For a second time, the US Senate Committee on Health, Education, Labor and Pensions (HELP) has postponed a vote on Secretary of Labor Nominee, Thomas Perez. The vote will be held on Thursday, May 16, 2013 at 9:15 AM. The vote had been scheduled for Wednesday, May 8, 2013, following an April 22, 2013 Committee Republican Letter to HELP Committee Chairman Tom Harkin (D-IA) requesting that the mark-up of Mr. Perez, first scheduled for April 24, be postponed due to “the number of requests for information that remain outstanding….”
(Last week, we highlighted concerns over the CSB’s ambitious agenda, as laid out in the agency’s recently released Five-Year Plan. In today’s post, and those that will soon follow, we see more evidence of the CSB’s aggressive movement to play a bigger role in PSM enforcement.)
In the wake of a fire and explosion that killed 15 workers and injured 180 others at the BP Texas City facility in 2005, CSB made a number of recommendations intended to improve safety in the refining and petrochemical industries. Among other things, CSB recommended that a standard be developed on fatigue prevention management. In April 2010, API published the first edition of ANSI/API Recommended Practice 755 titled “Fatigue Risk Management Systems for Personnel in the Refining and Petrochemical Industries,” which provides a wide range of options that employers can use to design and employ a comprehensive worker fatigue prevention program. In its 2012 – 2016 Strategic Plan, CSB proposed to study ANSI/API RP 755, analyzing the effectiveness of the recommended practice. Given the relatively recent release of ANSI/API RP 755 and the fact that industry is still in the process of applying its recommendations, employers objected to CSB’s proposed study, arguing that an analysis of ANSI/API RP 755 was premature at this time.
On March 29, 2012, CSB requested public comment on its 2012 – 2016 Strategic Plan. The Plan outlines the Chemical Safety Board’s (CSB) objectives for the next several years, explaining that it will focus its efforts on conducting incident investigations and safety studies that involve accidental releases or potential releases of hazardous chemicals, and improving safety and environmental protection by securing implementation of CSB recommendations and broadly disseminating CSB findings.
On May 24, 2012, the American Chemistry Council (ACC), the National Grain and Feed Association (NGFA), the National Oilseed Processors Association (NOPA), and the Renewable Fuels Association (RFA) filed a petition in the US Court of Appeals for the DC Circuit challenging the provisions of the new hazard communication standard that relate to combustible dust. On November 2, 2012, the court stayed the case pending further settlement discussions between OSHA and the other parties involved. At the end of last month, movement in the lawsuit picked up again.
On March 21, 2013, President Barak Obama re-nominated Cynthia Attwood to the Occupational Safety and Health Review Commission (OSHRC) in anticipation of her current term as Commissioner expiring on April 27, 2013. Ms. Attwood will need to be confirmed by the Senate in order to continue her work as an OSHRC Commissioner.
On March 18, 2013, President Barack Obama nominated Thomas Perez to replace former Secretary of Labor Hilda Solis, who resigned earlier this year. Mr. Perez currently serves as Assistant Attorney General for the Civil Rights Division of the Department of Justice (DOJ).
At March’s ABA OSHA Midwinter Conference, Deputy Assistant Secretary of Labor, Richard Fairfax revealed OSHA’s citation data for the 2013 fiscal year thus far (10/1/12 to 2/10/13). The same perennial standards made OSHA’s Top 10 list, but current trends suggest inspections may be down this year.
On February 27, 2013, the United States Supreme Court issued its decision in Gabelli v. SEC. The Gabelli case centered on the interpretation of a federal statute of limitations that provides that “an action… for the enforcement of any civil fine, penalty, or forfeiture . . . shall not be entertained unless commenced within five years from the date when the claim first accrued.” The SEC asked the Court to read the so-called “discovery rule” into this statute of limitations so that the five year clock would not begin to tick until the alleged violation was discovered.
The Court rejected the SEC’s argument, instead holding that once a claim accrues, the five-year clock begins to run. The “standard rule,” the Court held, “is that a claim accrues when the plaintiff has a complete and present cause of action.” Although Gabelli involved the SEC rather than OSHA, and a different statute of limitations, the Court’s reasoning should apply equally to the six-month statute of limitations established by the OSH Act, thus preventing OSHA from relying on the discovery rule to extend the OSH Act’s limitations period.
Last year, the machine guarding standard – 29 C.F.R. § 1910.212 – was among OSHA’s top 10 most frequently cited standards, moving up one spot from where it was the previous year. In fact, it earned a place in OSHA’s top 4 highest penalties assessed for 2012. In light of its increasing regularity and formidable penalties, employers should be prepared to consider 3 primary questions when facing the prospect of a machine guarding citation:
- Have the moving part hazards been designed out of the machine at issue?
- Is there employee exposure to any hazard associated with the moving parts?
- Have any administrative controls been implemented to limit exposure?
These questions will provide a meaningful starting point for employers to evaluate their defenses if OSHA ever shows up at the door.
The District of Columbia Circuit Court of Appeals clarified the meaning of the OSH Act’s Statute of Limitations (SOL) in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the "Volks Decision"). In the Volks Decision, an employer was cited and fined for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as the employer argued, at least six months after the recorded injury occurred. The OSH Act’s SOL provides that citations must be issued within six months following the occurrence of any violation. 29 U.S.C. § 658(c). Employing a plain reading of the statute, the Court of Appeals held that because the citations were issued outside of the six-month SOL, they were untimely and must be vacated.
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