Onsite OSHA
Inspections – Are You
Prepared?
By David E. Dick
STEPTOE & JOHNSON PLLC
This presentation is not a substitute for legal advice.
How Did They Find Me?
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Programmed Inspections
Employee Complaints
Drive By’s
National Emphasis Programs
Severe Violator Program
Disputes with Unions
Fatalities or Serious Accidents
Current National and Local
Emphasis Programs
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•Fall hazards (GI & Construction)
•Powered industrial trucks
•Amputation
•Trenching & Excavation
•Silica
•Hexavalent Chromium
They Found Me. Now What?
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Act like a duck – be calm on the surface but
paddle like hell underneath.
First things first: in or out? Warrant or not? It’s
generally a good idea to be cooperative, unless
you have good reason not to be.
If the CSO does have a warrant, you still have
rights, including: challenging the warrant; trying
to limit the inspection to the boundaries of the
warrant.
Be Cautious
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Check credentials.
Ask the reason for the inspection and what type
it is. If it is a complaint inspection, get a copy of
the complaint. Don’t ask who filed it.
Be careful not to volunteer information, no
matter how nice the inspector may be.
If the inspection is the result of a fatality, be
aware that OSHA can file criminal charges.
You can terminate an inspection you allowed
without a warrant and insist on a warrant.
Frequently Cited Standards Oil
and Gas Field Services October
2011-September 2012
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Condition of flexible cords
Electrical equipment-suitable for location, listed
and labeled
Labeling of electrical boxes, disconnects
Path to ground –continuous
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General Duty Clause - Section 5(a)(1) of the
Occupational Safety and Health Act of 1970:
The employer did not furnish employment and a
place of employment which were free from
recognized hazards that were causing or likely to
cause death or serious physical harm to
employees.
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Guarding Floor and Wall Openings (1910.23(a)(1)):
Every stairway floor opening shall be guarded by a
standard railing
1910.23(a)(3): Every hatchway and chute floor opening
shall be guarded
Hazard Communication (1910.1200 )
Written program
MSDS/SDS
Training of employees
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PPE (1910.132(d)(1)): The employer shall
assess the workplace to determine if hazards are
present, or are likely to be present, which
necessitate the use of personal protective
equipment (PPE)
Permit Required Confined Spaces
(1910.146(c)(1)): The employer shall evaluate
the workplace to determine if any spaces are
permit-required confined spaces
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Portable Fire Extinguishers (1910.157):
Maintained in a fully charged and operable
condition
Training needs to be conducted on the fire
extinguisher use and the hazards involved with
incipient stage fire
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Respiratory Protection (1910.134):
Written respiratory protection program
–Selection
–Medical evaluation
–Fit-testing
–Training
What We’re Seeing Is Consistent
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June 13 - Texas oilfield services company faces $72,900 in
penalties for 14 alleged safety and health workplace violations.
PumpCo Energy Services Inc. was cited for failing to take
effective measures to prevent employee entry into permitrequired confined spaces.
OSHA's citation said the company sent employees into “sand
kings”—large metal containers for storage of sand commonly
used in hydraulic fracturing—without adequate confined-space
safety training, exposing them to respiratory hazards.
PumpCo was cited for two serious health violations, including
failing to provide medical evaluations for workers required to
wear respirators. OSHA also cited the company for allowing an
employee to operate a crane without adequate training.
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2013 - NorAm Drilling Co., Monahans, Texas is contesting a
two-item serious citation and a penalty of $7,650, for alleged
violations of 1910.303(b)(7)(i), for failure to ensure that unused
openings in boxes, raceways, auxiliary gutters, cabinets,
equipment cases, or housings were effectively closed to afford
protection substantially equivalent to the wall of the equipment,
and 1910.305(g)(2)(iii), for failure to ensure that flexible cords
were connected to devices and fittings so that tension would not
be transmitted to joints or terminal screws (13-0969).
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2012 – Drilling company cited for (1) failure to
guard edge of rig platform (allowing drop more
than 7 feet ($2,800); (2) bench grinder wheel not
guarded ($2,800); (3) diesel fuel pump not rated
for outdoor use ($4,900); (4) improper retainer
on electrical equipment; (5) fuel pump and
generator were not marked with manufacturer
name; (6) improperly repaired electrical line on
fuel pump ($4,200); (there’s more………
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(7) fuel pump not listed by accredited lab (like
UL) ($4,200); (8) GFCI did not trip when tested
($2, 800); (9) two branch circuits fed into one
breaker ($2,800); (10) electrical conductors
spliced with tape instead of proper terminal
connectors ($4,900); (11) failure to label circuit
breakers ($2,800); (12) missing grounding pin
($4,900); (13) no strain relief ($2,800); (14)
unused opening in electrical box exposed
($4,900); there’s more……….
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(15) damaged and missing receptacle cover
(3,500); (16) improper grounding of generator
($4,900); (17) electrical extension cord powering
a pump run through a wall and wooden floor
($0).
Typical HAZCOM Violations:
Failure to prove training took place
 No written program
 Failure to produce MSDS
 Failure to identify all chemicals used
 Incomplete training (what, where, when,
how to recognize, specifics of program)
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Typical Fall Protection Violations
 No
written PPE assessment
 No certified PPE assessment
 Failure to inspect or properly maintain PPE
(lanyards)
 Failure to require use (working at heights)
 Failure to train, or no written proof of training
 Failure to guard roof edges
TYPICAL ELECTRICAL
STANDARD VIOLATIONS
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Blocked electrical cabinets
Open circuit boxes
Reverse polarization
Switch plates or covers cracked or missing
Open holes in circuit boxes
Failure to use GFCI’s
Dust accumulation on electrical boxes
Ground prongs missing
Improper use of extension cords
Temporary wiring instead of fixed wiring (fans, lights, etc.)
TYPICAL INDUSTRIAL TRUCK
VIOLATIONS
Documentation of training (certified), and re-training as
necessary
 Routine inspections prior to use
 Trucks in disrepair (seatbelts, horns, lights)
 Lifting employees on forks without proper precautions,
lanyards, etc.
 Failure to train
 Unstable loads
 Failure to prove pre-shift inspection, or tagging out of
service
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Typical LOTO Violations
Inadequate training or program
 Failure to recognize application (un-jamming
equipment, crawling on machinery, etc.)
 Failure to require use (usually followed by traumatic
event)
 Failure to prove audit, or certify it
 No machine specific procedures
 No process in place for use of contractors
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Typical Ladder Violations
 Ladders
not proper for job (electrical)
 Fixed ladders not extending beyond floor or roof
 Failure to inspect or tag out of service
 Failure to tie off ladders
 Rungs not free of grease and oil
 Failure to ensure adequate clearances on fixed
ladders
What to Expect in the Citation
Process
 Initial
penalties double what OSHA
might otherwise settle for.
 Predominantly serious violations, but
willful anytime there is a fatality.
 Grouping of like violations.
How Penalties are Determined
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Four factors: gravity, size, good faith and history
Gravity determined by severity and probability
Discounts for size (60%), good faith (25%) and
history (10%)
All this is hidden from view
Instance by instance violations, if egregious
All subject to negotiations
Implications of Contesting or
Accepting OSHA Citations
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When Accepting:
Sets up repeat violations at all locations for the next
five years
 Increases risks of willful violations
 Provides excellent fodder for deliberate intent
lawsuits
 More likely to invite future inspections
 For some employers, can prevent the attainment of
future business
 Abatement costs
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Implications of Contesting or
Accepting OSHA Citations
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When Contesting
Requires a lot more than just negotiating the penalty
amount
 Costly process best left to professionals, depending
on the stakes
 Can take years to run its course
 Lets OSHA know you are not to be taken lightly
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How to Improve Your Odds in the
Citation Process
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Never get there in the first place – have a well executed
safety program
Audit, audit, audit – but beware the double edged
sword
Enforce safety and health rules – discipline employees
Be prepared for an OSHA inspection
Prior to the informal conference, do your homework –
first impressions are important
Make a strong technical argument, and trot out any
affirmative defenses
If you’re willing to spend the money, don’t be afraid to
contest – it is a tactical game
In the Almost Immortal Words of
Kenny Rogers
You’ve got to know when to hold’em;
Know when to fold’em;
Know when to walk away;
Know when to run;
Never count your money while you’re sitting at the table;
There’ll be time enough for countin’, when the dealin’s done.