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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Multiple “interpretations”/changes of interpretation Hearing conservation (withdrawn) Walk-around representatives (withdrawn) PSM retail exemption (struck down by court) Safety incentive programs (under challenge)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

16

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.

18

% 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

22

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%

24

% 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.

26 26

$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)

33 33

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 eric.hobbs@ogletree.com

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