Page 42 - MetalForming November 2012

You and The Law
By Douglas B.M. Ehlke
OSHA on the Move
New Chemical Hazard Communication Standard
On May 26, 2012, employers using chemicals in their workplace—and now manufacturers and importers—face a compliance performance standard. The Global Harmonized System (GHS) requires chemical manufacturers and importers to evaluate the hazards of the chemicals they produce or import; and all employers need a hazard-com- munication program to protect workers exposed to haz- ardous chemicals.
least, this new stan- dard—designed to address inconsis- tencies in hazard classification and communications— will require consid- erable clarifying, interpretive guid- ance.
gories must be assessed. New labels for containers will include universal hazard symbols. Check out the meaning of the exclamation point symbol. And, the skull-and-cross- bones sign returns.
Employers have until December 1, 2013, to train employ- ees on the new label elements and Safety Data Sheet (SDS) format. Additional training for any newly identified physical or health hazards will need to be provided affected employ- ees by June 1, 2016. Employees will require training under the new “right to understand” concept or threshold, which will compel considerable clarification.
OSHA Average Penalties Double for “Serious” Citations
Average penalties for OSHA “serious” citations have climbed from $1053 to $2133. And, the “bad faith” penalty dis- count factor now can add a 20-percent penalty if the OSHA compliance officer, for some reason, attributes bad faith or poor faith to the employer.
How to Get Removed from OSHA’s Severe Violator List
OSHA has long-documented how employers with cited fatalities or certain national Emphasis Program amputa- tion hazards or willful citations wind up on its severe viola- tor enforcement program (SVEP) list. Now it’s providing instructions on how to be removed from the list. Companies are eligible for removal 3 years from the date of final dispo- sition of the SVEP inspection citation items, when the des- ignated employer:
• Has abated all SVEP-related hazards affirmed as viola- tions;
• Paid all final penalties;
• Has abided by all settlement provisions; and
• Has not received any additional citations related to the
hazards identified in the SVEP inspection at the initial cited workplace establishment or any related establishment.
OSHA states that discretionary removal authority rests with the OSHA regional administrator or his designee. Removal from the list requires an OSHA followup inspection be held at the cited workplace before removal is achieved.
There are potentially two additional removal methods for employers not mentioned in OSHA’s guidance docu- ment:
• Appeal and obtain dismissal or vacating of the SVEP cita- tions;
• Negotiate list removal status earlier than the 3-year eli- gibility date, through a settlement agreement. MF
The first requirement on manufacturers and importers, a broad new enforcement expansion for OSHA, likely will engender multiple
court challenges. At
This new standard— designed to address inconsistencies in hazard classification and communications— will require considerable clarifying, interpretive guidance.
Many of OSHA’s
existing require-
ments for basic haz-
ard communication, such as defining management respon- sibility for a program, developing a list of hazardous chemicals, labeling of hazardous chemical containers and management of safety datasheets, remain the same. Material safety data sheets have become simply “safety data sheets.” However, the criteria for classifying physical and health haz- ards now becomes an extended 16-category classification sys- tem of physical hazard categories, starting with explosive properties and ending with metal corrosive properties. In addition, health hazards and environmental-hazard cate-
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
40 MetalForming/November 2012
www.metalformingmagazine.com