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State Plan evaluations

November 1, 2010

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Federal OSHA releases reports on state-run occupational safety and health programs

By Kyle W. Morrison, senior associate editor

The performances of state-operated occupational safety and health programs vary, from exceeding the efforts of the federal government to being so deficient that federal OSHA may take over the program, a new series of reports claims. Federal OSHA on Sept. 28 released 25 Enhanced Federal Annual Monitoring and Evaluation reports examining the performances of 23 State Plan states and two territories. The only State Plan states that did not receive an evaluation were Illinois, which was approved as a State Plan state in September 2009, and Nevada, which received a special study issued in October 2009.

The reports, prompted by the 2009 study into Nevada’s program, were conducted following several high-profile construction site incidents and fatalities. That study found several deficiencies in how the Silver State operated its program. “Our goal is to identify problems in state-run programs before they result in serious injuries or fatalities,” OSHA administrator David Michaels said in a statement after the EFAME reports were released. “While we found many positives in the state programs, we also found deficiencies.”

Report conclusions

The Occupational Safety and Health Act gives states and territories the option of implementing their own OSH program. According to the law, State Plans must be “at least as effective” as federal OSHA. Several of the reports highlighted similar problems among State Plan states, most notably a lack of funding and staffing. Some states have reduced program funding, which in turn can result in a loss of federal funding. State Plan federal funding, by law, can be no more than 50 percent of the entire program’s budget.

Due to a lack of funding, some states have not been able to maintain staffing at benchmark levels, which can lead to fewer inspections conducted. Insufficient training for inspectors also was an issue, the reviews found. Hawaii, in particular, is facing such significant performance problems due to staffing and funding cutbacks that federal OSHA is considering revoking the State Plan and taking over jurisdiction.

Other areas of concern in the reports include inappropriately classifying violations (such as citing a violation as “serious” instead of “willful”), failure to follow up on violations to ensure abatement, and inadequate notifications to family members of fatality victims. Federal OSHA officials shouldered some of the blame for the states’ deficiencies, suggesting the agency has not provided sufficient oversight of the State Plans. In September, the agency announced steps to improve that oversight through the opening of several new area offices in State Plan states: Honolulu; Las Vegas; Oakland, CA; Phoenix; and San Diego. “This presence ultimately will ensure workers are better protected,” Ken Nishiyama Atha, OSHA regional administrator in San Francisco, said in a press release announcing the new offices.

While a majority of the reports focus on areas the states could improve and provide recommendations to do so, they also note initiatives taken up by the states that exceed federal OSHA regulations. For instance, several states require employers to have an injury and illness prevention program, a standard that federal OSHA currently is pursuing. California’s report notes the state’s unique heat illness prevention program, and Oregon’s report mentions its requirement that employers abate hazards during contest periods – an ability Congress is considering giving federal OSHA.

The reports, which range from as few as 35 pages (Tennessee) to as many as 127 (California), were conducted by regional offices and are based on a variety of sources, including inspection data, audits and stakeholder feedback.

Report criticisms

States included in the reports have the option to respond within 30 days to the findings, and several had already done so as of deadline. Most states agreed with federal OSHA on many of the areas identified that need improvement, but some states criticized other findings. Indiana Commissioner of Labor Lori Torres responded that her State Plan program would incorporate many of the suggestions, but stressed she was “not overly concerned” about taking up some of the suggestions, such as printing out photos instead of storing them electronically.

In Iowa’s response to federal OSHA’s recommendation that the state reduce its injury and illness rates, which are greater than the national average, Division of Labor Commissioner David Neil noted that the rates are driven mainly by soft-tissue injuries. Reducing those types of injuries, Neil said, would be better facilitated if federal OSHA promulgated rulemaking targeting those injuries, such as an ergonomics standard.

Some of the suggestions in the reports indicated federal OSHA has an “unwillingness to appreciate the spirit of being at least as effective as OSHA,” responded Maryland Division of Labor and Industry Commissioner J. Ronald DeJuliis. Echoing this concern was John Duncan, California Department of Industrial Relations director. In his response to the review of California’s Division of Occupational Safety and Health, commonly known as Cal/OSHA, Duncan took issue with a perceived bias that State Plans must be the “same” as federal OSHA.

“Statements like ‘Cal/OSHA should adopt policies equivalent to Federal OSHA’s,’ coupled with the utter absence of any attempt to factor state program accomplishments that exceed OSHA’s into the evaluative process, point to a working premise that states must do things exactly the way OSHA does,” Duncan said.

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