Washington Update: Tree care industry says standard will help relieve ‘patchwork’ regulation

It’s not very common for an industry group to actively push OSHA to develop a standard targeting its business. But it can happen, and for good reasons.

Shortly after OSHA promulgated its Logging Operations Standard in the mid-1990s, the agency determined the rule also should cover the tree care industry. The industry pushed back, leading OSHA to write a directive that clarified what operations are considered logging for the purposes of the standard. But that didn’t solve all of the problems the tree care industry saw when it came to OSHA enforcement.

“They regulate our industry with a patchwork of standards,” said Peter Gerstenberger, senior advisor for safety, compliance and standards at the Tree Care Industry Association, a Londonderry, NH-based trade group of commercial tree care firms. “They’re hitting a number of things that would affect our industry, but they don’t have standards regulating some of the leading causes of fatalities in our industry.”

As many as 75 percent of workplace deaths in the industry are caused by hazards that go unregulated by OSHA, Gerstenberger said. Two examples are falls from trees and struck-bys due to falling objects in trees – both of which accounted for about one-third of fatal tree care incidents during a five-year period that TCIA compiled in a 2014 report.

Of the top citations issued against tree care employers, General Duty Clause violations are high on the list. According to Gerstenberger, this is because OSHA has no standard addressing known hazards in the industry.

This led TCIA in 2006 to petition OSHA for the promulgation of a standard specific to the tree care industry. In 2008, the agency published an advance notice of proposed rulemaking, but later removed the potential standard from its regulatory agenda due to “insufficient resources.”

Now, the rule is back. The fall regulatory agenda released in November returned the Tree Care Standard to OSHA’s list of current rules under development, with plans to conduct stakeholder meetings this June.

“It’s somewhat of a surprise to us to see this come up again in this point in time, but at the same time gratifying to know we haven’t been forgotten,” Gerstenberger said.

In the agenda, OSHA noted that tree care is a high-hazard industry. Tree trimmers and pruners had an injury and illness rate in 2014 that was 4 times greater than the overall average, according to the Bureau of Labor Statistics. From 2009 to 2013, at least 408 tree care workers died on the job, TCIA states in its report.

Gerstenberger was quick to assert that an OSHA rule would not be a magic bullet that solves all of the tree care industry’s safety problems, but that it would help a great deal. The industry is filled with small operators who are hard to reach and get involved in training, he said, but leveraging the power of federal OSHA could improve things.

Having a single standard that employers could look to would be helpful, Gerstenberger said, as would simply having a rule in the public domain. Right now, the only rule dedicated to tree care is ANSI Z133, which, as with many voluntary consensus standards, must be purchased.

He hoped that, given the relatively small size of the tree care industry, OSHA would be willing to enter into a negotiated rulemaking with TCIA in the development of a standard. The industry group has experience working with safety agencies, and was involved in helping to develop State Plan tree care rules in California, Maryland and Virginia.

Although OSHA has several rules on its plate right now, Gerstenberger remains “cautiously optimistic” that – this time – OSHA will get the Tree Care Standard out.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.