The Building Tradesman Newspaper

Friday, March 30, 2012

For better or worse, state wants purge of MIOSHA’s safety rules

By Marty Mulcahy, Editor

LANSING – It’s called the Office of Regulatory Reinvention or (ORR). If you’ve never heard of it, join the club. But on paper, anyway, it’s poised to have a far-reaching effect on rules governing worker safety on Michigan’s construction jobsites and other workplaces.

The ORR’s recommendations fit hand in hand with the strategy of state Republican lawmakers and Gov. Rick Snyder, who have made it a state policy to help the business community grow at the expense of workers. Living up to its name, what the ORR is recommending would, in fact, reinvent MIOSHA.

In a 271-page report, the ORR announced on March 12 that it made 624 recommendations for changes to 334 separate Michigan Occupational Safety and Health Administration (MIOSHA) rules that exceed the federal standards. The recommendations, made in a report to Snyder, contemplate the rescission of more than 611 distinct MIOSHA requirements (this includes entire rules or parts of rules). The ORR made nine other distinct recommendations separate from the review of existing MIOSHA rules.

“Elimination of duplicative and unnecessarily burdensome rules will reduce costs for businesses and allow MIOSHA to focus on enforcing rules that are core to their mission of workplace safety,” said Steven H. Hilfinger, Chief Regulatory Officer and Department of Licensing and Regulatory Affairs Director. “None of the rescinded requirements are present in federal OSHA regulations. Eliminating these Michigan-specific amendments will result in less complex and more efficient regulations and will make Michigan more competitive in attracting and growing businesses.”

However, over the years, those Michigan-specific rules were placed in MIOSHA’s regulations for a reason. “We thought that by adding rules beyond federal OSHA requirements, we would help make things safer for workers,” said Tony Allam, who retired as a supervisor in MIOSHA’s Construction Safety and Health Division a few years ago to work as a safety manager at Barton Malow. “That was our intent, to make better rules.”

For his part, Snyder announced that he has reviewed the recommendations and has asked the ORR and MIOSHA to work toward implementing the recommendations. Some of the rules could be instituted administratively, some might need legislative approval.

Allam said he had read only a small portion of the recently released report, but “from what I saw, some of the rules that were being eliminated were pretty obsolete or redundant. I could understand why they were being removed.”

Derrick Quinney, director of the Michigan State AFL-CIO’s Safety and Health Department, told Mlive that he also understands the need to eliminate duplicate rules, but said it's sometimes necessary to exceed federal standards. “There are a few more things that I think we need to get some clarification on,” he said. “At this point I’m in a wait-and-see kind of a mode.”

One of the biggest changes in the report is the proposed elimination of the Construction Safety, General Industry, and Occupational Health Standards Commissions. As a replacement, the  Director of Licensing and Regulatory Affairs would be assigned the responsibility for developing or revising standards with the support of advisory committees composed of individuals representing the specific industries, employees and citizens impacted by the standards.

Specifically, following is a sampling of some of the proposed changes to MIOSHA:

* Make sure there’s a “clear and convincing standard for exceeding federal standards.”

* A general rule for workers to report defective tools to the employer would be eliminated. “This subsection is unenforceable.”

* Current rule: The height of a manually stacked pile of bagged material, weighing more than 30 pounds per bag, shall not exceed five feet. And the rationale for eliminating this potentially back-saving rule: “There is not an equivalent OSHA rule, and this subsection is unnecessary,” the report said.

* A rule that required footwear not have any holes or tears (construction safety standards) would be eliminated. From the report: “This subsection is rarely cited, and the safety precautions are covered under Rule 617.”

Scores of the rule changes say that “this subsection is rarely cited,” or that another rule already covers it.

The business community loves the idea of streamlining the rules. “We support the recommendation 100 percent, we have found that these commissions seem to be make-work entities that are always trying to promote rules and regulations not required by federal law that make our state uncompetitive,” said Charlie Owens of the National Federation of Independent Businesses (NFIB) to MIRS News Service. He added that “while there are some businesspeople on the boards, they give in to the opinions of union representatives and academics. After a while, they begin to suffer from Stockholm Syndrome, where they go along with their captors. Good riddance,” said Owens.

Unsaid in all of these proposed changes is how effective MIOSHA has been at saving workers’ limbs and lives – even with all of the alleged over-regulation. Following federal OSHA’s formation in 1970, MIOSHA was formed in 1974. In the pre-MIOSHA 1960s, an average of 44 Michigan construction workers were killed on the job every year. In 2011, Michigan recorded 10 construction industry fatalities – an historic low matched in 2009. In 2010, there were 11 fatalities.

As we reported in February, there’s equally good news on the construction injury front. The state’s DART – or Days Away Restricted or Transferred – dropped 33 percent in 2011 to 2.0 per 200,000 work-hours. By contrast, in 2000 the state’s DART rate was 4.7. Michigan’s injury/illness rate for construction workers was fourth lowest in the nation in 2011.