OSHA looks to expand authority without legislation

From Feedstuffs.com Jacqui Fatka.

OSHA looks to expand authority without legislation

(12/7/2010)
Jacqui Fatka
Coverage from the 2010 National Grain and Feed Assn. Country Elevator Meeting held in Indianapolis, Ind. Dec. 5-7. 

Now that the Democrats are no longer the controlling majority in the House, many of the Occupational Safety and Health Administration's (OSHA) objectives can't be achieved though legislation. Moving forward, Jonathan Snare, partner in the labor and employment practice group for Morgan, Lewis & Bockius LLP in Washington, D.C., said he expects OSHA to continue to implement as many policies as they can through non-legislative means.

Snare, a former OSHA administrator under the Bush administration, pointed out that many of the top officials including assistant secretary of labor for OSHA David Michaels and deputy assistant secretary Jordan Barab have no private sector work experience, take an anti-employer view, and aim to change behaviors by strict enforcement.

Because OSHA no longer has the support of the Congress, it will mold current law through writing stricter regulations or make new interpretations of existing OSHA standards.
The combustible dust issue is a perfect example of legislation dumped, but OSHA coming back and making a rule for it. Snare shared that interestingly Barab worked on Capitol Hill while the legislation was being drafted and now works at OSHA where the elements of the bill could be implemented in a regulation without a vote from Congress.

The combustible dust rulemaking started in 2008 after an explosion at an Imperial sugar plant. In October 2009, an advanced notice of rulemaking said the dust was a risk to the feed and grain industry and said that the 1/8 inch dust standard could go lower to 1/16 inch or 1/32 inch.
Another example of a hot issue in the grain industry is a letter of interpretation that OSHA released which prohibits an employee from working inside a bin while an unguarded sweep auger is in operation.

Paul Luther, environmental, health and safety manager at Land O' Lakes said that it isn't a regulation, but OSHA can interpret that letter as they desire. So far at least three citations have been given this past year.

The National Grain and Feed Assn. met with OSHA to review the letter in October. Out of the meeting, Luther stated the agency was made aware that sometimes a sweep auger can take an entire day to circle a bin, not at a speed of 10 mph as an example, which was a misconception of the agency.

"We're hoping for a response from OSHA probably early next year," Luther said. "We're not certain of what their solution will be, but many sweep augers just don't work unless you put someone in the bin with them."

Snare also stated another interpretation of existing OSHA standards that is being reinterpreted is the noise standard. For nearly 30 years, the enforcement policy allows an employer to satisfy hearing conservation if employees are given ear plugs, rather than investing in costly engineering changes to cut down noise. A new OSHA published document said it is now going to require employers to "spend money up until a point on engineering controls, maybe as far as bankruptcy or just short of going out of business" before allowing a company to implement ear plugs, Snare said.

What recourse does the industry have if OSHA goes beyond its bounds to match the Administration's policy desires?

Snare said if OSHA interprets law outside of their discretion, it could be challenged. If OSHA puts a proposed change out for comment, comments can be filed. Congress may also get involved. With a Republican-controlled House next year, it is expected there will be an additional amount of authority given to the new leaders to investigate and conduct oversight on the agencies.

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