Ending with a Bang

Two significant OSHA rulemaking actions took center stage in late 2013, which may be remembered as a milestone year for recordkeeping changes. Also, DOL issued a rule that makes direct care workers eligible for overtime and minimum wage protection.

• By Jerry Laws
• Jan 01, 2014

Two significant OSHA rulemaking actions in the second half of 2013 could be game-changers for the construction workers and others who may be occupationally exposed to breathing silica dust, as well as to employers across the land. OSHA Assistant Secretary Dr. David Michaels on Aug. 23 announced a proposed rule issued by the agency that would set a new permissible exposure limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day. This rule had been awaiting action at OIRA, the OMB gatekeeper office for proposed federal regulations, for more than a year, so the announcement was major news for employers in construction, natural gas drilling, and some in general industry, as well. Michaels urged the public to participate by visiting www.osha.gov/silica and reading fact sheets about the rule. The current PEL was set in 1971; this lower PEL would apply to construction and general industry, including hydraulic fracturing operations at gas drilling sites. Stakeholders have until Jan. 27 to submit comments. OSHA's “informal public hearings” about the proposed rule will begin March 18, 2014, in Washington, D.C., and are expected to continue for several weeks.

If it becomes a final rule, the second rulemaking action, in November, makes 2013 a milestone year for recordkeeping changes. This one would require establishments with more than 250 employees that are already required to keep injury records to electronically submit them to OSHA on a quarterly basis and establishments with 20 or more employees in industries with high injury and illness rates to submit each year, electronically, their injury and illness logs. Earlier in the year, OSHA had issued a final rule requiring all federal agencies to submit their injury and illness data to BLS annually.

Michaels said OSHA already collects injury and illness data from 80,000 U.S. private-sector employers and posts the data from 60,000 of them online. He said OSHA will remove identifying information and then post the information online. Michaels said the new submission requirements will enable employers to compare their safety records against peers, will allow workers to know the safety records of potential employers, and aggregating the data across industries will help researchers identify emerging hazards and patterns.

It was indeed a busy second half for this agency. Michaels on Oct. 24 unveiled two online tools that safety organizations interpreted as a step toward updated Permissible Exposure Limits, one of the highest priorities of industrial hygienists and safety professionals for many years. The tools are annotated tables showing how OSHA’s current PELs differ from Cal/OSHA, NIOSH, and ACGIH exposure limits and a toolkit employers can use to choose safer alternative chemicals. Michaels said OSHA's current PELs, many of which are decades old, are "dangerously out of date" and do not sufficiently protect workers. However, releasing these tools was not an acknowledgement that OSHA has given up on trying to update its PELs through the standard regulatory process, he said. The tables are available at https://www.osha.gov/dsg/annotated-pels/index.html and the toolkit at http://www.osha.gov/dsg/safer_chemicals/index.html.

2013: The Year in Review
Two multi-fatality events in April 2013, the West, Texas fertilizer plant explosion and the Rana Plaza apparel factory collapse in Bangladesh, spurred the Obama administration and six major global retailers, respectively, to promise oversight changes. On the other hand, MSHA's Joe Main and the Association of American Railroads confirmed early in the year that 2012 had been the safest year on record for the mining and railroad industries, respectively.

In occupational health, the Affordable Care Act--notable both for its support for workplace wellness programs and its rocky rollout--undoubtedly was the top story of the year. Also, FDA and some state authorities took steps to reclassify and relabel opioids or synthetic drugs to make them harder to access.

In November 2013, Quest Diagnostics released a Drug Testing Index™ report covering the entire 25 years since President Ronald Reagan signed the Drug-Free Workplace Act into law. Analysis of urine tests during the intervening years showed a 60 percent drop in positives among the general U.S. workforce since 1992, but the experts identified two big danger signs: states legalizing recreational marijuana use and increasing abuse of prescription drugs, particularly prescription opiates. R.H. Barry Sample, Ph.D., director of science and technology for Quest Diagnostics Employer Solutions, said the positive rate among workers for whom testing is federally required fell from 2.6 percent in 1992 to 1.6 percent in 2012, while the positive rate among those tested in the general U.S. workforce fell from 10.3 percent in 1992 to 4.1 percent in 2012.

Other significant events during the year included these:

January 2013
BP pleaded guilty to charges of manslaughter in connection with the April 2010 Deepwater Horizon explosion and oil spill. The company was ordered to pay criminal penalties totaling a record $4 billion.

February 2013
The sale by BP of its Texas City, Texas refinery and additional assets to Marathon Petroleum Corp. was completed, the British energy company announced Feb. 1. The total value was $2.4 billion--approximately $600 million in cash, $1.1 billion for the estimated value of hydrocarbon inventory, and an earn-out arrangement payable over six years of $700 million based on assumed future margins and refinery throughput.

The Massachusetts Department of Public Health announced Feb. 5 that, as a result of its unannounced inspections of 40 compounding pharmacies triggered by the New England Compounding Center-linked fungal meningitis outbreak, partial or complete cease and desist orders were issued to 11 pharmacies for a range of violations. DPH also cited another 21 pharmacies for minor deficiencies that already had been corrected or were being addressed. Injectable steroids produced by NECC were linked to fungal meningitis cases in more than a dozen states. The state's Board of Pharmacy also issued new regulations that require sterile compounding pharmacies in Massachusetts to report volume and distribution to the state for the first time.

A Massey Energy Company executive, David Hughart, 53, of Crab Orchard, W.Va., pleaded guilty Feb. 28 to conspiring to impede the Mine Safety and Health Administration and also conspiring to violate mine health and safety laws. Hughart pleaded guilty to the charges in a U.S. district court in Beckley, W.Va.

July 2013
CDC reported that more American women have died from drug overdoses than from motor vehicle crashes since 2007. The report summarized a study that found the number of prescription painkiller fatal overdoses rose 400 percent among women from 1999 to 2010, compared with 265 percent among men. Drug overdose deaths also accounted for 34 percent of all suicides among women but only 8 percent among men. CDC reported prescription painkiller overdoses killed nearly 48,000 women between 1999 and 2010, the period analyzed in the study.

The U.S. Chemical Safety Board on July 25 designated an OSHA combustible dust standard for general industry as its first-ever "Most Wanted Safety Improvement."

August 2013
U.S. railroads were ordered to take steps within 30 days to ensure trains moving hazardous materials do not move while unattended and possibly cause a disaster similar to the July 6, 2013, derailment and fire in Lac-Mégantic, Canada. The Federal Railroad Administration issued an Emergency Order and Safety Advisory Aug. 5 meant to make sure trains operating on mainline tracks or sidings do not move unintentionally.

September 2013
The U.S. Department of Labor issued a rule that makes direct care workers—those who provide long-term care for the elderly or disabled—eligible for overtime and minimum wage protection. The change will affect approximately 2 million home health and personal care workers in states that did not already have minimum wage and/or OT protection for direct care workers in place.

CDC warned again about antibiotic-resistant infections, stating that more than 2 million people in the United States get them each year and at least 23,000 die annually. The report, "Antibiotic Resistance Threats in the United States, 2013," called this an urgent health threat for the country. The loss of effective antibiotic treatments will not only cripple the ability to fight routine infectious diseases, but also will undermine treatment of infectious complications in patients with other diseases, according to CDC. Its report said the use of antibiotics is the most important factor leading to antibiotic resistance, with as much as half of all antibiotic use in humans and much of antibiotic use in animals "unnecessary or inappropriate."

November 2013
The U.S. Senate on Nov. 18 approved the Drug Quality and Security Act, a bill prompted by the New England Compounding Center outbreak, sending it to the president for his signature. The bill clarifies the Food and Drug Administration's authority over the compounding of human drugs while requiring the agency to coordinate with states to ensure the safety of compounded drugs.

The NFL Players Association announced a new wellness initiative for former players, allowing those who had concussions during their careers to have a brain MRI done at any of partnering medical facilities: the UNC Brain and Body Health Program, Tulane University and Tulane Institute of Sports Medicine, and three Cleveland Clinic sites -- its main campus in Cleveland, Ohio; at Cleveland Clinic Florida in Weston, Fla.; and at the Cleveland Clinic Lou Ruvo Center for Brain Health in Las Vegas.

This article originally appeared in the January 2014 issue of Occupational Health & Safety.