Government regulatory over-reach is rapidly becoming the norm — randomly challenged at best, it encourages more paperwork and, yes, more unnecessary regulations. One example is WOTUS (Waters of the United States). As this worst-case scenario slowly but surely finds legs, we can almost hear the hypothetical groaning.
At a recent Penn-Ag sponsored seminar on Occupational Safety and Health Administration (OSHA), John Artz opened the presentation by saying “If you approach the compliance officer and you are very unsure about everything you’re doing, the compliance officer is going to try and run all over you, maybe.” At age 69, Artz is a jet plane pilot-turned flight instructor-turned attorney who is reluctant to give up active corporate life. “If you are prepared,” Artz continued, “that will stand you in better stead.”
Addressing a common perception about OSHA, Artz mentioned the famous cartoon cowboy astride a horse with all of the OSHA safety measures in place —to the point where neither horse nor rider could move or demonstrate mobility in any way. Artz points out that he doesn’t think OSHA is out to crucify anyone or beat up anybody and when it comes to fines, OSHA doesn’t get the money; it goes into the treasury.
OSHA only comes to your work site if there is a reason for them to come there. “If you have the misfortune to have an event that results in an inspection,” said Artz, “OSHA will come in and hammer you, take photographs and put them in the paper. Everybody out there will say ‘ooh, I don’t want that to happen to me, I’d better comply with that statute.’ That’s how they get compliance.”
The law says that the highest penalty for a serious or other than serious citation is $7,000. For a willful or repeat citation it is $770,000. “It used to be that if someone came into the facility and there was an obvious violation and you fixed it while OSHA was there, you wouldn’t get cited,” Artz said, “now you get a reduction in the penalty.”
Jess McCluer used to work for OSHA, now he is with the National Grain and Feed Association. When it comes to discussions about OSHA and why it does or doesn’t do certain things in a certain way — regarding regulation compliance, Jess is the man to listen to. He is the organization’s Director of Safety and Regulatory Affairs and partnered with Artz for this symposium.
A copyrighted information packet by the feed and grain industry, Guidance: Hazard Communication Program at Grain Handling, Feed, Ingredients & Processing Facilities, tells us, “Grain handling facilities are considered manufacturers of a hazardous chemical (grain dusts). Starting June 1, 2015, raw grains and oil seeds, as well as some feeds and ingredients, shipped to downstream customers will be required to comply with OSHA’s requirement to issue an SDS (Safety Data Sheet).
The end result is that bulk or bagged shipments of products that could produce combustible dusts when subsequently used in processing or in other ways where dust could be generated, are potentially subject to the new rules. For the industry, it implies that a SDS would need to be developed. Manufacturers of products such as feed ingredients, premixes and final feed products are obligated to create and distribute a SDS for their product if it’s determined to be “hazardous”, according to OSHA criteria. The hazards within the product could include combustible dust from grain, as well as respirable dusts from chemicals such as selenium or limestone.
“An egregious citation is one that is cited on a per person instance,” Artz noted, “If you go back enough years and if an employer’s name came up on the ‘We’re Going to Inspect Them List’ — no complaint, no accident, nothing in particular — just some neutral way of deciding that a company was to be inspected, OSHA came out, looked at your injury and illness logs and saw that you were below the Lost Workday Illness or Injury rate for your industry, they would not inspect.”
There are two ways to have your logs reflect that you’re below that number, have logs that are accurate, reflecting a good safety record or have logs that aren’t accurate. A lot of employers figured out that the second way was much easier than the first way. So they fudged the logs. But OSHA figured that out. So, if you had multiple records-keeping violations you got one $1,000 penalty. Today, if you have multiple errors in there, you face the possibility of multiple $70,000 citations. Such penalties get everybody’s attention, which is what OSHA set out to do.
What this means in broad general terms is that if OSHA comes in and they’re really unhappy with what you have or have not done, they can cite you for this violation; and they can also cite for each person who was exposed to that violation. This is a fairly easy way to inflate the penalties. The largest penalty that Artz is aware of is $7.4 million against BP.
A word might be in order about SVEP. As acronyms go, it is hard to pronounce, but the initials stand for the Severe Violator Enforcement Program. It is aimed at heightened enforcement on indifferent employers. “This is people who have willful, repeat, or failure-to-abate violations,” Artz says. What does SVEP mean besides big problems? The government says it means broader patterns of non-compliance. Usually, it is an employer who has a variety of worksites. It can lead to regional and nationwide inspections. “It used to be,” says Artz, “that if OSHA inspected such a facility in Ohio, they would not cross over to look at the plant in Pennsylvania or Texas or wherever else. Now they are much more likely to do that.”
There are three commissioners on OSHA’s Review Commission. If you go to an appeal before an Administrative Law Judge, they issue a decision. You can petition the Review Commission to review that decision but the Review Commission doesn’t have to review it. If they review it and issue a ruling, the party who is unhappy with that ruling has a right to appeal it to the Circuit Court, which is the level of federal court and there is a right to request appeal before the U.S. Supreme Court — very few cases get that far. The majority are disposed of without a hearing. Most cases, actually, are not even contested.