OSHA says it won’t revoke Arizona’s State Plan status

Washington — Arizona’s State Plan for oversight of worker safety and health will remain in place after OSHA announced its plan to withdraw a proposed rule to “reconsider and revoke” the final approval status of the plan.

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

In response, Melanie Paul, a lawyer with the firm Jackson Lewis, on July 5 submitted a letter to OSHA on behalf of the Industrial Commission of Arizona and its sub-agency, the Arizona Division of Occupational Safety and Health.

In the letter, Paul outlines actions taken by the state in recent years. They include:

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

The letter also notes that Arizona, in October 2021, increased minimum penalties for serious and non-serious violations to match OSHA’s minimums. Eight month later, the Arizona legislature passed H.B. 2120 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.”

Paul adds that the Arizona legislature, in June, streamlined the adoption of emergency temporary standards “when either the ICA or OSHA deems the grave danger criteria met.” In February 2022, the state adopted the recordkeeping and COVID-19 log requirements in OSHA’s ETS on COVID-19 focused on health care workers.

After receiving the letter, OSHA postponed a public hearing scheduled for Aug. 16 and reopened its comment period for an additional 60 days.

“With today’s announcement, OSHA will withdraw its proposal to reconsider the final approval status of the Arizona State Plan, despite recent public reports of a downward trend in inspections in the plan’s enforcement program, as these were not part of OSHA’s April 2022 Federal Register notice,” the agency says in a Feb. 14 press release. “OSHA takes these reports seriously, and the agency is actively working with the Arizona State Plan to address these issues.”

OSHA is accepting comments on its proposed revocation through July 5.

“We are very pleased that federal OSHA recognizes all the great work that was done to protect Arizona’s State Plan and keep Arizona one of the safest states to work,” an ICA spokesperson told Safety+Health. “Our conversations and relationship with federal OSHA will continue to be productive.”

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.

If Arizona’s State Plan status would have been revoked, the state would have gone back to an “initial approval” status, and federal OSHA would share enforcement duties with the state, also known as “concurrent enforcement.” Arizona’s public employees would have lost OSHA oversight during that concurrent enforcement.