S.2065 is designed to improve workplace safety by encouraging the use of voluntary prevention programs, training, and compliance assistance.  It would provide exemptions from OSHA fines for companies utilizing third party consultants.  It addresses alcohol and drug programs, providing preemption of inconsistent provisions of state laws.  Other provisions address training of OSHA and industry personnel, and improvement of technical assistance programs. 

S.2066 addresses administrative issues under OSHA and would require that citations be vacated if the employer’s methods were at least as protective as those specified in regulations.  It allows for warnings in lieu of citations and provides for inspections by methods other than on-site visits.  The OSHA Review Commission would be enlarged from three to five members and requires that members be legally trained.  Attorney fees can be awarded to small businesses that prevail in OSHA challenges.  Other provisions include extensions for contesting citations, penalty elimination for abatement in 72 hours or less, and for OSHA to issue citations within 30 days.

Another significant feature of S.2066 would require transparency and fair procedures in the development of standards used or adopted by OSHA.  In 2001, Patton Boggs successfully brought a lawsuit against the American Conference of Governmental Industrial Hygienists (ACGIH), resulting in a settlement in which ACGIH withdrew a Threshold Limit Value (TLV) because it was not based on health effects. The lawsuit also revealed the secret procedures used by ACGIH to develop TLVs, the conflicts of interest that contaminated the process, and the abuse of rulemaking procedures resulting from Department of Labor (DOL) and Health and Human Services’ misuse of the TLV process and its products.  A similar lawsuit brought by Patton Boggs in 2004 disclosed that neither ACGIH nor DOL have reformed, but instead continue to work behind closed doors, with secret TLV authors, to achieve an end run around the rulemaking process and further the conflicted goals of TLV authors or DOL officials. The provisions of S.2066 would eliminate the use of these unfair, faulty, secret, and unscientific standards by OSHA.

S.2067 would provide assistance to companies in developing Material Safety Data Sheets by requiring OSHA to produce models and make them available on the OSHA website.  The bill also provides recommendations to Congress about adopting the United Nations globally-harmonized system of classification and labeling of chemicals.

Patton Boggs, on behalf of its clients, has been working with members of Congress on these issues and we encourage you to contact members of the House and Senate to let them know that you support Senator Enzi's legislation. Please contact John Austin if you would like copies of the legislation or further information (Jaustin@pattonboggs.com).