The Occupational Safety and Health Act of 1970 empowered Federal OSHA to conduct inspections and enforce safety compliance among U.S. businesses. The General Duty Clause (29CFR§1903.1) requires that every employer provide “… a place of employment … free from recognized hazards … likely to cause death or serious physical harm.”
To help accomplish that goal, OSHA may inspect a workplace at any reasonable time without notice. The motivation for such an inspection could include employee complaints, incident investigations, compliance programs and follow-up.
Incident Investigation –The agency will conduct an inspection after every occupational fatality and incident that causes multiple personnel injuries. Employers are required to report fatal and multi-injury accidents in a timely manner (29CFR§1904), and many are cited for failure to do so.
Federal and State Programs –Federal OSHA has created a number of special programs (National Emphasis Programs) aimed to improve safety in various work sectors. Some of the programs that may be relevant to IH readers are: combustible dust, hazardous machinery, lead, petroleum refineries, shipbreaking and silica.
By contrast, the state of California has a carcinogen task force that inspects facilities that use chemicals listed as possible human carcinogens. Cal OSHA also has recently begun a focus program to help prevent heat stroke among agricultural, construction and factory workers.
Employer Preparation –Whether an inspection occurs in response to an incident or as part of a routine program, it is advisable for employers to make certain preparations in advance. Dr. Richard Wade, principal scientist at Exponent, colleague of Dr. Martin and former director of Cal OSHA, advises readers, “One of the first tasks an OSHA inspector will perform is to look for the posting of OSHA Compliance Guides in the place of employment. Following this, they will review the company’s health and safety plan and the contents of their accident reporting system. These are not only easy to examine, but they give the inspector a clue as to overall health and safety compliance in the company.”
Inspection Response –When OSHA appears unannounced for an inspection, the employer should consider the following responses: (a) confirm valid credentials, (b) request an explanation of the objectives of the inspection, (c) seek to review any employee complaints, (d) assign at least one “employer’s representative” (knowledgeable of the facility’s work practices) to accompany the OSHA team everywhere they go, (e) ask questions and take notes about OSHA’s approach and findings for each phase of the inspection, (f) obtain parallel photos of all workplace locations shot by OSHA, (g) obtain parallel samples of workplace materials obtained by OSHA and (h) seek copies of any testing reports generated for such samples. Above all, the employer’s representative should be truthful in responding to the compliance officer’s inquiries.
Post-Inspection –After the inspection, a report is likely to be issued, and one or more citations may be levied against the employer for failure to comply with OSHA regulations. If the inspection was conducted under an NEP and violations were discovered, OSHA may issue the employer a citation as well as a “fix-it ticket.”
If the OSHA inspection is taking place as part of an incident investigation involving a fatality or serious injuries, it may be prudent for the employer to retain an expert to perform an investigation in parallel with OSHA’s. In many cases, such an expert will be retained by the employer’s insurance company. But if the insurance specialist isn’t familiar with the codes and regulations that are relevant to the causation of the incident, it may be advisable for the employer to retain an independent expert.
Furthermore, there are times when OSHA’s investigators simply do not get the right answer and issue citations based on incorrect or incomplete logic. Utilization of an independent expert to communicate the correct sequence of events in a causation chain can be a vital element in an employer’s appeal, should their objections to OSHA’s report be significant. The following incident summary provides an example of how an independent investigation can be helpful in such an instance.
Confined Space Flash Fire –A metal fabricator was refurbishing a multi-compartment steel tank that had been in service approximately 10 years. Tasks included torch cutting to remove old gussets and baffles, arc welding new plates and stiffeners into place, grit blasting to remove old paint and spray painting all surfaces for corrosion protection. The tank interior was designated as a “permit-required” confined space, and work rules consistent with OSHA requirements were established by management and followed by the employees.
During otherwise normal operations, a gas cutting torch was briefly left unattended on the ground, and a worker inadvertently rotated the fuel knob into the “on” position by accidentally stepping on the torch. Within a minute or so, gas accumulated in the tank and was ignited by welding sparks. Three workers received minor to moderate burn injuries. The workers didn’t smell the gas because they were wearing respirators that not only removed particulate matter, but also contained activated carbon to reduce nuisance odors.
Because the OSHA rules for confined spaces didn’t contemplate such a rapid release of a fuel gas, none of their mandated precautions could have prevented the accident. Even if each compartment with a cutting torch had been continuously monitored for flammable gases (not an OSHA requirement), there was no guarantee the fuel source could have been discovered or the ignition source(s) curtailed in time to prevent the incident.
When OSHA was apprised of the fact that their rules were consistently being followed and the incident nevertheless occurred, several citations were abandoned.
Note from the author: Readers may have noticed that my affiliation has changed since my last column. With the launch of Martin Thermal Engineering, my goal is to continue serving IH readers through these columns or when needed with a more personal response. As “Joe the Plumber” might say – there’s no business like small business.
When OSHA Comes Calling
October 2, 2009