Monday, October 24, 2011

Want to Really Understand an OSHA Standard? Read the Preamble!

When OSHA issues a new or revised health or safety standard, inevitably questions will arise. Perhaps OSHA did not define a key term used in the standard, or maybe they used some subjective language that could be open to interpretation. Issues such as these can make it difficult for employers to implement the new regulation. However, questions can often be answered by simply taking the time to read the Preamble to the Final Rule printed in the Federal Register when OSHA publishes a new standard, most specifically the section titled “Summary and Explanation of the Standard.”

So what is this Preamble I am talking about? When OSHA promulgates a new or revised health or safety standard, they go through a long process by where they draft the proposed standard, publish it in the Federal Register as a Proposed Rule, and allow a period of time for stakeholders to comment on the proposed rule. After considering all the input provided by the stakeholders, OSHA will tweak the draft standard and then publish it in the Federal Register as a Final Rule, along with a wealth of other information gathered during the process. As a side note, this process usually takes 10+ years to complete, and in the end OSHA may actually abandon the proposed standard.

In the section of the Federal Register titled “Summary and Explanation of the Standard”, OSHA will break the proposed draft standard down paragraph by paragraph, and include the many comments, questions, and concerns expressed by the stakeholders about each paragraph. This process reveals many ambiguous areas contained within the originally drafted standard, and OSHA’s subsequent explanation or rebuttal provided within this section of the Preamble often provides valuable insight into OSHA’s intent when they created the standard.

Here are a couple of examples of what I am talking about, both originating from OSHA’s permit-required confined space entry standards for general industry:
  • Paragraph 1910.146(b) defines one of the three criteria of a “confined space” as "the space is large enough and so configured that an employee can bodily enter and perform assigned work". Many people are confused by the term “bodily enter”; it is not defined in the OSHA standard, and some people think it means that if the space is large enough and configured so an employee could place any part of their body inside the space, it would be a confined space. But in the Preamble to the Final Rule for the Permit-required Confined Space Entry Standard, the section that discusses this particular term explains that the standard is intended to cover only spaces that were large enough for the entire body of an employee to enter. So now we have a clear definition of the term “bodily enter” as it applies to this standard.

  • Paragraph 1910.146(c)(5)(i) allows the employer to utilize “alternate entry procedures” to enter certain permit-required confined spaces where they are able to demonstrate that the only hazard posed by the permit space is an actual or potential hazardous atmosphere, as long as the employer can demonstrate that continuous forced-air ventilation alone is sufficient to maintain the permit space “safe for entry”. Unfortunately, the OSHA standard does not quantify what OSHA considers to be “safe for entry”. But in the section of the Preamble to the Final Rule that discusses paragraph(c)(5), OSHA explains that employers may use “a guideline of 50 percent of the level of flammable or toxic substances that would constitute a hazardous atmosphere in making the determination”. So now we know that using forced air ventilation to maintain flammable gas at no more than 5% of its LEL (half of the OSHA limit for a “hazardous atmosphere when considering flammable gas) would be considered “safe for entry” when utilizing these alternate entry procedures.
Sure, many issues such as these are later clarified by OSHA in their letters of interpretations or directives, but those typically are created years after the standard has been published. So why wait? Be in the know from the beginning by reading the Preamble to the Final Rule whenever OSHA publishes a new or revised OSHA standard.

Where can you locate Preambles to Final Rules published by OSHA? Sometimes you can simply “Google” the particular Federal Register you are looking for (e.g.: preamble final rule 1910.146) and sort through the results. Or you can go to to search for the document or topic you seek (here is the link for the preamble to the permit-required confined space standard).

Remember, however, that none of this applies to OSHA’s original standards that were issued back in the early ‘70’s, as those standards do not have a preamble. This applies only to those standards that were created or revised since then, such as but not limited to, Lockout/Tagout, Hazard Communication, Bloodborne Pathogens, Forklift Operator Training, Respiratory Protections, Personal Protective Equipment, Steel Erection, & Fall Protection and Prevention. One more important thing to keep in mind is that OSHA does occasionally issue technical corrections to standards through the Federal Register as well, so also search for any related preambles that address updates when researching a particular OSHA standard.

Have you ever found a helpful “nugget” of information that was buried inside the Preamble to a particular OSHA standard that you found especially valuable?  If so, or if you have other related comments about this topic, would you please share your experience with others in the comments section below?

And please, pass a link to this blog post along to others in your network who you think may benefit from this information.

Sunday, October 9, 2011

Watch Out For Those Sneaky Revisions in State-OSHA Regulations

You are probably well aware that Federal OSHA only has jurisdiction over workplaces in approximately half of the states and U.S. territories. The other half chose to create an OSHA-approved State OSHA Program. Those state programs were required to adopt health and safety standards that are at least as equally protective as those promulgated by Federal OSHA.

Most of the State-plan OSHA Programs chose to adopt all or some of the Federal OSHA standards verbatim. HOWEVER, some of these states made minor additions or alterations to the Federal standards they adopted. I’m not talking about adding unique standards for entire subjects (several states have done that). I am talking about taking a Federal standard they adopted and “tweaking it” a little. Some of these changes are very easy to overlook, but doing so could result in an employer or consultant missing an important requirement they need to know about to ensure compliance with the state regulation.

Here are just a few examples of some of the changes slipped into select state OSHA standards that could sneak up and bite you if you are not paying close attention. The states did not do this to trick anyone, they just thought of something to add that they felt could improve on a Federal standard:
  • In the state of Minnesota, the state program (MNOSHA) altered the Hazard Communication / Employee Right-to-Know standards to also cover harmful physical agents (such as heat, noise and radiation) and infectious agents (such as bloodborne pathogens), in addition to the hazardous substances covered in the Federal standard. Their state Haz-Com standard also requires annual refresher training, in addition to initial training required by the Fed’s.
  • In the State of Washington, their state program (WISHA) excavation standards are almost identical to those contained in the Federal Standards, except that they require a protective system overseen by a competent person be used in all excavations that are more than four feet deep, instead of five feet like the Fed’s.
  • In Tennessee, the state OSHA program (TOSHA) altered the Bloodborne Pathogens Standards to add a requirement that, in addition to documenting the route(s) of exposure and the circumstances under which the exposure incident occurred, per the federal standard, the employers written Exposure Control Plan also contain documentation of the type and brand of device in use when the exposure incident occurs.
  • In Hawaii, the state program (HIOSH) altered the steel erection standards to require fall protection for all employees involved in steel erection activities 10 feet above a lower level, instead of the 15 foot requirement (or 30 foot for connectors) listed in the Federal standard.
  • In the state of California, the state OSHA program (CAL/OSHA) safety standards for excavations are nearly identical to those of Federal OSHA’s; However, employers must also obtain (and pay for) a permit from the state OSHA program if any employee will be entering an excavation deeper than five feet.
Obviously you need to be aware these (and many other) unique standards if you have operations or provide training/consulting services in affected states. But the revised standards could also be important to know about if you ever have a general discussion about affected safety standards with co-workers or peers located in states that have created their own State OSHA program. And these altered state regulations are often a good source of information for safety practitioners looking to develop safety standards that go above and beyond the Federal requirements.

You can access information about altered and/or unique state OSHA standards by clicking on the name of any state appearing on the list located at the top-left of the page found at this link to the Federal OSHA website’s "State Occupational Safety and Health Plans" page. The page that comes up will explain, among other things, how that state’s safety and health standards may differ from the federal standards.

Have you ever been stung by a state OSHA inspector because you did not know about one of their altered safety standards? Or maybe you learned about a change that really took you by surprise? If so, or if you have other related comments about this topic, would you please share your experience with others in the comments section below? 

And please, pass a link to this blog post along to others in your network who you think may benefit from this information.