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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
One Step Forward, One Step Back: Just How Different Is The “New World” Of OSHA Under Trump From The “Old” One Under Obama?Presented By: Eric E. Hobbs
© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Agenda
OSHA – Its recent past and its present state
Increases in penalties The new OSHA The enforcement environment, including
new developments in standards and
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
…. “But I’m not dead yet”
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
OSHA Is Plenty Alive
New “Improve Tracking of Workplace Injuries and Illnesses” Rule (under challenge and revision)
New Silica Standard (delayed; defunded?) New Beryllium Standard (delayed) New Walking/Working Surfaces Standard
(alive and well)
444
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
OSHA Is Plenty Alive
Multiple “interpretations”/changes of interpretation Hearing conservation (withdrawn) Walk-around representatives (withdrawn) PSM retail exemption (struck down by court) Safety incentive programs (under challenge)
Recordkeeping statute of limitations –Volks (struck down by Congress)
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
New Maximum Penalty Amounts Effective January 1, 2018 Serious/Other-than-Serious – $12,934 (up
from $12,675) Willful/Repeat – $129,336 (up from
$126,770) Failure to Abate – $12,934 per day (up
from $12,675 per day)
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA – In General
Supposedly much more conservative Supposedly likely to reverse interpretations Likely to “undo” new standards/rules Unlikely to “undo” old standards/rules, at least
completely Not likely to publish (m)any new standards “Two-for-one” Executive Order – January 30,
2017
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
New (And Almost-New) Faces
Occupational Safety and Health Administration
Loren Sweatt Rich Mendelson
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
New And Familiar Faces
Occupational Safety and Health Review Commission
Heather MacDougall
JamesSullivan
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Familiar Face
Occupational Safety and Health Review Commission
Cynthia Attwood
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA
Recent activity Fall Agenda removed many notable Obama/
Michaels items Hazard Communication Standard Update (proposed) Combustible Dust (pre-rule) Bloodborne Pathogens (pre-rule) Backover Injuries/Fatalities (pre-rule) Emergency Response/Preparedness (pre-rule) Hearing Protection Update (pre-rule)
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA
Recent activity Fall Agenda pulled back on other Obama/Michaels
item Tracking of Workplace Injuries/Illnesses (“Electronic
Recordkeeping”) (proposed)
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA
Recent activity Spring Agenda
Tracking of Workplace Injuries/Illnesses (“Electronic Recordkeeping”) (projected for July 2018)
Request for information on updating Lockout/Tagout Standard (projected June 2018)
New tree care industry standard (SBREFA April 2019) New workplace violence standard for health care (SBREFA
January 2019)
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA
How about reversing Obama OSHA’s internal penalty enhancements?
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
The New OSHA – Still Old For A While Truth
Bureaucracies are run by bureaucrats Policy change takes a while to “trickle down” HQ v. Regions v. Areas
Consequences: Lots of inertia and lag time
Result: More of the same in the field for a while
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FY 2010 – FY 2017 FEDERAL OSHA
ENFORCEMENT STATISTICS
(All data is preliminary and subject to further review, analysis, and revision; FY2017 data is as of 11.13.2017)
17
0
10,000
20,000
30,000
40,000
50,000
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
40,993 40,614 40,961 39,228
36,163 35,82031,948 32,396
44,50642,900 41,591
Inspections EU Units
Inspections ConductedFY 2010 – FY 2017
Note: Enforcement Units are based on inspection opening conference date. However, additional EU values may be added for open inspections pending citation issuance. Final EU values for FY2017 will be available in March 2018.
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% Programmed vs. % Unprogrammed InspectionsFY 2010 – FY 2017
0%
20%
40%
60%
80%
100%
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
60%
57% 56% 57%53%
46%
40%44%40% 43% 44% 43% 47%
54%60%
56%
Programmed Unprogrammed
19 19
27%Inspect 49%
Inspect
73%RRI
51% RRI
Hospitalizations Amputations
CY 2016: 10,887 Reports33% Inspection / 67% RRI
8,100
2,672
31%Inspect 59%
Inspect
69%RRI
41% RRI
Hospitalizations Amputations
CY 2015: 10,395 Reports38% Inspection / 62% RRI
7,638
2,646
CY 2016 CY 2015
Severe Injury Reports
20
Severe Injury Reports
25%Inspect 47%
Inspect
75%RRI
53% RRI
Hospitalizations Amputations
CY 2017: 11,884 Reports30% (3560) Inspection / 70% (8324) RRI
8,724
2,866
21
0%
20%
40%
60%
80%
100%
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
23% 24% 24%26% 26% 26%
25% 27%
% Inspections without Resulting Citations FY 2010 – FY 2017
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Total Citation Items IssuedFY 2010 – FY 2017
0
20,000
40,000
60,000
80,000
100,000
120,000
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
96,742
85,514
78,723 78,196
67,94165,096
58,702
51,273
23
% Total Citation Items Issued As SeriousFY 2010 – FY 2017
0%
20%
40%
60%
80%
100%
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
77%73% 73% 75% 73% 74% 73% 72%
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% Total Citation Items Issued as Serious, Willful, or RepeatFY 2010 – FY 2017
0%
20%
40%
60%
80%
100%
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
82%77% 77% 79% 78% 80% 79% 78%
25
Average Current Penalty per Serious Alleged Violation
FY 2010 – FY 2017
$0
$500
$1,000
$1,500
$2,000
$2,500
$3,000
$3,500
FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17
$1,053
$2,133 $2,153 $1,897
$2,046 $2,211
$2,455
$3,645
Note: Increased maximum OSHA penalties went into effect August 2, 2016 in compliance with the 2015 Inflation Adjustment Act.
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$2,297 $2,296
$3,841
$5,231$5,915
$3,285$3,080$3,860
$6,757
$8,856
$10,065
$5,087
$3,066$3,722
$6,495
$8,489
$10,075
$4,870
1-10 11-25 26-100 101-250 251+ All Estab.Number of Employees Controlled by Establishment
Average Initial Penalty per Serious Citation ItemAug. 2 – Dec. 31
201520162017
Penalties
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
New Silica Standard – General Industry/ Construction
New Walking-Working Surfaces Standard Novel Cases Combustible Dust NEP
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
New Respirable Crystalline Silica Standard Comprehensive standard establishes 8-hour time-
weighted average, permissible exposure limit (PEL) of 50 µg/m3, and action level of 25 µg/m3
Effective enforcement dates stepped Legal challenge failed
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
New Silica Standard Interim enforcement guidance published CPL, FAQs, letters of interpretation in process Enforcement in construction – effective September
23, 2017 Enforcement in general industry – effective June
23, 2018
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
New Walking-Working Surfaces Standard Very comprehensive In the works for 20+ years Effective January 17, 2017
Exceptions: training, rope descent anchorage inspections, some ladder requirements
Some requirements grandfathered for existing installations (e.g., height of stair rails)
Training requirements effective May 17, 2017 OSHA developing FAQs, CPLs
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
Combustible Dust NEP One of nine NEPs Proposed changes
New targeting based on 10 years of experience More technical guidance for CSHOs Experience requirement for CSHOs
476 total inspections in CY17, 319 resulting in citations, including under: Walking-Working Surfaces Standard General Duty Clause
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Enforcement Environment
“Novel Cases” All under General Duty Clause Types
Workplace violence Ergonomics Heat
Two kinds of results Citations Hazard Alert letters (HALs)
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Novel Cases
0
10
20
30
40
50
60
70
Workplace Violence Ergonomics HeatCitations 6 1 11HALs 66 51 55
WPV, Ergonomic and Heat Citation/HAL Breakdown Fiscal Year 2017
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Questions?
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Pulp & Paper Safety Association Annual Safety Conference 2018 St. Petersburg, FL June 18, 2018
Thank You!
Eric E. HobbsOgletree, Deakins, Nash, Smoak & Stewart, P.C.
1243 N. 10th St., Suite 200Milwaukee, WI 53205
414-239-6414 [email protected]
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