Onsite OSHA Onsite OSHA Inspections – Are Inspections – Are

You Prepared?You Prepared?By David E. DickBy David E. Dick

STEPTOE & JOHNSON PLLCSTEPTOE & JOHNSON PLLC

This presentation is not a substitute for legal advice.

How Did They Find Me?How Did They Find Me?

Programmed InspectionsProgrammed Inspections Employee ComplaintsEmployee Complaints Drive By’sDrive By’s National Emphasis ProgramsNational Emphasis Programs Severe Violator ProgramSevere Violator Program Disputes with UnionsDisputes with Unions Fatalities or Serious AccidentsFatalities or Serious Accidents

Current National and Current National and Local Emphasis Local Emphasis

ProgramsPrograms ••Fall hazards (GI & Construction) Fall hazards (GI & Construction) ••Powered industrial trucks Powered industrial trucks ••Amputation Amputation ••Trenching & Excavation Trenching & Excavation ••Silica Silica ••Hexavalent Chromium Hexavalent Chromium

They Found Me. Now They Found Me. Now What?What?

Act like a duck – be calm on the surface Act like a duck – be calm on the surface but paddle like hell underneath.but paddle like hell underneath.

First things first: in or out? Warrant or First things first: in or out? Warrant or not? It’s generally a good idea to be not? It’s generally a good idea to be cooperative, unless you have good reason cooperative, unless you have good reason not to be.not to be.

If the CSO does have a warrant, you still If the CSO does have a warrant, you still have rights, including: challenging the have rights, including: challenging the warrant; trying to limit the inspection to warrant; trying to limit the inspection to the boundaries of the warrant.the boundaries of the warrant.

Be CautiousBe Cautious

Check credentials.Check credentials. Ask the reason for the inspection and what Ask the reason for the inspection and what

type it is. If it is a complaint inspection, get a type it is. If it is a complaint inspection, get a copy of the complaint. Don’t ask who filed it.copy of the complaint. Don’t ask who filed it.

Be careful not to volunteer information, no Be careful not to volunteer information, no matter how nice the inspector may be. matter how nice the inspector may be.

If the inspection is the result of a fatality, be If the inspection is the result of a fatality, be aware that OSHA can file criminal charges.aware that OSHA can file criminal charges.

You can terminate an inspection you allowed You can terminate an inspection you allowed without a warrant and insist on a warrant.without a warrant and insist on a warrant.

Frequently Cited Frequently Cited Standards Oil and Gas Standards Oil and Gas Field Services October Field Services October 2011-September 2012 2011-September 2012

Condition of flexible cords Condition of flexible cords Electrical equipment-suitable for Electrical equipment-suitable for

location, listed and labeled location, listed and labeled Labeling of electrical boxes, Labeling of electrical boxes,

disconnects disconnects Path to ground –continuous Path to ground –continuous

General Duty Clause - General Duty Clause - Section 5(a)(1) Section 5(a)(1) of the Occupational Safety and Health of the Occupational Safety and Health Act of 1970:Act of 1970:

The employer did not furnish The employer did not furnish employment and a place of employment employment and a place of employment which were free from recognized which were free from recognized hazards that were causing or likely to hazards that were causing or likely to cause death or serious physical harm to cause death or serious physical harm to employees. employees.

Guarding Floor and Wall Openings Guarding Floor and Wall Openings (1910.23(a)(1)): (1910.23(a)(1)): Every stairway floor Every stairway floor opening shall be guarded by a standard opening shall be guarded by a standard railingrailing

1910.23(a)(3): Every hatchway and chute 1910.23(a)(3): Every hatchway and chute floor opening shall be guarded floor opening shall be guarded

Hazard Communication (Hazard Communication (1910.1200 )1910.1200 ) Written program Written program MSDS/SDS MSDS/SDS Training of employees Training of employees

PPE (1910.132(d)(1)): PPE (1910.132(d)(1)): The employer The employer shall assess the workplace to determine shall assess the workplace to determine if hazards are present, or are likely to be if hazards are present, or are likely to be present, which necessitate the use of present, which necessitate the use of personal protective equipment (PPE)personal protective equipment (PPE)

Permit Required Confined Spaces Permit Required Confined Spaces (1910.146(c)(1)): (1910.146(c)(1)): The employer shall The employer shall evaluate the workplace to determine if evaluate the workplace to determine if any spaces are permit-required confined any spaces are permit-required confined spaces spaces

Portable Fire Extinguishers Portable Fire Extinguishers (1910.157): (1910.157):

Maintained in a fully charged and Maintained in a fully charged and operable condition operable condition

Training needs to be conducted on Training needs to be conducted on the fire extinguisher use and the the fire extinguisher use and the hazards involved with incipient stage hazards involved with incipient stage fire fire

Respiratory Protection Respiratory Protection (1910.134): (1910.134):

Written respiratory protection Written respiratory protection program program

––Selection Selection ––Medical evaluation Medical evaluation ––Fit-testing Fit-testing ––Training Training

What We’re Seeing Is What We’re Seeing Is ConsistentConsistent

June 13 - Texas oilfield services company faces $72,900 in June 13 - Texas oilfield services company faces $72,900 in penalties for 14 alleged safety and health workplace violations.penalties for 14 alleged safety and health workplace violations.

PumpCo Energy Services Inc. was cited for failing to take PumpCo Energy Services Inc. was cited for failing to take effective measures to prevent employee entry into permit-effective measures to prevent employee entry into permit-required confined spaces.required confined spaces.

OSHA's citation said the company sent employees into “sand OSHA's citation said the company sent employees into “sand kings”—large metal containers for storage of sand commonly kings”—large metal containers for storage of sand commonly used in hydraulic fracturing—without adequate confined-space used in hydraulic fracturing—without adequate confined-space safety training, exposing them to respiratory hazards.safety training, exposing them to respiratory hazards.

PumpCo was cited for two serious health violations, including PumpCo was cited for two serious health violations, including failing to provide medical evaluations for workers required to failing to provide medical evaluations for workers required to wear respirators. OSHA also cited the company for allowing an wear respirators. OSHA also cited the company for allowing an employee to operate a crane without adequate training.employee to operate a crane without adequate training.

2013 - NorAm Drilling Co., Monahans, Texas is 2013 - NorAm Drilling Co., Monahans, Texas is contesting a two-item serious citation and a contesting a two-item serious citation and a penalty of $7,650, for alleged violations of penalty of $7,650, for alleged violations of 1910.303(b)(7)(i), for failure to ensure that unused 1910.303(b)(7)(i), for failure to ensure that unused openings in boxes, raceways, auxiliary gutters, openings in boxes, raceways, auxiliary gutters, cabinets, equipment cases, or housings were cabinets, equipment cases, or housings were effectively closed to afford protection substantially effectively closed to afford protection substantially equivalent to the wall of the equipment, and equivalent to the wall of the equipment, and 1910.305(g)(2)(iii), for failure to ensure that 1910.305(g)(2)(iii), for failure to ensure that flexible cords were connected to devices and flexible cords were connected to devices and fittings so that tension would not be transmitted to fittings so that tension would not be transmitted to joints or terminal screws (13-0969).joints or terminal screws (13-0969).

2012 – Drilling company cited for (1) 2012 – Drilling company cited for (1) failure to guard edge of rig platform failure to guard edge of rig platform (allowing drop more than 7 feet ($2,800); (allowing drop more than 7 feet ($2,800); (2) bench grinder wheel not guarded (2) bench grinder wheel not guarded ($2,800); (3) diesel fuel pump not rated for ($2,800); (3) diesel fuel pump not rated for outdoor use ($4,900); (4) improper retainer outdoor use ($4,900); (4) improper retainer on electrical equipment; (5) fuel pump and on electrical equipment; (5) fuel pump and generator were not marked with generator were not marked with manufacturer name; (6) improperly manufacturer name; (6) improperly repaired electrical line on fuel pump repaired electrical line on fuel pump ($4,200); (there’s more………($4,200); (there’s more………

(7) fuel pump not listed by accredited lab (7) fuel pump not listed by accredited lab (like UL) ($4,200); (8) GFCI did not trip (like UL) ($4,200); (8) GFCI did not trip when tested ($2, 800); (9) two branch when tested ($2, 800); (9) two branch circuits fed into one breaker ($2,800); (10) circuits fed into one breaker ($2,800); (10) electrical conductors spliced with tape electrical conductors spliced with tape instead of proper terminal connectors instead of proper terminal connectors ($4,900); (11) failure to label circuit ($4,900); (11) failure to label circuit breakers ($2,800); (12) missing grounding breakers ($2,800); (12) missing grounding pin ($4,900); (13) no strain relief ($2,800); pin ($4,900); (13) no strain relief ($2,800); (14) unused opening in electrical box (14) unused opening in electrical box exposed ($4,900); there’s more……….exposed ($4,900); there’s more……….

(15) damaged and missing (15) damaged and missing receptacle cover (3,500); (16) receptacle cover (3,500); (16) improper grounding of generator improper grounding of generator ($4,900); (17) electrical extension ($4,900); (17) electrical extension cord powering a pump run through a cord powering a pump run through a wall and wooden floor ($0).wall and wooden floor ($0).

Typical HAZCOM Typical HAZCOM Violations:Violations:

Failure to prove training took Failure to prove training took placeplace

No written programNo written program Failure to produce MSDSFailure to produce MSDS Failure to identify all chemicals Failure to identify all chemicals

usedused Incomplete training (what, Incomplete training (what,

where, when, how to recognize, where, when, how to recognize, specifics of program)specifics of program)

Typical Fall Protection Typical Fall Protection ViolationsViolations

No written PPE assessmentNo written PPE assessment No certified PPE assessmentNo certified PPE assessment Failure to inspect or properly maintain Failure to inspect or properly maintain

PPE (lanyards)PPE (lanyards) Failure to require use (working at Failure to require use (working at

heights)heights) Failure to train, or no written proof of Failure to train, or no written proof of

trainingtraining Failure to guard roof edgesFailure to guard roof edges

TYPICAL ELECTRICAL TYPICAL ELECTRICAL STANDARD VIOLATIONSSTANDARD VIOLATIONS

Blocked electrical cabinetsBlocked electrical cabinets Open circuit boxesOpen circuit boxes Reverse polarizationReverse polarization Switch plates or covers cracked or missingSwitch plates or covers cracked or missing Open holes in circuit boxesOpen holes in circuit boxes Failure to use GFCI’sFailure to use GFCI’s Dust accumulation on electrical boxesDust accumulation on electrical boxes Ground prongs missingGround prongs missing Improper use of extension cordsImproper use of extension cords Temporary wiring instead of fixed wiring (fans, Temporary wiring instead of fixed wiring (fans,

lights, etc.)lights, etc.)

TYPICAL INDUSTRIAL TYPICAL INDUSTRIAL TRUCK VIOLATIONSTRUCK VIOLATIONS

Documentation of training (certified), and re-Documentation of training (certified), and re-training as necessarytraining as necessary

Routine inspections prior to useRoutine inspections prior to use Trucks in disrepair (seatbelts, horns, lights)Trucks in disrepair (seatbelts, horns, lights) Lifting employees on forks without proper Lifting employees on forks without proper

precautions, lanyards, etc.precautions, lanyards, etc. Failure to trainFailure to train Unstable loadsUnstable loads Failure to prove pre-shift inspection, or Failure to prove pre-shift inspection, or

tagging out of servicetagging out of service

Typical LOTO ViolationsTypical LOTO Violations Inadequate training or programInadequate training or program Failure to recognize application (un-Failure to recognize application (un-

jamming equipment, crawling on jamming equipment, crawling on machinery, etc.)machinery, etc.)

Failure to require use (usually followed by Failure to require use (usually followed by traumatic event)traumatic event)

Failure to prove audit, or certify itFailure to prove audit, or certify it No machine specific proceduresNo machine specific procedures No process in place for use of contractorsNo process in place for use of contractors

Typical Ladder ViolationsTypical Ladder Violations

Ladders not proper for job (electrical)Ladders not proper for job (electrical) Fixed ladders not extending beyond Fixed ladders not extending beyond

floor or rooffloor or roof Failure to inspect or tag out of serviceFailure to inspect or tag out of service Failure to tie off laddersFailure to tie off ladders Rungs not free of grease and oilRungs not free of grease and oil Failure to ensure adequate clearances Failure to ensure adequate clearances

on fixed ladderson fixed ladders

What to Expect in the What to Expect in the Citation ProcessCitation Process

Initial penalties double what Initial penalties double what OSHA might otherwise settle OSHA might otherwise settle for.for.

Predominantly serious Predominantly serious violations, but willful anytime violations, but willful anytime there is a fatality.there is a fatality.

Grouping of like violations.Grouping of like violations.

How Penalties are How Penalties are DeterminedDetermined

Four factors: gravity, size, good faith and Four factors: gravity, size, good faith and historyhistory

Gravity determined by severity and Gravity determined by severity and probabilityprobability

Discounts for size (60%), good faith (25%) Discounts for size (60%), good faith (25%) and history (10%)and history (10%)

All this is hidden from viewAll this is hidden from view Instance by instance violations, if egregiousInstance by instance violations, if egregious All subject to negotiationsAll subject to negotiations

Implications of Contesting Implications of Contesting or Accepting OSHA or Accepting OSHA

CitationsCitations When Accepting:When Accepting:

Sets up repeat violations at all locations Sets up repeat violations at all locations for the next five yearsfor the next five years

Increases risks of willful violationsIncreases risks of willful violations Provides excellent fodder for deliberate Provides excellent fodder for deliberate

intent lawsuitsintent lawsuits More likely to invite future inspectionsMore likely to invite future inspections For some employers, can prevent the For some employers, can prevent the

attainment of future businessattainment of future business Abatement costsAbatement costs

Implications of Contesting Implications of Contesting or Accepting OSHA or Accepting OSHA

CitationsCitations When ContestingWhen Contesting

Requires a lot more than just Requires a lot more than just negotiating the penalty amountnegotiating the penalty amount

Costly process best left to professionals, Costly process best left to professionals, depending on the stakesdepending on the stakes

Can take years to run its courseCan take years to run its course Lets OSHA know you are not to be Lets OSHA know you are not to be

taken lightlytaken lightly

How to Improve Your Odds How to Improve Your Odds in the Citation Processin the Citation Process

Never get there in the first place – have a Never get there in the first place – have a well executed safety programwell executed safety program

Audit, audit, audit – but beware the double Audit, audit, audit – but beware the double edged swordedged sword

Enforce safety and health rules – discipline Enforce safety and health rules – discipline employeesemployees

Be prepared for an OSHA inspectionBe prepared for an OSHA inspection Prior to the informal conference, do your Prior to the informal conference, do your

homework – first impressions are importanthomework – first impressions are important Make a strong technical argument, and trot Make a strong technical argument, and trot

out any affirmative defensesout any affirmative defenses If you’re willing to spend the money, don’t If you’re willing to spend the money, don’t

be afraid to contest – it is a tactical gamebe afraid to contest – it is a tactical game

In the Almost Immortal In the Almost Immortal Words of Kenny RogersWords of Kenny Rogers

You’ve got to know when to hold’em; You’ve got to know when to hold’em; Know when to fold’em; Know when to fold’em;

Know when to walk away; Know when to walk away; Know when to run; Know when to run;

Never count your money - Never count your money - while you’re sitting at the table; while you’re sitting at the table;

There’ll be time enough for countin’, -There’ll be time enough for countin’, -when the dealin’s done.when the dealin’s done.