OSHA ENFORCEMENT UPDATE
Presented to
Women in Energy Speaker’s
Series Summer Luncheon
July 31, 2012
Kristin R.B. White, Esq.
1099 18th Street, Suite 2150, Denver, CO 80202
Phone: (303) 390-0003 • Fax: (303) 390-0177
kwhite@jacksonkelly.com • www.jacksonkelly.com
Laura E. Beverage
Kristin R.B. White
Dana M. Svendsen
Meredith A. Kapushion
Karen L. Johnston
Christopher G. Peterson
Page H. Jackson
Michelle C. Witter
JACKSON KELLY PLLC
1099 18th Street, Suite 2150
Denver, Colorado 80202
Phone: (303) 390-0003
Fax: (303) 390-0177
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THE OSH ACT
Under § 8(a) of the OSH Act, OSHA compliance
officers are authorized to enter work places
“without delay and at reasonable times,” and
“to inspect and investigate during regular
working hours and at other reasonable times,
and within reasonable limits and in a
reasonable manner, any such place of
employment . . . and to question privately any
employer, owner, operator, agent or
employee.”
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AUTHORITY IN
INSPECTIONS/INVESTIGATIONS
WARRANTS
Must obtain a warrant to conduct searches of
sites and records.
INTERVIEWS
Does have the right, once on property, to
conduct private interviews. [§ 8(a)(2)]
SUBPOENAS
Authority to issue subpoenas to compel
testimony and/or documents. [§ 8(b)]
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GENERAL DUTY CLAUSE
Each employer shall furnish to each of his
employees employment and a place of
employment which are free from recognized
hazards that are causing or likely to cause
death or serious physical harm to his
employees.
29 U.S.C. § 654(a)(1).
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SERIOUS VIOLATION
• Substantial probability that death or
serious physical harm could result.
• Employer must have known of the
presence of the condition or could
have known with the exercise of
reasonable diligence.
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KNEW OR HAD
REASON TO KNOW
... knowing or having reason to know.
A person has reason to know when he
has such information as would lead a
person exercising reasonable care to
acquire knowledge of the fact in
question or to infer its existence.
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REPEATED VIOLATION
• Same employer was cited at least once
before within prior five years for:
 Same or substantially similar violation
and,
 Final order was issued on each prior
occasion.
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WILLFUL VIOLATION
• Employer acts voluntarily with an
intentional disregard or plain indifference
to the requirements of the Act.
• Employer was aware of cited condition(s)
and either disregarded them or
demonstrated plain indifference to
employee safety.
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LEGAL LIABILITIES
UNDER OSHA
Civil penalties for each “willful” and
“repeated” violation up to $70,000 per
violation, with a minimum fine of $5,000
for each willful violation. [§ 17(a)]
For each “serious” or “non-serious”
violation the maximum civil penalty is
$7,000. [§ 17(b)]
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LEGAL LIABILITIES
UNDER OSHA
• The OSH Act provides for criminal
prosecution of employer for 3 types of
violations:
– Willful violations which cause an employee’s
death [§ 17(e)]
– Providing advance notice of an OSHA
inspection [§ 17(f)]
– Providing false statements on documents
required by the OSH Act [§ 17(g)]
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NOTIFICATION (FAT/CAT)
• Fatalities and catastrophes resulting in the
hospitalization of three or more workers must be
reported to OSHA within eight hours.
• Employers must orally report the fatality/multiple
hospitalization by telephone or in person to the
OSHA Area Office or to the State Plan Office that is
nearest to the site of the incident. Employers may
also use the OSHA toll-free number, 1-800-321OSHA.
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STATE-PLAN STATES
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Alaska
Arizona
California
Hawaii
Indiana
Iowa
Kentucky
Maryland
Michigan
Minnesota
Nevada
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New Mexico
North Carolina
Oregon
Puerto Rico
South Carolina
Tennessee
Utah
Vermont
Virginia
Washington
Wyoming
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• Wyoming is a “State-plan” state, which
means federal OSHA does not inspect or
enforce federal OSHA regulations.
• Federal OSHA approves and monitors
State plans.
• Wyoming’s workplace safety and health
standards are required to be “at least as
effective” as comparable federal
standards.
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MULTI-EMPLOYER
WORKSITE POLICY
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Multi-Employer Worksite Policy
• On multi-employer worksites, more
than one employer may be citable for
a hazardous condition that violates
an OSHA standard.
• A two-step process must be followed
in determining whether more than
one employer is to be cited.
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Multi-Employer Worksite Policy
Two-Step Process
1. Determine whether employer is the:
a) creating employer
b) exposing employer
c) correcting employer
d) controlling employer
– An employer may have multiple roles.
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Multi-Employer Worksite Policy
Two-Step Process
2. Determine if the employer’s actions were
sufficient to meet those obligations.
– The extent of the actions required of an
employer varies based on which category
applies.
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Creating Employer
• The employer that caused a hazardous
condition that violates an OSHA standard.
• An employer that does is citable even if the
only employees exposed are those of other
employees at the site, and not the creating
employer’s employees.
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Exposing Employer
• An employer whose own employees are
exposed to the hazard.
• If the violation was created by another
employer, the exposing employer is citable
if:
– It knew of the hazardous condition or failed to
exercise reasonable diligence to discover the
condition
– It failed to take steps consistent with its authority
to protect its employees
• If the exposing employer has the authority
to correct the hazard, it must do so.
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Exposing Employer
• If the exposing employer lacks the authority
to correct the hazard, it is citable if it fails to
do each of the following:
– Ask the creating and/or controlling
employer to correct the hazard;
– Inform its employees of the hazard; and
– Take reasonable alternative protective
measures
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Correcting Employer
• An employer who engaged in a common
undertaking, on the same worksite as the
exposing employer, and is responsible for
correcting a hazard.
• This usually occurs where an employer is given
the responsibility of installing and/or
maintaining particular safety or health
equipment or devices.
• The correcting employer must exercise
reasonable care in preventing and discovering
violations and meet its obligations of correcting
the hazard.
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Controlling Employer
• An employer who has general
supervisory authority over the worksite,
including power to correct safety and
health violations itself or require others
to correct them.
• A controlling employer must exercise
reasonable care to prevent and detect
violations on the site.
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Types of Controlling Employers
• Control established by contract
or combination of other
contract rights
• Control through pattern and
practice
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Types of Controlling Employers
Control Established by Contract
• This can take the form of a specific
contract right to require another
employer to adhere to safety and
health requirements and to correct
violations the controlling employer
discovers.
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Types of Controlling Employers
Control Established by a Combination
of Other Contract Rights
• Where there is no explicit contract provision granting the
right to control safety, or where the contract says that the
employer does not have such a right, an employer can
still be a controlling employer.
• The ability of an employer to control safety in this
circumstance can result from a combination of
contractual rights that, together, give it broad
responsibility at the site involving most aspects of the
job.
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Types of Controlling Employers
Control Through Pattern and Practice
• Even where an employer has no explicit
contract rights with respect to safety, an
employer can still be a controlling
employer if:
– In actual practice, it exercises broad control
over subcontractors at the site.
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HOT TOPICS
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OSHA & NIOSH’S
ALERT RELATED TO
HYDRAULIC FRACTURING
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• OSHA and NIOSH issued an alert
concerning worker exposure to silica
during fracking
• The alert does not create a legal
obligation, but OSHA’s general duty
clause requires employers to ensure
workplaces are free from recognized
hazards that may cause death or
serious physical injuries
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• Seven primary sources of silica dust
exposure during hydraulic fracturing
operations:
1. Dust from thief hatches on sand movers
when hot loading
2. Dust from open side fill ports on sand
movers during refilling
3. Dust from on-site traffic
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4. Dust from sand movers’ transfer belt
5. Dust created when sand drops in and is
agitated in the blender hopper and on
transfer belts
6. Dust from transfer belts between sand
mover and blender
7. Dust from top end of the sand transfer
belt on sand movers
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• Determining worker exposure levels is
important for selecting the right type of
control measures
– Engineering controls
– Respiratory protection
• Half-face respirators are not protective for
silica levels over 10 times the exposure limit
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Engineering Controls
• Short-term practices and procedures to
help protect workers from exposure to
silica include:
– Mandate capping of unused fill ports
– Reduce drop height between the sand
transfer belt and T-belts and blender
hoppers
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– Limit workers and time spent in areas
where dust and silica levels may be
elevated, and consider ways to perform
tasks remotely to remove employees
completely from these areas
– Apply fresh water to roads and well site to
reduce dust
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• OSHA and NIOSH also recommend
changes to equipment to control dust:
– Enclose points where dust is released
– Use enclosed cabs or booths
– Use exhaust ventilation to collect silicacontaining dust and prevent dust escape
– Replace transfer belts with screw augers
on sand movers in new designs or retrofits
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PPE
• When engineering controls do not
reduce silica levels below OSHA PELs,
employers must provide workers with
respirators and have a respiratory
protection program in place that meets
the requirements of OSHA’s respiratory
protection standard at 29 C.F.R. §
1910.134.
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• Employers must provide training and
information to workers in a manner and
language the worker understands
– Prepare and implement a written hazard
communication program
– Provide training and information on
hazards of silica and other chemicals used
in workplace
– Provide access to Safety Data Sheets on
silica sand and other hazardous chemicals
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Secretary v. Petro Hunt, LLC
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• Background:
– On March 19, 2010, OSHA issued an
“Enforcement Policy for Flame-Resistant
Clothing in Gas Drilling, Well Servicing,
and Production-Related Operations”
– The stated purpose was to clarify OSHA’s
policy for citing the PPE standard for
failure to provide and use flame-resistant
clothing (“FRC”) in oil and gas operations
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• The citation:
• Two employees observed black smoke
coming from a well site
• Fire-fighters were battling the blaze when
the employees arrived
• One employee was wearing FRC, the other
was not
• A citation issued under 29 C.F.R. §
1910.132(a), OSHA’s PPE standard, for
failure to provide FRC and require its
employees to wear it
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• The decision:
– On June 6, 2012, ALJ Augustine vacated
the citation
– The judge determined that OSHA’s FRC
memo constituted “improper rulemaking”
– By using terms “concludes” and
“requires” OSHA went beyond just
interpretation and into realm of rulemaking
by converting performance based
standard into specific standard
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WHAT IS BEING CITED
BY OSHA?
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General Duty Clause
• Operator cited for allowing workers to
use a reinforced plastic step ladder in
the closed position leaning against a
wall to access the rig’s cellar area and
to access the platform area above the
wellhead.
– Serious violation - $4,400 penalty
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General Duty Clause
• The kelly bushing was worn, allowing it to ‘stick’
to the drill stem causing struck-by-injuries.
• According to Recommended Practice for
Occupational Safety for Oil and Gas Well Drilling
and Servicing Operations, “the kelly bushing
shall be of smooth design to prevent catching or
snagging of personnel, clothing or material.”
– Serious violation - $7,000 penalty
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29 C.F.R. § 1910.22(c)
Covers and/or guardrails are not provided to protect
personnel from hazards of open pits, tanks, vats, ditches, etc.
• Operator cited for not providing a
guardrail system or equivalent means of
fall protection around cellar of drill rig.
• Employees exposed to a fall of more than
four feet
– Serious violation - $4,400 penalty
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29 C.F.R. § 1910.219(d)(1)
Pulley(s) with part(s) seven feet or less from the floor or work
platform were not guarded in accordance with the requirements of
29 C.F.R. 1910.219(m) and (o)
• Two diesel powered generators pulleys
were left unguarded and positioned
such that loose clothing or material
could get caught up in it and pull
employees into the pinch-points.
– Serious violation - $4,400 penalty
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29 C.F.R. § 1910.176(c)
Storage areas were not kept free from accumulation of
materials that constituted hazards from tripping, fire, explosion
or pest harborage
• The accumulation of hazardous
materials at the designated storage site
constituted a hazard.
– Serious violation - $3,300 penalty
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29 C.F.R. § 1910.305(g)(2)(iii)
Flexible cords were not connected to devices and fittings so that
tension would not be transmitted to joints or terminal screws
• One employer cited for not providing strain
relief on a flexible cord next to centrifugal
pump at the mud house drilling rig
– Repeat violation - $55,000 penalty
• Another employer cited for not providing
strain relief on flexible cord supplying power
to tool pusher’s trailer
– Repeat violation - $16,500 penalty
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29 C.F.R. § 1910.151(c)
Where employees were exposed to injurious corrosive materials,
suitable facilities for quick drenching or flushing of the eyes and body
were not provided within the work area for immediate emergency use
• Three eyewash/shower stations were
not in operation
– Repeat violation - $22,000 penalty
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29 C.F.R. § 1910.157(c)(4)
Portable fire extinguishers were not maintained in fully charged
and operable condition
• Three fire extinguishers were not fully
charged. Employees were expected to
use the extinguishers in the event of a
small fire
– Repeat violation - $22,000 penalty
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Recommendations
• Employers should consider the following:
– Mandating OSHA compliance via company policy and rules.
– Training management and hourly employees on OSHA
compliance.
– Creating and enforcing employee disciplinary programs for
safety rule violations.
– Implementing a contractor pre-qualification and
management program.
– Seeking counsel on OSHA regulatory compliance.
– Conducting OSHA audits but being mindful of privileges
and confidentiality.
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For more information on
these and other occupational
safety and health topics,
please visit:
http://safety-health.jacksonkelly.com/
Kristin R.B. White, Esq.
1099 18th Street, Suite 2150, Denver, CO 80202
Phone: (303) 390-0003 • Fax: (303) 390-0177
kwhite@jacksonkelly.com • www.jacksonkelly.com