Dr. Michaels

As anyone who follows OSHA knows by now, Dr. David Michaels was nominated and confirmed as the new Assistant Secretary for OSHA. Someone recently posted a comment asking me what I thought of Dr. Michaels, and in one of the strangest moments in my life, I realized I have no real opinion!

I had never heard of Dr. Michaels before his nomination, but I guess my sense is that he is a good selection. The Pump Handle certainly sings his praises, but then again he worked with Celeste and the others who maintain that blog, so that's expected. ASSE and AIHA support him, and that's a positive. The US Chamber of Commerce didn't oppose him, although they begged for hearings, so I don't know what to make of that. He was approved unanimously by the Senate, which suggests that both sides are comfortable enough with him.

The only opposition I've seen is from the anti-gun control extremists who seem to think he, like everyone else, is going to take their guns away. I have no idea how they could rationally reach this conclusion, which suggests that there was no rationale, just extremism. Now don't jump up and down and leave nasty comments about gun control, I'm not expressing my opinion one way or another, I'm just saying that rational anti-gun control people recognize that Dr. Michaels can't take us in that direction. If you think an ergonomic standard is controversial, just imagine if we even hinted at gun control.

I like the fact that Dr. Michaels is a S&H professional. I like that he understands the science behind S&H. I really like that he has previously run a government program. I like that he probably won't fall asleep during meetings.

I have been around long enough to see Assistant Secretaries who exceeded expectations and those who failed to meet expectations, and I have learned from those experiences. I have put Dr. Michaels book "Doubt is Their Product," on my Christmas list to Santa, so I can get a better sense of who he is, but right now I have no expectations of Dr. Michaels, only hopes.

Things Have Gotten Interesting

Some of you have been asking what happened to the OSHA Underground, and I think I've figured out why that site went down. I got this e-mail from Google, the owners of Blogger:

Hello,

Google has received a subpoena for information related to anonymous comments posted on your blog. The case is entitled Secretary of Labor v. Wal-Mart Stores, Inc., United States Occupational Safety and Health Review Commission, Case number SDT-9-0181.

To comply with the law, unless you or an anonymous commenter provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at legal-support@google.com by 5pm Pacific Time on November 26, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

Michael D. Billok
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 300
Washington, DC 20036
(202)887-3500

Unfortunately, Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,

Google Legal Support

Interesting, no? My guess is that Kane got the same e-mail and just deleted the blog in the hopes this would go away. Unfortunately, it doesn't work like that, there is a law requiring internet companies, like Google, keep records of usage data, like the IP addresses of visitors to their sites, including Blogger.

What does this all mean? Since I don't have any connection to this case, and anyone who does has been identified already, I'm not sure if this is evidence that WalMart actually is evil like people say, or that their overpriced attorney is padding his billable hours. Either way I'm going to have a conversation with an attorney, although part of me wants to say screw 'em, bring it on.

It's unfortunate that we have become a country where people have to be afraid to express an opinion.

BP

The Houston South Area Office issued BP a record citation today: $87,000,000. That's right 87 million dollars!

Some people who support the current administration are going to jump up and down and say "See, I told you!" But I would note one thing, this case was built on the 2005 case (actually the settlement agreement from that case), whcih was conducted under the previous administration. The 2005 case had been the largest penalty ever, $21 million.

It's unlikely that any of the political appointees were ever on site, and I doubt any of them know enough about PSM to influence the citations. I don't think the previous administration deserved credit for the 2005 case any more than I think the current administration deserves credit for this case.

The credit for this case goes to the CSHOs in the Houston South AO, and all of those who supported them, others in the Area Office, the Regional Office, the Regional Solicitors, and maybe even one or two people in the National Office.

Well done one and all.

Driving

First let me add my congratulations to the OSHA Underground for being named to the LexisNexis Top 25 List of Workplace related blogs. It's great that they got that recognition!

Next, from a commenter:

"Thanks for posting again! I was hoping my comment would elicit a post by you....how about distracted driving as a topic? Apparently it is the #1 killer in the workplace- The US DOT had a summit 2 weeks ago but no one really mentioned it as a workplace issue, I would think this would be an OSHA concern as well?"

As a S&H professional, yes I'm concerned about distracted drivers, the problem is that most of the time, I don't have the jurisdiction to address the problem. Section 4(b)(1) of the OSH Act says:

"(b) (1) Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

What that means is if another federal agency wants jurisdiction, they get it and we don't. And guess what? The Department of Transportation claims jurisdiction for all roadway safety (and then gives that jurisdiction to state and local authorities). Off public thoroughfares we have jurisdiction, but not on the street and highways. That's too bad for the commuters in California or Boston.

One of the bizarre quirks in Section 4(b)(1) of the OSH Act is that the agency claiming jurisdiction doesn't actually have to do anything to protect employees, they just need to claim jurisdiction. Ask the flight attendants and airline mechanics how well that has worked out for them.

This is a lot different than workplace violence, where we usually do have jurisdiction, but hide from it (that's a separate rant).

No I Haven't Given Up

Anonymous said:

"This has nothing to do with the post, but Abel, where are you? You have not posted in a month! We miss you...."

Thanks, since I've never had an employer open up his arms and say "Glad to see you," it's kind of nice to be missed by at least one person who reads the blog.

You know how fraternities and sororities have Hell Week? CSHOs have Hell Month. And it's not a one time event, it happens every year. Some years are worse than others, and Hell Month becomes Hell Six Weeks. But finally I've gotten to the point where all my OSHA-1s are entered, and I have some kind of handle on the citations. So what shall I rant about? How about this from a previous comment:

"I wonder what the unions and their cronies Barab and Solis will say when their policies increase fatality counts instead of decreasing them. Using their logic, I guess that would make THEM accomplices to murder...? Sadly, a little more than 5000 died while on the job. Lets see what that number is in 2010, 2011, and 2012. My bet ---- higher if they continue down this path."

Here's one for you: I agree that the counts are likely to go up, because of the administrations policies! Before you become apoplectic, however, let me explain (I'm not making a political statement here, so save yours).

Look at these numbers:

Year	Fatalities	Employment	Rate
1992	6083	120 M	5
1993	6271	121 M	5
1994	6588	124 M	5
1995	6210	126 M	5
1996	6112	128 M	4.8
1997	6218	131 M	4.7
1998	6026	133 M	4.5
1999	6023	135 M	4.5
2000	5915	136 M	4.3
2001	5900	136 M	4.3
2002	5524	138 M	4.0
2003	5575	139 M	4.0
2004	5564	140 M	4.1
2005	5734	143 M	4.0
2006	5840	146 M	4.0
2007	5657	147 M	3.8
2008	5071	136 M	3.6

If the fatality counts are the best indicator, then the previous administration failed, notice the increase in fatalities between 2002 and 2006? Up over 10%, BUT look at the employment, going up, and the rate, basically flat.

Unemployment is currently at 9.8%. At some point in the future, that number will come down, presumably because of the administrations economic policies. When unemployment does come down, I would fully expect the number of fatalities to go up. The number of fatalities will go up because the administration will increase the number of jobs.

All this really does, of course, is highlight the fallacy of fatality counts, so let me state this simply: Counts are almost worthless, fatality rates are the best indicator of success. It will be interesting to see if things change now that BLS has gone to hours based fatality rates instead of FTE based rates.

On a related topic, back on March 30, 2009 I posted a rant about the paper "The impact of OSHA recordkeeping regulation changes on occupational injury and illness trends in the US: a time-series analysis" by Friedman and Forst. The basic premise of the study was that the change in OSHA's recordkeeping standard caused an artificial decrease in injury rates from 2001 to 2003. I made my argument against that position back in March, but now in October, while reviewing the fatality data, I discovered another argument, the drop in fatalities between 2001 and 2002.

So why is the drop in fatalities relevant to the drop in injury rates? Anyone familiar with Heinrich's Pyramid or the refined version from Bird, knows that for every fatality there are 30 lost work day cases and 300 recordable cases. Since the recordkeeping standard didn't change the definition of a fatality, with such a significant drop in fatalities (not just the counts, but the rate as well) between 2001 and 2002, one would reasonably expect a correspondingly large drop in serious injuries as well.

Anyone have any other ideas for topics I could rant about?

Health Care Reform

I have a question: What happens to workplace safety and health if health care reform actually goes through? Has anyone thought about it?

Please don't jump in and leave comments about how health care reform is good or bad for the country, I'll just delete those posts. My question is not whether or not we should have health care reform, my question is what happens to safety and health if it comes to pass?

Let's assume it does pass. Let's also assume it meets the goal of reducing health care costs. Wouldn't this suggest that workplace injuries and illnesses might go up? Think about it, we all know that there exists a segment of employers who are only motivated by workers compensation costs. If those costs drop 20%, isn't it reasonable to also assume that at least some of those employers will also reduce their safety and health efforts?

Will this happen? Can it be stopped? We need to get some people a lot smarter than I am to start thinking about this.

The Forum

Yesterday, after noticing that the last post has generated 34 comments, I decided that maybe we need to have a better way to discuss things than on the back pages of a blog, so I've set up a forum, the OSHA Above Forum. The web site is http://oshaabove.freeforums.org/.

There are a couple of downsides to this new forum, first, because it's free, there will be ads. If enough people use the forum I'll pay for the premium package and get rid of them, but until I know how much it's going to be used, the ads will have to remain.

The other problem is that in order to post comments or start new threads, you have to register. I hate this, but that's the way the hosting site has things set up. You do not have to be registered to read the threads, just to start new topics or leave comments.

Since I know individual anonymity is what most of us are striving for, my suggestion is to set up a new e-mail account at Gmail or Yahoo, or the free webmail hosting site of your choice. This way when you register on the OSHA Above Forum, I can't identify you. Just remember for both the e-mail and the forum to use your pseudonym.

We'll see how this works, but I think it's a better way for the kinds of discussions we're starting to have.

By the way, this blog is not going away, I still have opinions, and your comments to those opinions are still welcome.

Poll Results

The poll results are in, and I have to admit I'm a little surprised by them. Not the "Is Abel a Shill?" poll, I kind of expected that, although I find it somewhat counterintuitive that someone would view me that way and still read the blog. If I though someone was shilling, I wouldn't read their blog.

For me the surprise was what standard people thought OSHA should work on next, the results are below.

Silica		6 (5%)
Ergonomics		5 (4%)
Diacetyl		32 (29%)
Combustable dust		11 (10%)
PELs		15 (13%)
Confined Space in Construction		12 (11%)
Safety & Health Program		28 (25%)

Diacetyl? Really? I understand how bad popcorn lung is, but more people die every year from silicosis, or confined spaces in construction, or long term exposure to chemicals because of out dated PELs, than from diacetyl. Besides, if we had a S&H program requirement companies would be required to address this anyway.

For those who voted for diacetyl, leave a comment, I would like to know what your thoughts are.

If you have any ideas for another poll, leave a comment. And thanks to everyone who voted, that was the first poll with over 100 votes.

Why?

I got this comment last week, and the commenter asks a great question:

"Now we are getting somewhere! OSHA has actually had some great ideas over the last 30 something years, which even othre agencies have adopted and implemented. However, OSHA has often failed to benefit from its own insights. Why?"

Any ideas?

Abel the Shill

From a commenter:

Abel
You sound like a schill for OSHA. You point out OSHA problems but you defend OSHA always in the end. You are biased and have no creditability. You can delete this post since it is to you, but you have been revealed. You are 100% bureaucrat and apparently can't help it. You probably think HR 3200 would be a great health plan since the government would run things.

Amusing. Because I don't have an extremist view of the agency, I must be a shill. Because I acknowledge that we do some things right, I must be a shill. Because I know how to spell shill, I must be a shill. Very amusing.

I differentiate between OSHA policies and the people within OSHA, because I see OSHA as the sum of it's career professionals, not it's policies. I will freely criticize the policies, but not the career professionals. Policies and the "tone" of the agency are set by political appointees, but the career professionals are the ones who have to carry out those policies to the best of our ability. Even when we disagree with them, that's what it is to be a professional.

The career professionals in this agency have freely chosen a job that is hard, stressful, sometimes dangerous, and can involve a lot of days away from the family, because we believe in what the agency is trying to accomplish. Do you think it's easy interviewing a man who just a few hours earlier watched his best friend die? Do you think it's easy spending four consecutive weeks on the road, away from your family, your evenings dedicated to reviewing documentation in some rundown hotel? I can tell you from person experience, it isn't easy. But I'm not just talking about CSHOs, I know people in the ROs and the NO who are the same, many of them former CSHOs themselves.

If you can't see the difference between OSHA policies, and the people within OSHA, then I pity you. Am I still going to defend OSHA career professionals? Goddamn right I am, every one of them, every fuckin' time. If that makes me a shill, fine, I can live with that.

Lawyers - Redux

Part of a comment from the last post:

"Most of the attorneys I have worked with have been really great. Some cases, CSHOs are permitted to contact SOL in advance for advice - you need this or that, shore this up, etc. It's been a great relationship. Of course, there's a few that you grimace when you hear who drew your case."

It was kind of buried in the last post, but I did say "It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS..." I probably owe the good attorneys an apology, because the commenter is right, we have some very good lawyers out there.

The advantage of time is that it gives you a little perspective. Over the years I have seen good attorneys come and go, and I've seen not so good attorneys come and stay. Over that same time I've had conversations with CSHOs from other regions (usually over a beer at the end of the day while attending an OTI course) and it's always interesting to see how their RSOL changes over the years (as does ours). We've all heard stories about how the attorneys in Region Z never take cases under $xxx to trial. Or how the attorneys in Region Y only take Wage and Hour cases. But wait for a few years and that seems to change.

Part of the problem is, as I mentioned in the original post, inconsistency. I recognize, and I hope everyone else does as well, that there is no such thing a perfect synchronization when it comes to S&H. But I do hope is that the new Assistant Secretary and the new Solicitor of Labor can get together and come up with something (an MOU, a joint statement, a directive, a memo, something) that better defines when RSOL will take a case to court and when they won't. If that means that CSHOs get more training from the lawyers on what constitutes a solid case, fine. If that means that the attorneys come out on a few inspections to see what we see, fine. Even if we all just sit down, have a beer together and discuss it, fine. Let's just do something.

Here's a second comment/question I want to answer:

I see your point, but as a non-OSHA insider, I question, 1) did the employer instruct the employee to keep the guard on and he chose to remove it anyway, same for the fall hazard.

I don't disagree that ultimately, the employer must enforce proper safety practices, but is it possible that the employee may have some fault? I know it was only an anecdotal case, but I keep seeing situations where the employer is always at fault, and the employee is never considered at fault. How do you resolve the second part of the General duty clause, 5(b)?

To start, let's review Section 5(b):

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

It seems pretty straightforward, if you're an employee (like I am) you have to follow the rules too, just like the employer. But here's the rub, Section 9(a) of the OSH Act says OSHA shall issue citations to employers for violations, but it says nothing about issuing citations to employees. In other words, we can't cite employees for violations. That is why you see citations to employers for missing guards but not employees. Do we find situations where employees have removed guards despite the employers rule prohibiting it? Yes, not often, but it happens.

Employee misconduct is what's known as an affirmative defense. There are two catches to the affirmative defense, first the employer must prove the employee misconduct in court, second as part of the investigation we are going to defend against the defense. If you want some additional reading, Chapter 5, Section VI of the FOM discusses affirmative defenses (warning: that link is to a very large .pdf file that may take some time to download).

And finally, The Pump Handle has a post on potential OSHA legislation in the Senate, which is worth reading. Unfortunately, one of the things I think is most important, changing the laws that were written to specifically interfere with our standard making, wasn't addressed. I guess there's always next year.

Lawyers

It seems that we, as an agency, are sitting around holding our collective breaths waiting for an Assistant Secretary. With the nomination of Dr. David Michaels, and after having been stuck in neutral for almost a year (and something like 21/2 of the last 5 years), we're finally one step away from having some direction. For some of us who have been around for awhile, which direction isn't important, what matters is that we're moving, forward, left, right, heck even reverse is better than being stuck in neutral.

In this calm before the storm, I decided to vent at that one group of people we all love to disparage - lawyers. Specifically our lawyers. I'm not going to rant about how much I hate lawyers, because I actually don't hate them, but sometime they frustrate the hell out of me. Tell me if this scenario sounds familiar.

You've done an inspection, you and your AD agree to 8 Serious and 4 OTS, total penalty $15k. You have video of the employees using unguarded machines, working from heights without fall protection, and a video taped confession from the plant manager admitting that they don't have a LO/TO program. It is as straight forward as any inspection can be. The company comes in and won't agree to the informal settlement. That's OK, the company is exercising it's rights, it's an inconvenience, but not a problem.

You send the case file up to the RSOL and wait. Three months later you hear back, the case has been settled: 1 Serious and 2 OTS, total penalty $1250.

Now comes the fun part, the postmortem, what happened to your case? You get permission to directly call the attorney handling the case. Here's how that conversation goes:

"Why?" you ask incredulously.

"We didn't have enough evidence."

"What was missing?" you ask, wondering if this attorney was using the royal We, because they sure as hell were part of the inspection.

"It just wasn't complete enough."

"But what else did I need to do?"

"No, you did a fine job, but a judge is going to look at the totality of the case."

"What does that mean and what could I have done to complete the case?"

"I'm not sure there was more you could do, it just wasn't a strong case."

It's at that point you have an epiphany, and the rationale for keeping attorneys in the RO instead of the AO suddenly makes perfect sense.

For those not in the agency, I just want to point out that most of us don't deal with our attorneys very often, so this isn't an everyday occurrence. It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS, but the case was settled the day before the trial.

What I would beg of any attorney is quite simple:

1. If I miss something tell me. You won't hurt my feelings, I'm more concerned with getting the employer to correct the problems than I am inter-agency politics.
2. If you tell me I'm missing something, don't forget to tell me why it's important that I have it next time.
   
3. Be consistent. It seems like in one case you'll say "Oh, you don't have this, and we need it to go to trial." And then on the next case I have it and you say "Oh, that's not important, you need this instead," even though it was never mentioned in the previous case.
4. I get that judges have different perceptions of what preponderance of evidence means, but a video makes things pretty clear.
   
5. I'm a big kid, lawyers don't scare me. Let the opposing attorney come at me, I'll nail his ass to the wall just like I did the plant manager's.
   

Now, a riposte. CSHOs, this is purely anecdotal, but it seems to me that the cases that are the most likely to be carried forward to trial, are those where the attorney can actually find the evidence in the case file. If you put together sloppy case files, expect your cases to be treated sloppily. If you have a case that's contested, ask your AD if can take some time and layout the case for RSOL, that may mean rearranging the file, it might mean adding tabs and an index, it might mean writing a short summary of each violation that points out the evidence. In other words, make it so the attorneys can find what they need to defend your case.

It occurs to me that the biggest thing we lack is conversation between attorneys and CSHOs. Occasionally we'll have an attorney lecture us, but that doesn't work very well, we need to talk, to have actual conversations from one professional to another.

Poll

The newest poll is up.

I thought the latest poll results were interesting, the "None" response had more votes than "Big" and "Huge" combined. It's too bad the polls don't allow for some minimal demographics. I would bet Jordan Barab's salary that most, if not all, of the OSHA people who voted for Big or Hugh changes had less than 10 years with the agency.

Dr. David Michaels

The White House issued a press release a little while ago announcing the nomination of Dr. David Michaels to be the head of OSHA. Congratulations Dr. Michaels, and welcome to a world where public health, science, politics, law and bureaucracy all collide into the big mangled pile of frustrations, forgotten dreams, lost ideas, fading idealism, and reality that is OSHA.

Penalties Across the Country

The OSHA Underground asked an interesting question today:

"WE wonder after 39 years, why don't we have standard penalties for routine violations?
An unguarded press would be worth the same in Maine to Florida."

I would like to hear what others think, but obviously I have to put in my two cents.

I have never agreed that all violations are created equal. If I inspect an injection molding shop that has 300 different plastics and they have 298 of the 300 MSDSs, and the two missing MSDSs are for plastics they haven't used in three months, and they get the MSDSs faxed to them before I leave, should I even cite them? I don't think so, I'll note it in the case file and move on.

Take that example to the next step, if they are missing 30 MSDSs of rarely used plastics and have an effective HAZCOM program, should I cite them? I think so. The question becomes at what level? I would propose OTS, no penalty.

Now to the extreme, the employer only has 15 of the necessary 300 MSDSs and has routinely thrown out MSDSs when they are received. That to me is a serious violation.

The obvious question to my example is where do I draw the line? I can't answer that, there are way too many possibilities, but it seems to me that issuing the same citation with the same penalty in all three of those situations is unfair.

To continue the punch press example, the severity and probability assessment might preclude violations in Maine and Florida from being the same. If the site in Florida has a press that six employees share over two work shifts, the press is in continuous operation, and the employees have their hand near the point of operation, that seems to me to be high severity/greater probability. If the site in Maine has one operator, who uses the press once per week, and uses a wood dowel to hold the piece in place as the press actuates, that seems to me to be a high severity/lesser probability.

Now what happens if one of the sites uses a press that has a down stroke force that is incapable amputating a finger? Now the severity isn't high, it's medium or low.

I get what Kane is saying, and we do have consistency issues, and even though those issues aren't as bad as they were 20 years ago, I think they have been getting worse for the last few years.

I think one piece of improving our consistency is through OTI. Not just the courses, but the opportunity for CSHOs from around the country to get together and discuss how we do things. It seems to me our consistency began to fall about the time our training budgets fell. The fact that OTI seems to be going to distance learning has only accelerated the problem (distance learning is a whole new rant).

Consistency is important, but so is flexibility. So how do we achieve both?

Inspection Coding

Does anyone like coding? Does anyone care about coding? I used to assume the answer to both of these questions was an emphatic no. As it turns out, I was wrong.

I'll admit right up front that I'm horrible when it comes to coding. I've been through phases where I've used every code I could find for every inspection, even those codes I knew were out of date. I've also been through streaks where I've coded almost nothing. I've employed both of these extremes out of shear annoyance with the system.

The other day I was talking to a friend of mine in the NO when some how we got around to the topic of coding. I went into my normal rant against the NO and their damned coding. But instead of a sympathetic ear, I got an earful. It turns out that coding isn't so much an exercise in bureaucracy as it is in political and media defense.

We've had an on going discussion on this blog about inspection numbers. I still don't think that inspection numbers are a good measure of how successful we are (or are not) but the fact is that Congress, the White House, and the media understand inspection numbers and not much else. This makes inspection numbers a necessary evil that won't be going away any time soon.

My friend pointed out that bad inspection data only pisses people off, and when Congress, the White House, or the media are pissed off, well, it all hits the fan. And after it hits the fan, we all know it then rolls down hill. How? in the form of another NEP of course.

What does this mean from a practical standpoint? It means I'm going to be more diligent when it comes to coding. I'm not going to spend hours researching coding, but I am going to make an effort.

If we all do this, then just maybe a little less will roll down hill and land on me.

Success - Follow-up

I just received this comment on an earlier post that I wanted to bring forward:

Wayne Gray and John Scholz have published research indicating that OSHA inspections do make a difference. You can check out their paper "Do OSHA Inspections Reduce Injuries? A Panel Analysis." Also "Inside the Black Box," co-authored by Gray and John Mendeloff, which was published in the March 2005 issue of Law and Policy.

The first paper they mentioned, "Do OSHA Inspections Reduce Injuries? A Panel Analysis," was published in 1991. Gray and Mendeloff followed that up with the paper, "The Declining Effects of OSHA Inspections on Manufacturing Injuries: 1979 to 1998," published in 2002, which shows a decline in OSHA effectiveness. I can't access the second reference, "Inside the Black Box: How do OSHA Inspections Lead to Reductions in Workplace Injuries?" so I'm not sure what it says.

It's interesting that these papers come from the National Bureau of Economic Research, not from the S&H field, although at least some of the funding for the research was provided by NIOSH.

OSHRC

I was perusing the Whitehouse.gov list of nominations the other day, just to see where the department stood in terms of unfilled appointments, when I noticed that Thomasina Venese Rogers was named to Chair of the OSHRC. I don't follow the OSHRC closely, but Ms. Rogers has been been the Chair before and has been on the Commission since 1998, having been appointed by both President Clinton and President Bush. The site All Gov has a short bio of her.

It seems that she has been on our side of two big cases, both of which we lost. The first was Ho Ho Ho Express, Inc., a case that is somewhat infamous within OSHA for how callous Mr. Ho was towards his migrant employees. The OSHRC ruled against us and eliminated part of the egregious citations, and the 5th Circuit Court of Appeals upheld the Commissions decision. Since then, we have apparently begun rulemaking to address those rulings.

The second case was Secretary of Labor v. Summit Contractors, Inc., which was a case involving multiemployer worksites, specifically our ability to cite a general contractor when they didn't have any employees exposed. The OSHRC ruled against us and vacated the citations, but the 8th Circuit Court of Appeals overturned that decision earlier this year.

I'm mentioning Ms. Rogers because she dissented in both of those case and I think they both demonstrate the impact that ALJs and the OSHRC have on our jobs. Do you remember the good old days of ergonomics, before the Beverly decision? For those unfamiliar with Beverly, the judge in that case basically ruled that back injuries aren't serious injuries so OSHA couldn't cite an employer for ergonomic issues under 5(a)(1). Even though the OSHRC overturned the judges ruling, ergonomic enforcement has never been the same. The same could have happened for multiemployer worksites.

My point is that sometimes factors outside of OSHA can have more impact on our enforcement activities that the Secretary or Assistant Secretary. I think that appointments like Ms. Rogers are every bit as important as that of Assistant Secretary, but it's something that gets overlooked by most of us at OSHA, and most of those in the S&H field in general.

Let us hope that future appointments to the OSHRC will help employees, not hurt them.

Evaluations, Yet Again.

Couple more comments on evaluations to follow-up on. First:

"We keep reading that the law doesn't allow CSHOs to be evaluated based on the number of inspections. Where is that in the law? When you quote it to me, read it closely. Doesn't it say RESULTS of inspections? How does that prohibit being evaluated based on productivity -- as opposed to the percent serious, or the size of penalties, etc., etc., etc.?"

OK, here is the text of "Public Law 105-198 - To amend the Occupational Safety and Health Act of 1970:"

Section 8 (h) The Secretary shall not use the results of enforcement activities, such as the number of citations issued or penalties assessed, to evaluate employees directly involved in enforcement activities under this Act or to impose quotas or goals with regard to the results of such activities.

It took a little searching, but here's the Congressional equivalent of a preamble for that law:

H.R. 2877 would conform the law to current practice. It would prohibit the Secretary of Labor from using the results of enforcement activities, such as the number of citations issued or penalties assessed, to evaluate employees directly involved in enforcement under the Occupational Safety and Health Act. It would also prohibit the Secretary from imposing quotas or goals on employees that are based on the results of enforcement activities. The Occupational Safety and Health Administration discontinued using such performance measures and incentives in 1994.

I'm guessing here, and it would be nice if a lawyer type could confirm this, but one of the results of an enforcement activity is an inspection. It's pretty clear that the intent of the law is that we not use inspection numbers as part of our evaluation, even if the language isn't as clear as it could be.

Next, in response to a comment by RT, another commenter left this:

I think that JT's method is used by most supervisors. It's sort of how the performance standards are written, or at least what the supervisor has to put in the narrative to justify any rating other than 'Meets.'

As for the NCFLL wanting objective performance standards, that's a lark. Joe Dear came closest to establishing objective performance standards (i.e. numeric goals) and got throuroughly trounced for it. The NCFLL was the key reason for Kennedy's support of the amendment that prohibits using the number of violations per inspection in the evaluation of CSHOs. That, combined with the number of inspections conducted, may not have been the most perfect evaluation criteria, but at least it was objective.

To which RT responded:

@ Anon: But numbers aren't necessarily objective. Is a CSHO doing a ton of inspections actually effective, writing good citations and focusing on things to get injury rates down, or just a glorified traffic cop writing tickets for the sake of numbers/generating revenue? I think Kennedy's amendment was concerned with government bureaucrats turning CSHOs into the latter.

@Abel: If the problem with performance review is some ADs will play favorites and/or discriminate, then perhaps the solution is to replace the ADs? :) Easier said than done, I know.

Question about the NCFLL - what objective performance elements have they succeeded in implementing? Or proposed without success?

First, sorry RT, it was my post that lead the commenter use JT, and I'm not sure how I got JT stuck in my head.

Second, I agree with the first commenter that there is enough wiggle room in the elements for an AD to adjust the evaluation based on the kind of work a CSHO does, but that also allows ADs who want to help or hurt certain CSHOs the same opportunity.

Third, about what the NCFLL has proposed or been successful with, I'm not sure, I've never been involved in the union activities on a national level and I haven't bothered to keep up with it (I've too much to do already).

Third, changing some ADs might not be a bad idea, but remember "the devil you know..."

Yet another commenter added this:

The problem with using lapse time as a metric is simple. All CSHOs do not do the same type of inspections. In every office, a few of the more qualified staff do more complex inspections. Managers know who these people are and assign them the "beasts." We all know or should at least suspect this.

Emphasizing lapse time without trying to equilibrate for the variable difficulty of inspections creates a disincentive to do complex work and initiates a rush for the bottom. Instead of wanting the difficult cases and being recognized for the effort, folks begin to clamor over the easy stuff.

It's already happening at the end of each FY. That's why any sane analysis of the inspection numbers should tell you that there are bushels of quick and easy inspections/citations being pursued and turned in quickly to lower the lapse rate at the end of the FY.

Incentives work.

IMO, the answer is to create an algorithm that gives different strengths to different types of inspections. Fat/Cats, Wilfull, Jumbo's, Full-shift monitoring, etcetera, could be scored to reflect the increased difficulty level. It's not rocket-science, you wouldn't need mathematicians to do it. Plus, you could incentivize staff to do good, complex work. You can argue over the weighting system, but at least you'd be arguing about real issues instead of assuming something that you already know to be false. All inspections are not created equal.

I certainly agree that there are issues with using lapse time, but if we used an algorithm to weigh inspections, then it seems to me we're crossing the line that Public Law 105-198 set. Using inspection results to evaluate a CSHO means I now have an incentive to increase the penalties to an employer to get a significant case or issue Willful violations. And if I'm going to get credit for full-shift sampling, then that's what I'm going to do every time. I'm going to set up the pumps even if the chemical isn't on the complaint and I know there are no exposures, I have an incentive.

You can see how much discussion lapse time and number of inspections has generated, imagine if this was a complicated issue.

Evaluations - Lapse Time

I got this comment on CSHO evaluations I want to follow-up:

"I do not understood this bizzare obsession with 'lapse time.' I'm not sure exactly what lapse time indicates. It's been said that low lapse time indicates quick abatement. This assumes that most employers do not act in good faith to correct a violation as soon as the CSHO brings it to their attention. Typically this is the exception to the rule. In my experience most employers begin trying to fix things as soon as they're brought to their attention by a compliance officer.

The ironic thing with lapse time is that inspections involving those bad actors who can be counted on not to abate a violation until absolutely forced to are the source of most significant cases. These cases intrinsically have the longest lapse time, most approaching the full six months, due to regional and national office review of the cases.

The whole lapse time thing just seems like a red herring. And it does encourage some, especially hygienists, to take short cuts. Sampling takes at least three weeks to receive results. Don't sample and you can shorten your lapse time. I'd bet that offices with average lapse times under 15 days never do air monitoring.

The other thing that significantly increases lapse time is waiting on a process likely to cause overexposures to be active, such as an employer that sandblasts once a month or runs a process with chromium paints once a quarter. Most IHs now simply document 'process not active' in their case file, throw out some safety or haz com violations, and move on to the next inspection. Keeps their lapse time low. I don't think this is doing much to protect the health of potentially exposed employees."

I agree with much of what the commenter said, although I do object to the statement "Most IHs now simply document 'process not active' in their case file, throw out some safety or haz com violations, and move on to the next inspection." I don't do that and most of the IHs I know don't do it either.

I think there are two reasons we're obsessed with lapse time, it's objective and measurable, and employers hate having the ax hanging over their head, just waiting for the citations to show up.

How many measurable elements do we have in our evaluations any more? There was a time when we got extra credit for presentations and outreach type things, but the CAS positions have taken most of that away. We're not supposed to be evaluated on the number of inspections we do. So what's left? Violations per inspection? That doesn't make sense because then we would be on what would amount to a quota system, which brings into question our objectivity during an inspection and isn't fair to employers. What objective measures are left?

Evals - Follow-up

I received a comment/question from JT that I want to discuss.

A very difficult question. I personally would prefer an objective "totality of job performance" standard, allowing evaluations to include all the tangibles and intangibles that don't necessarily show up in the numbers. Who's going out there and taking some initiative? Who's sitting around just collecting a check? Who does their homework on citations and writes good ones time after time? Who writes citations on items the ALJs and OSHRC have routinely tossed out for over 20 years?

Can that be done? Or is it impossible to get objectivity on such things?

I like lapse time, but I agree that it could very easily create an incentive to cut corners. Also very easy for ADs to overlook difficult or complex cases.

I spent part of my weekend thinking about this, which I hope is a reflection on my dedication to the job and not on how pathetic my life may seem.

I think my answer is that it's a great idea, but it can't work for two reasons;

1. Not all ADs will be fair. I think most would be fair, but there will always be a few who will just plain discriminate based on race or sex, or who will favor their friends. You can't get around it, it's out there.


2. The union won't allow it. Why? See number one above. The NCFLL has fought for a long time to make our performance elements objective instead of subjective. They want specific goals with specific ways to meet or exceed those goals. I certainly understand that position, and it's hard to argue against it, unfortunately it does allow for deadwood.

But also think about this, JT noted that it's easy for ADs to forget difficult or complex cases, so how can we expect them to remember all of the intangibles?

I don't know, maybe the answer is to have two different evaluations, one objective and one subject, and allow each area office (ie CSHOs) to decide at the start of each evaluation year which they want to be evaluated on. That seems like a logistically stupid idea to me, but I haven't been able to come up with anything better.

Possible Explainations for Drop in I/L Rates

Here's the list of possible factors that have influenced the drop in Injury/Illness rates, in no particular order. If you have any ideas, leave a comment or send me an e-mail and I'll add it to the list, and thanks to the people who have sent me e-mails with additional ideas.

1. The shift of jobs to other industries (note: when a manufacturer down sizes, it is usually the least experienced employees who are released, and we've all seen the studies on the lack of experience versus injury rate).
2. Incentive/disincentive programs.
3. Lack of significant recordkeeping cases.
4. Loss of compliance staff.
5. Increase in the number of safety and health professionals
6. Internet access (I can tell you that many employers absolutely do not like to call OSHA for information, but they might access the website, which, if the rumor I heard was true, gets almost 1,000,000 hits per month).
7. The first suggestion: "The growth of cooperative programs. I know many on the compliance side don't sometimes like these programs. But from an industry perspective, the programs are great. Take a look at the growth of the Voluntary Protection Program."
8. Pressure on safety departments for reduction in injuries/illnesses
9. Safety department with thin resources, administering work comp, liability insurance, environmental, training, and other outside duties.
10. Resume padding
11. Lack of follow up in high injury industries to determine recordability.
12. Lack of injury reporting oversight: The risk of someone finding out about under-reporting when reporting is voluntary is minimal, making under-reporting is a slightly more attractive alternative.
13. Litigious society. Employers getting pounded by lawsuits looking to reduce those related costs.
14. Employers finally seeing the value and moral obligation of providing safe and healthful workplaces.
15. In the west the diminishing base of heavy industry seems like an obvious choice, same goes for traditionally hazardous industries in the West such as logging and fisheries. Much of the aviation industry has disappeared from CA, and chemical and manufacturing work that is considered "polluting" has moved to China or overseas.

I've moved this list from the side to a blog posting so I could recover the space on the side.

My hope is that some one in academia will start to evaluate these different factors and not just assume that all businesses lie and that we don't know how to look at data.

CSHO Evaluations

The last post brought out a couple more comments, the first commenter asked:

How should CSHOs be evaluated?

To which a second commenter responded:

On numbers and lapse time. At least partially. If we set goals for them to achieve (like we do for the ADs and AADs) at least they'll have a starting place. And that will eliminate the low performers/deadwood on staff.

Let's put aside the fact that we can't legally be evaluated on the number of inspections we conduct, I personally would be willing to be evaluated on inspection numbers and lapse time, because I trust my AD to make allowances for fatalities or sig cases. But I know CSHOs in other offices who don't trust their AD to be fair. The problem is that there are a few ADs who seem to be incapable objectivity, and so how do we develop an evaluation system that's fair in those situations? Does anyone really think that the CSHOs that worked on Imperial Sugar or Milk Specialties Company had a chance in hell to do 100 inspections for the year? Now ask yourself this: if you had to do one of those inspections, would your AD make allowances and reduce the number of inspection you had to do for the year?

One suggestion from Kane at the OSHA Underground is to use a panel for our evaluation. I've haven't seen a detailed enough proposal to say whether or not this is a good or bad idea, but I'm leery. The panel would almost have to consist of CSHOs from within the AO because outsiders aren't familiar enough with what we accomplish. The biggest obstacle I see is that my performance bonus is based on how many elements I exceed, the same as the potential panel members. Because we're competing for the same money, they have a vested interest in my having a lower evaluation than they get. Now, instead of being pissed at management, we're pissed at each other. If Kane ever expands on his idea I'll certainly give it a new look, but color me skeptical.

Where does that leave me? I'm not sure. Lapse time should certainly be part of the evaluation, again, as long as there are provisions for unusually long cases. Maybe someone could develop a formula that adjusts acceptable lapse time based on the number and types of violations. You get 8 hours for an IC complaint, but 120 hours if you have 4 Willful and 10 serious violations.

Let's open this up a little, what do the other CSHOs out there think, how should we be evaluated?

Polls and Questions

The last poll closed with a curious, although not totally surprising, result. I think most people in OSHA believe that we, as an agency, fair better under a Democratic administration than we do under a Republican administration (please, that's not a political statement, it's just an opinion of the perception of a difference). The top two vote getters were Scannell and Henshaw, both appointed under Republican administrations, which is to me the curious part. What's not surprising, however, is that they were both safety and health professional first, administrators second. Do you suppose the current administration knows this? By the way, the new poll will be up soon.

Here are a couple of questions someone left after my last post that I want to answer:

"What exactly is the evaluation system for CSHOs nowadays? Does a CSHO get dinged at review time if their citations are constantly contested by employers? Or SOL tells them their citations are no good? Or vacated by the Commission?"

There are several answers to each question. Like so much in OSHA, there's the way it is supposed to be and the way it is, and the way is isn't necessarily the same from office to office or region to region.

Does a CSHO get dinged at review time if their citations are constantly contested by employers? We're not supposed to, and in my AO we don't. The reason we're not supposed to get dinged is because some of us do mostly complex inspections, which are more likely to be contested. But there are also companies out there that as a matter of policy always contest OSHA citations, so to get dinged for that isn't right. Again, that doesn't mean it doesn't happen.

Does a CSHO get dinged if SOL tells them their citations are no good? We're not supposed to, and in my AO we don't. I think this one will depend on each regional SOL office. There are RSOLs where the attorneys won't take any case to court, no matter what, and I'm guessing that in those regions the ADs mostly wouldn't hold a CSHO responsible for an RSOL weakness.

Does a CSHO get dinged if citations are vacated by the Commission? Again, we're not supposed to, and in my AO we don't. My guess is that doesn't happen, and for two reasons;

First, very few cases actually make it to the Commission. More cases make it to an ALJ, but even those cases aren't the norm.

Second, the cases may not be heard for a year or more from the date inspection is finished, which means the CSHO is in a totally different evaluation period.

I'm Back...

In the last week the Pump Handle has posted two interesting articles, one on how slow the administration has been to put forth nominations for DOL, and the other on a FOIA request at MSHA. The first post I'll let you read and draw your own conclusions about.

The second post is the one that really made me sit up and laugh, it reminds me of our own Ergonomic Case Development Procedures. Does anyone remember reading these, you know, before your RA decided that they were ridiculous and that your region wouldn't be doing any ergonomic cases? My copy says "SOL DRAFT 6/27/02 - Privileged and Confidential." As far as I know, these procedures haven't changed by so much as one letter in 7 YEARS! How can something still be a draft if we're expected to use it, yet nothing has changed in 7 YEARS! I'll tell you how, someone doesn't want those procedures released to the public.

I don't get it, we publish almost everything so businesses know what we expect from them, why not this? I would love for some one to do a FOIA request under the DOJ's new "when in doubt, release it" policy. When SOL denies it, I would hope the requester would point out the procedures were in draft just to keep them from the public and bring the case to court.

I also want to clarify a couple of things said over on the OSHA Underground with their last two posts.

First, the number of inspections a CSHO conducts were removed from our performance elements after Congress passed the legislation in 1998, not in the late 1980's.

Second, this was, in part, a result of the NCFLL (National Council of Field Labor Locals, our union) pushing for it. Kennedy may have been the sponsor, but the NCFLL pushed it. There is some history here, in the old days an IH could do 40 inspections and get an Outstanding, but if a safety did one PSM inspection or a big fatality, they could end up with 40 inspections and get a Fails to Meet on that element. It was a pretty unfair system. I'm not saying today's system is any better, but removing the number of inspections from our evaluation was at least an attempt to fix a problem.

For those of you who are new to the agency or don't work for OSHA, contrary to what Kane says, don't expect big changes in OSHA anytime soon. This is my 5th president and will be my 6th Assistant Secretary, and, while the changes will eventually be noticeable, they won't happen fast and they won't be dramatic. Not withstanding the fact that Kane continues to give the Secretary credit for the work that CSHOs are doing, the simple fact is you can't turn a bureaucracy 90 degrees, much less 180 degrees. And you certainly can't force the change in direction overnight.

Yes, we will have more CSHOs, and yes, we should finally have the money for training, but I also expect more emphasis programs. Now we'll have less time to do more inspections, and the additional inspections are going to be more complex.

You have to keep in mind that most of those 130 new CSHOs don't know anything. They may have masters degrees, but they're still relatively stupid and won't be capable of conducting an inspection on their own for almost a year. Once they're out on their own, they're likely to get just the simplest of inspections for the next 1-2 years. This means that each of us are going to have to do more inspections, and each of those inspections will be, on average, more complex than what we're doing now. Right now I get to mix in a few B.S. complaints that we all know before I even go out are going to be in compliance, but now the new CSHOs are going to get those and I'm going to be stuck with extra SST or NEP inspections.

Not one of those 130 CSHOs have been hired yet, so we don't actually have a change, what we have so far is the promise of change. The only actual change I've seen is in our own attitude. We seem to believe that this administration is behind us to support us, not in front of us slowing the ship down. Only time will tell.

Finally, big ups to the Eau Clair AO, not the Secretary, for Milk Specialties Company.

Quick follow-up

Quick follow-up on a comment from the June 15, 2007 post. The commenter said:

feasible abatement is NOT a requirement to support a citation where a standard is being used.
It may however be an affirmitive defense from the employer. All the CSHO has to establish is hazard, exposure and knowledge.

Feasible abatement is part of the 5a1 supportive documentation, but not when there is a standard.

This statement is not quite true. In order to establish a prima facie case, the agency must demonstrate all four conditions have been met, a hazard exists, employees are exposed to the hazard, the employer knew of the conditions, and a feasible means of abatement exists. We have to do that for all cases, period.

OSHA standards, however, allow the CSHO to skip documenting that a hazard exists and that there is a feasible means of abatement, because the rulemaking process does that for us. A standard is written because a hazard exists, and the standard itself is the means of abatement (if you read the preamble of any standard, and I don't know why you would, it documents all of this). This means that we do not document that a hazard exists, we document that a violative condition exists. That the guard is not on the saw does not prove a hazard, in order to do that we would have to provide research into the impact of saw blades on human hands and this happens when the machine isn't guarded, etc. But, not having a guard on is a violation of the standard and also the means of abatement.

Following up the Follow up

Here are a couple more comments from RT I want to share and respond to, but in reverse order.

Additional thought - what keeps an OSHA inspector from going down the Scenario 2 route?

E.g., citing an employer for 5 different 5(a)(1) citations/items if they didn't follow 5 different provisions of a consensus standard like the NFPA, and rack up $35k in penalties?

We can't cite a company for violating different provisions of a consensus standard, because we can't cite a consensus standard. That is was I was trying to get at in my first post on 5(a)(1). We're citing for exposing employees to a hazard, not for failure to follow a particular abatement method. Remember, a standard (whether OSHA promulgated or consensus) is nothing more than a detailed abatement method.

Thanks for the response. Can you elaborate on why you think if a consensus standard was the only evidence you had for employer recognition, the ALJ would toss the case? Do the memos from the National Office ever explain why you can't cite for failure to follow a consensus standard?

You're welcome.

A consensus standard is not, by itself, recognition of a hazard. In order to use a consensus standard as a piece of the evidence, we have to link it to the company or industry. You previously mentioned API standards, so let's say I inspect a refinery and find that a relief valve on a reactor isn't sized properly, meaning if there is an over pressurization of the vessel, the relief valve can't handle the release and everything goes boom. Let's suspend the PSM standard for a minute and say I decide to cite 5(a)(1). The charging language will say the government is accusing the refinery of exposing their employees to the hazard of an explosion, not to an undersized relief valve. The AVD will show that the relief valve is improperly sized which could lead to an explosion. The last paragraph will will mention that using the API standard to size the valve would prevent the hazardous condition.

In order for the citation to be upheld, I can either link that API standard to the company, or find some other way to demonstrate recognition. Since we're talking about a refinery, there's a pretty good chance that they are a member of API, so that's one of the things I'm going to check. I'm also going to check to see if that API standard is widely used within the industry. Now I've confirmed that the company is a member of API and every other refinery that's a member of API uses that standard, I have recognition.

Let's flip it, let's say the API standard exists, but nobody in the industry uses it, let's say the industry engineers uses a rule of thumb they all learned in college, and the valve at this refinery meets that rule of thumb. Now, even though the API standard may be the best engineering practice, it's worthless to the case because no one uses it. That doesn't mean you can't establish recognition in other ways, for example, if they keeping blowing the reactor up because it can't release the built up pressure, that's a good way to demonstrate recognition.

As for the memos, I can't find mine right now, but there is a long discussion on 5(a)(1) in the new Field Operations Manual (FOM) starting on page 4-14 you should check out, just be warned, it's a very large .pdf file (about 3.5 mb).

5(a)(1) Follow-up

I received the following comment from RT that I want to bring out and respond to:

"Good description of 5(a)(1), I agree. But I still see it all the time where OSHA uses consensus standards to prove up a 5(a)(1).

For example, in the example you mention, at the hearing, when OSHA is asked to show that the hazard was recognized by the employer or the employer's industry, the SOL attorney will typically attempt to introduce the NFPA standard as evidence of industry recognition of a hazard. "Everyone in the industry follows the NPFA, therefore this employer (in this industry) recognizes the hazard cited." Isn't that using the NPFA standard to prove a 5(a)(1)?

This happens frequently to the oil and gas industry, where OSHA trots out American Petroleum Institute (API) recommended practices in support of their 5(a)(1) citations."

The question RT asked, "Isn't that using the NPFA standard to prove a 5(a)(1)?" is a good one, and the answer is yes, but if a consensus standard was the only evidence we had for employer recognition, I think we would get laughed out of court. Also, using a consensus standard as evidence of employer recognition or as one feasible means of abatement is not the same as citing a company for failure to follow a specific consensus standard. This may seem like a distinction without a difference, but it's not. Let me give you a practical example of citing 5(a)(1) versus citing a standard.

Let's start with a fictional workplace called Abel's Metal Fab Shop. Abel's is a metal fabrication shop that specializes in metals with high cadmium content. They do typical metal fab work there, cutting, welding and grinding. Abel doesn't believe that science has adequately proven that cadmium is dangerous so he does nothing to protect his workers.

Now suppose a CSHO walks into Abel's and sees black dust everywhere, people eating lunch right out in the shop, people smoking in the shop area, etc., every IH's worst nightmare. The kind of place you're going to spend weeks in. For the purposes of this example let's assume we can't cite willful or instance-by-instance, and that there will be no reductions for size, history or good faith.

Scenario 1: No OSHA standard exists that addresses cadmium, no expanded health standard and no PEL, but there is a consensus standard. Assuming I can prove all of the necessary elements of a violation, I will get to issue a 5(a)(1) citation for one violation with a $7,000 penalty to Abel for failure to protect his employees from exposures to dangerous levels of cadmium. That's the end of the cadmium related citations.

Scenario 2: OSHA has an expanded health standard for cadmium and my AD and RSOL trust me enough to classify the citations myself. Assuming I can prove all of the necessary elements of a violation, I will get to issue a citation with multiple violations for over exposures, not conducting initial monitoring, not establishing regulated areas, not having a written program, not implementing engineering controls, no emergency response plan, not providing hygiene facilities, housekeeping, not conducting medical surveillance, training, etc., etc., etc. The cadmium standard also has respirator requirements, which call in part of the respirator standard, so I get to cite some of that standard too. Citing each of those as separate violations at $7,000 each means I've gotten into the significant case range just on cadmium violations.

The difference between the number of violations and penalties for a 5(a)(1) versus an expanded health standard is pretty obvious. If we were allowed to cite a consensus standard, the citations would look like the second scenario not the first.

General Duty Clause Citations

I want to clarify for the non-OSHA people just how we use the General Duty Clause to issue a citation (we generally refer to these as 5(a)(1) citations in favor of the term General Duty Clause), and specifically the role that consensus standards play in those citations (this is for you John).

Section 5 of the OSH Act

Below is Section 5(a)(1) of the OSH Act:

(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

This is the section of the OSH act that we use when we have no written standard but the employer is still subjecting their employees to a hazard.

Documenting Citations

Let's first backup a little for a lesson in CSHO 101. In instances where OSHA has a standard a CSHO must document four elements for each violation: 1) That a hazard exists; 2) That employees are exposed to the hazard; 3) That the employer knew, or should have know with the exercise of reasonable diligence, of conditions that exposed the employees to the hazard (referred to as employer knowledge); 4) That a feasible means of abatement exists to protect employees.

Let's take an example. Suppose I'm driving along and I see people working on a scaffold at a height over 15 feet, and the scaffold has no rails. I am, of course, going to stop and conduct an inspection. This is a simplified version of what I'm going to document for my case:

1. A hazard exists: The hazard in this case is a fall from height. Establishing this as a hazard has been taken care of by the fact that we have a standard that states that employees must be protected from falls when working at heights over 6 feet in construction.
2. Employees are exposed to the hazard: I saw, video taped and interviewed employees working on the scaffold.
3. The employer knew, or should have know, of the conditions: I'll be able to show that the employer (usually in the form of the site super or foreman) saw or walked by the scaffold while it was up with no rails.
4. A feasible means of abatement exists: Following the standard is usually the means of abatement, all the company has to do is put up the top and mid rails.
   

Documenting 5(a)(1) Citations

When we're dealing with 5(a)(1), those same four elements have to be met, plus we add a fifth element, employer recognition. Employer recognition follows from employer knowledge, first we show that the employer knew of the conditions of work, then we have to show that the employer knew (or should have known) the conditions were hazardous.

With a 5(a)(1) showing the first element, that a hazard exists, becomes a bigger task and can get quite involved, depending on what the hazard is. For example, showing that aerosolized wood flour can explode is relatively easy (there is a lot of work to do, but the CSHO just needs to work through the process), showing that nano-particles cause respiratory illness, not so easy (yet).

Showing the second and third elements are the same for a standard as for 5(a)(1).

The fourth element, feasible means of abatement, can be very difficult, or very easy, depending on the hazard, and this is where consensus standards may come in.

What is a Hazard?

Before I get to consensus standards, however, first it's important to understand what a hazard really is and what the purpose of a standard is.

Let's take a hazard close to John Astad's heart, combustible dusts. Dusts in and of themselves are not usually hazardous, yes there are a few temperamental ones like magnesium, but by and large they are not inherently hazardous when left alone. Dusts can become an inhalation hazard when they are aerosolized in high enough concentrations, or they can become an explosion hazard when they are aerosolized in high enough concentrations AND there is an ignition source (assuming it is combustible).

What's the Purpose of a Standard?

The purpose of a standard, whether it has been promulgated by OSHA, MSHA, EPA, or any other federal/state agency or whether it is a consensus standard, to to prevent employees from being exposed to a hazard.

How Does 5(a)(1) Differ?

OSHA standards tend to be very proscriptive when it comes to abatement, telling an employer in detail what must be done to protect their employees from a hazard. The OSH Act lists no specific abatement requirements, which means that an employer is free to use any method they want to abate the hazard.

What does it Mean?

What does this mean for 5(a)(1)? That failure to follow a consensus standard is not a hazard, the aerosolized dust blowing up is the hazard. One feasible means of abatement may be to follow a consensus standard, but any abatement that protects employees is acceptable.

OSHA 5(a)(1) Citations

Let's look quickly at how OSHA 5(a)(1) citations are written. Below is a real citation, although the name has been left off, we all know who it is.

TEXT FOR CITATION: 01 ITEM/GROUP: 005 HAZARD: EXPLOSION P.L. 91-596 Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer does not furnish employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to employees in that employees are exposed to the hazard(s) of explosion and fire:

a. Top of Silos 1, 2, & 3 (9th floor) and Bottom of Silo (tunnel) - On or about 02/07/2008, bulk material steel conveyor belts on the top and bottom of the silos that convey granulated sugar were not equipped with bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys to shut down equipment and/or notify the operator before the initiation of a fire and/or explosion, exposing employees to explosion and fire hazards.

b. South Packing House & Bosch Packing House - On or about 02/07/2008, inside legs (bucket elevators) used to convey granulated sugar were not equipped with bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys to shut down equipment and/or notify the operator before the initiation of a fire and/or explosion, exposing employees to explosion and fire hazards.

One feasible means of abatement is to install bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys of all steel belt conveyors and inside legs (bucket elevators), as referenced in National Fire Protection Association (NFPA) 61, 2008 & 2002, Chapter 7.3. Pursuant to 29 C.F.R. 1903.19, within ten (10) calendar days, the employer must submit an abatement plan describing the actions it is taking to prevent the hazards described in instances a and b, above.

The first paragraph is the charging language, it's the part of the citation that says "we, the government, accuse you, the company, of exposing your employees to a hazard." Notice it doesn't say we accuse you of failure to follow a consensus standard.

The next two paragraphs (a. and b.) are the Alleged Violation Description, which says "these are the circumstances under which you exposed your employees to the hazard." Again notice it doesn't say we accuse you of failure to follow a consensus standard.

The final paragraph is the part that shows we have done our jobs and identified a feasible means of abatement (remember element number four from above?). In that final paragraph we do put forth an NFPA standard as a feasible means of abatement, but keep in mind that the employer is free to ignore that and use any means they decide will protect their employees. They can choose to stop processing sugar, they can follow a different consensus standard, they can try to automate the process so no people are ever around, whatever, it's up to them, they just have to stop exposing their employees to the hazard.

As long as that was, it was a very simplified discussion of 5(a)(1), as anyone who makes their living doing this can tell you. I hope, John, that answers your question. If not ask again, if it leads to other questions, feel free to ask those.