OSHA Issues New Enforcement Guidelines to Make Penalties More Effective

The U.S. Department of Labor announced that OSHA has issued new enforcement guidance to make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.

 

OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.

 

The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

 

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act. 

 

“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

 

These changes in enforcement guidance are important enforcement tools to help deter employers from disregarding their responsibilities to protect workers and ensure compliance with OSHA standards and regulations.

 

Existing guidance on instance-by-instance citations are outlined in the OSHA Field Operations Manual, and CPL 02-00-080, “Handling of Cases to be Proposed for Violation-by-Violation Penalties.”

 

 

The European Chemicals Agency (ECHA) announced on Jan. 17 the addition of nine hazardous chemicals to its Candidate List of substances of very high concern for authorization. Details about these substances—including hazard classification and labeling information and properties of concern—are available from “infocards” published by ECHA. The substances newly added to the list include melamine (infocard), a chemical with a variety of industrial uses including in polymers and resins, coating products, adhesives and sealants, leather treatment products, and laboratory chemicals. ECHA’s website highlights concerns about melamine’s “probable serious effects” on human health and the environment. PubChem, the open chemistry database of the National Institutes of Health, describes melamine as an eye, skin, and respiratory irritant, and states that chronic exposure to the chemical may cause cancer or reproductive damage.

 

The eight other substances ECHA has added to its hazardous chemicals list are the substance 1,1'-[ethane-1,2-diylbisoxy]bis[2,4,6-tribromobenzene] (infocard); the flame retardant 2,2',6,6'-tetrabromo-4,4'-isopropylidenediphenol (infocard); 4,4'-sulphonyldiphenol (infocard), which is used in the manufacture of pulp and paper; barium diboron tetraoxide (infocard), which is used in paints and coatings; the flame retardant and plasticizer bis(2-ethylhexyl) tetrabromophthalate (infocard); isobutyl 4-hydroxybenzoate (infocard), which is used in the manufacture of products such as putties, plasters, and inks and toners; perfluoroheptanoic acid and its salts (infocard); and the reaction mass of 2,2,3,3,5,5,6,6-octafluoro-4-(1,1,1,2,3,3,3-heptafluoropropan-2-yl)morpholine and 2,2,3,3,5,5,6,6-octafluoro-4-(heptafluoropropyl)morpholine (infocard), which is used in formulation or repacking in manufacturing and other industrial sites.

 

Two of the chemicals, 4,4'-sulphonyldiphenol and isobutyl 4-hydroxybenzoate, were identified as substances of very high concern due to their endocrine-disrupting properties. Another three substances were added to the list due to their very persistent and very bioaccumulative (vPvB) properties: 1,1'-[ethane-1,2-diylbisoxy]bis[2,4,6-tribromobenzene], bis(2-ethylhexyl) tetrabromophthalate, and the reaction mass of 2,2,3,3,5,5,6,6-octafluoro-4-(1,1,1,2,3,3,3-heptafluoropropan-2-yl)morpholine and 2,2,3,3,5,5,6,6-octafluoro-4-(heptafluoropropyl)morpholine. Barium diboron tetraoxide was added to the list because of its toxicity to reproduction, and the substance 2,2',6,6'-tetrabromo-4,4'-isopropylidenediphenol was identified as carcinogenic. ECHA identified several concerns related to perfluoroheptanoic acid and its salts, including its vPvB properties, toxicity to reproduction, and probable serious effects on human health and the environment.

 

The Candidate List now contains 233 substances. Identifying a chemical as a substance of very high concern and including it in the Candidate List is the first step of the authorization procedure under REACH, the European Union’s Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals.

 

For more information, see ECHA’s news release.

 

Cal/OSHA is reminding employers in California to post their 2022 annual summary of work-related injuries and illnesses, including those related to COVID-19, by February 1, 2023. The Form 300A summary must be posted each year from February 1 through April 30.

 

The annual summary must be placed in a visible and easily accessible area at each worksite. This helps ensure workers are aware of work-related injuries and illnesses that occurred the previous year. Employers are required to complete and post Form 300A even if no workplace injuries occurred.

 

Instructions and form templates are available for download from Cal/OSHA’s Record Keeping Overview. The overview gives instructions on completing both the log (Form 300) and annual summary (Form 300A) of work-related injuries and illnesses.

 

Current and former employees and their representatives are entitled to a copy of the summary or the log upon request.

 

Many employers in California must also comply with electronic submission of workplace injury and illness records requirements by March 2 each year. Cal/OSHA has posted details on which employers are required to submit the electronic reports as well as other information online.

 

To be recordable, an illness must be work-related and result in one of the following:

 

Employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms.

 

The definitions and requirements for recordable work-related fatalities, injuries and illnesses are outlined in the California Code of Regulations, Title 8, sections 14300 through 14300.48.

 

Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employers who have questions or need assistance with workplace health and safety programs can call Cal/OSHA’s Consultation Services Branch at 800-963-9424 or their local Cal/OSHA Consultation Office or email InfoCons@dir.ca.gov.

 

Complaints about workplace safety and health hazards can be filed confidentially with Cal/OSHA district offices. Workers who have questions about workplace hazards and protections can call 833-579-0927 to speak with a Cal/OSHA representative during normal business hours.

 

The Oregon Department of Environmental Quality issued 13 penalties totaling $273,022 in December for environmental violations. A detailed list of violations and resulting penalties is at https://ordeq.org/enforcement.

 

Fines ranged from $3,126 to $56,676. Alleged violations include a pulp mill exceeding the carbon monoxide limits of its air quality permit, a company spilling a septic tank, and open burning of a building with asbestos materials.

 

DEQ issued civil penalties to the following organizations:

 

Organizations or individuals must either pay the fines or file an appeal within 20 days of receiving notice of the penalty. They may be able to offset a portion of a penalty by funding a supplemental environmental project that improves Oregon’s environment. Learn more about these projects at https://ordeq.org/sep.

 

Penalties may also include orders requiring specific tasks to prevent ongoing violations or additional environmental harm.

 

DEQ works with thousands of organizations and individuals to help them comply with laws that protect Oregon’s air, land and water. DEQ uses education, technical assistance, warnings and penalties to change behavior and deter future violations.

 

 

According to a Minnesota Pollution Control Agency (MPCA) enforcement investigation, during 2021 and 2022, repeat stormwater violations at two housing developments owned by Loomis Homes, LLC, created potential for environmental harm. The developments, known as Winkler Crossing 3rd and 4th additions, are located in Carver County, near Cologne, Minn.

 

Loomis Homes was required to submit subdivision registration forms to the MPCA for lots that were sold to individual buyers but failed to do so on nine occasions in 2022. The company also failed to complete required inspections at these construction sites and did not maintain complete stormwater pollution prevention plans to best manage soil stabilization, sediment runoff, and construction vehicle tracking.

 

In addition to paying the $12,475 civil penalty, Loomis Homes has completed a series of corrective actions to resolve these and similar violations that occurred in 2021.

 

 

A Kingman plastics manufacturer’s failure to make sure required safety procedures were followed contributed to the death of a worker who suffered fatal injuries when he became entangled in a rotating part inside a bagging machine while trying to clear a jam, a federal workplace safety investigation found.

 

Investigators with OSHA responded to the Aug. 4, 2022, fatality at Great Lakes Polymer Technologies, LLC and found that duct tape over the safety interlock prevented the machine from shutting down. The victim was caught by the machine and pulled into its rotating bars.

 

 

OSHA proposed penalties of $292,421. In 2019, the agency cited the company for similar violations at the facility which produces plastic fibers for use in cement and other construction products.

 

“Proper machine safety procedures and training could have prevented this worker from losing his life,” said OSHA Area Director Todd Underwood in Wichita, Kansas. “The manufacturing industry knows well that moving machine parts can be deadly, especially when proper guards are not used, and safety procedures are ignored.”

 

OSHA investigators found that the employer failed to make sure that lockout/tagout procedures were in place when unjamming machinery. The company also failed to train workers on lockout/tagout procedures.

 

A subsidiary of the MBCC Group of Germany, Great Lakes Polymer Technologies, LLC produces and supplies construction materials and products worldwide.

 

 

In the summer of 2022, onlookers noticed a delivery truck stopped at about 8:15 a.m. one Wednesday morning on the University of Birmingham campus near what would have been the driver’s first drop-off. About two hours later, a passerby saw the driver slumped over and unresponsive.

 

After they smashed the window to remove the driver, campus police and medical responders were alerted. The 41-year-old woman found inside the truck was transported to a nearby hospital but later died.

 

A U.S. Department of Labor investigation into the July 20, 2022, tragedy has determined Malcolm Grant, the driver’s employer, might have prevented the death had the delivery service subcontractor implemented procedures for transporting and handling dry ice, and trained their employees of the dangers of hazardous chemicals.

 

OSHA learned that the driver’s delivery truck contained 71 bags of dry ice that were loaded into coolers that could not be fully closed. Investigators determined the truck left the warehouse at approximately 7:40 a.m. and arrived at its first stop soon after. 

 

OSHA issued citations to Grant for three serious violations, including exposing workers transporting dry ice to asphyxiation hazards from carbon dioxide gas, failing to establish and use a written hazard communication program for employees handling dry ice, and not providing delivery workers information and training on handling hazardous chemicals. The company faces $19,643 in proposed OSHA penalties.

 

OSHA also cited two serious violations to the company contracted for campus deliveries, Armstrong Transfer and Storage Co. Inc. The company, which operates as Armstrong Relocation Company, did not develop and use a written hazard communication program, and failed to maintain safety data sheets for hazardous chemicals, such as dry ice. Armstrong faces $13,394 in proposed OSHA penalties.

 

“Armstrong Relocation Company and its subcontractor, Malcolm Grant, failed to follow established safety procedures for handling hazardous materials and that failure claimed a worker’s life,” said OSHA Acting Area Office Director Lisa Strunk in Birmingham, Alabama. “This tragedy is an awful reminder of the dangers of asphyxiation that chemicals – such as carbon dioxide – present and how the use of appropriate protective measures might have saved a life.” 

 

Visit OSHA’s website for information on developing a workplace safety and health program and on chemical hazards and toxic substances. Employers can also contact the agency for information about OSHA’s compliance assistance resources and for free help on complying with OSHA standards.

 

 

With proper training, people working in metal casting facilities know that mixing water and molten material can be a serious, if not deadly mistake, as tragic incidents at two Ohio companies in 2022 showed.

 

On July 10, the combination of water with tons of superheated material spilling onto a foundry floor caused a steam explosion that severely injured a supervisor at Globe Metallurgical in Waterford. Investigators with OSHA determined the company failed to use required containment measures and did not provide workers responding to the spill with personal protective equipment.

 

OSHA learned employees were pouring molten material into a large ladle for cast forms when the material burned through the bottom of the ladle and about 8,000 pounds of molten material – heated to nearly 3,000 degrees Fahrenheit – spilled. Employees responded by spraying water on the spill and using a forklift to try to  break up the material when an explosion occurred, which caused the supervisor to suffer third-degree burns.

 

The agency issued a citation to Globe Metallurgical Inc., one of the nation’s largest ferroalloy manufacturers, for one willful violation of the general duty clause for its failure to provide a safe working environment, and three serious safety violations. Inspectors identified the company’s failure to develop containment measures for molten materials, its lack of adequate personal protective equipment and its failure to train workers on its use. OSHA has proposed penalties of $188,533.

 

In Canton, three furnace attendants working at TimkenSteel’s Faircrest plant suffered severe injuries on July 26, 2022, after an explosion of an electric arc furnace after water became encapsulated in molten metal. All three workers were hospitalized, one of whom died on Aug. 19. OSHA investigators determined the company failed to provide the attendants with protection from potential steam explosions. They were conducting furnace-tapping operations at the time.

 

OSHA cited TimkenSteel for one willful violation of the agency’s general duty clause and proposed penalties of $145,027. The agency has cited the company four times in the past five years for safety and health violations. In June 2022, OSHA cited TimkenSteel after a worker suffered fatal crushing injuries during an incident in December 2021 at its Gambrinus facility in Canton.

 

A U.S. Department of Labor investigation has determined a Carrollton, Texas, lumber supplier and retailer could have prevented the death of an 18-year-old worker who was struck by a forklift at a Rison, Arkansas, worksite in July 2022 by following federal safety requirements.

 

OSHA opened an investigation on July 23, 2022, and determined Hixson Lumber Company LLC allowed the teen to operate a forklift when they were not certified to do so. Inspectors learned that the young worker had dropped the forklift’s key after parking the motorized device. As the worker searched for the key, the forklift rolled and struck the teenager who was assigned to pull and count lumber, and unsupervised at the time of the incident. Investigators determined the forklift’s original parking brake had been removed and replaced with a makeshift brake which failed to hold the machine in place.

 

Following its investigation, OSHA cited the company for one willful and four serious violations alleging that Hixson Lumber Company failed to train the teen worker, left keys inside unsecured forklifts, and did not make sure the forklift used by the teenager had a proper parking brake, working horn and backup alarm as required. OSHA has proposed $218,759 in penalties.

 

“A family, his friends and co-workers are left to mourn a young man whose life was cut short because his employer failed to follow safety requirements that would have prevented this tragedy,” said OSHA Area Director Kia McCullough in Little Rock, Arkansas. “Hixson Lumber Company did not meet its legal responsibility to ensure that hazardous equipment was maintained, and that only trained and certified workers are allowed operate forklifts.”

 

Founded in 1959, the Carrollton-based lumber company has about 750 workers, with 19 sawmills and retail locations in eight states, including Arkansas, Illinois, Indiana, Louisiana, Mississippi, Missouri, Tennessee and Texas.

 

 

Laboratory testing of biosolid fertilizers sold in Maryland has confirmed ultra-high levels of toxic per and polyfluoroalkyl substances (PFAS), according to results released recently by Public Employees for Environmental Responsibility (PEER). PEER, the Montgomery Countryside Alliance, and the Sugarloaf Citizens Association are asking Montgomery County officials to prohibit the application of class A and B biosolids, such as Bloom fertilizer products, on county agriculture fields, golf courses and public lands to prevent further contamination of ground and surface waters.

 

PFAS from biosolids migrate to surface water and groundwater. They are also taken up by plants and ingested by humans and livestock. PFAS in biosolid fertilizers have led to shutdowns of dairies, ranches, and other farming operations in states from Maine to New Mexico.

 

PFAS are called “forever chemicals” because they do not break down in the environment. Virtually every PFAS studied for toxicity is associated with adverse health effects ranging from thyroid dysfunction to liver and kidney cancers. PFAS also are especially deleterious to children, causing problems from delayed development to decreased response to vaccines.

 

“These are some of the highest levels of PFAS in biosolids we have seen in the country,” stated PEER Executive Director Tim Whitehouse, a former enforcement attorney with the U.S. Environmental Protection Agency (EPA) and resident of Poolesville. “We are urging Montgomery County to take immediate steps to stop the use of contaminated sewage sludge on county farms and other lands.”

 

Eurofins Laboratory testing of Bloom biosolid fertilizer commissioned by PEER shows –

 

Bloom fertilizer is used in northwest Montgomery County where much of this area, including Poolesville, is dependent on a sole source aquifer for drinking water, irrigation of croplands and support of livestock. Poolesville recently closed two drinking water wells due to high levels of PFOA and PFOS. While the source of this contamination is not known, Upper Montgomery County’s sole source aquifer is particularly vulnerable to contamination from biosolids because of the area’s thin soils and fractured bedrock.

 

“We can no longer turn a blind eye to the astronomically high levels of PFAS in these biosolids” said Caroline Taylor, Executive Director of the Montgomery Countryside Alliance. “Spreading these toxic chemicals on our farmlands and in our neighborhoods threatens the communities and livelihoods of those living in Montgomery County’s Agricultural Reserve.”

 

“In Montgomery County, people are purchasing biosolids without knowing they contain extremely high levels of these persistent and harmful chemicals,” added Steven Findlay, President of the Sugarloaf Citizens Association. “We need to do everything we can to protect our food and water from PFAS contamination.”