OSHA reopens comment period on its proposal to revoke Arizona’s State Plan status

Washington — OSHA will reopen, for an additional 60 days, the comment period on its proposal to revoke Arizona’s State Plan status, the agency has announced.

According to an Aug. 10 press release, the move comes in response to a letter submitted on behalf of the Industrial Commission of Arizona and its sub-agency, the Arizona Division of Occupational Safety and Health, stating they have completed a number of measures to address concerns OSHA identified in the proposal.

Melanie Paul, a lawyer with the firm Jackson Lewis, submitted the letter July 5 – the final day of the previous comment period.

OSHA issued its proposal in April, citing the state’s “pattern of failures to adopt and enforce standards and enforcement policies at least as effective” as those used by the federal agency.

OSHA had scheduled a public hearing on its proposal for Aug. 16, but is postponing it, the release states. A decision on a rescheduling the hearing, if needed, would come after the 60-day comment period.

In the letter, Paul writes that ICA and ADOSH have taken the following steps in recent years, before OSHA issued the proposal:

• Adopted the National Emphasis Program on amputations in manufacturing in April 2020
• Adopted the NEP on silica in June 2020
• Updated all of its State Plan Application portal entries “to accurately reflect adoption dates for NEPs and final rules”

Paul also points out that OSHA determined, in a 2015 Federal Annual Monitoring and Evaluation (FAME) Report, that Arizona was enforcing fall protection statutes (Subpart M).

In October, ICA increased minimum penalties for serious and non-serious violations “to match” OSHA’s minimums, and, the letter notes, the Arizona legislature passed H.B. 2120 in June to tie “the statutory ADOSH maximum penalties (and minimum penalties for willful/repeat violations) to the corresponding OSHA maximum and minimum penalty levels, with annual adjustments for inflation.”

Also in June, the Arizona legislature streamlined the adoption of emergency temporary standards “when either the ICA or OSHA deems the grave danger criteria met.” In February, the state adopted the recordkeeping and COVID-19 log requirements in OSHA’s ETS on COVID-19 focused on health care workers.

Further, Paul said, Arizona is “in the final stage” of adopting three final rules: Standards Improvement Project IV, Beryllium in Construction and Shipyards, and the Cranes and Derricks in Construction: Railroad Roadway Work.

“For the reasons outlined here, and based on the substantial efforts the ICA has undertaken to address OSHA’s concerns and the many comments in support of Arizona’s State Plan, OSHA should withdraw the Federal Register notice proposing reconsideration and revocation of Arizona’s 18(e) status without the need for a hearing,” Paul writes. “Should OSHA be unwilling to do so, the ICA requests a hearing and the opportunity to appear with party status.”

The comment period will begin once a notice is published in the Federal Register, which is expected “within the next few days.”

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