employer to...put in writing...effective procedures for water replenishment during the shift as needed, employee access to shade at all times for preventative recovery periods, employee and supervisor training, and responding to symptoms of possible heat illness, including how emergency medical services will be provided should they become necessary, how emergency medical services providers will be contacted, how employees will be transported to a point where they can be reached by an emergency medical service provider if necessary, and how, in the event of an emergency, clear and precise directions to the worksite will be provided as needed to the emergency responder."  This is a major task, not to be taken lightly.  For example, the apparent simple task of 'water replenishment' may not be so simple.  Your Program should clearly address when the water will arrive, how it will be cooled and kept cool, how the water will be replenished, who will check to determine if it needs to be replenished, where the water source will be placed so that it is in proximity to the worker, ensuring the water is potable, how the containers will be maintained to preclude biologic growth, and so on.  Once you address all of these issues IN WRITING, be sure the affected staff is instructed on how you intend to comply.  This is just one of the few points that need to be raised in the Heat Illness Program.  We have heard from several sources that employers have been cited for having programs that don't address all of these issues or that their staff is not fully aware of all of the elements of the employer's program.  Please be thoughtful when writing Cal/OSHA programs and should you have any questions, feel free to call us.  

Last week we were asked whether fall protection is required for operators of scissor lifts.  This is a question asked frequently.  According to NIOSH statistics, falls from scissor lifts account for almost half of all aerial lift deaths in the construction industry.  However, neither OSHA (California or Federal) regulations nor ANSI standards require the use of fall protection for operators of scissor lifts.  OSHA regulations treat scissor lifts as a scaffolding system for safety purposes, which means that harnesses and lanyards are not required to prevent falls if guardrails are in use.  According to a 1998 Federal/OSHA Letter of Standard Interpretation, a "worker need only be protected from falling by a properly designed and maintained guardrail system.  However, if the guardrail system is less than adequate, or the worker leaves the safety of the work platform, an additional fall protection device would be required."  In fact, many scissor lift manufacturers do not provide an anchor point to attach fall protection equipment.  Personal fall arrest systems cannot be attached to guardrail systems.  It may be possible to attach a fall restraint system (only) to the mid-rail of the guard rail if it is designed to support 4 times the intended load.  Though fall protection is not required on a scissor lift where a guardrail is provided and where the worker is not leaning over or reaching beyond the confines of a guardrail, fall protection may be advisable if a proper anchor point is provided. (Ref: 8 CCR § 1670(a)(10))

At a recent meeting, we discovered that some construction contractors who are otherwise in compliance with Cal/OSHA's Lead In Construction Standard may not be aware of the pre-job notification requirement therein.  Under Title 8 CCR 1532.1 subsection (p), "Lead-Work Pre-Job Notification," employers are required to provide written notification (at least 24 hours prior to disturbance) for a variety of work activities that involve lead-based paint or other material containing lead at a concentration equal to or greater than 0.5 percent.  Look for our related article in the upcoming Current Issues newsletter.

With the breaking news of a dangerous new strain of a swine flu virus that has sickened many people in Mexico and that appears to be spreading into California, Gov. Arnold Schwarzenegger has ordered immediate measures to head off a possible pandemic in our state.  Although it is unlikely the swine flu virus would ever become a pandemic, California public health officials are working with influenza experts from the Centers for Disease Control and Prevention (CDC) to expand testing efforts and monitor the situation closely.  It is worth noting at this time of concern that Cal/OSHA has been working for several years on a proposed new standard to protect front line health care workers from "aerosol transmissible diseases," such as this new swine flu and the SARS virus that was first identified during an outbreak in Asia a few years ago.  The draft of the proposed standard, which will become section 5199 of the General Industry Safety Orders when adopted, was first issued in 2006 and is now nearing completion (see the DOSH website or contact The Cohen Group for more information).  The new standard applies to "referring employers" (which includes most medical offices and clinics, as well as homeless shelters and jails), laboratory operations, and employers who provide services to patients with airborne infectious diseases (such as hospitals and emergency medical providers).  The requirements vary by employer category, but generally mandate the use of engineering and work practice controls, personal protective and respiratory equipment, communication practices and risk-reduction measures, as well as medical surveillance and training for workers.  California once again leads the nation in dealing with worker safety for emerging workplace hazards.