|OSHSPA Reports on State Plan Activities > 2002 OSHSPA Report > Enforcement: Targeting High-Risk Worksites|
|Enforcement: Targeting High-Risk Worksites|
The primary mission of all state plans is to ensure that every worker goes home healthy and whole. Enforcement plays a critical role in fulfilling this mission. Each state plan has legislative authority to monitor safety and health conditions in the workplaces covered by their program.
The state plan states continually review their targeting systems to make sure they are inspecting those establishments that have the most problems, and avoid inspecting those establishments that are providing a safe and healthful work environment.
Each state plan’s legislation proscribes how these monitoring or inspection visits will occur. Since this statutory authority prevents the programs from giving advance notice, compliance officers may not set up an appointment prior to the initial visit. The state plans are also required to issue citations and assess penalties for identified hazards.
Every day, more than 1,300 enforcement personnel in the state plan states work diligently to help ensure that workplaces are as safe and healthy as possible. It is the goal of these compliance officers to conduct inspections in a professional and efficient manner, with minimal disruption in the workplace.
FY 2002 Compliance Inspections by Kind
Text Version of Chart:
Title: FY 2002 Compliance Inspections by Kind
Type: Horizontal Bar Graph
Graph Elements: 2 - One bar for each kind of compliance inspection showing the number of inspections
FY 2002 Compliance Inspections by Type
Text Version of Chart:
Title: FY 2002 Compliance Inspections by Type
Type: Horizontal Bar Graph
Graph Elements: 6 - One bar for each type of compliance inspection showing the number of inspections
FY 2002 Case Data
A number of state plans have site-specific targeting data available from their state workers’ compensation system. The foundation of an effective enforcement program is the ability to target workplaces with the most hazardous conditions, and state plans use a variety of data sources to direct their enforcement and consultation efforts toward businesses with a high rate of preventable injuries and illnesses. Site-specific claims history, rather than industry-wide data, is a better indicator of worksite safety and health deficiencies.
States may also participate in the federal OSHA Data Initiative to collect data from individual employers for targeting high-risk worksites. The Data Initiative gives OSHA a new targeting tool: the ability to determine the lost-workday injury and illness (LWDII) rate for every employer included in the sample.
The annual survey has been mailed since 1996 to 80,000 employers in non-construction industries. To verify the accuracy of information submitted, OSHA audits a sample of employers. From the information submitted by employers in the Data Initiative, each state determines its cut-off rate for site-specific targeting inspections. For example, in 1999 federal OSHA targeted workplaces with an LWDII rate above 16. The national LWDII rate for 1997 and 1998 was about three–three injuries or illnesses resulting in lost workdays for every 100 full-time workers.
Alaska is merging workers’ compensation data with other state data, so they can target their workplace inspections toward employers with accidents and excessive lost workdays. Arizona has also developed an inspection targeting program that uses workers’ compensation data to identify individual employers with high rates of claims.
California OSHA continues to receive funding provided under workers’ compensation reform legislation for a targeted consultation program with a more proactive focus. Consultation visits are offered to high-hazard employers as an alternative to targeted inspections. The targeted consultation program supplements the enforcement program and targets industries selected for targeting by enforcement. The Cal/OSHA consultation program has developed numerous publications including model injury and illness prevention training programs dealing with such topics as workplace security, RMI’s, and other topics.
The Southern California Process Safety Management Unit conducted an incident investigation of two events at the Keysor-Century facility. Both events involved runaway reactions occurring within the reactors, resulting in the release of vinyl chloride. An investigation was conducted concerning the failure to report an emergency involving the release of vinyl chloride to the Division, the Process Hazard Analysis not being appropriate to the complexity of the polymerization process, failure to include PPE in written operating procedures, failure to include plant air system in the company’s preventive maintenance schedule, and responding to a release without the proper respiratory equipment. The case has been referred to the FBI for investigation of possible falsification of air monitoring data.
Michigan pioneered a general industry safety inspection scheduling program that relies on survey data as well as site-specific injury information. Most significant is the addition of workers’ compensation data to the information sources used. Under the new system, employers reporting higher numbers of compensable workers’ compensation cases in selected Standard Industrial Classification (SIC) codes and randomly selected establishments will be identified for inspection. Most of the specific SICs are based on the goals of the MIOSHA Strategic Plan.
The state of Nevada inspection activities concentrate on workplaces that have high hazard conditions present. Statewide BLS data is evaluated each year to help in the inspection site determination process. The ability to make sure that employees working in the most hazardous and critical areas throughout the state are protected, is a major goal for Nevada OSHA.
North Carolina has established a site specific targeting system based on data secured through the OSHA Data Initiative. The system is based on establishment specific employer LWDII data. The state has also initiated a public-sector survey. The data from this survey is used to determine high injury and illness incidence rates at specific public-sector establishments that may qualify for consultation, a comprehensive compliance inspection, and/or education and training assistance.
Oregon’s Department of Consumer and Business Services administers workers’ compensation laws, a nonexclusive state fund, and workplace safety and health programs. For workplace inspections, OR-OSHA merges workers’ compensation claim data with state employment data, targeting employers with accidents.
Oregon is a strong agricultural state that employs thousands of seasonal farm workers each year. All agricultural labor housing operators in Oregon are required to register their dwelling units with Oregon OSHA. Upon initial registration, the housing operator must receive a pre-occupancy consultation from OROSHA. Active labor housing units are also subject to inspection to enforce minimum living standards for occupants. Oregon OSHA employed a new strategy during the 2002 growing season to ensure that workers and families living in agricultural labor housing in Oregon are afforded a basic standard for health and safety. Two positions were dedicated solely to locating unregistered agricultural labor housing facilities in targeted counties. Operators of unregistered agricultural housing in Oregon face a minimum fine of $5,000, with additional penalties potentially leading to a maximum fine of up to $7,000.
Utah uses the Utah Labor Commission Industrial Accident’s data base and a workers’ compensation system (a non-exclusive state fund) that provides accessible information for targeting of employers and industries.
Vermont uses workers’ compensation data to develop a safety inspection schedule, using information on the total number of injuries, the number of lost-time injuries, and employment at the firm.
Washington was the first state in the nation to have both an exclusive state fund workers’ compensation system and an OSH program, WISHA, in the same agency. This provides an unequaled opportunity to use injury, illness and claims data to identify hazardous industries and problem employers. WISHA targets employers for services coordinated by enforcement, consultation, education and training, and risk management.
In 2001, Washington initiated a special emphasis program to address safety hazards and reduce the overall injury rate in the residential wood framing industry. This program was launched to bring all residential wood framers in compliance with workplace safety and workers’ compensation requirements. The goal is to reduce injuries to the thousands of framers in Washington and to bring premiums, now among the highest in the industry, in line with other trades.
In 1994, Wyoming’s state plan merged with its workers’ compensation system giving it access to employers compensation data. This information is used to identify employers for inspections or if the employer chooses, a consultation visit. The parameters used for this purpose are: experience modification rating, loss ratio (cost of claims compared to premium), claims to employee ratio, and average cost of claims.
Local Emphasis Programs (LEP)
In 2001, Alaska sponsored a logging seminar for all states in the northwestern United States. It also had Local Emphasis Programs and training for hospitals, logging, construction, seafood processing and power generation. In 2002, they also be initiated LEPs for “struck by’s” and “falls.”
During the course of the Longshoreman’s Strike by the International Longshore and Warehouse Union (ILWU) on the West Coast, the Cal/OSHA High Hazard Unit, in response to a federal request, mounted a Special Maritime Inspection Program during October and November 2002, of the three major West Coast Ports, Oakland, Los Angeles, and Long Beach.
The purpose of the inspections was to provide a neutral arbiter of actual and potential occupational safety and health hazards in the hostile environment. Cal/OSHA’s presence permitted the union and management to focus on real concerns for genuine attempts to achieve safety and health compliance. During the course of the two-month operational period involving at times almost 24/7 coverage, the Cal/OSHA High Hazard Unit conducted approximately 176 Intervention Inspections at the tree major ports.
The Cal/OSHA Agricultural Safety and Health Inspection Project (ASHIP) is an emphasis program inaugurated in 1999, in response to the fact that agricultural production is one of the most hazardous industrial activities in California, yet Cal/OSHA receives few complaints from agricultural workers. During the summer and fall seasons, agricultural production is at its peak and a large number of employees are exposed to serious hazards. Agricultural inspections have focused on fields where manual labor was performed as well as harvesting activities involving mechanized equipment used in sugar beet, cotton and feed corn harvesting, as well as mechanized processing of crops such as bean shelling. Cal/OSHA recently directed attention to the dairy industry, following a rise in fatalities and serious injuries.
Beginning in CY 2000, Cal/OSHA organized the Construction Safety and Health Inspection Project (CSHIP), an emphasis program increasing both enforcement inspections and the Cal/OSHA Consultation Service education, outreach and on-site assistance, with the goal to reduce the number of construction fatalities and serious injuries and illnesses.
In response to the higher incidence of fatalities and serious injuries in the residential sector of the construction industry, Cal/OSHA conducted residential construction sweep inspections with emphasis on serious violations. The emphasis of CSHIP has been on falls from elevations, electrical hazards, machinery or vehicle hazards, trenching and shoring hazards and repetitive violations of construction standards. Indiana
Indiana implemented an LEP on scaffolding that proved very successful in identifying and controlling hazards. The typical scaffold LEP inspection now has four times the average number of serious violations compared to previous similar inspections.
Iowa assisted the federal OSHA offices in FY2002 with the Special Emphasis Program that targeted popcorn manufacturers. IOSHA inspected two facilities that used diacetyl in closed process containers. Both facilities were issued citations as well as 5(a)(1) letters that alerted the employers to the respiratory hazards associated with diacetyl. These inspections identified two employees that developed obstructive lung diseases after working with diacetyl. The recommendations made by IOSHA were very similar to those later made by NIOSH. Employers were required by IOSHA occupational safety and health standards to do baseline medical evaluations for employees that wore respirators. Employers were also encouraged to continue tracking the health of workers exposed to diacetyl.
Minnesota OSHA has focused their inspections on: construction, nursing homes, meat products, structural wood members, primary metal industries, fabricated structural metal products, and transportation equipment. In addition, they have LEP on trenches and roofing.
Nevada OSHA participates in many of the Federal Emphasis Programs and has Local Emphasis Programs dealing with analytical laboratories, automotive repair -health, hotels/casinos, and electrical utilities.
In January 2002, the New Jersey Department of Health and Senior Services, Public Employees Occupational Safety and Health (PEOSH) Program, Enforcement Project, began an enforcement initiative targeting municipal public works departments (DPWs) throughout the state. The decision to target DPWs was made based on previous experience and the high level of risk posed by activities conducted by these departments.
It quickly became apparent how critical the need was for such an enforcement initiative. Despite the numerous and potentially serious hazards they are exposed to; nearly all towns inspected did not have basic employee health and safety programs in place.
Since beginning the enforcement initiative, the PEOSH Program has issued citations for personal protective equipment selection and training, respiratory protection, hazardous materials response training, occupational noise exposure, and asbestos at nearly every DPW inspected to date. Communication with several DPW professional organizations by the DHSS-PEOSH Education & Training Project has made DPW supervisors aware of the initiative. Faced with the threat of an enforcement inspection, many DPWs have begun to voluntarily react to the initiative and have initiated voluntary compliance efforts.
Oregon OSHA currently has five Local Emphasis Programs. In 1993, a Local Emphasis Program was issued to provide field sanitation inspections and guidelines for inspection of agricultural establishments covered by the Oregon Field Sanitation Standard. An LEP was initiated in 1998, to address increasing concerns regarding agricultural and reforestation worker housing conditions in Oregon. The program modifies scheduling and inspection criteria to more effectively identify and eliminate sub-standard housing. In 2000, an LEP was issued to address pesticide exposure in places of employment where pesticides are used, stored or manufactured. Pesticides are of particular concern in agriculture due to the large numbers of potentially exposed farm workers. With accidents attributed to falls among the leading causes of serious injuries and fatalities in the construction industry, Oregon OSHA initiated an LEP that applies to all construction activities subject to Oregon OSHA jurisdiction. To address the hazards associated with logging in the state of Oregon, an LEP addressing struck-by hazards in logging was implemented. The program provides for scheduled inspections and gives compliance officers the ability to address struck-by hazards when observed on a logging site.
North Carolina has Special Emphasis Programs for construction activities, logging, silicas, lead in construction and methylene chloride.
Puerto Rico has established three Local Emphasis Programs (LEPs) since 1999, to comply with the PROSHO Strategic Plan. On March 15, 1999, an LEP for “Occupational Exposure to Blood in Chemical and Reference Laboratories” was established. The purpose was to program health inspections of occupational exposure to blood or other potentially infections materials in clinical and reference laboratories. This LEP has covered 97 percent of establishments identified by the Board of Medical Technicians.
The revision of the 2002 Strategic Plan resulted in the development of two LEPs to cover high-risk industries identified during the analysis. An LEP for “Woodworking Industries” was developed and activated during FY 2002. The mission was to program inspections on establishments engaged in manufacturing wood products and furniture. This LEP will cover hazards related to nip points, rotating parts, flying chips or sparks, slips and falls, noise, exposure to chemical substances, etc.
The second LEP activated during FY 2002 was related to “Auto Repair and Body Shops Industries.” Inspections focused in all automotive painting and refinishing activities where employees may be potentially exposed to chemicals and physical hazards.
Tennessee OSHA implemented four Local Emphasis Programs to target employees exposed to carbon monoxide, high noise levels, falls, and unprotected excavations. All staff members were cross-trained to identify hazards in these areas and assure appropriate protective measures were implemented. A training videotape was developed and distributed to educated employers and employees on these workplace hazards.
Wyoming uses workers’ compensation data to identify employers for fixed establishment inspections and this is one of their Local Emphasis Programs (LEP). Additionally, they give local emphasis to the construction industry, oil and gas well drilling and servicing, wood product manufacturing, and nursing care facilities. With the resurgence of coal bed methane drilling, it will be given special emphasis.
State plan states today are using settlement agreements, at either the pre-citation or post-contest level, to resolve complex investigations of catastrophic incidents, most of which involve fatalities. Settlement agreements are unique and innovative resolutions, and are designed to assure a safer and healthier work environment for all affected employees in the future. Historic settlement agreements have been negotiated by Michigan, Washington, California, and Oregon.
The agreements allow the participants to focus their efforts on helping the companies create a safe and healthy workplace in the future–rather than spending limited resources on litigation. The agreements can include: a monetary sanction/penalty; assurance of abatement for the cited conditions; establishment of programs to achieve lasting improvements in safety and health; research to increase the understanding of industrial safety and health; training programs with monitoring capabilities; and other components specific to each individual incident.
On May 2, 2002, Michigan announced a Settlement Agreement with ATOFINA Chemicals, Inc., and PACE International Local No. 6-0591, with a combined total of $6.2 million in penalties, safety enhancements, and the resolution of multiple violations. The settlement closed a seven-month investigation of a catastrophic accident at the ATOFINA Riverview facility on July 14, 2001, that claimed the lives of three workers. This is the second-largest monetary sanction ever levied in Michigan as a result of a MIOSHA investigation.
The Settlement Agreement agreed to by the company and the union includes a MIOSHA penalty of $500,000, abatement of all cited hazardous conditions, and dedicates significant resources to safety improvements. The primary concern in developing the agreement was to enhance the overall safety and health for company employees by developing and implementing ongoing safety improvements in workplace safety and process safety.
In 2001, Michigan negotiated a settlement agreement with Lomac LLC in Muskegon and its union representatives, with a combined total of more than $3 million in penalties and additional activities. The settlement closed a nine-month investigation of a double explosion at Lomac on April 12, 2000, that injured 10 workers. The Settlement Agreement agreed to by the company included an action plan with 15 safety enhancement initiatives.
On Sept. 2, 1999, Michigan OSHA concluded its seven-month investigation of a fatal explosion at the Ford Rouge Complex power plant with an unprecedented $7 million settlement agreement with Ford Motor Company and the UAW. One of the worst automotive industry accidents in Michigan, the February 1999 explosion in the power plant at the Ford Rouge Complex in Dearborn resulted in the death of six workers and serious injury to 14 others. The unique and innovative resolution included a record $1.5 million penalty, the largest monetary sanction ever levied in Michigan as a result of a MIOSHA investigation.
In Washington during FY 1999, following two unrelated fatality investigations in different industries, the Washington Department of Labor and Industries negotiated settlement agreements that were unprecedented in the history of state-administrated occupational safety and health programs, and ranking among the top compliance agreements ever obtained by federal OSHA. The combined settlement terms exceed $6.9 million, including a total of $1.7 million in penalties.
In November 1998, six workers at the Equilon-owned refinery in Anacortes, Washington, died in a fire as they were attempting to restart the delayed coking unit after a storm had interrupted power and shut down refinery operations the previous day. The tragic event marked the worst industrial catastrophe since the Department of Labor and Industries began enforcing the Washington Industrial Safety and Health Act (WISHA) more than 26 years ago.
WISHA concluded its six-month investigation in May 1999, with an unprecedented $4.4 million compliance agreement designed to make the Equilon-owned refinery safer and more healthful for workers. Equilon Enterprises is a joint operation of Shell and Texaco. The innovative settlement, future-focused in approach, included a record $1.1 million penalty, the highest penalty that had ever been assessed by a state program, and among the largest penalties issued nationwide.
In September 1999, WISHA concluded its investigation of a fatal fall at an aircraft maintenance plant with a $2.5 million compliance agreement. The previous March, a 64-year-old worker at the Paine Field, Everett facility fell from a portable stairway stand used for access to airliners and died five days later. WISHA’s agreement with the B.F. Goodrich Aerospace MRO Group, the largest aerospace maintenance, repair and overhaul facility in the country, calls for: payment of a $600,000 penalty; an $800,000 investment to promote worker and community safety; the company’s acknowledgment that nine worker safety rules were violated, one willfully; the company to make $1.1 million in safety improvements beyond what is required for correcting the violations, including a third-party audit to verify compliance with the agreement.
These creative and significant enforcement actions provide immediate and ongoing benefits to Equilon and B.F. Goodrich workers. The agreements provided for timely abatement of hazards and eliminated protracted legal battles that would have held compliance and abatement in limbo pending outcome of the conventional enforcement and appeal process. The settlement terms send a strong message to all employers that workers’ lives will not be compromised.
In California, Cal/OSHA spent six months on an exhaustive investigation of the February 1999 Tosco refinery accident that killed four workers and seriously injured a fifth. The division’s investigations found that Tosco failed to shut down the naphtha piping operations prior to maintenance work that involved cutting into and removing a portion of the line. As a consequence, naphtha flowed through the line onto hot surfaces of the adjoining fractionator tower and ignited, causing a fire that spread up and down the tower and engulfed the four workers.
The Cal/OSHA team coordinated its on-site investigations with federal OSHA and the U.S. Chemical Safety and Hazard Investigation Board, Bay Area Air Quality Management District and Contra Costa County Department of Health Services. Cal/OSHA cited Tosco Refining Company for 33 alleged violations of state workplace safety and health regulations. The total amount of the proposed penalties was $810,750—the highest penalty amount ever issued against a single employer by Cal/OSHA. The division conducted a concurrent criminal investigation through its Bureau of Investigations, and the case was referred to the district attorney’s office for prosecution.
The Contra Costa County District Attorney filed criminal charges against Tosco, which pleaded no contest and agreed to pay the maximum fine of $945,000. In addition, Tosco reimbursed Contra Costa County up to $100,000 for its investigative and legal costs. Tosco offered to contribute $1 million to the county to aid in development of the Los Medamos Health Clinic, which the county had identified as a needed facility because of recent closure of Los Medamos Community Hospital.
Alaska has had several major settlement cases. One case involved British Petroleum (BP) and a worker who was badly burned due to an explosion at the wellhead. The case was investigated for five months and a settlement brought a fine and abatement costs in the millions. In December of 2002, a Norcon employee was killed at Pruhdoe Bay. A settlement agreement was reached with Norcon (the employer) and BP Exploration (the owner of the Gathering Center). Norcon settled with no reduction in the fine and is changing the way pipe is purged while welding when hydrocarbons are present in the pipe. Other oil well service companies around the country will employ this new method. BP also settled with a fine and abatement to install the new method of purging the pipe while welding.
In Kentucky, one of the performance goals of its Strategic Plan encourages any settlement agreement resulting in a penalty reduction of $10,000 or more to include a provision requiring the money involved in the reduction be used to develop and implement a comprehensive safety and health program. These programs must involve the workers as well as committed management officials and must be based on the 1989 Safety and Health Management Guidelines, as published in the Federal Register.
In Maryland, the burden of proof when employee misconduct is raised and the definition of a repeated violation, was challenged by an employer. This July 1997 case involved employees of Cole Roofing Co., Inc. that were engaged in installing and repairing a flat roof at a local high school without fall protection, adequate monitoring, or warning lines. Cole raised the issue of unpreventable supervisor misconduct and moved to dismiss the citations on the ground that it was the Commissioner’s burden to prove the absence of unpreventable employee misconduct. The Commissioner contended that unpreventable employee misconduct and unforeseeable conditions were affirmative defenses that must be established by the employer. The Maryland Court of Appeals reaffirmed the Commissioner’s long-standing position that employee misconduct is an affirmative defense that must be raised and proven by the employer. The court held that to establish a repeat violation, MOSH must show that the same standard was previously violated. Prior to this decision, an employer in Maryland would have been cited for violation of the same or similar standard as a repeat.
In August 2002, the Maryland Court of Special Appeals affirmed a Maryland Occupational Safety and Health (MOSH) citation that alleged a violation of the Logging Operations standards (29 CFR 1910.266). This June 1997 case involved employees of Asplundh Tree Expert Co. who were removing brush, vegetation and tree growth near electrical power facilities so that the gas and electric company could install new telephone poles. A 20-foot tree was cut down which hit another employee who was nearby. MOSH alleged that a sufficiently safe distance was not maintained between the employees (29 CFR 1910.266(d)(6)(ii)). Asplundh argued that the Commissioner was wrong as a matter of law in finding that its activities fell within the scope of the logging standards since it is a line clearance tree-trimming business, not a logging company. The Court analyzed the case, as did the Commissioner, in light of the purpose of the standard and the regulatory history underlying it and affirmed the violation. Asplundh filed a writ of certiorari with the Court of Appeals, which was denied.
Oregon OSHA reached a $1 million settlement in connection with a multiple count citation issued to Midwest Steel after the July 31, 1997, collapse of a parking garage under construction at Portland International Airport killed three iron workers. Under the settlement agreement reached with Divest Steel Inc., formerly Midwest Steel, the company will pay $140,000 in civil penalties for two willful violations and invest $860,000 in the company’s employee safety and health programs. One willful violation stated that steel sections were connected with one bolt instead of the OR-OSHA required minimum of two bolts per connection. A second willful violation stated the structural steel was not properly stabilized using guy-lines or bracing to prevent a collapse. In the settlement agreement, the company admits that safety violations did occur at the worksite.
Oregon has expanded its use of the conditional settlement agreement in which the employer is granted reduced penalties in exchange for agreeing to specific conditions. Though conditions of settlement agreements vary widely depending on the employer and violations involved, many agreements require employers to use OR-OSHA Consultation Services, to develop or improve current safety and health programs, or to provide specific employee training.
Wyoming uses a consent or settlement agreement to document every informal, pre-contest conference with inspected employers. The document shows what actions were agreed upon such as penalty reductions, workers’ compensation claims and penalty reduction plans; the establishment of a safety and health program; and the attendance at a Management Excellence Seminar. The impetus for the seminar is that nothing within an organization is done or done well unless management commits to it! If deemed necessary, training offered by the consultation staff is discussed with the employer as well as a consultation audit.
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