Inspections, Citations,

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Inspections, Citations, Penalties

• MODULE 5

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Basis in the Act

• Sections 8-10 and 13 of OSH Act authorize DOL to
  inspect and issue citations
• Sections 11 and 12 authorizes review of citations
• Section 17 authorizes civil and criminal
  penalties

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Basis in the Act

• In Section 8(a), OSHA representatives are
  authorized to
• Enter without delay, at reasonable times
• Inspect during regular working hours and at
  reasonable times
• Question privately employers and employees

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Regulations

• 29 CFR 1903

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29 CFR 1903.1 Purpose and Scope

• Purpose
• To prescribe rules and to set forth general
  policies for enforcement of the inspection,
  citation, and proposed penalty provisions of the
  Act.
• Describes authorization and source

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1903.2 Postings, Availability of the Act,
Regulations Standards

• Employer must keep a notice posted
• Posted conspicuously at each physical location
  where employees report
• State poster acceptable
• Available in English or Spanish
• Provisions to make standards available
• Available at OSHA Area Offices
• Employers materials must be made available to
  employees on request

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1903.3 Authority for Inspection

• CSHOs can enter and inspect where employees are
  working
• To investigate conditions of equipment,
  structures, machines and materials
• To question owners, employees or representatives
• To review records required or directly pertinent
  to the inspection

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1903.4 Objection to Inspection

• CSHOs must be allowed
• To enter and inspect at reasonable times
• To be accompanied by employee representative
• If employer refuses, CSHO will
• Terminate the inspection or limit it to areas
  without objection
• Find out the reason for refusal
• Report the refusal and reason to the Area
  Director
• Warrants may be sought in advance

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1903.5-1903.6

• 1903.5 Permission to enter does not imply waiver
  of citation or penalty
• 1903.6 Advance notice not given except
• Imminent danger
• After business hours
• Special preparations necessary
• Assure employer and employee presence
• As determined by Area Director

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1903.7 Conduct of Inspections

• CSHO arrives shows credentials
• Nature, purpose and scope of inspection
• Can include photos, IH samples, questioning
  personnel, etc..

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1903.7 Conduct of Inspections

• CSHO follows companys safety procedures
• No unreasonable disruption of work
• Closing conference to
• CSHO discuss apparent violations found
• Employer opportunity to discuss workplace
  conditions

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1903.8 Employee and Employer Representatives

• Representatives of employer and employees given
  an opportunity to accompany to aid in inspection
• CSHO authorized to determine representative or
  will consult with reasonable number of employees
• Third party non-employee, e.g. engineer or
  industrial hygienist, may accompany with good
  cause
• Interference with CSHOs inspection prohibited
• Classified information and trade secrets
  protected

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1903.9 Trade Secrets

• Employer trade secrets are protected
• Violations can result in 1,000 fine, 1 year in
  jail, and work removal

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1903.10 Consultation with Employees

• CSHOs may consult with employees on matters of
  safety health
• Any employee has a right to point out apparent
  OSHA violations to the CSHO

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1903.11 Complaints by Employees

• Employees may send complaints to CSHO or Area
  Director in writing
• Full inspection if reasonable grounds exist
• Complaint shown to employer no later than
  inspection date
• Employees can request anonymity
• Employer retaliation is prohibited

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1903.12 Informal Review

• If no reasonable grounds for inspection
• Written response to complaining party
• Any review will involve employer
• Assistant Regional Director may choose to
  schedule an informal conference

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1903.13 Imminent Danger

• If CSHO finds imminent danger
• Will tell employees and employer
• If expected to cause serious harm before
  enforcement solves issue
• Citations may still be issued, even if problem is
  fixed

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OSHA Inspection Priorities
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Inspection Priorities

• Imminent Danger top priority
• Employees notify employer of imminent danger
• If no action taken, notify OSHA
• Catastrophes and Fatal Accidents second
  priority

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Inspection Priorities

• Employee Complaints third priority
• Referrals from employees outside agencies of
  unsafe or unhealthful conditions
• Informal review for situations not inspected
• Confidentiality is maintained on request

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Inspection Priorities

• Programmed High-Hazard Inspections fourth
  priority
• Aimed at high hazard industries, occupations, or
  health substances
• Selection criteria examples
• Death
• Lost workday case rates
• Exposure to toxic substances

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Follow-up Inspections

• Determine whether previously cited violations
  have been corrected.
• Notification of Failure to Abate

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OSHA Inspection Priority Review

• Imminent Danger
• Catastrophes and Fatal Accidents
• Employee Complaints and Referrals
• Programmed High-Hazard Inspections
• Follow-Up Inspections

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OSHA Inspection Process
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Pre-Inspection Preparation

• Compliance Safety and Health Officer (CSHO)
  becomes familiar with facility
• History
• Nature of business
• Relevant standards
• Industrial hygiene equipment selection

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Inspection Process Arrival

• CSHO arrives at facility and displays credentials
• Employers should always verify the identity of
  the CSHO
• United States Department of Labor ID including
  photo and serial number
• Verify by phoning OSHA

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Opening Conference

• CSHO explains
• Why facility was selected
• Purpose of visit, inspection scope and applicable
  standards
• Complaint copies distributed (if applicable)
• Employee representative may be summoned

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Inspection Tour

• CSHO determines route and duration
• Consults with employees
• Photos
• Instrument readings
• Examines records

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Inspection Tour

• CHSO points out unsafe conditions
• May point out possible corrective actions if
  employer requests
• Employer chooses how to abate hazard
• Some may be corrected immediately
• May still result in citation

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Closing Conference

• Discussion of problems, questions and answers
• Discussion of recommended citations
• Time needed for abatement
• Only Area Director issues citations and
  assesses penalty

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1903.14 Citations

• Area Director reviews CSHOs inspection report
• Six month limit to issue citation following
  occurrence of alleged violation
• Citations will describe particular violation of
  The Act, standards, etc.

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Types of Violations
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Serious Violation

• High probability of death or serious harm
• Mandatory fine, up to 7,000
• Adjusted downward
• Good faith
• Gravity of alleged violation
• Violation history
• Size of business

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Willful Violation

• Employer knowingly commits with plain
  indifference to the law
• Either knows action is a violation or
• is aware of hazardous condition
• with no effort to eliminate
• Up to 70,000 for each
• Minimum of 5,000

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Willful Violation

• If convicted of WV that has resulted in death
• court imposed fine,
• up to six months in jail, or both
• Criminal conviction, up to 250,000 for
  individual and years in jail
• 500,000 for corporation
• Corporate officers may be imprisoned

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Repeat Violation

• Same or substantially similar
• Up to 70,000 for each violation

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Failure to Abate

• Up to 7000/day for each violation not abated
• Maximum of 30 days

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Other Than Serious Violation

• Normally would not cause death or serious injury
• Normally no fines
• Fines levied may be lowered up to 95
• Factors
• Good faith (related to safety and health program)
• History of violations
• Size of business

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De Minimis Violation

• No direct relationship to safety or health
• No fines

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Other Violations

• Falsifying records
• Up to 10,000, six months in jail, or both
• Violations of posting requirements
• Civil fine up to 7,000
• Assaulting, interfering with, intimidating a CSHO
  while performing their duties
• Up to three years prison and
• 5,000 fine

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Reduction of Penalties

• Some contested penalties are reduced
• Up to 60 for small employers
• Up to 25 for good faith
• Written safety and health program
• Only incidental deficiencies
• Up to 10 for citation history

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Increase of Penalties

• Multiplied if previously cited
• Factor varies by employer size
• Multiplied for willful violations

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Citation Questions

• Who - if anyone - goes to prison?
• Employer entire chain of supervision
• Attempts to identify the person most reasonably
  considered at fault
• Where does the money go?
• National Treasury
• Not ear-marked for OSHA

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Response to Inspection
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1903.14a Petitions for modification of abatement
date

• Employer may petition for extension of abatement
  date after good faith effort to comply
• Petition in writing
• Steps and dates of action taken
• How much more time is requested and reasons
• Interim safeguards to protect employees against
  cited hazard

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1903.15 Proposed Penalties

• Notice of proposed penalties for citations issued
  to employers
• Area Director determines penalties based upon
• Size of business
• Gravity of violation
• Good faith of employer
• History of previous violations

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1903.15 Proposed Penalties

• To contest a citation or proposed penalty before
  the Review Commission
• Notify the Area Director in writing
• Within 15 working days
• Otherwise, cannot be contested

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1903.16 Posting of Citations

• Employer must post unedited citations
• Near each place violation is alleged, or
• Place readily seen by affected employees
• For at least 3 days or until abated
• Notice of contest may be posted too

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1903.17 Employer and employee contests

• Employer may contest either or both
• Citation
• Penalty
• Employee may contest time to abate
• Postmarked within 15 working days
• Area Director notifies Review Commission

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1903.18 Failure to correct violation

• If inspection finds failure to correct cited
  violation within period permitted
• AD notifies employer of violation/penalty
• Period for correction starts after any review
• These citations may also be appealed
• Notify AD within 15 working days

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Abatement Period

• Time provided to correct violations
• Cost of correcting violations may be greater than
  citation cost
• Penalty reductions for failure to abate
  violations
• Good faith
• Partial abatement

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1903.19 Abatement verification

• Purpose of OSHA inspections
• Abatement of violations
• Abatement compliance or hazard elimination
• Employer must certify abatement of violations
  within 10 calendar days of abatement date

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1903.19 Abatement verification

• Employer must inform affected employees and their
  representatives
• Documentation required
• Abatement certification letter
• Evidence of abatement
• Abatement plans / progress reports
• Warning tags for moveable equipment

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1903.20 Informal conferences

• Employee or employer may request
• Assistant Regional Director may hold conference
• May invite other side to participate
• Review Commission rules of procedure
• Counsel allowed
• Does not change deadline to contest

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More Information Available

• Field Inspection Reference Manual
• CPL 2.103 (FIRM)
• Small Entity Compliance Guide for OSHA's
  Abatement Verification Regulation
• On OSHA web site

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Discussion

• How would your organization respond to an
  inspection?
• Immediately?
• Afterward?
• Any effects of citation?
• Civil liability for injuries or illnesses?
• Risk of repeat violations?
• Wider hazard awareness?

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Most Frequently Cited Standards

• SIC 13 Oil and Gas Extraction

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Most Frequently Cited

• Can be found on www.osha.gov
• Following slides from SIC 1300-1399, Oil and Gas
  Extraction
• Includes Oil and Gas Field Services
• October 2005 - September 2006
• 189 inspections, 872 citations
• 1,177,376 in penalties

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Subtitles Transitions

• FOR EXAMPLE

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Subtitles Transitions

• FOR EXAMPLE

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General Duty Clause Violations in Oil and Gas
extraction

• Categories between 10/1/05 and 3/6/07

• Struck by 32
• Crushing 11
• Falling 10
• Operating Procedures - 10
• Equipment 8
• Burns 6

• Explosion - 5
• Lifting 5
• Unclassified 5
• Chemical 2
• Guarding 2
• Lockout 1

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General Duty Clause Violations in Oil and Gas
extraction

• Most common industry standards referenced
• API RP 54
• API RP 4G
• ANSI B30
• Operators manuals for equipment
• Employer safety manuals and practices

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Standards Recognized by OSHA

• List on OSHA web page
• Rig Inspection Checklist
• Developed for Region VI Regional Emphasis Program
  (REP) from
• 29 CFR 1910, API RP 54, other API RPs and ANSI
  standards and
• Checklists from IADC and AESC
• Updated by Baton Rouge Area Office