OSHA proposes to revoke Arizona’s State Plan status

Washington — Citing Arizona’s “pattern of failures to adopt and enforce standards and enforcement policies at least as effective” as those used by OSHA, the agency is proposing to “reconsider and revoke” the final approval of the state’s State Plan for oversight of worker safety and health.

Published in the April 21 Federal Register, the proposed rule initiates the revocation process, which could last months. OSHA will conduct a 35-day comment period and, if necessary, an online hearing at 10 a.m. Eastern on Aug. 16. Anyone who wants to testify or question witnesses must submit a notice by May 11. The deadline to comment on the proposed rule is May 26.

In the proposed rule, OSHA details the state’s “pattern of failures,” which began in 2012 when the Arizona State Legislature passed a law (S.B. 1441) that implemented residential construction fall protection requirements “that were clearly less effective than federal requirements.” The law required fall protection for employees working at 15 feet or higher. OSHA requires fall protection at 6 feet or higher.

The Occupational Safety and Health Act of 1970 permits OSHA to grant approval to states that want to manage their own workplace safety and health program. One stipulation for approval, in section 18(c), is that the states’ safety standards are “at least as effective” as federal standards. State standards can be stricter than federal OSHA’s standards but not weaker.

Arizona didn’t amend its fall protection standards until years later, after OSHA started a process of revoking its State Plan status in 2014 and rejected its fall protection standards in 2015. That dispute wasn’t officially resolved until July 2019.

OSHA contends that, since 2015, Arizona has failed to adopt the following National Emphasis Programs and standards:

• An NEP on amputations in manufacturing
• An NEP on respirable crystalline silica
• Beryllium standard for construction and shipyards
• Standards Improvement Project IV

The agency also claims that Arizona has adopted standards or programs “long after their due dates” or failed to provide documentation. Among those was an NEP on trenching and excavation. Additionally, Arizona hasn’t increased civil penalties in line with OSHA. The agency’s penalty increases are tied to the Consumer Price Index and required under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which amended a 1990 law.

More recently, Arizona was the lone State Plan not to adopt the COVID-19 emergency temporary standard focused on health care workers. The Industrial Commission of Arizona argued that its state statutes only gave it the authority to adopt an ETS via its own independent findings on whether a “grave danger” or “necessity” was present.

OSHA asserts that a state’s obligation under Section 18(c) “does not give the State Plan discretion to determine which federal standards to adopt or to independently evaluate the need for such a standard.”

The agency is asking Arizona “to clarify how its state law complies with the federal OSHA requirement that a State Plan adopt a federal ETS within 30 days of its promulgation” and why that process wasn’t followed for this ETS.

Should Arizona’s State Plan status be revoked, the state would go back to an “initial approval” status, and federal OSHA would share enforcement duties with the state, or “concurrent enforcement.”

In October, former OSHA Deputy Assistant Secretary Jordan Barab noted on his website, Confined Space, that Arizona’s public employees would lose OSHA coverage if federal OSHA takes over the State Plan.

In a statement to Safety+Health, the Industrial Commission of Arizona says it “strongly” disagrees with OSHA’s proposal.

“Arizona has always and will continue to implement occupational safety and health standards in accordance with our mutually agreed upon State Plan and Arizona law,” the commission writes. “The reconsideration of Arizona’s State Plan status is a serious overreaction by OSHA. Despite this distraction, the Industrial Commission of Arizona remains committed to protecting Arizona’s workforce and will continue to uphold Arizona’s State Plan.”