OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

OSHA has updated its Recordkeeping National Emphasis Program (NEP).  The NEP, initated originally in September, 2009, was designed to investigate whether, and to what extent, injuries and illnesses are being underreported by employers.  The original NEP, as well as the revision, targets employers with low rate establishments operating in historically high rate industries.  Click here for a Special Report on the Recordkeeping NEP.

The updated NEP makes three significant changes:

• The expiration date has been extended until February 2012.
   
• If OSHA begins an inspection of an establishment and determines that the establishment falls outside the targeted industries identified in the NEP, compliance officers are now instructed to proceed with the inspection.  In the original NEP, compliance officers were instructed to stop the inspection if they identified that an establishment was not in fact in one of the targeted NAICS codes.
   
• Employee interview questionaires have been expanded to gather additional information on, among other things, recordkeeping policies and programs that may discourage the reports of injuries and illnesses.

OSHA's update and extension of the NEP further shows how seriously the agency is taking allegations of underreporting of injuries and illnesses by employers.  Assistant Secretary Michaels was recently quoted as saying that "We're gong to be looking at the books, and they had better be accurate."  Employers must continue to be vigilant in ensuring that their recordkeeping programs and practices are fully compliant with OSHA's rules.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In moves designed to enhance the effectiveness of its enforcement activities, OSHA has unveiled a new “Severe Violator Enforcement Program” and a memorandum to Regional Administrators that has the effect of increasing penalties for employers receiving citations. These enhancements are further evidence of OSHA’s emphasis on enforcement and all employers must take note.

Severe Violator Enforcement Program

OSHA’s Severe Violator Enforcement Program (SVEP) “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.

The following types of cases are considered SVEP cases under the program:

• A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
• An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
• An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
• All egregious enforcement actions.

Administrative Enhancements to OSHA’s Penalty Policies

OSHA has also issued a memorandum to Regional Administrators that administratively enhances OSHA’s penalties. OSHA finds in the memorandum that currently “the Agency’s penalties are too low to have an adequate deterrent effect.” In effect, the memorandum revises OSHA’s penalty classification system, as currently outlined in its Field Operations Manual (FOM). Of particular note, OSHA is:

• Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
• Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years. 
• Increasing the minimum proposed penalty for a serious violation to $500.
• Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty.  (OSHA’s example in the memorandum results in an increase of approximately 50%.)

These changes to OSHA’s enforcement policies are significant.  Now more than ever, employers must take steps to evaluate their safety and health programs and proactively deal with safety and health issues at the workplace.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recently issued memorandum to Regional Administrators and State Plan Designees, OSHA has clarified its policy for citing the general industry personal protective equipment (PPE) standard, 29 CFR 1910.132(a), for failure to provide and use flame resistant clothing (FRC) in oil and gas well drilling, servicing, and production-related operations.  In the March 19 memorandum, OSHA provides guidance to its compliance officers (CSHOs) on when employers must provide and ensure the use of FRC and, thus, when citations under 29 CFR 1910.132(a) may be issued.

The memorandum sets the following specific citation guidance:

• In drilling operations, FRC is usually not needed during initial rig up and normal drilling operations prior to reaching active hydrocarbon zones, unless other activities warrant their use.  Once active gas or hydrocarbon zones are reached, appropriate FRC must be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones.  FRC should also be worn when there is a history of fluid or gas kicks from underground producing zones.  And, once FRC is provided per these circumstances, employees should wear the FRC until the final casing is cemented and the well is effectively closed.
   
• In well servicing operations, CSHOs are tasked with determining whether FRC is provided and worn during well servicing or workover operations, such as pulling wet string tubing, snubbing tubing, swabbing operations, etc.
   
• In production-related operations, OSHA also concludes that the potential for flash fire exists, and advises CSHOs to specifically examine certain operations for citation, such as equipment openings, gauging, transfer of hydrocarbons, and maintenance operations on production equipment.

If citations are warranted, CSHOs are provided the following sample language to use:  "The employer failed to provide and ensure the use of flame-retardant treated clothing (FRC) necessary to protect employees from burns due to potential flash fires."

OSHA's recent memorandum is important for employers in oil and gas well drilling, servicing, and production-related operations and they should thoroughly review it to ensure that their current practices are fully compliant with OSHA's expectations. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

OSHA has embarked on a new National Emphasis Program (NEP) targeting hexavalent chromium in the workplace, along with other toxic substances found in conjunction with hexavalent chromium.  OSHA's intent with the NEP is to "target workplaces with occupational exposures to hexavalent chromium" and certain other toxic substances (e.g., antimony, arsenic, cadmium, lead, iron oxide) to encourage compliance with applicable standards.  In 2006, OSHA issued updated standards regulating exposures to hexavalent chromium compounds in general industry, construction, and maritime.  The NEP was effective February 23, 2010.

Under the NEP, inspections will focus on industries where hexavalent chromium overexposures are known to occur, including:  electroplating; aircraft manufacturing; ship building and repair; inorganic dye and pigment manufacturing; iron and steel mills; ferrous foundries; chrome colors and other inorganic pigments.  Establishments with fewer than 10 workers will be included in the NEP.

OSHA's Directorate of Evaluation and Analysis will prepare for each Area Office a master inspection list for the office to use in planning inspections.  Area Offices are given flexibility to schedule inspections within a specified inspection cycle, in order to make efficient use of resources.  The inspections will be conducted by an Industrial Hygiene Compliance Officer, trained in the hazards of hexavalent chromium.

At the opening conference, the compliance officer will verify that hexavalent chromium or other identified toxic substances are present in the workplace and if they are, the compliance officer will proceed with the inspection.  The compliance officer is instructed to consider and evaluate worker exposures and compliance in activities including, but not limited to:  regular operations; setup and preparation for regular operations; making adjustments during operations; cleaning of the process area; scheduled and unscheduled maintenance; implementation of engineering controls; use of PPE; medical surveillance programs; and worker training and education.  If there are any safety hazards noted, these may be referred for a safety inspection.

This NEP is another in a series of enforcement initiaitives that OSHA is undertaking.  Employers with operations with hexavalent chromium or the other toxic substances included in the NEP must review the NEP and prepare for an inspection.                

• Email This
• Print
• Comments
• Trackbacks
• Share Link