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August 17, 2022
OSHA reopens comment on Arizona plan approval

On August 12, the Occupational Safety and Health Administration (OSHA) announced a limited reopening of comment on the agency’s proposed revocation of approval for Arizona’s workplace safety and health program (87 Federal Register (FR) 50025). The federal agency also postponed a public hearing on the issue.

On April 21, the agency proposed revoking its final approval of Arizona’s state workplace safety and health plan. The status of the state program would revert to initial approval, and federal OSHA could resume concurrent enforcement in the state.

The Industrial Commission of Arizona (ICA) and its subagency, the Arizona Division of Occupational Safety and Health (ADOSH), submitted a comment on the last day of the initial comment period stating that Arizona had addressed federal OSHA’s concerns.

OSHA initiated revocation proceedings primarily because the state did not adopt OSHA’s June 21, 2021, COVID-19 healthcare emergency temporary standard (ETS). The federal agency also detailed a “history of shortcomings in the Arizona state plan.”

OSHA oversees the performance of state safety and health programs to ensure that state programs are “at least as effective” as the federal program under the Occupational Safety and Health Act.

OSHA oversight reports alleged that Arizona also had failed to:

  • Adopt the National Emphasis Program (NEP) on Amputations in Manufacturing Industries (CPL 03-00-022) and the NEP on Respirable Crystalline Silica (CPL 03-00-023).
  • Adopt two occupational safety and health standards: the Beryllium Standard for Construction and Shipyards and the Standards Improvement Project—Phase IV.
  • Adopt penalty levels that are at least as effective as federal OSHA’s.

In the state’s response, ADOSH and the ICA reported to federal OSHA that:

  • Arizona has updated its State Plan Application (SPA) portal entries to accurately reflect adoption dates for NEPs and final rules.
  • Arizona is in the final stage of the rulemaking process to adopt the Standards Improvement Project Phase-IV (SIP-IV), Beryllium in Construction and Shipyards, and Cranes and Derricks in Construction: Railroad Roadway Work rules.
  • The ICA adopted an increase in minimum penalties for serious and nonserious violations to match OSHA minimums on October 21, 2021.
  • On June 23, 2022, the Arizona Legislature passed a bill tying 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.
  • The bill also authorizes the adoption of an ETS when either the ICA or OSHA deems the grave danger criteria met; the ICA had rejected the COVID-19 healthcare ETS because the state would not adopt the ETS based on OSHA’s findings of “grave danger” and “necessity” but would need to make independent findings of “grave danger” and “necessity.”
  • Arizona adopted the recordkeeping and COVID-19 log requirements in OSHA’s
    COVID-19 healthcare ETS as a permanent standard on February 17; only the recordkeeping and reporting requirements of the federal ETS remain in effect.

ADOSH and the ICA also clarified that Arizona had adopted the two NEPs that OSHA had identified as not yet adopted by the state plan.

OSHA previously initiated proceedings to revoke approval of Arizona’s state plan. The agency became concerned in 2012 when Arizona’s legislature passed a bill implementing residential construction fall protection requirements that were less effective than the federal standard. The state remedied the issue after OSHA initiated revocation proceedings in 2014, and OSHA formally rejected Arizona’s fall protection requirements in 2015.

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