Inspections, Citations, & Penalties MODULE 5

2©2006 TEEX 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

3©2006 TEEX 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

Regulations 29 CFR 1903

5©2006 TEEX 29 CFR 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

6©2006 TEEX 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 SpanishEnglishSpanish  Provisions to make standards available  Available at OSHA Area Offices  Employer’s materials must be made available to employees on request

7©2006 TEEX 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

8©2006 TEEX 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

9©2006 TEEX  Permission to enter does not imply waiver of citation or penalty  Advance notice not given except  Imminent danger  After business hours  Special preparations necessary  Assure employer and employee presence  As determined by Area Director

10©2006 TEEX Conduct of Inspections  CSHO arrives & shows credentials  Nature, purpose and scope of inspection  Can include photos, IH samples, questioning personnel, etc..

11©2006 TEEX Conduct of Inspections  CSHO follows company’s safety procedures  No unreasonable disruption of work  Closing conference to:  CSHO discuss apparent violations found  Employer opportunity to discuss workplace conditions

12©2006 TEEX 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 CSHO’s inspection prohibited  Classified information and trade secrets protected

13©2006 TEEX Trade Secrets  Employer trade secrets are protected  Violations can result in $1,000 fine, 1 year in jail, and work removal

14©2006 TEEX 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

15©2006 TEEX 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

16©2006 TEEX 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

17©2006 TEEX 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

OSHA Inspection Priorities

19©2006 TEEX Inspection Priorities  Imminent Danger = top priority  Employees notify employer of imminent danger  If no action taken, notify OSHA  Catastrophes and Fatal Accidents = second priority

20©2006 TEEX 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

21©2006 TEEX 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

22©2006 TEEX Follow-up Inspections  Determine whether previously cited violations have been corrected.  “Notification of Failure to Abate”

23©2006 TEEX OSHA Inspection Priority Review 1.Imminent Danger 2.Catastrophes and Fatal Accidents 3.Employee Complaints and Referrals 4.Programmed High-Hazard Inspections 5.Follow-Up Inspections

OSHA Inspection Process

25©2006 TEEX Pre-Inspection Preparation  Compliance Safety and Health Officer (CSHO) becomes familiar with facility  History  Nature of business  Relevant standards  Industrial hygiene equipment selection

26©2006 TEEX 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

27©2006 TEEX 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

28©2006 TEEX Inspection Tour  CSHO determines route and duration  Consults with employees  Photos  Instrument readings  Examines records

29©2006 TEEX 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

30©2006 TEEX Closing Conference  Discussion of problems, questions and answers  Discussion of recommended citations  Time needed for abatement  Only Area Director issues citations and assesses penalty $$$

31©2006 TEEX Citations  Area Director reviews CSHO’s inspection report  Six month limit to issue citation following occurrence of alleged violation  Citations will describe particular violation of The Act, standards, etc.

Types of Violations

33©2006 TEEX 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

34©2006 TEEX 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

35©2006 TEEX 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

36©2006 TEEX Repeat Violation  Same or substantially similar  Up to $70,000 for each violation

37©2006 TEEX Failure to Abate  Up to $7000/day for each violation not abated  Maximum of 30 days

38©2006 TEEX 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

39©2006 TEEX De Minimis Violation  No direct relationship to safety or health  No fines

40©2006 TEEX 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

41©2006 TEEX 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

42©2006 TEEX Increase of Penalties  Multiplied if previously cited  Factor varies by employer size  Multiplied for willful violations

43©2006 TEEX 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

Response to Inspection

45©2006 TEEX a 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

46©2006 TEEX 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

47©2006 TEEX 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

48©2006 TEEX 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

49©2006 TEEX 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

50©2006 TEEX 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

51©2006 TEEX 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

52©2006 TEEX 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

53©2006 TEEX 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

54©2006 TEEX 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

55©2006 TEEX More Information Available  Field Inspection Reference Manual  CPL (FIRM) CPL  Small Entity Compliance Guide for OSHA's Abatement Verification Regulation  On OSHA web siteweb site

56©2006 TEEX 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?

Most Frequently Cited Standards SIC 13 – Oil and Gas Extraction

58©2006 TEEX Most Frequently Cited  Can be found on  Following slides from SIC , Oil and Gas Extraction  Includes Oil and Gas Field Services  October September 2006  189 inspections, 872 citations  $1,177,376 in penalties

Subtitles & Transitions FOR EXAMPLE…

Subtitles & Transitions FOR EXAMPLE…

61©2006 TEEX General Duty Clause Violations in Oil and Gas extraction  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  Categories between 10/1/05 and 3/6/07:

62©2006 TEEX General Duty Clause Violations in Oil and Gas extraction  Most common industry standards referenced:  API RP 54  API RP 4G  ANSI B30  Operator’s manuals for equipment  Employer safety manuals and practices

63©2006 TEEX Standards Recognized by OSHA  List on OSHA web page List  Rig Inspection Checklist 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