5 OSHA and Its Regulations A worker in the goods and materials services should be able to go to work each day and expect to return home uninjured and in good health. There is no logical reason that a worker should be part of workplace carnage. Workers do not have to become one of the yearly workplace statistics. Workers who know the occupational safety and health rules and safe work procedures and follow them are less likely to become one of the 5700 occupat ional trauma deaths, one of the 90,000 occupational illness deaths, or even one of the 6.8 million nonfatal occupational injuries and illnesses. The essence of workplace safety and health should not completely depend on the Occupational Safety and Health Administration (OSHA) and its regulations, since they are not the driving forces behind workplace safety and health. OSHA has limited resources for inspection and limited inspectors. Enforcement is usually based on serious complaints, catastrophic events, and workplace deaths. An employer with a good safety and health program and safety record has a better opportunity to get a contract=order tied to his=her workplace safety and health record and reap the benefits of low insurance premiums for workers compensation and liability. Usually, safety and health is linked to the bottom line, which is seldom perceived as humanitarian. Hazards abound from the handling of goods and materials and workers should be protected. An example is that of a worker moving heavy furniture that could result in injury. ß 2008 by Taylor & Francis Group, LLC. This chapter tries to answer many of the questions regarding OSHA compliance, workplace safety and health, and coordination between workers and employers to have a safe and healthy workplace. 5.1 FEDERAL LAWS Congress establishes federal laws (legislation or acts) and the president signs them into law. These laws often require that regulations (standards) be developed by the federal agencies that are responsible for the intent of the law. 5.2 OSHACT The Occupational Safety and Health Act (OSHACT) of 1970, also known as the Williams–Steiger Act, is such a law. It was signed by President Richard Nixon on December 29, 1970 and became effective from April 29, 1971. (The OSHA CT was not amended until November 5, 1990 by Public Law 101-552.) The OSHA CT assigned the responsibility of implementing and enforcing the law to a newly created agency, the OSHA, located in the U.S. Department of Labor (DOL). 5.3 CONTENT OF THE OSHACT Before the OSHACT, there were some state laws, a few pieces of federal regulations, and a small number of voluntary programs by employers. Most of the state programs were limited in scope and the federal laws only partially covered workers. Another important reason for the OSHA CT was the increasing number of injuries and illnesses within the workplace. Thus, the OSHA CT was passed with the express purpose of assuring that every working man and woman in the nation would be provided safe and healthful work conditions while preserving this national human resource, the American worker. The OSHA CT is divided into 34 sections with each having a specific purpose. The full text of the OSHA CT is approximately 31 pages and a copy can be obtained from your local OSHA office. 5.4 REGULATION PROCESS The OSHA was mandated to develop, implement, and enforce regulations relevant to workplace safety and health and the protection of workers. Time constraints prevented the newly formed OSHA from developing brand new regulations. Therefore, OSHA adopted previously existing regulations from other government regulations, consensus standards, proprietary standards, professional groups’ standards, and accepted industry standards. This is why the hazardous chemical exposure levels today, with a few exceptions, are the same as the existing threshold limit values (TLVs) published by the American Conference of Governmental Industrial Hygienist in 1968. Once these TLVs were adopted, it became very difficult to revise them. Even though research and knowledge have fostered newer and safer TLVs in the past 30 years, they have not been adopted by the OSHA. As stated previously, the original OSHA standards and regulations have come from three main sources: consensus standards, proprietary standards, and federal laws that existed when the OSHA CT became law. ß 2008 by Taylor & Francis Group, LLC. Consensus standards are developed by industry-wide standard developing organizations and are discussed and substantially agreed upon through industry consensus. OSHA has incorporated into its standards the standards of two primary groups: the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA). Proprietary standards are prepared by professional experts within specific indus- tries, professional societies, and associations. The proprietary standards are deter- mined by a straight membership vote, not by consensus. Some of the preexisting federal laws that are enforced by OSHA include the Federal Supply Contracts Act (Walsh– Healy), the Federal Service Contrac ts Act (McNamara–O’Hara), the Contract Work Hours and Safety Standard Act (Construc- tion Safety Act), and the National Foundation on the Arts and Humanities Act. Standards issued under these acts are now enforced in all industries where they apply. When OSHA needs to develop a new regulation or even revise an existing one, it becom es a lengthy and arduous process, often taking more than a decade. Standards are sometimes referred to as being either horizontal or vertical in their application. Most standards are horizontal or general. This means they apply to any employer in any industry. Fire protection, working surfaces, and first aid standards are examples of horizontal standards. Some standards are only relevant to a particular industry and are called vertical or particular standards. It seems, through newspapers and conversation s, as though OSHA is producing new standards every day that will impact the workplace. This simply is not true. The regulatory process is very slow. The steps are as follows: 1. Agency (OSHA) opens a regulatory development docket for a new or revised regulation. 2. This indicates that OSHA believes a need for a regulation exists. 3. Advanced notice of proposed rulemaking (ANPRM) is published in the Federal Register and written comments are requested to be submitted within 30–60 days. 4. Comments are analyzed. 5. Notice of proposed rulemaking (NPRM) is published in the Federal Register with a copy of the proposed regulation. 6. Another public comment period transpires usually for 30–60 days. 7. If no additional major issues are raised by the comments, the process continues to step 10. 8. If someone raises some serious issues, the process goes back to step 4 for review and possible revision of the NPRM. 9. Once the concerns have been addressed, it continues forward to steps 5 and 6 again. 10. If no major issues are raised, a final rule (FR) will be published in the Federal Register, along with the date when the regulation will be effective (usually 30–120 days). 11. There can still be a petition of reconsideration of the FR. There are times when an individual or industry may take legal action to bar the regulations’ promulgation. ß 2008 by Taylor & Francis Group, LLC. 12. If the agency does not follow the correct procedures or acts arbitrarily or capriciously, the court may void the regulation and the whole process will need to be repeated. Comments for or against a regulation during the development process are welcome. This is an opportunity to speak up. No comments indicate a lack of concern. You must be specific. Give examples, be precise, give alternatives, and provide any data that can back up your opinion. Federal agencies always welcome good data, which substantiates your case. Cost=benefit data is always important in the regulatory process and any valid cost data that you are able to provide may be very beneficial. But, make sure that your comments are based upon what is published in the Federal Register and not based upon hearsay information. Remember that the agency propos ing the regulation may be working under specific restraints. Make sure you understand these constraints. Because of restrictions the agency may not have the power to do what you think ought to be done. 5.5 FEDERAL REGISTER The Federal Regist er is the official publication of the U.S. government. If you are involved in regulatory compliance, you should obtain a subscription to the Federal Register. The reasons for obtaining this publication are clear. It is of ficial, compre- hensive, and not a summary done by someone else. It provides immediate accurate information and early notices of forthcoming regulations, informs you of comment periods, and gives the preamble and responses to questions that are raised about a final regulation. It provides notices of meetings, gives information on obtaining guidance documents, and supplies guidance on findings, on cross references, and gives the yearly regulatory development agenda. It is the ‘‘Bible’’ for regulatory development. It is published daily and is recognizable by brown paper and newsprint quality printing (Figure 5.1). 5.6 PURPOSE OF OSHA The OSHA ’s purpose is to ensure, as much as possible, a healthy and safe workplace and conditions for workers in the United States. The OSHA was created by the act to . Encourage employers and employees to reduce workplace hazards and to implement new and improve existing safety and health progra ms. . Provide for research in occupational safety and he alth to develop innovative ways of dealing with occupational safety and health problems. . Establish separate but dependent responsibilities and rights for employers and employees for the achievement of better safety and healt h conditions. . Maintain a reporting and recordkeeping system to monitor job-related injuries and illnesses. . Establish training programs to increase the number and competence of occupational safety and health personnel. ß 2008 by Taylor & Francis Group, LLC. . Develop mandatory job safety and health standards and enforce them effectively. . Provide for the development, analysis, evaluation, and approval of state occupational safety and health programs. 5.7 CODE OF FEDERAL REGULATIONS Probably, one of the most common complaints from people who use the U.S. Code of Federal Regulations (CFR) is, ‘‘How do you wade through hundreds of pages of standards and make sense out of them?’’ You may have experienced this frustration and been tempted to throw the standards in the round file. The CFR is a codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. The code is divided into 50 titles, which represent broad areas that are subject to federal regulations. Each title is divided into chapters that usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specificregulatoryareas. Based on this breakdown, the OSHA is designated Title 29—Labor, Chapter XVII FIGURE 5.1 Example of Federal Register cover. ß 2008 by Taylor & Francis Group, LLC. (Occupational Safety and Health Administration) and Part 1910 for the General Industry Sector (Figure 5.2). Each volume of the CFR is revised at least once each calendar year and issued on a quarterly basis. OSHA issues regulations at the beginning of the fourth quarter, or July 1 of each year (the approximate revision date is printed on the cover of each volume). The CFR is kept up-to-date by individual revisions issued in the Federal Register. These two publications (the CFR and the Federal Register) must be used together to determine the latest version of any given rule. To determine whether there have been any amendments since the revision date of the U.S. code volume in which you are interested, the following two lists must be consulted: the Cumulative List of CFR Sections Affected, issued monthly; and the Cumulative List of Parts Affected, appearing daily in the Federal Register. These two lists refer you to the Federal Register page where you may find the latest amendment of any given rule. The pages of the Federal Register are numbered sequentially from January 1 to January 1 of the next year. FIGURE 5.2 Example of Code of Federal Regulations cover. ß 2008 by Taylor & Francis Group, LLC. As stated previously, Title 29, Chapter XVII has been set aside for the OSHA. Chapter XVII is broken down into parts. Part 1910 contains the general industry standards. The general industry standards are further broken down into subparts, sections, and paragraphs. 5.8 CFR NUMBERING SYSTEM To use the CFR, you need an understanding of the hierarchy of the paragraph numbering system. The numbering system is a mixture of letters and numbers. Before 1979, italicized small case letters and small case Roman numerals were used. A change was made after 1979. The CFR numbering hierarchy is a follows: Before 1979 1980 (a) (a) (1) (1) (i) (i) Italicized (a) (A) Italicized (1) {1} Italicized (i)(i) When trying to make use of the regulations, prior knowledge will be beneficial. This should make comprehension easier and more user friendly. The following illustrates and explains the numbering system using an example: 29 CFR 1910.110 (b)(13)(ii)(b)(7)(iii) Portable containers shall not be taken into buildings except as provided in Paragraph (b)(6)(i) of this section. Title Code of Federal Regulations Part Subpart Section Paragraph 29 CFR 1910 H .110 As can be seen from this example, the first number (29) stands for the title. CFR stands for the Code of Federal Regulations, followed by the Part 1910 and the Subpart H. Finally, there is a period which is followed by an Arabic number. This will always be the section number. In this case, Section .110 is the storage and handling of liquefi ed petroleum gases standard. If the number had been .146, the section would pertain to perm it-required confined spaces. 29 CFR 1910.110 (b)(13)(ii)(b)(7)(iii) Portable containers shall not be taken into buildings except as provided in paragraph (b)(6)(i) of this section. ß 2008 by Taylor & Francis Group, LLC. Title Code of Federal Regulations Part Subpart Section Paragraph 29 CFR 1910 H .110 (b) This means that the next breakdown of paragraphs will be sequenced by using small case letters in parentheses (a), (b), (c), etc. If you had three major paragraphs of information under a section, they would be lettered .110(a), .110(b), and .110(c). 29 CFR 1910.110 (b)(13)(ii)(b)(7)(iii) Portable containers shall not be taken into buildings except as provided in paragraph (b)(6)(i) of this section. Title Code of Federal Regulations Part Subpart Section Paragraph and Subparagraph 29 CFR 1910 H .110 (b)(13) The next level of sequencing involves the use of Arabic numbers. As illustrated, if there were three paragraphs of information between subheadings (a) and (b), they would be numbered (a)(1), (a)(2), and (a)(3). 29 CFR 1910.110 (b)(13)(ii)(b)(7)(iii) Portable containers shall not be taken into buildings except as provided in paragraph (b)(6)(i) of this section. Title Code of Federal Regulations Part Subpart Section Paragraph and Subparagraph 29 CFR 1910 H .110 (b)(13)(ii) The next level uses the lower case Roman numerals. An example would be between Paragraphs (2) and (3). If there were five paragraphs of information pertaining to Arabic number 2, they would be numbered (2)(i), (2)(ii), (2)(iii), (2)(iv), and (2)(v). Since 29 CFR 1910.110 was promulgat ed before 1979, all subparagraph num- bering beyond this are italicized letters and numbers (e.g., (b )(7)(iii)). If after 1979 there are subparagraphs to the lower case Roman numerals, then a capital or upper case letter is used such as (A), (B), . . . , (F). Any other subparagraph falling under an upper case letter is numbered using brackets, for example, {1}, {2}, ,{23}, and any subparagraph to the bracketed numbers would be denoted by an italicized Roman numeral, such as (i), (ii), , (ix). ß 2008 by Taylor & Francis Group, LLC. 5.9 OSHA STANDARDS COVER The OSHA standards cover construction and the general industry, which includes manufacturing, transportation and public utilities, wholesale and retail trades, finance and insurance services, as well as other industrial sector (i.e., longshoring). Some of the specific areas covered by regulations are as follows: Lockout=Tagout Electrical Safety Housekeeping Training requirements Noise exposure Fire prevention Hazard communication Confined spaces Personal protection Ventilation Equipment requirements Sanitation Medical and first aid Fall protection Working with hazardous chemical Emergency planning Hazardous substances Recordkeeping Guarding Use of hand tools Machine safety Ladders and scaffolds Equipment safety Radiation Explosives=blasting Hazardous chemicals Lead 5.10 COPIES OF THE OSHA STANDARDS The standards for Occupational Safety and Health are found in Title 29 of the CFR. The standards for specific industries are found in Title 29 of the CFR with separate parts: . General Industry—29 CFR Part 1910 . Ship Yard Employment—29 CFR Part 1915 . Marine Terminals—29 CFR Part 1917 . Longshoring—29 CFR Part 1918 . Gear Certification—29 CFR Part 1919 . Construction—29 CFR Part 1926 . Agriculture—29 CFR Part 1928 5.11 RELIEF (VARIANCE) FROM AN OSHA STANDARD Variance can be obtained for OSHA standards for the following reasons: . Employer may not be able to comply with the standard by its effective date. . Employer may not be able to obtain the materials, equipment, or profes- sional or technical assistance. . Employer has in place processes or methods that provide protection to workers, which is at least as effective as the standard’s requirements. A temporary variance meeting the above criteria may be issued until compliance is achieved or for 1 year, whichever is shorter. It can also be extended or renewed for 6 months (twice). Employers can obtain a permanent variance if the employer can document with a preponderance of evidence that existing or proposed methods, conditions, processes, ß 2008 by Taylor & Francis Group, LLC. procedures, or practices provide workers with protections equivalent to or better than the OSHA standard. Employers are required to post a copy of the variance in a visible area in the workplace as well as make workers aware of request for a variance. 5.12 OSHACT PROTECTS Usually, all employers and their employees are considered to be under the OSHACT.But this statement is not entirely true since the following are not covered under the OSHA CT: . Self-employed persons . Farms at which only immediate family members are employees . Workplaces already protected by other federal agencies under federal statues such as the U.S. Department of Energy and the Mine Safety and Health Administration . Also, federal employees and state and local employees 5.13 NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH’S ROLE The National Institute for Occupational Safety and Health (NIOSH) is one of the centers for disease control under the Department of Health and Human Services with headquar- ters in Atlanta, Georgia, and it is not part of OSHA. Its functions are as follows: . Recommend new safety and health standards to OSHA. . Conduct research on variou s safety and health problems. . Conduct health hazard evaluations (HHEs) of the workplace when called upon. . Publish an annual listing of all known toxic substances and recommended exposure limits. . Conduct training which will provide qualified personnel under the OSHACT. 5.14 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION’S ROLE The Occupational Safety and Health Review Commission (OSHRC) was estab- lished, when the OSHA CT was passed, to conduct hearings when OSHA citations and penalties are contested by employers or by their employees. 5.15 EMPLOYERS ARE RESPONSIBLE FOR WORKERS’ SAFETY AND HEALTH The employer is held accountable and responsible under the OSHACT. The General Duty Clause, Section 5(a)(1) of the OSHA CT states that employers are obligated to provide a workplace that is free of recogni zed hazards that are likely to cause death or serious physical harm to employees. Employers are responsible for the following: ß 2008 by Taylor & Francis Group, LLC. [...]... to enforce their safety and health program After all, the employer can blame OSHA when questioned about a safety and health regulation or rule, and absolve himself=herself ‘‘OSHA made me do it.’’ Without OSHA’s threats of enforcement, employers would have no leverage upon which to enforce the safety and health policies With proper cooperation and coordination, all parties can ensure a safe and healthy... of the Log and Summary of Occupational Injuries and Illnesses (OSHA Form 300A) annually from February 1 to April 30 5. 34 SUMMARY Although the employer is ultimately responsible for a safe and healthy workplace, the adherence to guidelines set by OSHA is the basis for a good safety and health program and assures the well-being of the employer, the managers, the supervisors, the workers, and their fellow... monitoring and measuring of hazardous materials and see the resulting of the sampling, as specified under the OSHACT and as required by OSHA standards Right to review the occupational injury and illness records (OSHA No 300) at a reasonable time and in a reasonable manner Right to have safety and health standards established and enforced by law Right to submit to NIOSH a request for an HHE of the workplace Right... hazardous materials in the workplace 5. 21 PERSONAL PROTECTIVE CLOTHING Workers are to be provided at no cost, the proper and well-maintained personal protective clothing, when appropriate for the job A new regulation does not require employers to pay for safety toed footwear, prescription safety eyewear, everyday clothing, weather-related gear, logging boots, uniforms, items worn to keep clean, and for other... $1 ,50 0–$7,000=violation Up to $70,000 and $7,000=day for each day it remains Same as willful, no death Up to $ 250 ,000 or $50 0,000 for a corporation and 6 months in jail $2 ,50 0,000 and 1 year in jail $7,000=day $1,000=poster $10,000 and 6 months in jail 5. 26 CHALLENGING CITATIONS, PENALTIES, AND OTHER ENFORCEMENT MEASURES Upon receipt of penalty notification, the employer has 15 days to submit a notice of contest to... enforce occupational safety and health in their states They must develop a program that OSHA will review and approve Approximately, 23 states have such programs If a state has a state plan (program) that is approved, the following conditions must exist: State must create an agency to carry out the plan State’s plan must include safety and health standards and regulations Enforcement of these standards... ultimately responsible for the workers’ safety and health Workers should do the following: Comply with the OSHA regulations and standards Are not to remove, displace, or interfere with the use of any safeguards Comply with the employer’s safety and health rules and regulations Report any hazardous condition to the supervisor or employer Report any job-related injuries and illness to the supervisor... government agency) about job safety and health Filing a safety and health grievance Participating in an OSHA inspection, conferences, hearing, or OSHArelated safety and health activity 5. 19 RIGHT TO KNOW This means that the employer must establish a written, comprehensive hazard communication program that includes provisions for container labeling, materials safety data sheets, and an employee training program... following: Job safety and health protection workplace poster (OSHA Form 2203) or state equivalent (use new OSHA Form 31 65) Copies of any OSHA citations of violations of the OSHA standards are to be at or near the location of the violation for at least 3 days or until the violation is abated, whichever is longer Copies of summaries of petitions for variances from any standard and this include recordkeeping... period within 15 days of receipt of the citation 5. 27 WORKERS GET THE RESULTS OF AN INSPECTION The workers or their representative can request the inspector to conduct a closing conference for labor and all citations are to be posted by the employer for the workers information Workers can contest the length of time period for abatement of a citation and the employer’s petition for modification for abatement . LLC. . Develop mandatory job safety and health standards and enforce them effectively. . Provide for the development, analysis, evaluation, and approval of state occupational safety and health programs. 5. 7. Department of Energy and the Mine Safety and Health Administration . Also, federal employees and state and local employees 5. 13 NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH S ROLE The National. government agency) about job safety and health . Filing a safety and health grievance . Participating in an OSHA inspection, conferences, hearing, or OSHA- related safety and health activity 5. 19 RIGHT TO KNOW This