Be prepared for OSHA audits

FARGO, N.D. -- The North Dakota Grain Dealers Association celebrated its 100th anniversary with a program that was heavy on celebrating, and nary a discouraging word -- except for Occupational Safety and Health Administration audits.

One featured speaker talked about how the Obama administration has become more focused on rule enforcement and penalties, and how employers can avoid being a "poster child for enforcement stories about big penalties and -- worse yet -- potential criminal action."

Instead of outreach and training, the emphasis the past three years has been on enforcement and penalties, which can top the $1 million mark, says Eric Conn of Washington, D.C., head of the OSHA Practice Group at Epstein Becker & Green, a national labor and employment, and health care law firm. Conn handles appeals of OSHA citations and negotiations of settlements to minimize 'repeat" exposure and the effect of OSHA enforcement actions on wrongful death and injury cases.

Among his observations:

• The agency field manual has had the effect of doubling minimum penalties, halving the allowable penalty reductions for size, and has increased the time for designating "repeat" violations from three years to five years.

• The agency historically treated individual elevator sites separately, but now treats a multipoint elevator business as one. A violation for one site can serve as a precedent for the other sites, as though they were one workplace.

• The agency has increased the use of national and local "emphasis programs" to dictate audits for such things as grain handling in general or combustible dust in particular.

Obama's administration changed the enforcement emphasis from the get-go, Conn says. He initially brought in a new Secretary of Labor Hilda Solis, who brought in a team that believes enforcement changes the way companies do business.

The agency seems to embrace a policy of "shaming" and "embarrassing" companies they find out of compliance, Conn says. When the agency issues press releases to notify the public about citations, Conn says he's never seen a public retraction if the citation is successfully challenged. "They're using really ridiculous, scathing, unfair language like we've never seen before."

Wet harvest hazards

He says the industry had some unfortunate grain envelopment deaths in recent years, which in part was due to wet harvests and associated storage problems. The agency recently has made good on promises to refer cases to the Department of Justice for criminal prosecution. "At least two involved plea deals and criminal convictions. For at least one, the company was forced out of business as a result of enforcement actions and a criminal charge," he says.

In 2006, Conn says, OSHA had 101 cases of fines more than $100,000 and four cases of fines more than $1 million. In 2010 figures available through the first half of the year, there were 167 fines of $100,000 or more, and 18 fines of $1 million or more.

Conn offers elevator operators advice on dealing with OSHA audits. Among the hints are to request that the agency conduct formal interviews with employees, rather than allowing impromptu discussions while workers are at their posts. If the company lets the auditor know that impromptu interviews can disrupt the workplace, the company typically is granted time to find a substitute worker. Employees often can request that supervisors be available during their interviews.

He says companies can't afford to put off addressing audit findings, and should invest the time and money to challenge findings they disagree with because unchallenged violations can lead to bigger penalties for subsequent infractions. He says OSHA "systematically" lays groundwork for future repeat violations.

He says elevators need to be prepared for things that OSHA is looking for -- bin entry, housekeeping and noise, and potential for falls. He says one of the biggest issues is the falling hazard on rolling stock -- railcars or trucks.

Ready for an audit

Elevator operators should be prepared for audits and inspections, in advance, by identifying teams of managers to interact with inspectors, Conn says. He suggests employers insist on comprehensive, opening conferences with inspectors. Once on an audit tour, elevators should plan to assign a person to accompany auditors and take side-by-side photos of anything the auditor photographs. Companies should have a document control log that keeps separate files to duplicate anything the agency requests, he says

Employers need to preplan tour routes for inspectors. If an inspector wants to see the maintenance shop, he suggests giving a tour that offers the "least exposure to other areas of your facility," even if it involves going outdoors. "Even if it seems silly, or obvious, you have a right to not have this guy walking around your facility willy-nilly," he says.

Employers have the right to sit in on and participate in any interviews OSHA inspectors conduct with company managers. They also have a right to a "closing conference" with an inspector to learn what OSHA has found.

Conn says OSHA hired a number of compliance officers to enforce standards and moved most of the money and people that had been in compliance assistance, and "shifted them into the enforcement side of the house." There have been more inspections, more violations, higher penalties and more items being characterized in a more serious grade than in the past.

Unclear effects

It isn't clear whether the measures have made American workers safer, Conn says.

"That's the million-dollar question," he says. "I think OSHA is engaged right now in studies to evaluate that." In the "very basic numbers we look at in the industry, in terms of fatality and nonfatality incidents, those statistics are not reflecting an improvement, at this stage."

While OSHA isn't necessarily singling out agriculture, the "microscope the grain industry is under is somewhat unique," he says. Chemical and petroleum refinery industries are also of national interest to enforcement officials.

He said inspection numbers are up 6 to 10 percent from comparable periods in the Bush administration. "It's not a huge change, but what's more significant is the types of inspections," he says. The number of programmed inspections, which are not prompted by an employee complaint, incident or referral, have increased by more than 15 percent. "They are the agency, proactively targeting an industry, targeting a particular hazard, inspections coming out of 'emphasis programs,'" he says. "It is no longer a matter of avoid an incident, avoid an employee complaint and you're not going to see OSHA. OSHA is keenly interested in what's going on in the grain handling industry, so the odds are much greater that you'll be inspected if you're in that industry than you were before."

Also, violations the agency characterizes as "willful" and "repeat," the ones that carry the greatest penalties, increased by 215 percent from the end of the Bush administration to the midway point of Obama's first term.

"Enforcement in the Clinton administration certainly was at a higher level than in the Bush administration, but what we're seeing in the last two years truly are unprecedented levels," Conn says. The focus is on states such as the Dakotas, Kansas and Illinois, where grain handling resides.

"Anecdotally, we're seeing million-dollar citations in the grain industry, which are record-setting," he says, noting Tempel Grain, and other engulfment cases in the Dakotas and in Colorado. "There's a big sea shift in the way the agency is treating this industry, is treating this region," he says.

Conn represents Midwest grain clients, including the Dakotas, but declined to say who. Generally, they are in administrative law proceedings.

State Rep. Mike Brandenburg, R-Edgeley, N.D., wondered whether the state could institute its own safety inspection program, like it does for state chemical and pesticide programs.