Rapp Session Safety Topics: Are You Aware of These Critical Changes?

1. Rapp Session Safety Topics:Are You Aware of These Critical Changes? • Risk Management Conference • Chicago 2010 Craig Rapp, Utilicom Safety, LLC

2. Big Changes Taking Place at OSHA • New Obama Administration • New OSHA Administrator • US Budget Crisis • OSHA wants to change America’s idea of workplace safety • New Instructions for Field Inspectors (CSHO’s)

3. OSHA Issued a new FOM • Field Operations Manual, issued in November of 2009 • Used for CSHO (Compliance Officers, the field inspectors) • Several key changes you will be faced with must be reviewed

4. Why Is Outside Plant so Critical? • OSHA is sending its inspectors into the field • You are who they will see first • A crew working on the side of the road is a perfect representation of a company’s safety culture • They should be exercising everything they have been taught about safety when they are alone and doing their jobs • We will visit this aspect later in the presentation

5. Let’s See What OSHA Has Done This Last Year 10 Major Events of 2010 We Can Learn From • OSHA gives history’s largest fine-$87.4 Million to BP, this was before the Gulf release! • Two RPI Coating Exec’s face prison time-5 workers died • OSHA used per-employee incidents that amounted to 21 egregious willful violations for $1.2 Million • Employee complaint leads to $1.9 Million in fines • Owner and Manager sent to jail over willful violations • Wal-Mart got $7,000 for the trampling incident, using the General Duty Clause

6. OSHA Events Continued • OSHA issued $1.9 Million for lead exposure, and issued the fines based on the amount of employees exposed. Once again, they were issued on a per-incident basis • Cintas pays $3 Million in fines after employee gets dragged into 300O F Industrial Dryer • OSHA has begun to get companies to agree to implement activities that go above the regulations • Broadway Concrete of New York, NY agrees to pay $750,000 and cut pay of unsafe supervisors, and provide information on all major projects and access to job sites for the next four years

7. Let’s Talk About The FOM (Field Operations Manual) • OSHA says: “This document is part of OSHA’s continuing commitment to make its standards and enforcement activities transparent and understandable to all parties”

8. Let’s look at some significant changes • The FOM clarifies that compliance officers (inspectors) are to present credentials whenever they make contact with management representatives, employees or organized labor representatives while conducting inspections • The FOM clarifies that while an employer has 4 hours to provide recordkeeping paperwork, the compliance officer can began his/her walk through inspection as soon as the opening conference is completed

9. More Changes of Significance • For any proposed penalty for a posting violation that is for under $100.00, a $100.00 penalty will be proposed. They’re are going to give a $100.00 fine either way. • Clarifies that a formal complaint of a recordkeeping violation that indicates the existence of a serious safety or health violation will warrant an inspection!

10. More Changes • State OSHA plan citations may be used to document employer knowledge of willful violation, and to determine eligibility for the history penalty reduction, but may not be used to support a repeat violation • States under the strike and labor dispute section that CSHO’s must make every effort to ensure that their actions are not interpreted as supporting either side • It also provides new guidance on how to conduct interviews on non-managerial employees

11. Huge Change • The CSHO is required to review any written hazard assessment that the employer has made in compliance with § 1910.132 (d) to determine appropriate personal protective equipment. JSA’s (Job Safety Analysis) are another means to identify hazards and provide a tool for defining ways to mitigate those hazards, however, they are not as conclusive as PPE Hazard Assessment. CSHO will want to see both.

12. PPE Hazard Assessment • http://rappsession.blogspot.com • You can find this just after 29 CFR 1910.138 in your OSHA manual.

13. More Changes • The FOM revises the guidance on collecting employer injury and illness data and the calculation of DART (Days Away From Work, Restriction, or Transfer) rate. So they will be calculating this rate when they come to your facility. • Calculate the number of total recordable injuries and illnesses, by counting the number of entries on the OSHA form 300. Alternatively, you may also get this figure by locating the entries for columns (G), (H), (I) and (J).Determine the total number of work hours. This is the total number of hours worked during the whole year, found on OSHA form 300A. • Determine the number of line entries which are checked off in columns (H) and (I) on form 300A. The DART rate can be calculated by using the standard formula of (N/EH) X 200,000, where N= number of injuries and or illnesses, with days away, restricted work or transfer and EH= total number of hours worked by all employees during the calendar year. The 200,000 represents the base figure for 100 full-time employees. (3/180,000) X 200,000 = 3.3333

14. CHAPTER III of FOM • Inspection Procedures are where you will need to pay close attention • The FOM clarifies when not to group or combine violations. So be warned, they can combine or group violations

15. Changes - Complaints • The definition has been clarified to include only present employees, not past employees • The potential harm necessary to file a complaint has been clarified to include health issues, as well as, physical harm • The FOM now explicitly states that information received via telephone from a current employee or representative of employees is considered a non-formal compliant until a signed copy of the information is received

16. Let’s Look at the General Duty Clause Clarifications • First: Section 5(a)(1) of the Act requires that “Each employer shall furnish to each of his employees a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

17. Proving a Violation • The employer failed to keep workplace free of a hazard to which employees of that employer were exposed; • The hazard was recognized; • The hazard was causing or was likely to cause death or serious physical harm; and • There was a feasible and useful method to correct the hazard • A General Duty Clause citation must involve both the presence of a serious hazard and exposure of the cited employer’s own employees

18. General Duty Clause Clarification • “The occurrence of an accident does not necessarily mean that the employer has violated Section 5(a)(1), although the accident/incident may be evidence of a hazard.” • “The citation shall address the hazard in the workplace that existed prior to the accident/incident, not the particular facts that led to the occurrence of the accident/incident.”

19. General Duty Clause Further Clarification • “The hazard for which a citation is issued must be reasonably foreseeable. All of the factors that could cause a hazard need not be present in the same place or at the same time in order to prove foreseeability of the hazard; i.e., an explosion need not be imminent.” • It is necessary to establish the reasonable foreseeability of the hazard, rather than the particular circumstances that led to an accident/incident.

20. General Duty Clause Employer Determination • If the employer denies that an exposed worker(s) are his/her employee(s), that does not necessarily establish the validity of the employment relationship. • Whether or not the exposed persons are employees of an employer depends on several factors, the most important of which is who controls the manner in which employees perform their assigned work-What does this mean for you if you have contractors? • The question of who pays employees in and of itself may not be the determining factor to establish a relationship.

21. More Clarifications • What does recognition of a hazard really mean? • Employer Recognition • Industry Recognition • Common-Sense Recognition

22. Employer Recognition • Evidence of employer recognition may be written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection • Also by reviewing company memorandums, safety work rules that specifically identify the hazard, operations manuals, S.O.P.s, and collective bargaining agreements • Prior accidents, near miss data, injury and illness reports that identify the hazard, and worker’s comp data, can all show recognition and knowledge

23. Employer Recognition Continued • Prior OSHA inspections that identified the hazard • Employee complaints or grievances, but not merely infrequent off-hand comments • And employer corrective action that did not go far enough to correct known and/or recognized hazard

24. Relevant Industry Recognition • A hazard is recognized if the employer’s relevant industry is aware of it’s existence • Recognition by an industry other than the employer’s industry is generally insufficient for proving violation • Although there may be evidence of recognition by an employer’s similar operations within an industry is preferred, evidence that the employer’s overall industry recognizes the hazard may be sufficient

25. How does the General Duty Clause Establish Industry Recognition • Statements by health and safety experts who are familiar with the relevant conditions of the industry, regardless of whether they work in the industry or not! What does this mean? • Evidence of abatement implementation methods to deal with the hazard by other members in the same industry • Manufacturer’s warnings on equipment or literature: • Someone please give an example of this • Statistical or empirical studies conducted by the employer’s industry that demonstrates awareness of the hazard • Government or insurance industry studies, if the employer or the employer’s industry is familiar with the study and recognizes their validity

26. Clarification of Criminal Prosecutions • Section 17(e) of the OSH Act, provides that: “Any employer who willfully violates any standard, rule or order promulgated pursuit to Section 6 of this Act, or any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $250,000 for an individual and $500,000 for an organization or by imprisonment for not more than six months nor less than 30 days, or by both.” • The FOM clarifies that no criminal prosecution will be filed for willful citations under the GDC 5(a)(1).

27. Criminal Prosecutions Continued • FOM Quotation: “If asked during an investigation, CSHOs should inform employers that any violation found to be willful that has caused or contributed to the death on an employee is evaluated for potential criminal referral to the U.S. Dept. of Justice.....[Inform witnessed that] making a false statement to a CSHO during the course of an investigation could be a criminal offense. Making a false statement, upon conviction, is punishable by up to $10,000 or six months in jail, or both.” • Criminal penalties are imposed by the courts after trials and not by OSHA.

28. What are the CSHO’s Hitting Now? • From the latest inspection I know about: • Fork Lift: Looking at ground stability, seat belt usage, training records, and practices and slings used for picking • Eye wash station: One had been drained due to severely cold weather and had not been refilled • Miscellaneous: Fall protection in place and in good repair, lifting devices, all training records, and heavy focus on the housekeeping

29. What The Inspector Looked For • “Low Hanging Fruit!” • Easy general things to spot, i.e. not wearing PPE, not having signage out on side of road. Having inexperienced persons operating equipment, trash or debris covered work area. • Sometimes he missed some serious hazards only to spot a grinder with the guard not properly adjusted. • Message, don’t give them anything to hit you on. Don’t make it easy for them. Most lack your work experience.

30. What To Do • Be polite • Ask for identification • Be respectful of him/her, your fellow employees, and your company/cooperative • Don’t be negative about anything • Keep your work area clean, no matter where you are working • Take notes, and pictures of whatever he/she takes pictures of

31. What To Do Continued • Know what and where your MSDS’ are located. • Know what type of PPE you should be wearing, and wear it! • Question: do you have to speak with the CSHO if you are asked to be interviewed?

32. What Not To Do • Don’t refuse them the inspection. Don’t send them away to get an order from the judge, because he/she will! • Don’t be rude • Don’t ignore the visit • Don’t point out violations, let him/her do that • Don’t volunteer anything. Just answer what your asked • Please don’t threaten to take them out in the woods and beat them

33. Your Attitude • Everyone must embrace a positive safety attitude • Everyone must become a safety man/woman • It isn’t just your manager, your supervisor, your HR manager, your safety trainer, or the guy working next to you • Find hazards and fix them. Don’t wait on someone else

34. Contacting Craig Rapp • craig@utilicomsafety.com • rappsession@etex.net • youtube.com/Rappsession • Facebook: Utilicom Safety, LLC • 903 424-7453 • PO Box 356, Diana, TX 75640