Cranes

I got a request to start a new thread on the Crane standard, but since I'm an IH and don't have much crane experience (and no experience yet with the new standard) I'm posting the request here in the hopes that others can bring about a discussion:

I have a suggestion for a new blog thread. Why has OSHA adopted new technology for insulated links for use with cranes without doing sufficient research and testing. Look what happened when NIOSH tested proximity warning devices, they failed miserably. Now even though they are still mandated in subpart CC, OSHA admits they are flawed and does not require their use. OSHA should do the same for Links and ask NIOSH to study and test their performance, use, maintenance, and the reliance issues that may occur with thier use.

Also, OSHA should look at how UL went about writing a standard, and how one provider is now marketing that his product meets Subpart CC, even though OSHA stated in the preamble that there are no NTRL's approved by OSHA to certify links.

OSHA PELs

So this morning I had a radical idea on how to deal with our PELs.  Everyone on the planet knows our PELS are horribly out of date, they're from 1968 or 1970 (general industry vs construction) and many don't take into account health effects that may occur at lower exposures.  So here's the idea:

Withdraw the standards, both 1910.1000 and 1926.55.

Totally insane isn't it?  When it first occurred to me I actually laughed out loud, you can imagine the looks.  But why not?  We already cite 5(a)(1) for chemicals that don't have exposure limits and we can cite 5(a)(1) when there is a PEL, if people exhibit health effects not covered by the original TLV documentation and we can show the employer knew.  Even though we can do this, we almost never do because we're either too busy or too lazy.  So why not go 5(a)(1) for everything?

It would take a little more work, but it would also allow us to enforce based on current science, not 40 year old science.  Business probably wouldn't like it very much, they would be afraid that enforcement would be too inconsistent and they wouldn't know to what level they would need to protect their employees.  And they would probably be right, at least partially.  This would very likely lead to the call for a return of the PEL tables, which might be enough for Congress to give us a special dispensation to adopt new PELs, which would then allow us to update the PELs to appropriate levels.  Even the threat of doing this might be enough to bring about the changes that are needed.

It's a radically insane idea that might or might not work, but it doesn't really matter since no one has the stones to try it.

New Poll

The last poll is closed and a new one has been opened:  Should OSHA Exist?

The last poll was close, 68 to shut 'er down, 67 to keep trudging on.  Since the poll was really about finding out if people are still reading, I'm keeping the blog.  Keep the comments coming, even those that disagree with me, just be respectful of me and others reading and commenting (you'll notice that 4 of the 5 I allowed through were dissents, but they weren't disrespectful).

No one has offered an article of their own so far, please consider doing so.

Top 10 Things Young CSHOs Need to Know

Below are my Top 10 Things Every Young CSHO Needs to Know Before They are Let Loose on the World.

1. Never Lie.  Beyond the moral and ethical aspects of honesty is a practical one, if you get caught lying during deposition or as a witness, you are done professionally.  You probably won’t be fired, but every opposing attorney in the area will know what you’ve done and your contest rate will skyrocket.  Every DOL attorney will know what you’ve done and they will never take one of your cases to court again, you will have every contested case tossed out.
2. Follow the Evidence.  Just because you’ve seen something 20 times, doesn’t mean you know what happened the 21st time.  Investigate!  Use your powers of observation and deductive reasoning to figure out what’s happening every single time as if you’ve never seen the situation before.  Very few things are as professionally embarrassing as admitting to a judge that you assumed something.
3. Actively listen.  When you interview employees don’t go into the interview determined to get yes or no answers to all of your questions.  Even if all of the physical evidence gives a clear picture, ask open ended questions and listen not for the words you want to hear, but for words you didn’t expect.  Not only will this give you a fuller picture, but you may discover bigger issues.
4. Always Keep Your Head on a Swivel.  It’s scary how often the forklift operator “didn’t see you” standing there with you hardhat, reflective vest and 9 company reps (all of whom happened to make eye contact with the driver), and suspended loads have a mysterious habit of dropping to shoulder height just as they get close to you.
5. Never give advanced notice.  This is one of the things that can actually send us to jail, and although I’ve never heard of people actually going to jail, I have heard of people being “reassigned” to other duties, for the rest of their career.
6. Never Argue with a Team Member in Public.  It’s OK to disagree with fellow CSHOs, it can actually be good for the inspection even, but don’t do it where the company can hear you.  If you publicly disagree and the company hears you, they then have an avenue for contesting any citations and you’ll hear “they couldn’t even agree that it was a violation,” in front of the judge.
7. Never Equivocate on the Stand or During Deposition.  When you’re under oath be firm, “This IS what I saw,” not “I’m pretty sure I saw this.”  It’s OK to say “I don’t know,” or “I don’t remember, I would need to check my notes or the video.”  If you equivocate, you have just introduced doubt, and if the compliance officer is in doubt, what way do you think the judge will rule?  Just remember Rule #1 – Never Lie.
8. Never Get Angry.  No matter how passionate you are, no matter how abusive the employer is, never get angry.  If you’re in a situation that is escalating, find a way out of the room, you can not win that argument but you can make it worse.
9. Understand Their Anger.  A lot of anger directed at you is fake, especially that from opposing attorneys, they’re either testing you or trying to intimidate you so you won’t be as effective.  Sometimes people are angry at getting caught doing something they weren’t supposed to (remember fight or flight?).  Some people are angry for reasons that have nothing to do with you.  There are other possibilities as well, but if you understand the anger you have a chance to diffuse it.  Just don’t forget rule #8 - Never Get Angry.
10. You Can Never Have Too Many Charged Batteries.  This is especially true for equipment junkies, as most IHs seem to be.  It’s almost a rite of passage that every new CSHO will, at some point, forget the extra batteries in the middle of the inspection.  With any luck the batteries will be in the car instead of back at the office or hotel.  When this happens, expect much ridicule, especially from us old timers who have never done anything like that ourselves (I write hoping a bolt of lightening doesn’t strike).

 These are my top 10, but I'm sure other oldsters have other things they would add.

Your Chance to Contribute

This is one of the comments from my previous post:

"The problem with the slow exchange of thoughts and ideas is just that, it's slow. I think most people would like a larger volume of subject matter at a faster pace with some bad ideas (and even some disrespectful material) versus a limited volume at a slower pace."

The commenter makes a fair point, the problem is I'm not willing to deregulate the comments, and I can't take time to write two or three times per week, so how about this, if you or someone you know wants to write an article on S&H or OSHA or something related, send it to me at oshaabove@gmail.com and if it meets my high editorial standards (everyone should be laughing right now), I'll post it so we can have a discussion. Even if it's an article about why OSHA shouldn't exist, as long as you can bring a rational argument with evidence to back your position, I'll post it.

Any takers?

New Poll

Please note the new poll.  Since I changed the look of the blog my Google Analytics are gone so I can't tell if anyone is even reading any more.

PAWA

PAWA, aka Protecting America's Workers Act, aka H. R. 2067. I finally had a chance to read through PAWA today and what I read was both good and bad. The bill has some 20 plus sections, of which I thought 10 were significant. One part, Section 203, I didn't bother reading, it has to do with discrimination, which is something I don't know much about (for those who may not know, OSHA uses specialized investigators to look into discrimination complaints, CSHOs don't generally investigate these).

I don't know if PAWA is ever going to go through, I doubt it will happen this year, and the version I've read isn't necessarily going to be the final version, after all the Senate hasn't had a chance to change it yet. Having said that, here are the 9 sections that caught my attention and my first thoughts:

Sec 101: Coverage of Public Employees. Good.

Finally, all public sector employees would be covered. I think one of the undiscussed aspects of this section is that Federal agencies would finally have to pay their penalties, instead of having theoretical fines only. Maybe, just maybe, if the habitual offenders lose part of their operating budget, they'll start to take S&H more seriously.

Sec 102: Application of Act. Good.

This section changes our preemption due to coverage by other federal agencies. If I'm reading this correctly, and I gladly admit I'm not a lawyer so I might be wrong, but it appears to bring a lot of private sector employees who weren't covered by OSHA, under OSHA coverage. As an example, right now we are preempted from covering flight attendants while on board the aircraft because the FAA has claimed jurisdiction. But the FAA has no S&H rules for flight attendants, and it certainly doesn't enforce anything, so I think we would now have coverage over the fight attendants.

I think this goes even deeper, I think it means that any place we are currently preempted from inspecting will no longer be exempted from our coverage unless and until another federal agency has demonstrated that its regulations are at least as effective AND we have reviewed the standards, agreed with them, and published our agreement in the Federal Register. If I'm reading this correctly, this is big. We've never investigated acts of violence, are we going to now?

Sec 304: Investigations of Fatalities and Serious Incidents. Good (and finally).

This section seems to finally make tampering with evidence a criminal act, although I can't tell what the penalty would be.

Sec 305: Prohibition on Unclassified Citations. Neutral.

I never liked the “Unclassified” classification of citations, but they helped to settle cases (usually for full penalty and with no dropped violations) so once everyone started recognizing that “Unclassified” was just code for Willful, I stopped worrying about it. I just don't see this as a big deal either way.

Sec 306: Victim's Rights. Bad.

In my May 12 post “Bad Ideas” I expressed my discomfort with having employee representatives present during management interviews, I think it leads to bad inspections, well I think the same would true if this section is included in the final bill. I'm not philosophically opposed to victim's rights, and I think as an agency we do a poor job communicating with victims and their families, but involving them in settlement negotiations changes the dynamics in the room so dramatically that I foresee only problems.

I see four possibilities:

1) Employers contest more cases. If the employer objects to a violation then that part of the citation is up for negotiation, which the victims won't generally want the Agency to give up. This means that if the AD agrees with the victim, the company contests and we go to trial.

2) Victims demand hearings. If the employer objects to a violation then that part of the citation is up for negotiation, which the victims won't generally want the Agency to give up. This means that if the AD agrees with the company, the victim will demand a hearing.

3) Both the employer and victim want to go before a judge. The AD sides with the victim on some issues and the employer on others. Neither side is happy and both want to go before a judge.

4) CSHOs write fewer violations per inspection. It's possible that many CSHOs will only write violations where they know the employer won't vocalize an objection so neither side can object to the outcome. That's good for the employer, not so good for S&H at the job site.

But it also puts the AD in position of being an arbitrator, of making decisions not based on good S&H or law, but on which path causes the least resistance. It's pretty easy to envision scenarios where the victims lawyers is sitting in the room questioning, pontificating, and submitting statements solely for the purpose of setting up his lawsuit, which puts us in the middle of something we shouldn't be in the middle of.

Part of my problem with this section is practical (see above) and part of it is philosophical. The OSH Act places the burden of workplace safety and health on each employer. It places the burden of ensuring compliance with safety and health standards on OSHA. Citations are an action between an employer and the US Government, employees where never intended to be part of the enforcement of the Act.

Sec 308. Abatement of Serious Hazards During Employer Contests to a Citation. Good, maybe.

The sections allows OSHA to inspect and issue citations to a company even if the company has citations currently under contest. This could get complicated and seems to raise a lot of questions;

Can we cite the same location for the same violation on the same piece of equipment (machine guards, for example)? What about if it's the same violation on a different, but identical, piece of equipment at the site? What if it's the same standard but totally different equipment? What if it's the same company, identical equipment, but a different site?

What happens if:

1) I issue a citation to a company and the company contests;

2) Another CSHO in a different AO issues the same citation under the same conditions to the same company at a different site owned by the company, before my case is settled

3) My citation is then vacated.

Is the second citation automatically vacated? What if mine was vacated because I failed to identify an exposed employee but the other CSHO did identify one? What happens if mine is tossed because the process is covered by construction instead of general industry but the second site already agreed to the citation and paid the penalty?

This one could get ugly.

Sec 309. Objections to Modification of Citations. Bad.

See my arguments for Sec 306.

Sec 310. Civil Penalties. Good.

This is the section that seems to be getting a lot of attention, but to me it's one of the least important of the 9 sections (10 sections if you include the discrimination). Yes, it's generally good that the penalties go up, and it's even better that there is a built in inflation adjustment, but to me penalties just aren't the end-all-be-all of an inspection. Suppose I cite a pair of trenching companies for not shoring or sloping a trench. If I know company A will use a trench box every time from now on, I'm OK with a $1 penalty. If I know company B will continue to put their employees in deep trenches with no protection, I'm OK with a high enough penalty that they go out of business.

Sec 311. OSHA Criminal Penalties. Good.

I say “good” with a certain trepidation. I'm OK with putting certain employers in prison, some of them belong there*, but I'm not sure how this will work. Our burden of proof is “preponderance of evidence,” a legal bar significantly below “beyond a reasonable doubt,” which is where we will have to get for any criminal penalties. I assume that the Dept. of Justice would handle those cases, but since we have no real working relation with them and no experience with “beyond a reasonable doubt,” I foresee difficulties.

On a previous post, on anonymous commenter said:

“I see a lot of good safety people trying very hard to do their jobs, and due to "risk takers" accidents occur. I wouldn't want to have that type of liablity. I expect that you will see alot of good safety officers rethink their current roles.”

I don't think that's necessarily true. First, if you're an honest S&H manager (as I believe the overwhelming majority are) all you need to do is document everything. If you tell your operations manager that employees need to wear supplied air respirators before they go into the tank that used to hold ammonia and he sends people in wearing dust masks, as long as you've documented your recommendations, he's the one who is going to jail when we do our fatality investigation, not you.

Even when we cite Willful now, we have to show a high level of indifference by the employer towards the employees safety and health. If we go to criminal penalties, we'll have to show an even higher level of disregard for employee safety and health.

If you go back umpteen years, when EPA was given this kind of authority the environmental people all worried about the same thing, but if you look at the criminal convictions based on EPA laws, very few environmental managers go to jail, it's the bosses who ignore them who do the time. Not only are the environmental people not going to jail often, but this lead to a huge growth in the number of companies that directly hired environmental specialists as well as the number of environmental specialist hired by consulting companies. I think the same would happen for S&H.

Do the right thing and you'll be OK.

* When I say some employers belong in jail, it's a very small percentage, maybe 1-2% of the employers we deal with, and we mostly deal with the worst of the employers.

Safety and Health at BP

What must it be like to be an industrial hygienist or safety specialist for BP right now?

You probably thought by the headline that I was going to bash BP on their safety record like everyone else, didn't you? Well I'm not going to do that, enough people are doing that already. Nor am I going to try defend the indefensible, but what of the honest people who work for BP?

I realize that no body trusts BP right now, and justifiably so, but I don't believe for one second that everyone who works for BP is as dishonest as the senior managers and board of directors seem to be. So what of the good people who work for BP?

What must it be like if you're an honest safety & health professional working for a company with a history of disregarding S&H, who is part of one of the greatest environmental disasters in human history, and whom everyone hates?

Do those S&H professional feel a sense of responsibility for the leak? I hope they don't feel responsible for the leak itself, after all, none of them were on the rig making the decision to bypass safety protocols. But I do hope they feel responsible for BP's actions and feel the need to to do the right thing and see this through to the end, there are a lot of workers out there cleaning up the spill and those people shouldn't become victims as well.

But what about after this is all over, then what? Do they stay? Do they leave? My hope is that they stay. I know the stress of working where you aren't appreciated, yet I do it anyway because I think it's right. I hope they stay because they think they can make a difference, and I hope they can make a difference, after all that's something most of us want in life, to make a difference.

What must it be like?

Sigh

People constantly disappoint me. I have left the comment section open so anyone could post a comment without my interference, but I did so with the hope that people would be respectful, but the Trolls have proven that civility is beyond their capability, so I have closed the comments down. For those who choose to participate and agree to be respectful I'll post your comments when I can. Keep in mind that respectful doesn't mean you have to agree with me or OSHA, you just have to frame your questions/complaints/comments in a thoughtful way.

Bad Ideas

Every day OSHA sends it's staff an e-mail with a list of S&H/OSHA related links to articles gathered from the Internet. One of the article today really got my attention: UMW, Upper Big Branch victims' relatives sue MSHA.

It's not that MSHA is being sued, that happens all the time to both MSHA and OSHA, it's just part of the job. The part that makes me uncomfortable is that UMW is asking a judge allow union and employee representatives to be included in all interviews related to the investigation. I absolutely understand the desire to be included and to want to hear the unvarnished version from both employee and employer witnesses, but I don't think UMW realizes how potentially damaging this might be to the investigation.

Interviews, especially interviews of witnesses after a fatality, can be tricky. There's always a lot of emotion involved, fear, anger, shock, depression, to name just a few. Wading through that emotion may take patience, or it may take sympathy, or it may take a certain firmness, it all depends on the situation.

The most productive interviews are usually those where the investigator can get past the emotions and establish a certain level of rapport. I'm not suggesting that the interviewee would tell us their deepest secrets, but if you can show them that you aren't after them personally, that you're just trying to put the pieces together and that they can be part of that process, you can usually get your answers.

When there is a third person in the room, however, establishing the rapport is very difficult, and when that third person is viewed as the enemy, it's impossible. That's why under the OSH Act we are allowed to interview employees away from company representation. Employees are entitled to have a representative observe the interview, but the employer can not put a representative in the room during an employee interview. This leads to some interesting interviews because the employer can refuse to allow us to interview the employees on their property. I have interviewed employees in restaurants, hotel rooms, parks and even bars. I have also had situations where the employee representative has been helpful and instances where the rep has cause problems (typically because they answer the questions instead of letting the employee answer).

Some of these same issues arise when we interview employer reps, except that they know we're investigating what they did, so they naturally tend to be very defensive. Over coming that defensiveness is difficult, especially if they have a lawyer sitting in the room with them. Trying to over come that defensiveness would be impossible if employee reps were in the room, everyone knows everything they say will be used in the lawsuit.

I'm not opposed to difficult investigations, but when I do an investigation I want to be able to gather as many of the facts as I can, and employee representative being in the room when I interview management will do nothing but hinder that.

OSHA Impact... Yes, Again.

People drive me crazy. They complicate things that don't need to be complicated and simplify things that can't be simplified. The graph I referred to in my last post was from an article by Charles C. Johnson at Andrew Breitbart's Big Government website. Hmmmm, imagine that, an anti-government website saying bad things about a government agency, I'm shocked. I'm also not going to get into politics, and I'll delete any comment that does, but I am going to talk about his graph and is contention that OSHA has no impact.

Johnson's article included a graph from the National Safety Council showing declining fatality rates in the US. He graciously included an arrow to point out 1970, when the OSH Act was signed. His contention is that the trend was already on the declining and therefore creating OSHA was unnecessary. What he utterly failed to do was to try to account for why the line was dropping, and by extension, what impact OSHA may or may not have on the decline since 1970.

Too many people seem to believe that there is a magic bullet that will cure everything that's wrong with the world (or workplace safety and health in this case). Those people need to come to grips with the fact that "there is one and only one true answer" is a ridiculous position (I'm not talking spiritually, this isn't intended to be a religious discussion).

Think about it, is there one perfect food? No, there is no food that tastes perfect every time, is health, is absorbed by the body in perfect proportion to our needs, and doesn't cost anything. Ambrosia doesn't exist (bacon is the closest thing I've found).

Applied to occupational safety and health, there is no panacea for the ills of the workplace. Does enforcement work? Yes it does, for some employers. Does compliance assistance work? Yes it does, for some employers. Has OSHA made an impact? Yes it has, for some employers.

What Johnson's graph doesn't show is everything else that has been done in the past 100 years to protect workers. Here are just a few of the things that have happened that have shaped where we are today:

• 1908 - US government passes an employer's liability law that applies only to railroads, but leads to state workers compensation laws (44 states adopted laws between 1911 and 1921).
  
• 1910 - US Bureau of Mines is established.
  
• 1911 - Triangle Shirtwaist Factory fire leads to the founding of the American Society of Safety Engineers (ASSE).
• 1938 - Fair Labor Standards Act passed, which includes limitations on child labor.
  

What are not included on this list are things like the National Electrical Code, the Life Safety Code, and the Uniform Building Code being adopted by local jurisdictions throughout the decades. EPA's restrictions on the use of asbestos, carbon tetrachloride and PCBs, and their restrictions on emissions of most chemicals, have made an impact on workplace safety and health as well.

And lest we forget, there are the huge strides in medicine, both in terms of traumatic injuries, as well as illnesses.

What does all of this mean? It means that OSHA is one piece, one brick, one slice, one (you pick the cliche) of a greater whole. How do we measure the size of that piece? I don't know, I keep asking on this blog and so far no one has given me a good answer.

Errata

Sorry for the long absence, busy. I know, I've already used that excuse, and I've said I would try to do better, but I have been busy and I will try to do better.

In my last post I said I wanted to have a S&H contest, but I can't seem to find the right show on TV. I thought it would be best if we could use a show/video that is posted on the internet instead of having to record something. So far I haven't been able to find anything I liked, so if any one has any ideas let me know. It can be a TV show or something posted on Youtube. I don't want a video of an accident, I want a video of people doing normal work. The clip needs to be 5-10 minutes long, so if you know of something, pass it along.

I still haven't heard anything about the Wal-Mart case. I'm a little disappointed, I was looking forward to asking the attorney if padding ones billable hours buy subpoenaing people not involved in the case was an ethics violation.

If anyone has any ideas for a post, let me know.

Those TV Shows

No, I haven't abandoned the blog, I've been very busy, those newbies can't train themselves. Actually, I'm not sure I can train them either. The kids right out of school think they know everything and can't seem to comprehend that they're actually pretty stupid. Those who came from consultation or private industry spend half their time complaining about the amount of documentation needed for each case.

Anyway, I received an e-mail from Ronald (he told me I could use his name) suggesting a new thread and asking me what CSHOs thought about TV shows like the History Channel's Jobsite, and all of the S&H violations we can all see. This gave me an idea, let's have a S&H contest, let's pick one of those shows and see who can find the most violations. First, we need to pick a show. Jobsite looks like it was just a two episode show, so that doesn't work. America's Dirtiest Jobs might work, but let's hear your suggestions first. Once we have the show I'll pick an episode airing date.

Now back to the question, what do I think when I see those shows? One word, not so elegantly, sums up my thought: Dumbasses!

Compliance Officers watch television too, do you really think we don't see these things? I know the agency has sent a letter to one of the home improvement shows pointing out their S&H violations and I've heard that we sent a letter to Oregon OSHA asking them to investigate the loggers on Ax Men. There's a quote that floats around: "Asking me to overlook a simple safety violation would be asking me to compromise my entire attitude towards the value of your life." I wish I knew who the author was so I could give them credit, but to paraphrase, I wish I could go do an inspection.

Being a Compliance Officer means never really turning it off. I know plenty of CSHOs who have been on vacation, noticed an problem (usually a trench or bad scaffold/fall protection), and started an inspection. And yes, I've done it.

I've said it before but it's worth repeating, most CSHOs do the job because it's what we believe. Trust me the pay, nice as it is, does not compensate for the stress and time away from the family.

Please, I'm Begging You

Please people, I'm begging you, stop with the political commentary, this isn't the place for it. All anti-government, conservative vs liberal, Democrat vs Republican rhetoric will be deleted!

Did I Miss the Memo?

Any one who follows OSHA's press releases has probably noticed a recent jump in the number of sig-cases (a sig or significant case is any OSHA case where the proposed penalty exceeds $100,000). I've certainly noticed a jump, although I don't have the numbers to back it up.

The left-wing politicos will, of course, claim it's the current administration doing what the previous one failed to do. And the right-wing politicos will, of course, claim it's another example of the left's assault on business. But here's the thing, no one has told me to do more sig-cases, just like under the previous administration, no one told me not to do sig-cases. There was no memo. There was no directive.

The fact that the number of sig-cases has gone up even though no one told us to do more, has lead me to the realization that we, as compliance staff, are self limiting, or at least self regulating. After I came to that realization I began to think about various conversations over the last 20+ years.

I remember conversations when the previous administration came into power that basically went like this: "Oh, this administration will never support a sig-case." That was it. This despite the fact that we received no memo saying we were doing too many sig-cases. For the CSHOs out there, think back over the previous administrations time, have any of you ever heard of a sig-case that was rejected once it went to the NO? Certainly once the NO attorneys take their hacks at it, the language, specific standard and penalty may be slightly adjusted, but none that I know of dropped below $100,000.

I remember conversations early last year that basically said: "Oh, this administration will support all our sig-cases." That was it. This despite the fact that we received no memo saying we weren't doing enough sig-cases.

This has lead me to the conclusion that we have allowed ourselves to be caught up in the liberal/conservative-hype-machine's rhetoric. We have suppressed our training and instincts in favor of what we assume the current administration wants, instead of making the administration tell us what they want.

This could lead to a whole new political science/sociology field of study that I think should be called Organizational Subconscious Psychology. Alternatively we could call it the Lemming Phenomenon.