OSHA watch

Expedited Whistleblower Review Pilot launched in western region

Effective August 1, a pilot program in the Western region allows whistleblowers, protected by certain statutes, to expedite the process by requesting that the agency stop an investigation and release findings to the Office of Administrative Law Judges. The western region covered by the new "Expedited Case Processing Pilot," includes Nevada, Arizona, California, Hawaii, American Samoa, Northern Mariana Islands and Guam.

The case has to meet certain criteria to qualify for this expedited processing: it must be filed under a statute that allows for a fresh review from an ALJ, the whistleblower must have been interviewed by OSHA, the complaint must be evaluated to determine if the elements for a retaliation claim are there, both the complainant and the respondent must have had an opportunity to write responses and meet with OSHA to present their statements, and the complaint must have been filed at least 30 to 60 days earlier before the complainant can ask for an expedited review.

Administrative Law Judges can order the same recompenses as OSHA and they can order back pay, compensatory damages, punitive damages, reinstatement, and attorney fees.

PSM standard: interim enforcement policy for Appendix A chemicals issued

A July field memorandum for regional administrators and state plan designees rescinds and replaces a June 2015 memorandum regarding the Process Safety Management (PSM) standard and covered concentrations of listed Appendix A chemicals.

In response to concerns that the 2015 memorandum significantly expanded the scope of chemical mixtures covered by the PSM Standard and a legal challenge that this significant change to the PSM standard was made by way of an interpretation memo, rather than the formal "notice-and-comment rulemaking," the new memorandum retains the new 1% Rule proposed to be adopted in the June 2015 memorandum for most chemicals listed on Appendix A to the PSM standard.

In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:

• the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and
• with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of one percent or greater. However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg). The employer shall document this partial pressure determination.

The new interpretation is different than the 2015 memorandum, however, in that it carves out any chemical listed in Appendix A as "anhydrous" where such chemical is part of an aqueous solution or aqueous mixture.

Employers will not be cited through March 31, 2017, for violations of the PSM standard related to the memo. Through March 31, 2018, the agency will "make it a top priority" for compliance assistance specialists to help employers comply with changes to the standard.

Warning of methylene chloride hazards

A new addition to the Fatal Facts series emphasizes how quickly methylene chloride vapors can reach life-threatening levels when using common paint stripping products. It features the story of a temporary worker who died while using a paint stripper containing this hazardous substance to remove the coating from a bathtub.

New resources highlight tractor safety

A magnet encouraging tractor operators to practice safe handling when in the driver's seat, is available in English or Spanish and is designed to be placed directly on tractors.

Start date for federal contractor disclosure requirements: Oct. 25, 2016

Beginning in late October, prospective federal contractors will be required to disclose previous labor law violations as part of final guidance recently announced by the Department of Labor and the Federal Acquisition Regulatory Council.The final regulations, scheduled to go into effect in phases beginning on Oct. 25, require employers bidding for a federal contract worth at least $500,000 to disclose any of 14 established violations of workplace protections cited during the previous three years. Violations that must be disclosed include those related to safety and health, family and medical leave, civil rights protections, collective bargaining, and wages.

Tennessee OSHA to adopt upcoming changes for tracking workplace injuries and illnesses

The new controversial recordkeeping rule, which takes effect January 1, 2017, requires certain employers to electronically submit certain injury and illness data, which will be made available to the public. Tennessee OSHA is currently in the process of adopting the new rule and it is anticipated that the rule will be effective by January 1, 2017.

Georgia magistrate recommendation would restrict Regional Emphasis Program aimed at poultry processing facilities

The legality of the Regional Emphasis Program (REP) aimed at poultry processing facilities has been called into question, particularly whether a non-programmed inspection, e.g., one based on a complaint, referral, or report, can be expanded into a full plant-wide investigation. This issue was brought to a head when OSHA attempted to expand an inspection at Mar-Jac Poultry Inc., a poultry processor, from one focused on a report of a workplace accident into an REP inspection focused on numerous potential hazards, and the company refused.

When OSHA sought a warrant, a fact-finding hearing was held and the magistrate judge recommended to the U.S. District Court that OSHA had "probable cause" to investigate four of the 16 hazards because of the accident, but the agency lacked "administrative probable cause" to expand the investigation. The U.S. District Court will make the final ruling.

NIOSH's Engineering Controls Database can help employers reduce risk of workplace illnesses and injuries

NIOSH's new Engineering Controls Database provides information on effective engineering controls that can protect workers by eliminating or reducing hazardous conditions.

Recent fines and awards

California

• LC General Engineering & Construction Inc. of San Francisco faces fines of $52,810 for safety and health violations after a worker was run over by a steamroller and hospitalized for serious injuries.
• Garden Grove-based metal processing company, Kittyhawk Inc, faces $73,105 in penalties for serious safety violations following a confined space accident in which a worker was asphyxiated.

Georgia

• Great Southern Peanut of Leesburg was cited for combustible dust, improper machine guarding and other safety and health hazard. Proposed fines are more than $110,000 for 17 repeated, serious violations.
• JCG Farms of Alabama LLC, doing business as Koch Farms of Collinsville, A to J Electrical Services and D. Sims Inc., was cited for serious violations after a dust explosion kills one, injures five at a Rockmart chicken feed mill. The feed mill and two contractors based in Georgia are facing a combined $112,600 in fines.

Florida

• D.R. Horton was issued one repeated citation for failing to ensure subcontractor employees were protected with a fall protection system when working from heights up to 25 feet at an Ocala job site. Garcia Carpentry was issued a repeated citation for the same violation and an additional repeated for allowing workers to use the top step of a ladder to access and exit the roofing trusses. This inspection was part of the Regional Emphasis Program on Falls in Construction program. Proposed penalties: $107,785.
• Chicken producer, Pilgrim's Pride Corp, of Live Oak was cited for medical mismanagement, fall, machine guarding, and other safety, health hazards. Proposed penalties: $75,000.

Illinois

• Residential contractor, Robert Barringer III, was cited for the 19th time for failing to provide fall protection for workers. The contractor, who is in the Severe Violator Enforcement Program (SVEP), faces proposed penalties of $89,100 and is in default of $267,000 in fines. Robert Barringer III has been cited previously under the operating names Barringer Brothers Roofing, Barringer Brothers Inc., and Barringer Brothers Construction Inc.
• Newark-based, trailer manufacturer, Dierzen Sales was cited for exposing workers to injuries from machine and welding hazards. It faces nearly $154,000 in proposed fines for seven violations.
• Meyer Steel Drum Inc. of Chicago faces $46,800 in penalties for lack of adequate machine guarding after a worker has three fingers crushed at the steel drum manufacturer.
• Arlington Plating Co., a Chicago-area electroplating company, faces $115,000 in penalties for five repeated and 16 serious safety violations related to dangerous machine hazards and other safety hazards.
• A 42-year-old employee of Material Handling Systems/MHS Technical Services, fell 22 feet to his death at an Addison United Parcel Service facility after the company was cited for failing to provide workers with fall protection. Material Handling Systems/MHS Technical Services faces total proposed penalties of $320,400.

Massachusetts

• Dorchester-based contractor, Roof Kings LLC, exposed employees to life-threatening falls, more than 45 feet off the ground, over a three-day period as they worked at a Haverhill church. The contractor faces $124,000 for willful, serious, repeat violations. The inspection was conducted in response to a complaint.
• Rohm-Haas Electronics Material, LLC of No. Andover, doing business as Dow Chemical Co., was cited for exposing employees to fire and explosion hazards. It faces $129,200 in penalties following an explosion,
• Lunenburg-based Force Corp. and Framingham-based AB Construction Group Inc., have been ordered to pay $2.4 million in back wages and liquidated damages to 478 employees for misclassifying most of them as independent contractors to avoid paying overtime and other benefits.

Michigan

• Blue Diamond Steel Casting in Pigeon was cited for 23 safety and health violations and issued $205,400 in penalties. MIOSHA inspectors determined that the company overexposed workers to welding and iron oxide fumes, failed to provide training on how to prevent the unintentional activation of furnaces during servicing, and did not guard workers from several pinch points and movements from a robotic machine.

Mississippi

• Contractor, Anthony Smith, doing business as Center Stage, exposed workers at a Mobile apartment complex to dangerous falls and faces $42,000 in penalties.

Missouri

• Stahl Specialty Company did not use lockout devices and other machine safety procedures to prevent unintentional movement of the part - known as a ram - while a worker was inside the machine and he was crushed to death at the Warrensburg foundry. Proposed penalties total $105,000.
• Homeyer Precision Manufacturing of Marthasville was cited for safety failures related to electrical work practices after the electrocution death of a 43-year-old welder. Proposed fines are $59,000.

Nebraska

• A construction company that changed its name from Affordable Exteriors to R&M Equipt LLC and its owner, Rich Tiller of Lekhorn, were cited for a willful violation of failing to protect workers from falls with $70,000 in proposed penalties.

New York

• Middletown fire extinguisher service company, Oprandy's Fire & Safety Equipment, faces fines of $19,774 after two workers suffer severe injuries in a tank explosion.
• Environmental Remediation Services of Schenectady was fined $142,000 for violations at a River Road site for exposing its employees to mercury poisoning and not providing proper safeguards to workers doing mercury removal work.

Pennsylvania

• Mattocks Five Inc., doing business as Albion Mill, ignored previously identified severe combustible dust and grain-handling hazards and in a follow-up inspection faces $195,000 in fines for 26 violations, including five willful.
• Liberty Master, Inc. of Scranton exposed employees to serious, potentially fatal fall hazards at Yardley worksite and faces $57,200 in fines.
• US Steel exposed workers to asbestos hazards at a Pittsburgh coke production facility and faces fines of $170,000. The inspection was conducted in response to a complaint.
• IFCO Services N.A. Inc., a pallet company, agreed to pay $105,000 for wrongfully firing an employee who complained - first to the employer and then to OSHA - about hazardous mold at the company's Biglerville plant.

Wisconsin

• Fraser Shipyards Inc. faces nearly $1.4M in penalties for exposing workers to lead, and other hazards while retrofitting vessels. Workers were exposed to lead at levels up to 20 times the permissible exposure limit. The company was placed in the SVEP.
• Waupaca Foundry Inc. employees were found at risk for permanent hearing loss, respiratory illness, and other dangers from exposure to noise and silica. Proposed Penalties: $56,950.

Detailed descriptions of the citations above and other OSHA citations can be found here.