Inspections, Citations, & PenaltiesMODULE 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

Regulations29 CFR 1903

5 ©2006 TEEX

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

6 ©2006 TEEX

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 Employer’s materials must be made

available to employees on request

7 ©2006 TEEX

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

8 ©2006 TEEX

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

9 ©2006 TEEX

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

10 ©2006 TEEX

1903.7 Conduct of Inspections

CSHO arrives & shows credentials Nature, purpose and scope of

inspection Can include photos, IH samples,

questioning personnel, etc..

11 ©2006 TEEX

1903.7 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

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 CSHO’s inspection prohibited

Classified information and trade secrets protected

13 ©2006 TEEX

1903.9 Trade Secrets

Employer trade secrets are protected Violations can result in $1,000 fine, 1

year in jail, and work removal

14 ©2006 TEEX

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

15 ©2006 TEEX

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

17 ©2006 TEEX

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

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

1903.14 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

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

46 ©2006 TEEX

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

47 ©2006 TEEX

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

48 ©2006 TEEX

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

49 ©2006 TEEX

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

50 ©2006 TEEX

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

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

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

53 ©2006 TEEX

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

54 ©2006 TEEX

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

55 ©2006 TEEX

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

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 StandardsSIC 13 – Oil and Gas Extraction

58 ©2006 TEEX

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

Subtitles & TransitionsFOR EXAMPLE…

Citations by Subpart

30

41

54

59

73

77

98

98

116

126

0 20 40 60 80 100 120 140

Welding, Cutting, and Brazing

Materials Handling and Storage

Machinery and Machine Guarding

Medical and First Aid

General Duty Clause

General Environmental Controls

Walking - Working Surfaces

Personal Protective Equipment

Toxic and Hazardous Substances

Electrical

Subtitles & TransitionsFOR EXAMPLE…

Total Penalties by Subpart

0 50000 100000 150000 200000 250000 300000 350000

Hazardous Materials

Toxic and Hazardous Substances

General Environmental Controls

Materials Handling and Storage

Personal Protective Equipment

Machinery and Machine Guarding

Medical and First Aid

Walking - Working Surfaces

Electrical

General Duty Clause

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 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