An osha update that I used for class in May 2016

1. OSHA Update
CSC
John Newquist
johnanewquist@gmail.com
815-354-6853
Draft 5 11 2016

5. Data
• If you make it easier
to use safety, more
likely it will be used
and get done.
• Cones, grease gun,
lockout, brooms.
• Kevin O’Leary

6. Data
• 35% of all fatalities
occurred in workers
age 55 or older, with
1,691 deaths.
• This is the highest
number of fatalities
ever recorded for this
group of workers.

7. May 2016
• Electronic recordkeeping
• Under the new rule, all
establishments with 250 or
more employees in industries
covered by the recordkeeping
regulation must electronically
submit to OSHA injury and
illness information from OSHA
Forms 300, 300A, and 301.
Establishments with 20-249
employees in certain
industries* must
electronically submit
information from OSHA Form
300A only.
• Form 300 (the Log) – All
collected data fields on the
300 Log will generally be
made available on the Web
site.
• Requirements take effect
Aug. 10, 2016, with phased
in data submissions
beginning in 2017.
• Employee names will not
be collected

8. May 2016

9. May 2016
• Pillsbury Mills plant in Springfield
IL
• Joseph Chernis IV, a federal
indictment for improper asbestos
removal and for making false
statements
• The penalty on each count is up
to five years in prison followed by
three years of supervised release
and a fine of up to $250,000.
• Chernis, of Sherman, is accused
of hiring an untrained individual
to illegally remove more than
1,000 feet of asbestos pipe
insulation from four buildings
between October 2014 and
August 2015.
• "The asbestos debris was stuffed
into approximately 300 garbage
bags and at least two open-
topped cardboard boxes, and left
inside vacant buildings at the
facility," according to the
indictment announcement.

10. April 2016
• OSHA settles dispute with
telecoms on confined
space.
• Under the new policy,
OSHA won't cite employers
for violations of the
confined spaces
construction rule (29 C.F.R.
1026.1200-.1213) if the
work is done in manholes
or vaults covered by
OSHA's
telecommunications rule
(29 C.F.R. 1910.268), a
general industry standard,
the memo said.

11. April 2016
• 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.
• One year in prison + $250,000
• This is the maximum sentence
allowed under the law.

12. Silica
• The construction industry must
comply by June 23, 2017;
• Lowering the PEL to 50 micrograms
per cubic meter of air averaged
during an 8-hour shift
• Mandating that employers use
engineering controls and work
practices to restrict worker exposure,
bar access to high-exposure sites,
supply respiratory protection when
controls cannot curb exposures to the
PEL, train employees, and offer
medical exams to highly exposed
workers
• Offering a table of specified controls
that construction employers can
follow for “greater certainty and ease
of compliance” without monitoring
exposure (TABLE 1)
• Allowing employers to have enough
time to satisfy requirements by
spacing out compliance dates

13. Feb 2016
• A Deepwater Horizon supervisor
ignored a clear red flag and
should be held partly responsible
for the 2010 oil spill that
blackened the Gulf of Mexico
coast
• Prosecutor Jennifer Saulino said
in her opening statement that
Robert Kaluza is one of two
supervisors who ignored tests
that showed pressure from oil
and gas when there shouldn’t
have been any.
• Kaluza is standing trial on a single
misdemeanor charge of violating
the Clean Water Act and could
face up to a year in prison if
convicted.

14. Jan 2016
• Cincinnati OH
• Grand jury indicts two
managers
• Zachary Henzerling was
working at Environmental
Enterprises on Dec. 28,
2012, when a fire broke
out as he was treating
hazardous waste.
• The Colerain Township man
was burned, and later died
from his injuries.
• Another worker also was
badly burned in the
incident.

15. 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.

16. 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

17. 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.

18. 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.

19. 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.

20. Sep 2015

21. 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.

22. 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

23. 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/s
earch.aspx?practice_area_id=107
&state_code=IL

24. 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.

25. 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

26. Region V Fall Fatalities 2010-2014
• 25 Ladders
• 19 Roofs
• 18 Same Surface
• 16 Other
• 14 Aerial Lift
• 9 Nonmoving Vehicle

27. 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)

28. Region V Most Cited Areas
6. Fall Protection
1926.501
7. Lockout Procedures
1910.147(c)(4)
8. PIV Training
1910.178(l)
9. Lockout Audits
1910.147 (c)(6)
10. PPE Assessment
1910.132(d)

29. 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

30. FY 2016 Strategic Initiatives
• February 2016
• Jordan Barab
• We also don’t want to waste
taxpayer dollars or employers’
valuable time inspecting
workplaces that are already
doing the right thing.
• For that reason, OSHA’s
enforcement program strives to
target the most dangerous
workplaces, where workers are
most likely to be hurt on the job.
• OSHA’s 4 penalty system takes
into account the size and
behavior of employers, with
higher fines for repeated and
willful violations, and substantial
discounts for small employers.

31. OSHA in 2016
OSHA 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

32. 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

33. OSHA In Region 5 - 2015
• 6200 inspection in
2015
• 68 Sigcases +14
egregious cases
• 47% construction
• 44% programmed

34. Leadership in Region V
• Ken Atha
• 20 Years Experience
• Regional
Administrator
• Area Director

35. 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.”

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

37. 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

38. 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

39. 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.
39

40. 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?
40

41. DOL Head
• Thomas Perez
• From DOJ
• MD Secretary of
Labor 2007-2009
• Strong positions in
minimum wage,
wage theft,
apprenticeship
programs, and
whistleblowers

42. 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

43. 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.

44. 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.

45. 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."

46. 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

47. 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.

48. 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

49. 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)

50. 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

51. 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.

52. 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.”

53. 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

54. 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.

55. 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

56. 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

57. Common Training Citations
• General Industry
• Respirators
• Fire Extinguishers
• Lockout
• HazCom
• Forklifts
• PPE
• Electrical Safe Work
Practices
• Construction
• Falls
• Scaffolds
• Ladders
• General
• Hazcom

58. 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

59. 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.

60. 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.

61. Jobs and Death

62. 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

63. 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”

64. Questions
Discussion