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Only Time Will Tell If OSHA Will Assume Control Of Arizona's Safety

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Arizona Gov. Jan Brewer signed SB 1307 Tuesday night in an attempt to counter a 2012 bill and prevent the Occupational Safety and Health Administration from asserting its federal oversight role over all industries in Arizona — including residential and commercial construction — but only time will tell whether it will be enough.

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Mark Minter, executive director of the Arizona Builders Alliance says SB 1307 is a “conditional repeal” action of SB 1441, passed in 2012, that will only go into effect if OSHA follows through on a “show cause” letter delivered to the Industrial Commission of Arizona in March. SB 1441 declared fall protection was not necessary in single-story residential construction over 6 feet, but necessary at 15 feet, contrary to an OSHA rule.

He says even though SB 1307 is designed to rescind SB 1441 and therefore bring OSHA fall protection standards back to the state, other factors could come into play.

“I don’t know what steps OSHA will take. Someone might file a lawsuit to block SB 1307, for example,” he says.

Minter says the next trigger is likely OSHA’s decision on SB 1441, which is expected to be filed in the Federal Register within the next 30 days. If OSHA decides to take over all safety operations in the state, it will likely begin with ride-alongs with ADOSH inspectors and that the process of a full takeover would take years. He says Hawaii is the only state that does not have its own safety department, although Nevada went through the beginnings of the process several years ago.

The original April 18 deadline given to ADOSH for responding to the show cause letter from federal OSHA has been extended to one week past the adjournment of the ongoing 51st session of the Arizona Legislature, according to an April 17 letter from U.S. Assistant Secretary of Labor David Michaels.

The U.S. Occupational Safety and Health Administration drafted the show cause letter March 19. The Arizona Division of Occupational Safety and Health responded by requesting an extension and that OSHA bifurcate its proceedings to reject Arizona’s state-initiated plan change and its reconsideration of the state plan’s final approval status.

OSHA’s April 17 letter, which was addressed to Brad Hammock, an OSHA-specialized attorney representing the Industrial Commission of Arizona, declined the bifurcation request, citing that “the proceedings for rejection and reconsideration involve closely-linked subject matter,” and that “the effect of rejecting Arizona’s fall protection statute would leave Arizona without a standard that is at least as effective as federal OSHA’s, creating a gap in state enforcement.”

Connie Wilhelm, the executive director of the Home Builders Association of Central Arizona, says her industry supported SB 1441 back in 2012 in good faith, and that Arizona’s current residential fall protection rules do not fail to meet the minimum threshold standards put forth by federal OSHA.

“If Congress had intended for state plans to be identical to federal plans, then why have state plans at all?” Wilhelm says. “There are 26 states that have state plans. The reality of it is, there are four other states that have deviations from the residential fall protection standard, and none of them are being threatened like we are in the state of Arizona. When we developed and wrote our standard, which was basically done by my staff with the help of legislators and the legislative council, we followed very closely what California did. So we find it very curious that it’s OK in California but it’s not in Arizona.”

Minter says the ABA looked at the 2012 legislation, but since the bill’s purview was limited to residential rules that did not affect the commercial segment, his group did not take a stand on the legislation. That changed, Minter says, late last summer/early last fall when federal OSHA made overtures that they might take over all construction safety issues in Arizona.

“Backing up some years, single-family residential industry had been temporarily exempt from fall protection standards that the rest of the industry was subject to, while federal OSHA and the Homebuilders Association and perhaps others engaged in their negotiated rulemaking process, which they do from time to time,” Minter says. “And two or three years ago, that process was completed and federal OSHA accomplished their residential fall protection standards which would require what is generically called progressive fall protection. The home builders in Arizona reacted to that, and went to the legislature and asked the legislature to pass a law creating a residential fall protection standard which calls for, from 6 to 15 feet, that the employer has a fall plan, and above 15 feet, aggressive tie-offs, perimeter protection, and scaffolding.”

At that point, ABA joined in with the legislative efforts, Minter says, and had a legislator introduce a bill to repeal SB 1441. That turned out to be an unsuccessful effort, but it was part of the dialog which led to SB 1307.

“I’ve worked fall protection since 1995. We’re dealing with people, I think, that for the most part, unfortunately, maybe they’re not familiar with construction practices and how we do things,” Wilhelm says. “I know they deal with a lot of other industries. The last thing I want to do is create unsafe job sites, but my theory has always been, or my belief is, no falls are better than arrested falls, and that does not seem to be consistent with federal OSHA’s deal. Federal OSHA will tell you that if you drive by a construction site, and workers are tied off, they are deemed safe. That’s such a fallacy because you don’t know whether those anchor points are in the right spot, you don’t know if the swing is good, you don’t know if that worker is working so far away from that anchor point that if he falls down he would hit the ground before he was arrested. You don’t know if he’s got on his equipment properly or anything else.“

ADOSH has provided safety and health protection to Arizona employees since its establishment in 1971 by the state and subsequent approval by OSHA. Its jurisdiction encompasses approximately 2.1 million employees and 130,000 public and private establishments.

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