OSHA Launches New Severe Violator Pilot Program

June 06, 2016

To further protect workers who report violations of law, safety and health, OSHA is launching a pilot for its first severe violator enforcement program for employers that continually and willfully disregard the rights of whistleblowers.

OSHA's Whistleblower-Severe Violator Enforcement Program will be similar to its enforcement Severe Violator Enforcement Program which includes employers that routinely ignore federal workplace safety and health regulations. W-SVEP became effective on May 27, 2016, in the agency's Kansas City Region, which includes employers in Kansas, Missouri, and Nebraska, and those companies under federal enforcement in Iowa.

“W-SVEP will focus on employers that engage in egregious behavior and blatant retaliation against workers who report unsafe working conditions and violations of the law,” said Karena Lorek, OSHA's acting regional administrator in Kansas City. "When employers retaliate against workers who exercise their legal rights, other workers may suffer a chilling effect and fear exercising their rights to speak up. Problems don't get fixed, and workers get hurt. Employers that act in that manner deserve greater public scrutiny and a powerful response from OSHA."

The criteria for inclusion on the W-SVEP log will include:

All significant whistleblower cases
Cases deemed worthy of either litigation or the issuance of merit Secretary's Findings in connection with egregious citations, a fatality, or a rate-based incentive program for work-related injuries
A merit whistleblower case where the employer is already on the enforcement SVEP log
A company with three or more merit whistleblower cases within the past three years

Once an employer is determined to have met one of the criteria listed above, OSHA will place them on the W-SVEP log. After three years, a company may petition the regional administrator for a follow-up visit and removal from the program. At that time, OSHA will complete a comprehensive review of the company's policies and practices to determine if they have addressed and remedied the retaliation and its effects sufficiently.

Since OSHA implemented the severe violator program for health and safety enforcement cases in 2010, companies deemed as severe violators have made significant improvements.

"We hope that the W-SVEP pilot will be the catalyst that causes companies to change their behavior and instill a culture that restores employee confidence and reshapes the employer's perspective on whistleblowing," Lorek added. "In the past three years, four large regional employers would have met the criteria for inclusion in W-SVEP."

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime, and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the U.S. Secretary of Labor to request an investigation by OSHA's Whistleblower Protection Program.

How to Implement OSHA’s Globally Harmonized Hazard Communication Standard (GHS)

OSHA has issued a final rule revising its Hazard Communication Standard, aligning it with the United Nations’ globally harmonized system (GHS) for the classification and labeling of hazardous chemicals. This means that virtually every product label, safety data sheet (formerly called “material safety data sheet” or MSDS), and written hazard communication plan must be revised to meet the new standard. Worker training must be updated so that workers can recognize and understand the symbols and pictograms on the new labels as well as the new hazard statements and precautions on safety data sheets.

Environmental Resource Center is offering live online training for you to learn how the new rule differs from current requirements, how to implement the changes, and when the changes must be implemented. Bring your questions to the upcoming webcast on How to Implement OSHA’s Globally Harmonized Hazard Communication Standard (GHS) on July 13.

Cal/OSHA Issues Statewide High Heat Advisory as Temperatures Soar

Cal/OSHA is urging all employers to protect their outdoor workers from heat illness as temperatures hit extreme highs this week. The National Weather Service has issued excessive heat warnings for multiple areas throughout the state. Temperatures well over 100 degrees are predicted in many locations.

“Employers need to be aware of the rules that protect workers from heat illness,” said Cal/OSHA Chief Juliann Sum. “Water, rest, shade and increased vigilance are absolutely essential in high heat conditions.”

California’s heat regulation requires all employers with outdoor workers to protect outdoor workers by taking these basic steps:

Train all employees and supervisors about heat illness prevention
Provide enough fresh water so that each employee can drink at least 1 quart, or four 8-ounce glasses, of water per hour, and encourage them to do so
Provide access to shade and encourage employees to take a cool-down rest in the shade for at least 5 minutes. They should not wait until they feel sick to cool down.
Develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard

Cal/OSHA will inspect outdoor worksites in industries such as agriculture, construction, landscaping, and others throughout the heat season. Through partnerships with various employer and worker organizations in different industries, Cal/OSHA will also provide consultation, outreach, and training on heat illness prevention.

Cal/OSHA’s award-winning heat illness prevention campaign, the first of its kind in the nation, includes enforcement of heat regulations as well as outreach and training for California’s employers and workers.

Online information on the heat illness prevention requirements and training materials can be obtained at Cal/OSHA’s Heat Illness web page or the Water. Rest. Shade. campaign site. A Heat Illness Prevention e-tool is also available on Cal/OSHA’s website.

Dickinson Frozen Foods to Pay $273,000 After Ammonia Release

OSHA found an Idaho frozen food manufacturer failed to safeguard employees and was unprepared to respond to a potentially lethal release of 1,300 lb of anhydrous ammonia on December 1, 2015.

While no one died or suffered injury in the December incident, other major ammonia releases at Dickinson Frozen Foods, Inc., have hospitalized employees at the Sugar City facility in the past. In its review of the latest incident, federal investigators found the company lacked adequate emergency response program and training, and failed to equip employees with protective clothing and respirators.

OSHA investigators issued 19 serious and two willful citations following the hazardous release. The agency has fined Dickinson a total of $273,000. A recent OSHA investigation after the incident uncovered dozens of hazards related to emergency response, respiratory protection and process safety management of hazardous materials violations.

"It's a miracle no Dickinson Frozen Foods employees were killed or hurt last year," said David Kearns, OSHA area director in Boise. "We're confident that workers at the facility will be much better protected by tightened safety procedures the company has agreed to institute should another release occur."

Anhydrous ammonia is a colorless gas with a distinctively pungent odor that is widely used in agricultural and industrial refrigeration systems. The ammonia vapor severely irritates and can easily damage the eyes and respiratory tract. Mixtures with certain other chemicals can produce violent reactions and explosions.

OSHA found numerous violations during its inspection, including:

The facility failed to maintain a process safety management plan that spells out a framework for any use, storage, handling, or movement of highly hazardous chemicals
Employees exposed to liquid ammonia without chemical protective clothing
Employees entered a potentially life-threatening atmosphere without self-contained breathing apparatus
Employees were not medically evaluated or fit tested to wear respirators
Employees untrained on the facility's emergency response plan when they were hired and when they changed positions
Employees responded to an emergency without proper emergency response training
The employer did not evaluate respiratory hazards during the ammonia leak response

OSHA investigators have inspected Dickinson Frozen Foods facilities several times since 2009, citing the company for serious violations of fall hazards, respiratory hazards, confined space, emergency exits, and response procedures.

Evergreen Nursery Fined After Overturned Forklift Crushes Worker

OSHA issued citations to Evergreen Nursery on May 31 for 18 serious safety violations. OSHA began an investigation after learning an Evergreen Nursery employee suffered a workplace injury that required hospitalization. On March 18, 2016, a forklift driven by a 36-year-old worker on uneven terrain turned over, crushing the operator's pelvis. The severe injury hospitalized the worker. In its investigation, OSHA inspectors determined the worker was not wearing a seatbelt. The agency has established a Regional Emphasis Program to reduce injuries and fatalities related to powered industrial trucks.

The serious citations relate to the employer:

Not ensuring workers operating powered industrial trucks wore seatbelts
Exposing workers to electrical hazards from improperly repaired electrical cords
Not providing protective equipment to workers
Not developing a written hazard communication program for workers handling chemicals
Not providing written energy control procedures to prevent machinery from starting during maintenance and servicing
Exposing workers to unguarded machine parts and equipment
Exposing workers to falls due to missing safety rails

Proposed penalties total $46,900.

"Evergreen Nursery is exposing workers to numerous serious safety hazards and needs to be more proactive with assessing the workplace for hazards and taking action to correct them," said William Fulcher, OSHA's area director in the Atlanta-East Office. This incident could have been prevented if management had followed OSHA standards."

Purrfect Enterprises Inc. Exposed Workers to Carbon Monoxide, Other Hazards

On May 23, 2016, OSHA issued citations to Purrfect Enterprises, Inc., for 22 serious violations and one other-than-serious violation.

OSHA opened an inspection on December 28, 2015, after the Paterson Fire Department reported the release of carbon monoxide from the chimney at the facility, causing the hospitalization of four employees who lost consciousness. The agency cited the company for the following:

Overexposure of employees to carbon monoxide
Failure to establish a safety program to protect workers from unexpected machine startups
Machines without safety guards in place
Electrical hazards
Obstructed exits
Lack of personal protective equipment
Lack of an emergency action plan
Deficient hazard communication program

Proposed penalties total $51,100.

"Carbon monoxide is a colorless, odorless and toxic gas which interferes with the oxygen-carrying capacity of blood. It can overcome a person without warning. While most people are aware of its dangers in a residential setting, it can be equally lethal in the workplace," said Lisa Levy, director of OSHA's Hasbrouck Heights Area Office. "The depth and range of hazards found at this facility reflect a breakdown in the company's safety and health system. It's important for this employer to correct the hazards and remove its workers from harm's way."

W.S. Steel Erection Fined $175,700 for Exposing Workers to Deadly Fall Hazards

Five times in five years, OSHA investigated W.S. Steel Erection, LLC. Four of those investigations were for exposing workers to falls, including one in 2011 when an employee fell approximately 17 feet from a roof and later died. The latest inspection began on December 1, 2015 after an OSHA investigator saw one worker on a platform supported by a forklift and other employees working from an aerial lift, none of whom used fall prevention equipment.

As a result, OSHA cited the company for two repeat violations for exposing workers to fall hazards repeatedly. Inspectors found employees working from scaffolding more than 10 feet above a lower level without fall protection and others working from an aerial lift without a harness and lanyard attached to the lift's basket.

The agency issued six serious violations for not ensuring:

The forklift operator remained in the cab, in direct line of sight of an employee supported by a platform
Frequent and regular safety inspections were completed
Workers used eye protection when operating powered hand tools
Personnel platforms were attached to the forks of the lift
Employees stood firmly on the floor of an aerial lift basket
Training and evaluating employees prior to operating a powered industrial truck

This investigation was initiated as part of the Regional Emphasis Program for Construction. Proposed penalties total $175,700.

"W.S. Steel continues to expose its employees to the danger of fatal falls, despite the tragic death of one of its workers in a fall in 2011," said Casey Perkins, OSHA's area director in Austin. "We were fortunate that our investigator intervened this time and the workers at the site went home safely. We hope these citations will serve to remind this employer and others how dangerous falls are. In fact, they are a leading cause of deaths in the construction industry."

Des Moines Postal Sorting Facility Failed to Train Workers

OSHA’s Des Moines, Iowa, Area Office cited the postal mail sorting facility for two repeated and two serious safety violations.

The citations follow a December 2015 OSHA investigation of a complaint alleging various safety concerns at the facility. The investigation found:

Workers exposed to slip, trip, and fall hazards as conduit extended into the carriers' walking path
A mechanical fire door was inoperable
Emergency exit routes and doors were blocked
Workers not trained on the Emergency Action Plan

OSHA cited the USPS for similar hazards in 2011, 2012, 2014, and 2015 at locations in Alabama, Colorado, Iowa, Illinois, and Texas.

"By failing to train workers in what to do in an emergency and allowing fire doors to be inoperable and exit and traveling routes to be blocked, the U.S. Postal Service is putting its workers at risk in the event of an emergency in the facility," said Larry Davidson, OSHA's area director in Des Moines.

Proposed penalties total $119,900.

Alstom Transportation Inc. Fined $105,000 for Exposing Workers to Deadly Chemicals

Federal workplace safety and health inspectors have cited a Steuben County rail manufacturing and repair service facility for 17 serious violations, including exposing employees to unsafe levels of known cancer-causing chemicals such as cadmium, lead, nickel, and silica.

Responding to a complaint, OSHA initiated an inspection of Alstom Transportation, Inc., in Hornell, New York, and found the employer:

Exposed employees to cadmium, lead, nickel, and silica beyond permissible exposure limits
Failed to provide changing and shower areas to employees who worked with cadmium and lead, significantly increasing the likelihood of contamination outside the immediate work area—such as the lunchroom and break areas—and causing exposure to the chemicals while eating or drinking
Failed to provide employees exposed to lead and cadmium with required medical surveillance
Allowed chromium, copper fume, iron oxide, and silica exposure among employees in sandblasting and welding operations to exceed permissible exposure limits
Did not train painters to properly use or store respirators

In addition, inspectors found Alstom failed to ensure workers cleaned or removed lead-contaminated protective equipment before entering eating areas. Poor housekeeping caused contamination from silica residue and left dining tables contaminated with lead. OSHA also cited the company for violations related to noise, respiratory combustible materials, operating machine, welding, electrical, and blood borne pathogen hazards.

The company citations carry proposed penalties totaling $105,000.

"Employers who work with hazardous materials like these need to first determine if the materials can be removed by replacing them with something less hazardous," said Chris Adams, Syracuse OSHA area director. "If not, employers must use the correct ventilation to reduce airborne exposure levels to below the OSHA limits. These hazards are preventable when employers ensure safety guidelines are followed."

A subsidiary of Alstom SA based in France, Alstom Transportation, Inc., develops, manufactures, and markets systems and equipment for the railway market. Founded in 1997, the company employs more than 5,500 employees in the U.S., 550 of them work in Syracuse. The company operates the largest passenger rail manufacturing facility in North America producing more than 8,000 new or refurbished rail vehicles to customers across the northeastern U.S., including 1,000 subway cars to the New York City transit system. Its U.S. headquarters are in New York City.

BC Stucco and Stone Fined $93,000 for Repeatedly Exposing Workers to Scaffold Hazards

On May 20, 2016, OSHA issued citations to BC Stucco for one serious and three willful violations. On November 25, 2015, an OSHA compliance officer observed BC Stucco employees working approximately 18 feet above ground on a scaffold with major safety deficiencies, such as lack of fall protection, planking, safe access, and proper use of guardrails, prompting an investigation.

The agency found willful violations when BC Stucco and Stone:

Allowed workers on scaffolds approximately 18-feet high that were not fully planked or decked
Used a scaffold without a safe means of access and exit
Used a scaffold with unguarded edges and without guardrails, creating fall hazards up to approximately 18 feet
Failed to provide scaffolding related safety training by a competent person to each employee working from scaffolding

The serious citation was due to the company not providing and requiring employees to wear head protection while conducting stucco operations on a fabricated frame scaffold.

OSHA previously cited BC Stucco and Stone on May 2, 2016, for violations at a Philadelphia work site.

“BC Stucco and Stone continues to make production the priority over ensuring a safe workplace for its employees, which is intolerable. This contractor is well aware of OSHA standards for safe scaffolding, but consistently disregards them and allows its workers to use scaffolding in such poor condition that even a small human error could lead to dreadful outcomes,” said Erin Patterson, director of OSHA’s Wilmington Area Office.

Proposed penalties total $93,000.

Tower Maintenance Corp. Failed to Provide Safe Workplace

A New York-area employer has learned that refusing to comply with federal workplace safety standards and then failing to accept responsibility for the violations can cost significantly more in penalties once the U.S. Department of Labor litigates the matter.

On May 6, 2016, an administrative law judge for the independent Occupational Safety and Health Review Commission affirmed the recommendation by the U.S. Secretary of Labor to increase penalties against Tower Maintenance Corp., even after OSHA issued a citation following the Oct. 25, 2012, death of a tower painter in Edison. As a result, the company now must pay $91,000 in fines—$56,000 more than originally assessed—after additional information about the employer's failures were brought before the commission.

As the painter worked at a height of approximately 70 feet, the man inadvertently contacted an energized power line and fell from the tower, striking a second employee painting on the tower below. The second employee fell from the tower about 40 feet to the ground. The employee who contacted the power line suffered fatal injuries and the second employee survived the fall, but suffered multiple serious injuries. In 2010, another employee of the Sea Cliff, New York-based company was killed in a similar incident at a Pennsylvania worksite.

An OSHA investigation of the 2012 incident found Tower Maintenance employees were repainting a series of electric transmission towers supporting high-voltage power lines. The difficult work required employees to climb the towers, which are over 100 feet tall, and apply paint to the towers' surfaces as they climbed. Employees told inspectors that they worked so close to the energized power lines that they could feel the hair on their skin stand up. Despite the extreme and obvious hazards of the work, Tower Maintenance refused to provide the employees with functional fall protection equipment and failed to provide the employees with any safety training.

After its investigation, the agency issued three citations, including one repeat violation for the employer's failure to provide employees with functional fall protection equipment, one repeat violation for the employer's failure to provide training, and one serious violation for permitting unqualified employees to work in close proximity to energized electric lines. OSHA proposed a total penalty of $35,000 for the violations.

During litigation, the secretary discovered additional facts withheld from OSHA investigators. The secretary learned that several employees requested new fall protection equipment prior to the fatal incident but Tower Maintenance denied the requests, instead directing painters to use the faulty equipment or to work with no fall protection at all. The secretary also learned that Peter Vlahopoulos, the company's project director and the husband of the company's owner, previously owned an industrial painting company that accumulated numerous OSHA citations related to inadequate fall protection. Based on these newly discovered facts, the secretary argued that the fall protection violation deserved a "willful" classification and the maximum statutory penalty of $70,000.

In affirming the secretary's recommendation, the judge's decision stated that Tower Maintenance had heightened awareness of OSHA's fall protection requirements and was "plainly indifferent to the safety of its painters." The record established that the company "systematically sent painters up towers" without the required training or fall protection equipment despite a similar fall fatality less than two years prior. The judge also found that all of Tower Maintenance's supervisors knowingly permitted the painters to work under these unsafe conditions. The decision also held that Tower Maintenance failed to train or qualify its employees to perform work near energized electric power lines. The judge assessed a total penalty of $91,000 for the three violations—$56,000 more than OSHA initially proposed.

"Tower Maintenance's negligence contributed directly to this preventable tragedy. The company routinely exposed workers to falls and electrical dangers without the proper fall protection and training, despite the fact a similar fatality occurred less than two years prior," said Robert Kulick, administrator of OSHA's New York Region. "The judge's decision sends an important message to employers: OSHA will hold companies that fail to protect employees accountable."

"We take all workplace safety and health matters very seriously," said Jeffrey Rogoff, the department's regional solicitor in New York. "The solicitor's office will use all necessary resources to ensure that justice is done."

Nautic Star Fined $66,105 for Fire, Explosion and Electric Shock Hazards

OSHA issued citations to Nautic Star, a boat manufacturer, on June 2 for 15 serious and eight other-than-serious safety and health violations. OSHA initiated an inspection as part of the agency's Regional Emphasis Program for Programmed Maritime Inspections.

The company received serious violations for the following hazards:

Failing to provide energy-control training to protect workers from machine start ups during repairs or maintenance
Not providing hazard communication training
Failing to cover 55-gallon barrels that contain flammable liquids
Several electrical deficiencies such as receptacles not having cover plates, extension cords without a ground prong and electrical equipment not approved areas containing flammable or combustible vapors
Failing to ensure paint booths and spray areas were not covered with combustible paper

Other violations included not labeling buckets that contain paint residue and modifying electric hand trucks without manufacturer's permission.

Proposed penalties total $66,105.

“Employers should not wait for an OSHA inspection to identify fire, explosion and electric shock hazards as well as those associated with flammable and combustible chemicals in the workplace," said Eugene Stewart, OSHA's area director in the Jackson Office. "Nautic Star must take immediate action to protect workers at this facility from serious injury or death.”

Ungerer & Company Exposed Workers to Chemical Hazards, Other Safety and Health Dangers

On May 25, 2016, OSHA issued one repeat and six serious violations, and one other-than-serious violation.

OSHA received a referral on January 27, 2016, from the Pennsylvania Emergency Management Agency alleging Ungerer & Company employees suffered respiratory distress from an unknown chemical odor, prompting an investigation.

The agency found repeat violations when the employer failed to use approved electrical equipment to clean up combustible dust, and did not train employees expected to participate in emergency response operations. Similar violations were previously cited in 2013.

The serious violations included:

A mobile ladder stand not equipped with safety stops to prevent horizontal movement
A dust collection unit handling combustible dust not provided with proper explosion protection or suppression systems
No developed emergency response plan
Employees overexposed to hydrogen sulfide
Feasible administrative and engineering controls not implemented
Safety data sheets not maintained and without required safety and health information

The company also did not conduct periodic re-evaluations of its hazardous energy control program, resulting in the other-than-serious citation.

“Ungerer & Company should immediately implement safeguards to protect its workers from the dangerous risks associated with exposure to combustible dust and chemical hazards,” said Jean Kulp, director of OSHA’s Allentown Area Office. “Employers will be held legally accountable for failing to provide a safe and healthful workplace.”

Proposed penalties total $63,450.