Chapter2022.docx

C h A P T E R 20

Occupational Safety and Health
Observing that increased responsibilities and anemic staffing have hampered Uncle Sam’s ability to protect workers, President Barack Obama pledged in the first months of his presi- dency to step up federal enforcement of workplace safety. Obama’s first budget, released in late February 2009, and passed in substantial part in early April 2009, increased funding to the Occupational Safety and Health Administration (OSHA). “For the past eight years, the department’s labor law enforcement agencies have struggled with growing workloads and shrinking staff,” the 134-page budget proposal said. ‘The presi- dent’s budget seeks to reverse this trend, restoring the department’s ability to meet its respon- sibilities to working Americans under the more than 180 worker protection laws it enforces.” The funding increase was aimed at enabling OSHA to “vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers,” according to the White House document. (The extra money also was intended to beef up enforcement of wage and hour regulations and to enforce equal opportunity aspects of federal contracting.) On October 20, 2011, then Secretary of Labor Hilda L. Solis issued the following statement: “We are encouraged by the reported decline in incidence rates for workplace injuries and illnesses, which is reflective of the joint effort of government, business, unions and other organizations. Nevertheless, 3.1 million injuries and illnesses in the work- place is too high. Serious injuries and illnesses can knock a working family out of the middle class. Workers should not have to sacrifice their health and safety to earn a paycheck. “We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and man- ufacturing, and this group of workers had one of the highest rates of injuries and illness at 5.2 cases for every 100 workers. The Department of Labor’s Occupational Safety and Health Administration will continue to work with employers, workers and unions in this industry to reduce these risks. “Illness and injury rates for public sector workers also continue to be alarm- ingly high at 5.7 cases for every 100 workers, which is more than 60 percent higher than the private sector rate. We must continue to work with state and local govern- ments to ensure the safety of our public employees.

“A report like this also highlights the importance of accurate record keeping. Employers must know what injuries and illnesses are occurring in their workplaces in to identify and correct systemic issues that put their workers at risk. We are concerned with poor record-keeping practices and programs that discourage workers from reporting injuries and illnesses. That’s why OSHA is working hard to ensure the completeness and accuracy of these data, which are compiled by the nation’s employers. “As our economy continues to rebound and grow, we must ensure that safety and health are a part of that growth. Let’s all remember that no job is a good job unless it is also a safe job.”1 Twenty-four states have accepted Congress’s invitation to enact their own workplace safety programs, leaving it to the federal agency to try to oversee safety in the remaining 26, plus the American territories—notably Puerto Rico, the Virgin Islands, and Guam. Federal funding assistance for the state-run OSHA programs dramatically trails inflation, rising only about 1 percent in the aggregate since 2001.

The WORKING Law
Occupational Safety and Health Administration (OSHA) Enforcement The Occupational Safety and Health Administration’s (OSHA) mission is to pro- mote and to assure workplace safety and health, and to reduce workplace fatali- ties, injuries and illnesses. With over four decades of working to ensure safe and healthy workplaces, OSHA has continually served a vital role in assuring safe and healthful working conditions for men and women. Since the passage of the OSH Act of 1970, workplace deaths have fallen nearly 65 percent and occupational injury and illness rates have dropped 67 percent. OSHA continues to respond to new challenges from emerging industries, new technologies, and an ever-changing workforce by uti- lizing strategic mechanisms such as Site Specific Targeting (SST), National Emphasis Programs (NEPs), the Severe Violator Enforcement Program, and Corporate Settlement Agreements. OSHA Inspection Activity In FY 2013 OSHA conducted 39,228 total inspections. This number includes 185 sig- nificant and egregious (instance-by-instance) enforcement actions. In addition, OSHA con- ducted 22,170 programmed inspections. These inspections indicate that OSHA devoted more resources to proactively target the industries and employers that experienced the greatest number of workplace injuries and illnesses. OSHA also conducted 17,058 unprogrammed inspections, including employee complaints, injuries/fatalities, and refer- rals. Fatality inspections decreased by 8.2 percent in FY 2013.

20-1 Part 4 Employment Law Issues Policy and Processes of the Occupational Safety and health Act

The Occupational Safety and Health Act (OSH Act) was enacted by Congress in 1970. The statute has two broad goals: • To ensure safe and healthful working conditions for working men and women • To provide a framework for research, education, training, and information in the field of occupational safety and health The act requires employers to furnish their employees a workplace that is free from recog- nized hazards that cause, or are likely to cause, serious injury or death. A recognized hazard is one that is known to be hazardous, taking into account the standard of knowledge of the industry. The act also requires that employers meet the various health and safety standards set under the act and keep records of injuries, deaths, accidents, illnesses, and particular hazards. The Occupational Safety and Health Act applies to all employees who work for an employer that is engaged in a business affecting interstate commerce. This broad cover- age reaches almost all employers and employees in the United States and its territories, with some exceptions. The act does not apply to the federal and state governments in their capacity as employers, nor does it apply to domestic servants or self-employed persons. The act contains no specific industry-wide exemptions. However, if other federal agen- cies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health, the Occupational Safety and Health Act does not apply. For this exemption to operate, it must be shown that the working conditions of the affected employees are covered by another federal statute that has the protection of employees as one of its purposes. The other agency must also have exercised its jurisdiction to make regulations or standards applying to specific working conditions that would otherwise be covered by the act. An example of such a situation involves the workers on offshore oil plat- forms. Their working conditions were governed by health and safety regulations enacted and enforced by both the U.S. Coast Guard and the U.S. Geological Survey. In Marshall v. Nichols,2 the court held that the Occupational Safety and Health Administration was pre- cluded from exerting its jurisdiction over offshore oil platforms because of the coverage by the Coast Guard and the Geological Survey.

20-1a Administration and Enforcement The Occupational Safety and Health Act created three federal agencies for administration and enforcement. The Occupational Safety and Health Administration (OSHA) is the pri- mary agency created for enforcement of the act. An independent agency within the Depart- ment of Labor, it has the authority to: • promulgate standards; • conduct inspections of workplaces; • issue citations for violations; and • recommend penalties.

OSHA acts on behalf of the Secretary of Labor. The National Institute of Occupational Safety and Health (NIOSH) is an agency created to conduct research and promote the application of the research results to ensure that no worker will suffer diminished health, reduced functional capacity, or decreased life expectancy as a result of his or her work experience. The Occupational Safety and Health Review Commission (OSHRC) is a quasi-judicial agency created to adjudicate contested enforcement actions of OSHA. Whereas OSHA may issue citations and recommend penalties for violations of the act, only OSHRC can actually assess and enforce the penalties. The decisions of OSHRC can be appealed to the U.S. courts of appeals. OSHRC has three members appointed by the president for overlapping six-year terms and a number of administrative law judges who have career tenure. Standards, Feasibility, and Variances To reach the goal of providing hazard-free workplaces for all employees, the act provides for the setting of standards regulating the health and safety of working conditions. The Secretary of Labor is granted authority under the act to promulgate occupational safety and health standards through OSHA. The act provides for the issuance of three kinds of stan- dards: interim standards, permanent standards, and emergency standards. • Interim standards are those that the Secretary of Labor had power to issue for the first two years following the effective date of the act. These standards were generally mod- eled on various preexisting industry consensus standards. The Secretary, in adopting previously accepted national consensus standards, was not required to hold public hear- ings or any other formal proceedings. • Permanent standards are both newly created standards and revised interim standards. These standards are developed by OSHA and NIOSH and are frequently based on suggestions made by interested parties, such as employers, employees, states and other political subdivisions, and labor unions. The Secretary of Labor is also empow- ered to appoint an advisory committee to assist in the promulgation of permanent standards. This committee has 90 days from its date of appointment, unless a longer or shorter period is prescribed by the Secretary, to make its recommendations re- garding a proposed rule. After OSHA has developed a proposed rule that promulgates, modifies, or revokes an occupational safety or health standard, the Secretary must publish a notice in the Federal Reg- ister. Included in this notice must be a statement of the reasons for adopting a new standard, changing an existing standard, or revoking a prior standard. Interested parties are then allowed 30 days after publication to submit written data, objections, or comments relating to the pro- posed standards. If the interested party files written objections and requests a public hearing concerning these objections, the Secretary must publish a notice in the Federal Register specify- ing the time and place of the hearing and the standard to which the objection has been filed. Within 60 days after the expiration of the period for comment or after the completion of any hearing, the Secretary must issue a rule promulgating, modifying, or revoking the standard or make a determination that the rule should not be issued. If adopted, the rule must state its effective date. This date must ensure a sufficient period for affected employers and employees to be informed of the existence of the standard and of its terms.

The Secretary of Labor may, under special circumstances, avoid the procedures just described by issuing temporary emergency standards. These standards are issued when the Secretary believes that employees are exposed to grave dangers from substances or agents determined to be toxic or physically harmful. Actual injury does not have to oc- cur before a temporary emergency standard can be promulgated, although there must be a genuinely serious emergency. • Emergency standards take effect immediately upon publication in the Federal Register. After publication, the Secretary must then follow the procedure for formally adopting a permanent standard to make the emergency standard into a permanent standard. That new permanent standard must be issued within six months after its publication as an emergency standard. Appeals of Standards After a standard has been promulgated by the Secretary, any per- son adversely affected by it can file a challenge to the validity of the standard. Such chal- lenges must be filed with the appropriate federal court of appeals before the 60th day after the issuance of the standard. Upon reviewing the standard, the court of appeals will uphold the standard if it is sup- ported by substantial evidence. The Secretary must demonstrate that the standard was in response to a significant risk of material health impairment. Feasibility The act grants the Secretary authority to issue standards dealing with toxic materials or harmful physical agents. A standard must be one that most adequately ensures, to the extent feasible and on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity, even if the employee has regular exposure to the hazard. The feasibility of a standard must be examined from two perspec- tives: technological feasibility and economic feasibility. Further, OSHA can force an indus- try to develop and diffuse new technology to satisfy precise permissible exposure limits to toxic materials or harmful physical agents that have never before been attained, if OSHA can present substantial evidence showing that companies acting vigorously and in good faith can develop the technology. The standard also must satisfy the requirement of economic feasibility. Burden of Proof The Secretary must carry the burden of proving both technological and economic feasibility when promulgating and enforcing standards governing toxic materi- als and harmful physical agents. However, the Secretary does not have to establish that the cost of a standard bears a reasonable relationship to its benefits, as established in the case of American Textile Mfr.’s Inst. v. Donovan.3 In general, the Secretary bears the burden of proving by “substantial evidence on the record considered as a whole” that the cited employer violated the act. The prima facie case which the Secretary must prove to make an OSHA citation “stick” is well illustrated in the following case.

CaSe 20.1 Chao v. Gunite Corp. 442 Fed.3d 550 (7th Cir. 2006)

After issuing a number of citations against Gunite Corporation for violations of occupational safety and health regulations, the Secretary of Labor failed to convince the Occupational Safety and Health Review Commission to uphold four of the charges. The Secretary has petitioned this court to reverse the Commission’s decision. We con- clude that the Secretary is correct: the Commission’s deci- sion is not supported by substantial evidence in the record and therefore the case must be remanded to the agency with instructions to affirm the citations. I Gunite’s foundry in Rockford makes brakes and wheels for heavy trucks. Its process involves melting scrap iron and then pouring the molten iron into molds created from a mixture of sand, clay, and water. The molds then pass along a series of interconnecting conveyor belts that transport and cool the iron pieces. As they move along the conveyer belts, the cast- ings are shaken from the molds; in the process, dust containing respirable silica becomes airborne. The amount of this dust is enormous; the process uses some 400 tons of sand per hour. Breathing silica is dangerous for the foundry’s workers, as it can lead to silicosis, a deadly disease that primarily affects the lungs. The Occupational Safety and Health Administration (OSHA) has accordingly set ceilings called permissible exposure limits, or PELs, on the amount of silica that may be present in the air. Gunite’s foundry was built in the first half of the twen- tieth century. From the start, it has been plagued with the problem of controlling the amount of silica dust escap- ing into the air. In 1977 and again in 1981, OSHA cited Gunite for violations of the silica PEL. That problem has intensified since the installation of the conveyer belt system in 1989. The plant manager described the initial installa- tion of the conveyor belts as “a disaster.” In to con- trol the airborne dust, the plant first tried spraying water to keep the dust down. When that failed to make a difference, Gunite installed covers over the conveyer belts. They too were ineffective, even though they were still being used sev- eral years later when OSHA entered the picture. In 1990, one of Gunite’s insurers reported that employee exposure to silica exceeded a different measure, the “threshold limit value” set by the American Conference of Governmental Industrial Hygienists. Two upgrades later, Gunite still had too much silica in the air. Another insurer measured the air four times between June 1996 and March 1998 and found that foundry employees—including those at the positions listed in the citations at issue before us—were being exposed to levels of respirable silica in excess of OSHA’s PEL. That insurer, Kemper-NATLSCO, recommended in 1996 that Gunite require its employees to wear individual respirators until the company could implement feasible engineering and administrative controls to limit employee exposure. Gunite seems to have ignored that recommendation; two reports from Kemper-NATLSCO in 1997 indicated that employees still were not being required to wear the indi- vidual respiratory protection. In 1996 and 1997, Gunite recorded three cases of silicosis in its OSHA logs. Gunite itself describes its efforts to deal with excess silica from 1991 through 1998 as involving four major engineering projects that together were intended to bring the foundry into com- pliance with the silica PEL and other federal regulations. The last of these, installation of new covers and a ventila- tion system over the conveyor belts, was planned and being implemented in 1998 during the OSHA inspection, though it did not become fully functional until March 1999. Since 1971, OSHA regulations have required facilities with excess respirable silica to use engineering or administrative con- trols “whenever feasible” to attain compliance with the PEL. Only when feasible engineering or administrative controls are insufficient to bring silica levels below the PEL may a company turn to individualized protective equipment to supplement those controls. This “hierarchy of controls” privileges engineer- ing and administrative controls because they “make respiratory protection automatic, while respirators are dependent on use and constant attention and are subject to human error.” The OSHA inspection leading to the citations involved in the Secretary’s petition took place between May and October of 1998. During the inspection, OSHA repre- sentatives took samples that showed that workers in four positions at the foundry were exposed to about 1.6 times the PEL for respirable silica in an eight-hour shift. OSHA assigned three members of its Health Response Team (HRT) to Gunite’s case and asked them to evaluate Gunite’s admin- istrative and engineering controls. The HRT came up with a list of proposed administrative and engineering controls that it concluded would alleviate the airborne silica problem. The team based its recommendations for engineering controls “on general principles of ventilation and industrial hygiene which have been shown to be effective in reducing contami- nant levels in a variety of industries.” One control measure highlighted in the report was the use of “clean air islands,” which are devices that blow clean air at the at-risk employ- ees; the fresh air creates a bubble around each employee that does not contain dangerous levels of silica. Other measures on the list included installing physical barriers to block the areas where the most dust was kicked up into the air and improving housekeeping and maintenance. Finally, the report mentioned the new system of covers for the conveyor belts that Gunite was in the process of implementing dur- ing the OSHA inspection, although it opined that the new system would solve the problem for only three of the four employee positions that were overexposed to silica. Based on its investigation of the foundry, the Secretary issued three citations containing various items, each alleging violations of federal regulations. Among those were six items based on the sampling results and the HRT’s report alleg- ing that Gunite had committed serious and willful violations of 29 C.F.R. § 1910.1000(c) (the air contaminant regula- tion) by exposing employees to respirable silica in amounts in excess of OSHA’s PEL and of 29 C.F.R. § 1910.1000(e) by failing to implement feasible engineering or administra- tive controls. Another item alleged a violation of 29 C.F.R. § 1910.134(e)(4) (1997) by failing to inspect to ensure proper respirator use. The Secretary also alleged a willful violation of 29 C.F.R. § 1910.95(g)(6) for failure to obtain annual audiograms. Of these charges, only four are at issue in this petition: items 8a and 8b of citation 1, which charge serious violations of § 1910.1000(c) and(e) for overexposing three “mold station” workers (a metal pourer, coreset/blowoff operator, and mold line technician) to respirable silica and for failing to determine and implement feasible administra- tive or engineering controls to achieve compliance with the PEL; and items 3a and 3b of citation 2, which charged will- ful violations of the same standards for overexposing a sprue pulloff operator, who works at a different location in the fac- tory closer to the finishing process. Gunite appealed the citations, contending before the administrative law judge (ALJ) that it should not be liable because it was already implementing a new system designed to alleviate the respirable silica problem and because of the availability of individual respirators, which it contended both alleviated overexposures and qualified as an administra- tive control. In the pre-hearing documents made part of the record by the ALJ, the Secretary designated two members of the HRT team—industrial hygienist Keith Motley and mechanical engineer Lee Hathon—as experts. They were expected to testify about their qualifications, their observa- tions of Gunite’s foundry, and “administrative and engineering controls to reduce respirable silica” for the locations identified as having overexposures, as well as the contents of the HRT report. Motley’s expertise included 12 years of experience as part of the HRT responsible for addressing respirable haz- ards, while Hathon had served 10 years on the HRT and had participated in investigations “at several foundries and other industries where airborne silica is a hazard.” Gunite objected to both Motley’s and Hathon’s testimony about actual silica levels as “not probative of exposures of the cited employees to the cited levels of respirable silica dust.” Nevertheless, Gunite did “not deny that [Motley’s and Hathon’s] opinions are probative relative to the question of engineering controls for some of the cited work areas,” although the company reserved the right to disagree substantively with their opinions “in some respects.” At the hearing, the parties stipulated to the admission of the HRT report and agreed that the Secretary would not call the HRT members for direct examination, leaving their testimony in the form of the report itself and other pre-hearing filings made part of the administrative record. The Secretary, how- ever, planned to and did present them for cross-examination. Both Motley and Hathon were cross-examined about their qualifications, about their preparation of the HRT report, and about the recommended engineering controls. Motley testified about his tour of the plant, during which he was able to observe first hand the problem areas and ventilation systems. When he asked to see the plans for the new ventilation system, he was shown the actual parts that Gunite was putting in place. Motley also described the team’s particular recommended solutions to the airborne silica problem, including a way generally to filter the plant’s air before recirculating it. He explained how clean air islands work and how they might alleviate the problems. Hathon’s testimony was similar. After answering questions about his own training and credentials, Hathon testified that he had previously examined at least seven foundries similar to Gunite’s in terms of size, age of the building, and products produced; that he had toured the areas of Gunite’s foundry with overexposures; and that the HRT report was designed specifically to address the problems of the Gunite foundry. Another witness, Julia Evans, an OSHA compliance offi- cer, testified that an administrative control such as employee rotation likely would have eliminated the overexposure. Evans also testified that Gunite’s planned improvements likely would solve the silica problem at three of the four employee stations. Finally, Gunite’s own witness, Leroy Cator, the 50-year veteran employee in charge of the abatement process, testi- fied that “[c]lean air islands are probably effective and I don’t question that.” However, he also said that they are difficult to implement because of temperature control issues, and that they had not been recommended by the outside engi- neers working with Gunite. Instead, those engineers recom- mended systemic approaches that would improve the air for many employees rather than individualized approaches. He admitted, however, that clean air technology was used elsewhere in the foundry, near the pouring line. The ALJ affirmed the four citations (as well as the others not at issue here), finding that “except for clean air islands, Gunite has not challenged [the HRT’s] recommendations.” The ALJ also found that Gunite’s future plans to solve the problem did not relieve the company of liability. Likewise, the use of respirators did not alleviate Gunite’s obligation to implement systemic administrative or engineering controls that would make individual respirators unnecessary. Gunite appealed the ALJ’s determination to the Com- mission, which by a divided vote affirmed some of the cita- tions, but vacated the four now before us. The majority found that the Secretary had failed to prove that the pro- posed engineering and administrative controls would pro- duce a “significant reduction” in respirable silica: The Secretary’s case for establishing technological feasibility rests primarily on OSHA’s HRT report and supporting testimony by compliance officer Evans and HRT members Lee Hathon and Keith Motley. Neither compliance officer Evans nor the HRT members were qualified as experts. The HRT report identified deficiencies in Gunite’s controls and recommended additional controls, including general ventilation to reduce plantwide levels of air contaminant and specific controls to address areas where sampling results showed employee exposure in excess of the PEL…. We conclude that the evidence of record as a whole is insuf- ficient to prove that the controls suggested by the Secretary would produce a significant reduction in airborne respirable silica in the foundry. Because neither compliance officer Evans nor any of the HRT members were presented by the Secretary as expert witnesses, the record lacks sufficient evi- dence to establish that the proposed controls were techno- logically feasible. Moreover, the testimony failed to quantify the expected or anticipated amount of silica dust reduction. At most, the HRT report provided a list of control technolo- gies for Gunite to experiment with in the hope that some of them or some combination of them would reduce employee exposure to some undefined levels. The Commission then found that because the Secretary had failed to show a tech- nologically feasible engineering control, the use of respira- tors by employees was sufficient. (Somewhat inexplicably, the Commission found that the evidence of the respirator use on the day the air was tested was sufficient to vacate those items, even though elsewhere it affirmed a separate item by finding that “Gunite’s lax enforcement of respirator use in the foundry constituted willfulness.”) The dissenting commissioner found that the HRT report was “comprehensive” and that it recommended a number of feasible administrative and engineering controls. She also concluded that the witnesses’ credentials made their testi- mony “sufficiently reliable” and that Gunite had failed to challenge the witnesses’ expertise. Furthermore, she wrote, “[T]he fact that the Secretary did not present the HRT members as experts does not diminish the probative value of their testimony…. To the extent that the majority would find dispositive the lack of ‘expert’ testimony from the Sec- retary in to meet her burden, and since this …