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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section 101.055 (3) of the Statutes requires the Department to adopt, by rule, standards to protect the safety and health of public employees. The standards must provide protection that is at least equal to the protection which is provided to private-sector employees under standards promulgated by the federal Occupational Safety and Health Administration (OSHA) and must be revised as necessary to maintain that equivalent protection, except definitions for toxic substances cannot be based solely on the federal registry of toxic effects of chemical substances. Section 227.11 (2) (a) authorizes the Department to promulgate rules interpreting any statute that is enforced or administered by the Department, if the rules are considered necessary to effectuate the purpose of the statute. Related statute or rule:
Section 101.02 (15) (j) of the Statutes requires the Department to promulgate rules for constructing, altering, adding to, repairing, and maintaining safe public buildings and places of employment. Under this authority, the Department has promulgated chapters SPS 361 to 366, which establish statewide, uniform requirements for design, construction, maintenance, and repair of public buildings and places of employment – and chapter SPS 314, which establishes statewide minimum requirements for preventing unwanted fires in public buildings and places of employment. Chapter SPS 330 contains Wisconsin’s statewide safety and health requirements for public-sector fire department employees. That chapter applies to those employees in addition to the requirements in chapter SPS 332. Plain language analysis:
These proposed changes to chapter SPS 332 would primarily incorporate the July 1, 2010, editions of the following OSHA standards as replacements to the currently incorporated July 1, 2003, editions of these standards:
• Title 29 of the Code of Federal Regulations, Part 1904 – Recording and Reporting Occupational Injuries and Illnesses.
• 29 CFR 1910 – Occupational Safety and Health Standards. • 29 CFR 1915 – Occupational Safety and Health Standards for Shipyard Employment. • 29 CFR 1917 – Occupational Safety and Health Standards for Marine Terminals. • 29 CFR 1926 – Occupational Safety and Health Regulations for Construction. • 29 CFR 1928 – Occupational Safety and Health Standards for Agriculture. These 2010 OSHA editions contain numerous revisions to the 2003 editions. Many of these revisions simply improve clarity and consistency; correct errors; update cross-references to other industry standards; and add new cross-references to other contemporary industry standards. Other revisions that are more substantive include (1) establishing the employer’s responsibilities to provide personal protective equipment and training; (2) considerably reducing the permissible exposure limit for hexavalent-chromium compounds, from 0.5 to 0.005 mg/m3; (3) changing the repeat-exposure monitoring periods for acrylonitrile, vinyl chloride, 1-2-dipromo-3-chloropropane, and cotton dust; (4) changing the employer’s responsibility for exposure-monitoring notification for acrylonitrile, vinyl chloride, 1-2-dipromo-3-chloropropane, coke-oven emissions, and cotton dust; (5) lengthening the cycle for updating the compliance program for inorganic arsenic, vinyl chloride, 1-2-dipromo-3-chloropropane, and coke-oven emissions; (6) lengthening the minimum timeframe for medical examinations for vinyl chloride and coke-oven emissions; (6) replacing general fire-prevention provisions for shipyards with comprehensive fire-protection provisions; and (7) reinstating roll-over protective-structure provisions from 1996 for tractors used in agricultural operations.
These proposed rule changes would also clarify and update the chapter’s scope, application, definitions, inspection criteria, and incorporation-of-standards provisions – and would update the Department’s current modifications of the incorporated OSHA standards. These updates to these modifications include (1) improving the clarity, consistency, format, and organization of these modifications; (2) clarifying which safety vests or other clothing provide adequate visibility protection for roadway workers; (3) clarifying that traffic-control devices for warning traffic and protecting roadway workers are required by other authorities to comply with the Uniform Traffic Devices Manual produced by the American Traffic Safety Services Association; (4) replacing the additional criteria for securing the footing of ladders, with reference to the standards that are available from the American National Standards Institute for construction and use of portable ladders; (5) repealing the ventilation requirements that overlap with the design requirements in Wisconsin’s uniform Commercial Building Code; (6) replacing the plan submittal requirements for spray booths with an informational Note that refers to the corresponding building-design requirements in the Commercial Building Code; (7) clarifying the first-aid and resuscitation training that is acceptable for work in confined spaces; (8) repealing the additional criteria for sampling devices and air monitoring, for confined spaces; (9) clarifying which emergency eyewash and shower facilities provide adequate protection for exposure to materials that are corrosive or can cause irreversible eye or body injury; (10) replacing the additional requirements that overlap with the requirements in chapter SPS 314 for separating incompatible materials from each other, with a revised informational Note that refers to SPS 314; (11) no longer replacing the air-contaminant maximums in 29 CFR 1910 with the maximums from the 1992 edition of 29 CFR 1910, and no longer requiring the additional monitoring relating to those 1992 maximums; (12) requiring dump bodies of all vehicles, rather than just on trucks, to have a locking mechanism for preventing accidental lowering of the body while maintenance or inspection work is being done or while the vehicle is left unattended; (13) repealing the additional requirements for providing guarding along the edge of an excavation; and (14) repealing the additional requirements to provide yellow warning lights for nighttime exposure to excavations.
Summary of, and comparison with, existing or proposed federal regulation:
In Wisconsin, OSHA applies its above requirements to private-sector employees but not to public-sector employees. The requirements in chapter SPS 332 apply to public-sector employees but not to private-sector employees. Consequently, although the two sets of requirements are nearly but not entirely identical, they do not overlap in where or how they apply.
This update of chapter SPS 332 does not include consideration of any changes to the above OSHA standards that have occurred after July 1, 2010. The Department plans to consider those changes during its next update of this chapter.
Comparison with rules in adjacent states:
An Internet-based search of state-level rules for public-employee safety and health standards in the adjacent states yielded the following results:
Illinois: The Illinois Department of Labor mostly adopts the OSHA standards without any modifications, for protecting all public-sector employees in the state, but has a unique standard for recordkeeping. OSHA has approved the Illinois State Plan, as established under section 18 of the federal Occupational Safety and Health Act of 1970, but maintains jurisdiction over all private-sector workplaces, federal agencies, maritime employers (e.g., shipyards, marine terminals, and longshoring), military facilities, Indian-sovereignty workplaces, and the United States Postal Service. The agency’s website is at http://www.illinois.gov/idol/Laws-Rules/safety/Pages/default.aspx. Iowa: The Iowa Division of Labor Services administers the OSHA-approved Iowa State Plan, which applies to all public and private sector workplaces in the state, with the exception of private-sector maritime activities, marine terminals, and longshoring; federal-government-owned and contractor-operated military facilities; bridge construction projects spanning the Mississippi and Missouri Rivers between Iowa and other states; federal government employers and employees; and the United States Postal Service (these fall under OSHA jurisdiction). The State Plan includes the following state-specific standards in addition to the OSHA standards: Sanitation and Shelter Rules for Railroad Employees, Hazardous Chemical Risks Right to Know – General Provisions, Community Right to Know, Public Safety/Emergency Response Right to Know, and Asbestos Removal and Encapsulation. The agency’s website is at http://www.iowaworkforce.org/labor/iosh/index.html. Michigan: The Michigan Occupational Safety and Health Administration (MIOSHA) administers the OSHA-approved Michigan State Plan, which applies to all places of employment in the state, with the exception of federal-government employees, the United States Postal Service, maritime and mining activities, and domestic employment, which are subject to OSHA jurisdiction. MIOSHA has adopted most of the OSHA standards by reference, but has a unique standard for child labor. The agency’s website is at http://www.michigan.gov/lara/0,4601,7-154-10603-42245--,00.html. Minnesota: The Minnesota Occupational Safety and Health Administration (MNOSHA) administers the OSHA-approved Minnesota State Plan, which applies to all places of employment in the state, with the exception of federal government employees, the United States Postal Service, and certain agricultural operations (those pertaining to the field sanitation standard and temporary labor camps), which are subject to federal jurisdiction. MNOSHA has adopted most of the OSHA standards by reference, and has the following unique standards: Toxic Chemical Handling and Exposure, Agriculture, Repetitive Motion Injuries, Heat Exposure, and Noise Exposure. The agency’s website is at http://www.dli.mn.gov/MnOsha.asp. Wisconsin does not have an OSHA-approved State Plan for private-sector employees.
Summary of factual data and analytical methodologies:
These proposed rule changes were developed primarily by comparing the July 1, 2003, editions of the six OSHA standards that are currently incorporated into chapter SPS 332 – to the July 1, 2010, editions which are proposed to be incorporated in place of the 2003 editions. All of the Department’s current modifications of the 2003 editions were then analyzed in comparison to the 2010 editions, and in comparison to current best practices. These comparisons and analyses were then presented to and discussed with the Department’s Public Safety Advisory Council, and the Council’s resulting recommendations were incorporated into these proposed rule changes. The following organizations and agencies were represented on this Council:
City of Milwaukee
Department of Administrtion, Division of State Facilities
Department of Administrtion, State Risk Management
League of Wisconsin Municipalities
Madison Metropolitan Sewerage District
Municipal Electric Utilities of Wisconsin
University of Wisconsin System
Wisconsin Alliance of Cities
Wisconsin Association of School Boards
Wisconsin Counties Association
Wisconsin Rural Water Association
Wisconsin Towns Association
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
These rule changes would apply only to public-sector employees and their employers, so any economic impacts on small business are expected to only be indirect.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business:
These rule changes are not expected to have an economic impact on small businesses as defined in section 227.114 (1) of the Statutes. The Department’s Regulatory Review Coordinator may be contacted by e-mail at Eric.Esser@wisconsin.gov, or by calling (608) 267-2435. Agency contact person:
