Trinity Consultants

OSHA increases enforcement pressure

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Courtesy of Courtesy of Trinity Consultants

Most in the EH&S community are aware of the increase in OSHA enforcement activity over the past five years. This has been particularly noticeable since the Obama administration took office in 2008. While this increase has been apparent, what has not been as clear are the reasons this is happening or the effect on worker safety.

The Occupational Safety and Health Administration (OSHA), is part of the U.S. Department of Labor and was formed in 1971 as a result of the Williams-Steiger Occupational Safety and Health Act of 1970. Today, OSHA has approximately 2,000 employees including 1,000 enforcement officers. As a government agency, OSHA is not particularly large. For example, OSHA’s budget is approximately $500 million, only 1/16 that of EPA’s budget. Despite its size, OSHA has been increasing its enforcement efforts in recent years. This, in turn, has been driving companies toward increased internal auditing to ensure they are in compliance with regulations.

The reason for OSHA’s increased enforcement focus has been its commitment to reduce worker fatalities. In 2009, there were 4,340 job related deaths in the U.S., including these high profile incidents:

  • West Virginia mine disaster – 29 killed (Handled by MSHA but OSHA was involved)
  • Louisiana oil rig explosion – 11 killed
  • Washington refinery explosion – 7 killed
  • Connecticut power plant explosion – 6 killed

What is far less apparent are the fatalities that occur daily, one lost life at a time. On average, in 2009, there were 87 job related fatalities per week or 14 per day (on Monday through Friday with lower numbers over the weekends.) OSHA has been responding to that statistic in an effort to drive the number down.

Since 2006 the number of OSHA inspections each year has increased from 38,579 to a projected 43,000 for 2010, a 12% increase. The nature of those inspections has also changed. In 2006, 56% of the inspections were “programmed,” meaning that OSHA planned and carried out the inspections without a complaint or knowledge of an injury. In 2010, the percentage of programmed inspections has increased to 61%. Clearly OSHA is trying to be more proactive rather than waiting to respond to a problem. As might be expected, OSHA’s increased number of inspections has resulted in an increased number of issued violations. Compared to 2006, when OSHA issued 82,804 violations, there will likely be more than 100,000 violations issued in 2010. The nature of these violations is also changing. In 2006, 73% of violations issued by OSHA were classified as “serious.” According to the OSHA’s Field Inspection Reference Manual,

'A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”

Additionally, the percentage of “willful & repeat” violations was 4% in 2006. A willful violation is defined as,

“A willful violation exists under the Act where the evidence shows either an intentional violation of the Act or plain indifference to its requirements.”

In 2010, the percentage of “serious” violations will increase to approximately 78% and “willful & repeat” violations will increase to 5%.

The fines for violations have also been increasing. In 2006, there were 101 cases considered to be “significant” by OSHA. “Significant” cases are those cases with penalties exceeding $100,000. In 2010 there will most likely be close to 170 “significant” cases, a 67% increase. The number of “egregious” cases is going up as well. “Egregious” cases are those cases with penalties over $1,000,000. In 2006, there were only 4 “egregious” cases. We can expect about 18 of these cases in 2010. While “egregious” cases are still few in number, consider that this represents a 450% increase.

OSHA is also expending more of its efforts on substantive topics. Below is a list of the “Top Ten Most Cited Standards” from OSHA inspections:

  1. Scaffolding
  2. Fall Protection
  3. Hazard Communication
  4. Respiratory Protection
  5. Ladders
  6. Lockout/Tagout
  7. Electrical, Wiring Methods
  8. Powered Industrial Trucks
  9. Electrical, General Requirements
  10. Machine Guarding

What is most remarkable about this list is the reduced emphasis on recordkeeping as a primary source of citations. While each of the Standards above would involve some recordkeeping and lack of records could result in violations, the General Recordkeeping Standard (29 CFR 1904) has dropped off the list as one of the most cited Standards.

Over the last few years, OSHA has steadily ramped up its enforcement efforts by increasing inspections, being more proactive, increasing violations issued, increasing the serious nature of the violations and increasing the penalties. What has been the result of this increased activity? In 2006, OSHA completed 1,081 fatality investigations compared to 797 in 2009. This is a remarkable 26% decrease in four years.

OSHA Chart 3The number of fatality investigations is less than the number of actual fatalities due to a number of factors. In 2006, there were 5,702 fatalities. This compares to 4,340 fatalities in 2009. This roughly parallels the reduced number of on the job fatality investigations. One contributing factor to the reduction of fatalities has been the effect of the recession. OSHA acknowledges that reduced industrial activity has likely contributed to the decline in fatalities. A fortunate result of the weaker economy is reduced injuries due simply to less work occurring. On the other hand, it is clear from the pre-recession 2007 and 2008 data that the trend toward reduced fatalities started prior the recession. Further, this has been accomplished with 10% less OSHA staff and a lower budget over the period. It could be argued that it was actually individual companies that lowered the number of fatalities over the period. It is also true; however, that OSHA’s more proactive approach has motivated companies to carefully examine how they conduct their operations.

There is every indication that these trends will continue in 2011. EH&S Managers should look for increased OSHA inspections, issued violations, and penalties. OSHA policy has recently changed resulting in seriously increased enforcement penalties. In 2010, OSHA announced that the average enforcement penalty would increase by three to four-fold. The review window for repeat violations has also increased to five years. Penalties for repeat violations have increased by ten-fold on average. Additionally, “severe” and “willful” violations require other facilities owned by the same company to receive inspections.

One way a company can be proactive is to conduct an EH&S audit of its activities. This should include an analysis of past history including accidents that resulted in injuries and near misses. An audit can help detect OSHA violations and identify conditions that are becoming dangerous before they become serious problems. Audits can also provide recommendations for improvements that will prevent future problems from occurring and reduce total costs.

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