OSHA Update

CSCJohn Newquistjohnanewquist@gmail.com815-354-6853

Draft 12 5 2015

Dec 2015• Manslaughter charges

have been dropped against a BP supervisor responsible for safety aboard the rig where an explosion killed 11 workers in 2010, as he pleaded guilty to a misdemeanor charge of violating the federal Clean Water Act.

Nov 2015• OSHA Fines to Rise for First

Time Since 1990• Maximum fines for the

most severe citations to $125,000 from $70,000 and for other serious violations to $12,500 from $7,000.

• The maximum allowable fines may also end up being lower than that following a rule-making process

Oct 2015• OSHA moves to a new

enforcement weighting system that assigns greater value to complex inspections that require more time and resources.

• Routine inspections count as one unit, while those requiring greater resources — such as those involving musculoskeletal disorders, chemical exposures, workplace violence, and process safety management violations — count as up to nine units.

Oct 2015• Since the beginning

of the year, more than 20 workers with allegedly bogus OSHA cards have been busted at NY city construction sites, sources familiar with the crackdown said.

Oct 2015• A jury convicted Griffin

Campbell of six counts of involuntary manslaughter, rejecting the third-degree murder charges sought by prosecutors who said Campbell ignored warnings of an imminent collapse.

Sep 2015

Costs of Accidents• Work injury costs:• • Total cost in 2011.................................................... $188.9 billion

• Cost per worker......................................................... $1,340

• Cost per death...........................................................$1,390,000

• Cost per medically consulted injury................................ $37,000

• • Time Lost Due to Work-Related Injuries:• • Total time lost in 2011............................................... 95,000,000 days• Due to injuries in 2011.................................................. 60,000,000 days• Due to injuries in prior years.......................................... 35,000,000 days• Time lost in future years from 2011 injuries....................... 50,000,000 days• • * Above data taken from NSC Injury Facts 2013 Edition.

Six Days Missed• According to the latest Workplace Safety Index, the 10 leading

causes*, and direct costs, of the most disabling workplace injuries in 2012, included:

• Overexertion involving outside source - $15.1 billion• Falls on same level - $9.19 billion• Struck by object or equipment - $5.3 billion• Falls to lower level - $5.12 billion• Other exertions or bodily reactions - $4.27 billion• Roadway incidents involving motorized land vehicle - $3.18 billion• Slip or trip without fall - $2.17 billion• Caught in/compressed by equipment or objects - $2.1 billion• Repetitive motions involving micro-tasks - $1.84 billion• Struck against object or equipment - $1.76 billion

Illinois• IL Worker

Compensation cases • FY95 peak of 72,000

cases, • Fewer than 47,000

were filed in FY12, a 35% decrease• IL is 16% lower than

average.

Tier 1 – PI Defendant

Armstrong Teasdale LLP Bryan Cave LLP

Greensfelder, Hemker & Gale, P.C.

HeplerBroom LLC

Johnson & Bell, Ltd.

Lashly & Baer, P.C.

Law Offices of Christopher Patrick Ford

Mayer Brown LLP Sandberg Phoenix & von Gontard P.C.

Schuyler, Roche & Crisham P.C.

Swanson, Martin & Bell, LLP Thompson Coburn LLP Williams Venker & Sanders LLC

Williams, Montgomery & John Ltd.

Tier 1 - PI Plaintiffs

Armstrong Teasdale LLP

Clifford Law Offices

Corboy & Demetrio

Hofeld and Schaffner

Levin & Perconti

Much Shelist, P.C.

Pavalon & Gifford

Power Rogers & Smith, P.C.

Romanucci & Blandin, LLC

Salvi, Schostok & Pritchard PC Simmons Browder Gianaris Angelides & Barnerd LLC

http://bestlawfirms.usnews.com/search.aspx?practice_area_id=107&state_code=IL

Older workers• The preliminary

number of workers ages 55 and older who died on the job was "the highest total ever reported" by the bureau's census. • The number jumped

from 1,490 in 2013 to 1,621 in 2014, a 9 percent rise.

Region V Fatalities

• OSHA in Region 5 had 140 investigated fatalities in 2015 up +28. • 48 Illinois. • 29 in Wisconsin up

50%• 48 in Ohio

• 227 Struck by• 185 Falls• 166 Caught in• 41 Electrocutions• 32 Exposure• 30 Other• 20 Fire/Explosion

Region V Fall Fatalities 2010-2014

• 25 Ladders• 19 Roofs • 18 Same Surface• 16 Other• 14 Aerial Lift• 9 Nonmoving Vehicle

Region V Most Cited Areas • Machine Guarding

1910.212(a)(1)• GHS 1910.1200(e)• GHS 1910.1200(h)• 5(a)(1)• Machine Guarding

1910.212(a)(3)

Region V Most Cited Areas 6. Fall Protection 1926.5017. Lockout Procedures 1910.147(c)(4)8. PIV Training 1910.178(l)9. Lockout Audits 1910.147 (c)(6)10. PPE Assessment1910.132(d)

FY 2016 Strategic Initiatives• Falls• Oil and Gas• Temp Workers• Cell Towers• Workplace Violence• Corporate Non Compliance• SVEP• Corporate Wide

Settlement Agreements• Publicizing Key

enforcement cases

OSHA in 2016OSHA budget FY16:$552 Million

$23 M Standards$225 M Fed Enforcement$22 M Whistleblower$104 M State Programs$24 M Tech Support$73 M Compliance Assist Fed$57 M Compliance Ast States$10M Harwoods$38M Statistics$14M Executive

• 36, 054 inspections in FY 2014

2016 Budget Riders• Require OSHA to notify the House and Senate committees of any

new national, regional or local emphasis programs as well as the data used to determine the new program.

• Require the agency to consider all new currently available technology as the agency moves forward with the silica rule

• There enough inspectors for federal OSHA to inspect workplaces once every 139 years

• In 1983, this was every 79 years

OSHA In Region 5 - 2015• 6200 inspection in

2015• 68 Sigcases +14

egregious cases• 47% construction• 44% programmed

Leadership in Region V

• Nick Walters • 24 Years Experience• Two Criminal

Convictions Won• Lockout Expert• Exceptional fatality

investigator• Auditor• Area Director• National Office

Enforcement Program

“Want consistent approach on these amputations and hospitalizations. Region 5 might get 3000 amputations and 10,000 hospitalization.” Oct 2014

Leadership in Region V

• Bill Donovan Acting since June 2015• 25 Years Experience• Osha Training Institute• Construction Fall

Expert• Whistleblower

Manager• Enforcement

Programs

OSHA Leadership – Last Year• May 2015• “We think we're only

getting a very small portion of the accidents that should be reported,” said Dr. David Michaels, the U.S. Assistant Secretary of Labor for Occupational Safety and Health who is in charge of OSHA.

“When we investigate, we see that most employers don’t treat temporary workers the way they treat their permanent employees — they don’t provide them with the training that is necessary.”

National Emphasis Programs

• Combustible dust• Federal agencies• Hazardous machinery• Hexavalent chromium• Isocyanates• Lead• Primary metal industries• Process safety management• Shipbreaking• Silica• Trenching & excavation

Region V Local Emphasis Programs - 2016• Building Renovation/Rehabilitation and

Demolition • Fall Hazards in Construction and General

Industry • Dairy Farm Operations • High Rise Building Construction Inspections

in Chicago, Illinois • Grain Handling Facilities • Carbon Monoxide Hazards in Construction • Federal Agencies• Tree Trimming Operations • Wood Pallet Manufacturing Industry • Maritime Industries • Lead• Silica

Region V Recordkeeping 1/1/15-9/30/15• 54 Workplace Fatalities• 1 Catastrophes• 841 Hospitalizations (465*)• 361 Amputations (4658)• 2 Loss of Eye (1*)• 724 OSHA Inspections• *535 Employer Conducted

Inspections*• 197 Not Work related, not

reportable, no OSHA Jurisdiction

Category 1• OSHA Hospitalization, Amputations Reporting Inspection triggers• In OSHA's non released but media published memo, OSHA said these

reports by companies to OSHA after an amputation or hospitalization will automatically trigger an onsite inspection. Category 1 reports— any of these trigger an inspection:- a fatality;- at least two hospitalizations;- any injury of a worker 17 years old or younger;- similar events at the worksite involving multiple injures that occurred in the past year;- employer history of repeat, willful, failure-to-abate or egregious violations;- employer previously designated as a severe violator;- employer covered by national or local emphasis program; or- any imminent danger

• Answer ‘Yes,’ Get Inspected.29

Category 2• Reports that could trigger an inspection if at least TWO of the following questions

below are answered ‘‘yes’’ will be recorded as Category 2 reports,The Category 2 questions are:- Were temporary workers or ‘‘other vulnerable populations’’ injured or made ill?- Does the employer participate in a cooperative safety program such as the Voluntary Protection Program or an alliance?- Are employees still exposed to factors underlying the hazards producing the injury or illness?- Was the incident the result of failure of a safety program such as lockout/tagout or process safety management?- Were employees exposed to a serious hazard such as falls, combustible dust or heat?- Is there a pending whistle-blower complaint or inspection?- Does the employer have a history of OSHA inspections?- Did another government agency make a referral?- Were health issues such as chemical exposure and heat stress involved?

30

DOL Head • Thomas Perez• From DOJ• MD Secretary of

Labor 2007-2009• Strong positions in

minimum wage, wage theft, apprenticeship programs, and whistleblowers

October 2014• "In the past five months, OSHA has

issued more than $800,000 in fines to Dollar Tree Stores for the same or similar violations," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "This latest incident yet again demonstrates the company's deliberate and ongoing refusal to effectively address hazards that have been cited multiple times at their stores across the country. OSHA will not tolerate such blatant disregard for worker safety."

Danger: Blocked Exit – Unknown store

Criminal 2015• Prosecutors said on Wednesday

that the two managers — Wilmer Cueva, of Sky Materials, and Alfonso Prestia, of Harco Construction — had ignored repeated warnings for months from private inspectors that treacherous conditions existed at the site on Ninth Avenue

• Manslaughter and other charges were being brought against two construction managers and the companies they worked for in the April death of a worker at a Lower Manhattan building site.

Criminal 2015• Salvador William Versaggi, owner of

Versaggi Construction, along with foreman John Fittpleaded not guilty on Tuesday to the manslaughter charges and two counts of violation of the labor code.

• On December 26, 2012, Jose Plancarte was assigned to lower a window frame opening in the main stairwell of a residential construction site at 40 Edgehill Way in San Francisco.

• Plancarte built a nailed-bracket scaffold and used two scaffold planks to access the window located more than 18 feet above ground.

• Plancarte was not wearing fall protection and the scaffold did not have guardrails.

May 2015

• On May 20, US district judge Beth Phillips ordered Robert Lockett, III, Ann Fox and William Alpert of Compliance Professionals to each pay a $2,000 penalty for criminal contempt.

• They were also ordered, along with Martin Foundry, to pay nearly $11,000 for the costs incurred by the Labor Department in OSHA’s effort to inspect the facility.

• " The acts and conduct of Martin Foundry, Darrell Stone, Robert Lockett, III, Ann Fox and William Alpert as set forth herein constitute disobedience and resistance to the Administrative Search Warrant, a lawful Order of the Court."

Criminal 2015• Dennis Egan, 36, illegally

allowed deckhand Alex Oliva, 29, to use the naked flame of a propane blow torch on a barge, triggering an explosion that killed Oliva, sank the barge and flooded the Chicago Sanitary and Ship Canal with 600,000 gallons of oil, U.S. District Judge James Zagel ruled.

• Sentencing later

Criminal 2015• Marcus Borden was charged

with lying to OSHA about an incident investigation of one of his work sites in Cordova AL more than two years ago.

• He was sentenced to three years of supervised probation and 30 hours of community service after pleading guilty to one count of making false statements to the U.S. Department of Labor's Occupational Safety and Health Administration.

Criminal 2015• James J. McCullagh, 60, of

Meadowbrook, PA, was charged by indictment in connection with the fatal fall of an employee,

• McCullagh, who owns James J. McCullagh Roofing, is charged with with four counts of making false statements, one count of obstruction of justice, and one count of willfully violating an Occupational Safety and Health Administration (OSHA) regulation causing death to an employee.

• On June 21, 2013, one of McCullagh’s employees was killed after falling approximately 45 feet from a roof bracket scaffold while performing roofing repairs for the company on a church in Philadelphia.

• MARK T. SMITH SR., died suddenly, on June 21, 2013, at the age of 52. Beloved husband of Denise T. (nee Titus); loving father of Tina, Mark T. Jr., Justin, and Michael

Criminal 2015• George Bello arrest for

selling OSHA 10 hour cards.

• For a fee of from $150 to $250 each, George Bello, 44, sold “OSHA 30” cards and split the proceeds, U.S. Attorney Paul J. Fishman said this afternoon.

• Sentencing Sep 2015 (no update as Nov 2015)

Criminal 2015• Los Angeles CA• $6 million settlement to CAL-

OSHA• The company, its plant

Operations Director Angel Rodriguez and former safety manager Saul Florez were each charged with three counts of violating Occupational Safety & Health Administration rules that caused a death.

Florez, 42, of Whittier was sentenced to three years of probation and will face fines and penalties of about $19,000 after pleading guilty to a single felony count of violating a workplace safety rule that caused a death.

Rodriguez, 63, of Riverside, agreed to plead guilty to a misdemeanor in 18 months and pay about $11,000 after he completes 320 hours of community service and worker safety courses

Criminal 2015• A Middlesex County, NJ

man who admitted to cutting corners in the disposal of asbestos materials during the demolition of a Burlington County hospital was sentenced today to three years in state prison.

June 2015• Federal contracting will take OSHA and labor violations into

account. • “Contractors must report new decisions and determinations

even if they arise from a violation of labor law that was already reported. FAR 22.2004-3 lists the options available to a CO upon learning of a violation—i.e., a CO can decide not to exercise an option, terminate the contract, or make a referral to the agency suspending and debarring official.”

Criminal 2014/2015• U.S. Sino Investment, its

owner and a project manager were indicted Monday on involuntary manslaughter charges in the cave-in death of a construction worker at a Milpitas building site.

• Raul Zapata Mercado, 38, was killed January 28, 2012, after a 12-ft. wall of dirt collapsed on top of him

• 2 years in jail

Criminal 2015• DOL has filed a motion with the U.S. Court of Appeals for the 1st Circuit in Boston asking it to hold Lessard in civil contempt for refusing to implement safety measures and pay more than $400,000 in fines for violations cited through 2010.

• He could face jail time• Lessard didn’t return multiple

calls seeking comment.• The motion for contempt stems

from a December 2010 Occupational Safety and Health Administration inspection that resulted in citations for alleged “egregious, willful, serious and repeat violations” for a lack of fall protection and other hazards.

Criminal 2014/2015• Frederick Prinz, 38, of

Marmora, N.J., pleaded guilty before U.S. District Judge Joseph H. Rodriguez in Camden federal court to an information charging him with making and selling fraudulent construction industry certification forms, known as “OSHA 30” cards.

• Two years Probation

Neri Update 2015• Update to the Neri Criminal trench jail. • He was released from jail December 24 after serving three

weeks. • Neri was permanently enjoined from engaging in trenching,

excavation, construction or related activities and permanently prohibited from possessing or leasing any construction excavation equipment.

• The judges also found that Neri, based on a review of his tax returns and other financial records, was unable to pay the $110,440 fine.

• However, the judges said the government ‘‘may continue to pursue collection through an appropriate tribunal

Criminal 2015• Don Blankenship, the

longtime chief executive officer of Massey Energy, was convicted on charges that he violated federal mine safety laws at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

Criminal 2015• WV river spill exec charged. • “Shortly after the leak and

discharge of MCHM into the Elk River was discovered on January 9, 2014, Southern engaged in a pattern of deceitful behavior, which included numerous false and/or fraudulent statements about his role at Freedom, his role in the sale of Freedom to Chemstream, and his knowledge about conditions at the Etowah Facility,” the affidavit read.

Gary Southern faces a mandatory minimum of 30 days and up to three years in federal prison when he is sentenced on Dec. 16.

Reg Agenda• Walking Working Surfaces General Industry Final Rule. Since

that time, new technologies and procedures have become available to protect employees from these hazards. The Agency has been working to update these rules to reflect current technology

• Publish a request for information from stakeholders to address the hazards faced by those who work on communication towers, in particular the risk of working at heights

• Publish a proposed rule to protect workers who are exposed to beryllium, which can cause lung cancer and chronic beryllium disease

• Silica Proposed Action Level 30 ug/m3• PEL 50 ug/m3

Common Training Citations• General Industry• Respirators• Fire Extinguishers• Lockout• HazCom• Forklifts• PPE• Electrical Safe Work

Practices

• Construction• Falls• Scaffolds• Ladders• General• Hazcom

General Duty Clause

• Combustible Dust• Process Safety• Ergonomics• Workplace Violence • New chemicals (not

listed on Z tables)• Lower Chemicals• Arc Flash – Arc Blast• Heat Illness• Fall Protection• Seat Belts

• “We are pleased that Fiberdome agreed to adopt the industry recognized 50-ppm (parts per million) limit and believe that all responsible and safety conscious employers who use styrene should consider doing the same thing. • Aug 2014

Ergonomics• First ergo in years to poultry

company in AL. • OSHA issued 11 citations to

the poultry processing plant in Jack, Ala., including nine serious, one repeat and one other-than-serious violation.

• The inspection was initiated after the agency received a complaint from the Southern Poverty Law Center.

• Proposed penalties total $102,600.

BLS Data• 3.8 million work-related injuries and illnesses• Musculoskeletal disorders caused by ergonomic hazards are

increasing and now account for 34.7% of all serious injuries. • The national injury and illness rate for the private sector in

2013 was 3.3 per 100 workers • DART Rate = {#injuries x 200,000}/#hours worked that year• 20% of the worker deaths are self employed workers.

Jobs and Death

Whistleblower• In the last several years, the number of whistleblower

complaints received by the agency has grown significantly, from 2,160 complaints in FY 2009 to 2,957 complaints received in FY2013.

• In FY 2013, 936 retaliation cases were determined to be meritorious, with a total of $24.7 million in remedies (back pay, damages, etc.) secured.

• The OSH Act only provides for 30 days for filing a discrimination complaint, compared with 180 days provided by a number of other laws.

• If a worker fails to file a complaint within this time period, he or she simply is out of luck

Employee Misconduct Defense• More important than ever to establish strong unavoidable

employee misconduct defense.• All four elements required

(1) Program for the specific hazard, e.g. fall, electrical, lead, asbestos, cadmium, forklift

(2) Employee training (documentation)(3) Prior enforcement (disciplinary records)(4) No reasonable opportunity for supervisor to identify and correct

hazard

“If you do not train, you cannot make the unavoidable employee misconduct defense”

QuestionsDiscussion