1

Legal Aspects of the Occupational Environment

Lectures#2: Based on Chapter 3

Instructor Dr. Ephraim Massawe, Asst. Prof. IH & Env.Health

Credit: The Occupational Environment -- Its Evaluation and Control

Occupational Safety and Health Act PL 91-596December 29, 1970 became effective 1971

Bill introduced bySenator Harrison Williams (D. NJ)Congressman William Steiger (R. WI)Hence: the OSH Act a.k.a. William-Steiger Act [Remember OSHE 141?]1969 Congress (congressional sitting #91)

Relevance to IH Field Evaluations?

2

The Law

Credit: The Occupational Environment -- Its Evaluation and Control

OSHRC: Occupational S&HH Review Commission pp44

Functions of the OSHRC◦ Hearing of appeals by employers◦ Adjudication of cases by the ALJ◦

Relevance to IH Field Evaluations?

3

Agencies Created by OSH Act

Credit: The Occupational Environment -- Its Evaluation and Control

OSHA: Occupational S&H Administration (the agency) NIOSH: National Institute For Occupational S&H OSHRC: Occupational S&HH Review Commission

Functions of NIOSH◦ Conduct research in OSH◦ Develop criteria as basis for new standards (RELs)◦ Professional education and manpower development◦ Annual toxic substances list◦ Health hazards evaluation

4

Agencies Created by OSH Act

Credit: The Occupational Environment -- Its Evaluation and Control

Establish OSH standards Enforce compliance with standards (through inspections) pp44

◦ IH field evaluation data must be available Note: OSHA inspectors can collect field samples! Provide worker training Encourage state programs

5

Functions of OSHA

Credit: The Occupational Environment -- Its Evaluation and Control

Inspections based on priorities pp44

OSHA Field Op. Manual of Procedures for Inspections (steps)

Imminent danger situationsFatalities/CatastrophesComplaintsReferralsFollow-upsLEP/NEP

pp44

On-site inspectionsPresentation of credentials Opening ConferenceWalk-aroundClosing Conference Statute of Limitations (OSHA must issue citation within 6 months) pp44Employers have 15 working days of receiving the citation to contest citation [exclude Fed Holidayspp45

SEC 5 (A) (1): Each employer shall…◦ ….. furnish to each of his employees, employment and a place of

employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees

Recognized hazard: it is a condition that is…. Of common knowledge or general recognition in the particular industry in which

it occurs Detectable by means of the human senses Of such wide, general recognition as a hazard in the industry that there are

generally known and accepted tests for its existence which should make its presence known to the employer

6

General Duty Clause (in the absence of law, regulation or standard…..

Credit: The Occupational Environment -- Its Evaluation and Control

SEC 5 (a) (2): Each employer shall……. comply with occupational S&H standards promulgated under this act

SEC 5 (b): Each employee shall….Comply with occupational S&H standards and all rules, regulations, and orders

issued pursuant to this act which are applicable to his own actions and conduct.

SEC. 6 (b) (5) Toxic Material or physical agent “… shall set the standard which most adequately assures, to the extent possible,

on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure for the period of his working life.”

7

General Duty Clause

Credit: The Occupational Environment -- Its Evaluation and Control

Definition: A standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe and healthful employment and places of employment◦ A description or a set of attributes or a model established for the

purpose of comparison◦ An accepted decision

Compliance/ non-compliance [TLVs/RELs/PELs/CEILINGS etc] Safe/unsafe

8

OSH Standards

Credit: The Occupational Environment -- Its Evaluation and Control

Sec 6.(A)◦ NWS title USC (APA – administrative procedure act)◦ Within 2 years of acts effectiveness by rule

Promulgate as OSH standard◦ Any national consensus standard◦ Proprietary standards◦ Pre-existing federal standards Expired April 29, 1973

Sec 6.(B) ◦ Procedures to promulgate, modify, or revoke a standard◦ Law procedures in the act

Permanent standards must go through an “informal rule-making process” prescribed in the Administrated Procedures Act

9

Origins Of OSHA Standards

Credit: The Occupational Environment -- Its Evaluation and Control

(a) Consensus -◦ NFPA Standards◦ ANSI◦ ASTM etc.

(b) Proprietary -◦ Underwriters Laboratories - UL◦ Factory Mutual - FM◦ American Society of Mechanical Engineers - ASME◦ Compressed Gas Association◦ American Conference of Governmental Industrial Hygienists - ACGIH◦ National Plant Food Institute◦ American Petroleum Institute◦ National Board of Boiler and Pressure Vessel Inspectors

10

Sources of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

◦ National Association of Plumbing and Mechanical Officials◦ American Society of Agricultural Engineers◦ American Society of Heating, Refrigeration and Air Conditioning Engineers◦ Crane Manufacturers Association◦ Society of Automotive Engineers - SAE◦ American Welding Society - AWS◦ Rubber Manufacturing Association◦ Institute of Makers of Explosives

◦ Relevance to IH Field Evaluations?

11

Sources of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

(c) Pre-Existing Federal Supply Contracts Act - Walsh-Healey

Federal◦ Federal Service Contracts Act - McNamara-O’Hara

Standards◦ Contract Work Hours and Safety Standards Act - Construction◦ Longshoremen and Harbor Workers Act◦ National Foundation on the Arts and the Humanities Act

◦ Relevance to IH Field Evaluations?

12

Sources of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

Indication of Need Request for Additional Information Review All Information Develop Proposed Standard Review Feasibility Publish Notice - Federal Register Public Comment Period Public Hearing - Maybe Final EIS/IIS Revision Promulgation

13

Development of OSHA Std.

Credit: The Occupational Environment -- Its Evaluation and Control

Performance Standard: sets a goal, i.e., maintaining exposure to airborne contaminants below established permissible exposure levels.

Design Standard: requires a ventilation system to be installed and that it meet specific design requirements.

14

Types of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

Horizontal Standards Vertical Standards

◦ Walking-working surfaces - Special industries◦ Mean of egress - Pulp, paper, and paperboard mills◦ Powered platforms, person lifts and vehicle mounted◦ Textiles work platforms◦ Bakery equipment◦ Occupational Health and environmental control◦ Laundry machinery and operations◦ Hazardous materials Sawmills

15

Types of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

OSHA SECTION 6(a)◦ Walsh-Healy Act - 1968 TLV Listing◦ 29CFR1910.1000

Table Z-1 (1968 TLV List) Table Z-2 (ANSI List) Table Z-3 (Mineral Dust)

◦ TLV copyrighted by ACGIH Used Permissible Exposure Limit (PEL)

16

TLVs and PELs

Credit: The Occupational Environment -- Its Evaluation and Control

STANDARD OSHA NIOSH ACGIH AIHA NFPA

PEL REL TLV WEEL LEL, LFL,

LEL, UFL

8 hr TWA 4 4 4 4 N/ASTEL 4 4 4 4 N/ACEILING 4 4 4 4 N/ASKIN 4 4 4 4 N/AA. L. 4 7 7 7 N/A

17

Summary of Standards

Credit: The Occupational Environment -- Its Evaluation and Control

New Standard Promulgated - January 1989◦ 164 new PELs and 212 revised PELs

AFL-CIO Vs. OSHA CA 11, No. 89-7185 July 7, 1992 Federal Appeals Court Overturned

18

OSHA PEL Revision

Credit: The Occupational Environment -- Its Evaluation and Control

Overturned because OSHA failed to:◦ Establish that existing PELs in the workplace present

significant risk of material health impairment or that the new standards eliminate or substantially reduce the risk

◦ Meet burden of establishing the 428 new PELs were either economically or technologically feasible

◦ Presented sufficient explanation to support an across the board four year delay in implementing the rule

11th Circuit, Federal Court of Appeals, Atlanta. GA July 7, 1992

19

OSHA PEL Revision

Credit: The Occupational Environment -- Its Evaluation and Control

March 1999 Justice Department decided not to appeal to Supreme Court OSHA instructs Field Offices:

◦ to enforce PELs in effect before 1989 rule◦ use General Duty Clause for 164 new PEL substances

Agreement states (OSHE-State Programs)◦ some followed OSHA lead◦ others held with revision

20

OSHA PEL Revision

Credit: The Occupational Environment -- Its Evaluation and Control

Definition: An exposure concentration chosen sufficiently below the exposure limit so that a random exposure measurement falling below this concentration indicates to a high level of confidence that a large proportion of all exposures are below exposure limit

One Half The PEL

Substance OR hazard Specific Standards

Propose Generic Standard

21

Action Level

Credit: The Occupational Environment -- Its Evaluation and Control

Problem: The OSHA level is based upon concepts that require “typical” workplace

GSDs of 1.52 or less Actual workplace data generally demonstrates GSDs >1.52 To cover most workplaces, an action level as low as 0.1PEL might be

required

Other Health Standards◦ These Range From

1910.1001: Asbestos ....

1910.1050 :Methylenedianiline

1910.1200: Hazard Communication

1910.1450: Occupational Exposure to Hazardous Chemicals in the Laboratory

22

OSHA PEL Revision

Credit: The Occupational Environment -- Its Evaluation and Control

Affects everyone using chemicals in the workplace. Chemical manufacturers have to determine the physical and health

hazards of each product they make. Then they have to let users know about those hazards by using labels and MSDS!.

Employers must develop a written hazard communication program. They must:

Tell employees about the Haz. Comm. Standard; Explain how it applies in the workplace; Provide information and training on hazardous chemicals in their

workplaces.

23

Hazard Communication Standard

Credit: The Occupational Environment -- Its Evaluation and Control

Employees have to do something to protect themselves, too. They have to read labels and Material Safety Data Sheets, and naturally, follow these instructions and warnings.

Material Safety Data Sheet◦ 1910.1200 Definition:

Material safety data sheet (MSDS) means written or printed material concerning a hazardous chemical which is prepared in accordance with paragraph (g) of this section.

GHS: Are now mandatated in place of MSDS!

24

Hazard Communication Standard

Credit: The Occupational Environment -- Its Evaluation and Control

25

State/Territory Safety and Health Planspp47

The following states and territories operate their own safety and health plans covering most private employers within their boundaries.

Alaska

Arizona

California

Hawaii

Indiana

Iowa

KentuckyMarylandMichiganMinnesotaNevadaNew Mexico

North CarolinaPuerto RicoOregonSouth CarolinaTennesseeUtah

Vermont

Virgin Islands

Virginia

Washington

Wyoming

Some of these states exclude some private employers. E.g. the plan for Alaska does not include private sector maritime. Those employments are covered by federal OSHA and other federal agencies. Some states exclude private employments on federal property or in federal enclaves.

Credit: The Occupational Environment -- Its Evaluation and Control

pp 44:OSHA Compliance S&H Officer (CSHO) conducts inspections on the basis of the following six priorities (name them..)

pp44/45: Inspections and investigations are based on the procedures and policies comprising of the following steps (name them..)

pp45/46: Contesting inspections (OSHA area office and OSHRC)

26

OSHA Enforcement through inspections

Credit: The Occupational Environment -- Its Evaluation and Control