It’s a Bird.  It’s a Plane.  It’s… an OSHA Inspection Drone?

Kate M. McMahon Leave a comment

By Eric J. Conn and Kate McMahon

We have for several years now heard about our military’s and intelligence agencies’ use of unmanned drones to conduct secret surveillance of our geopolitical adversaries and terrorists across the globe.  We may even take comfort in the use of these high-tech mobile video cameras hovering above a terrorist hide-out to foil a plot against our country.  What may be less comforting to employers in the U.S., however, is that OSHA seems to have borrowed the playbook from our spy agencies to assist their inspectors in conducting inspections of U.S. workplaces.

OSHA’s Drone Policy Memo

On May 18, 2018, OSHA issued an internal policy memorandum to its field offices, announcing that it has begun using Unmanned Aircraft Systems, commonly referred to as drones, to assist with worksite enforcement inspections, as well as for technical assistance and training purposes.  For now, OSHA’s new drone policy requires “express consent from the employer” before a drone is deployed in an inspection, but that limitation is simply a policy decision that can change with the political winds blowing in Washington, DC, or ignored by the agency without explanation as we recently saw with OSHA’s “Look Back” policy for issuing Repeat citations.

OSHA’s drone policy memorandum, entitled “OSHA’s Use of Unmanned Aircraft Systems in Inspections,” expressed that the purpose of drone inspections is to assist OSHA compliance officers gather information at worksites that may otherwise be difficult or dangerous to inspect from the ground.  The drone memo sets forth Continue reading →

Conn Maciel Carey Opens Columbus, Ohio Office

Bryan Carey Leave a comment

Conn Maciel Carey LLP announced today the opening of its Columbus, Ohio office. It is the firm’s sixth office nationally and the second location in the Midwest. The new office represents another important step in the firm’s continued growth in the region, together with the opening of its Chicago office last year.

Columbus is a growing Midwest hub and is centrally located to many of the nation’s current and historic industrial centers. With an expanded Midwest presence, Conn Maciel Carey attorneys now provide enhanced services to its national clients operating in the Midwest.

shutterstock_columbus color.jpg

“We are excited about our expanding Midwest presence” said the firm’s Managing Partner Bryan Carey. “The Columbus office will allow the firm to build upon the success of our 2018 launch of our Chicago office, offering clients operating in the central United States with greater proximity to our attorneys, resources, and counsel.”

Nicholas W. Scala, a partner with the firm, will lead the Columbus office. Mr. Scala joined the Firm in 2016, founding the firm’s MSHA Practice Group, which he chairs. His principal practice services the mining industry, managing all interaction with, and contest of enforcement by, the Mine Safety and Health Administration (MSHA) for companies operating in the coal, aggregates, industrial minerals, and cement industries.  Nick also supports the firm’s national OSHA Practice Group, Continue reading →

[Webinar] Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints

Lindsay A. DiSalvo Leave a comment

On Tuesday, April 16, 2019, at 1 pm EST, join Kate M. McMahon of Conn Maciel Carey’s national OSHA • Workplace Safety Group and Lindsay A. DiSalvo of the firm’s national Labor & Employment Practice for a complimentary webinar: Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints.

When OSHA receives a complaint related to employee safety and health or a severe injury report, OSHA often gives the employer an opportunity to respond before it thumbnail-1takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to provide sufficient information to avoid a full-blown OSHA inspection or becoming enmeshed in the litigation of a retaliation claim.  A strong and thorough response could resolve OSHA’s concerns and resolve the retaliation complaint in a favorable manner for the employer.  However, these responses could also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and potentially used to create liability.  Thus, employers must be strategic about the information they share at this early stage and should ensure there is a procedure in place for managing and developing these responses.

​Participants will learn about the following:​ Continue reading →

OSHRC Dramatically Expands Interpretation of “Interconnected” for PSM-Coverage

Micah Smith Leave a comment

By Eric J. Conn and Micah Smith

On March 28, 2019, the OSH Review Commission released its decision in Sec’y of Labor v. Wynnewood Refining, OSHRC, Nos. 13-0644 & 13-0791.  In a fairly brief opinion, the Commission affirmed the decision of the ALJ on two significant issues:

  1. the PSM standard applied to a utilities boiler; and
  2. OSHA inappropriately relied upon the citation history of a prior owner in characterizing citations as Repeat.

Expanding PSM Coverage

With regard to PSM applicability, the decision is framed as a response to the arguments raised in the refinery’s brief, but it does not directly address the arguments raised by the amicus brief filed by AFPM and API.  The Commission began its discussion of PSM applicability by evaluating the meaning of the definition of “process,” in particular how to interpret this phrase:

“For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical (HHC) could be involved in a potential release shall be considered a single process.”

The Commission held that, in order to prove a group of vessels qualify as a process, OSHA may prove either that a) the group of vessels are interconnected or b) separate vessels are located such that an HHC could be involved in a potential release.  With surprisingly little analysis, the Commission held that this was the plain meaning of the terms of the standard, and the Commission did not evaluate at all whether OSHA’s interpretation deserved deference.  (Note:  Chairwoman MacDougall disagreed that this was the plain meaning of the terms, but she agreed that OSHA’s interpretation of the definition deserved deference.)

This decision gave no credence to the arguments made by the refinery and the amici, which both urged the Commission to find that interconnected vessels be considered a single process only if there is a reasonable probability that an event such as an explosion would affect the interconnected vessels. Continue reading →

OSHA’s New Site-Specific Targeting Enforcement Program [Webinar Recording]

Amanda Strainis-Walker Leave a comment

On March 19, 2019 Amanda Walker, Aaron Gelb and Dan Deacon of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “OSHA’s New Site-Specific Targeting Enforcement Program.“

More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers’ 300A injury data collected under the new Rule.  In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers’ higher than average Days Way, Restricted or Transfer (“DART”) injury rates. OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.

Participants in this webinar learned: Continue reading →

11th Cir. Deals a Big Blow to OSHA’s Inspection Authority

Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay A. DiSalvo

OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast.  Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority.  But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.

Background of the Case

OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016.  The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee.  After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th.  At that time, OSHA asked the employer for consent to inspect both Continue reading →

2019 Update on OSHA’s E-Recordkeeping and Significant Injury Reporting Rules [Webinar Recording]

Eric J. Conn Leave a comment

On February 12, 2019 Lindsay DiSalvo and Dan Deacon from Conn Maciel Carey LLP’s national OSHA Practice presented a webinar regarding: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.“

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants learned: Continue reading →

BREAKING NEWS: OSHA Issues Final Amended Rule Scaling Back Electronic Injury Recordkeeping

Eric J. Conn 1 Comment

By Eric J. Conn and Dan C. Deacon

Yesterday OSHA announced and today OSHA officially published its Final Rule amending its Electronic Recordkeeping Rule.  After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has finally approved changes (hopefully just the first step) to pare down the E-Recordkeeping Rule. 

On July 30, 2018, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  83 Fed. Reg. 36494 (July 30, 2018).  The proposed Rule included only one significant change to the current regulation.  Specifically, the proposal sought to rescind the requirement for the largest employers — those with individual establishments with 250 or more employees — to annually submit to OSHA’s online web portal the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses.

The proposal left intact the requirement for these large employers and many more smaller employers to annually submit 300A annual summary data.  Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the final rule does not disturb in any manner the controversial and duplicative “anti-retaliation” provisions, or the interpretations of those provisions included in the Preamble to the 2016 Final Rule.  These are the provisions that endeavored to restrict employers’ authority to discipline employees for late injury reporting or for safety violations, as well as limit employer’s ability to perform post-incident drug testing and to provide safety incentives.  For more information about these elements of the E-Recordkeeping Rule, check out our previous blog article regarding the E-Recordkeeping Anti-Retaliation provisions.

Tortured History and Difficulties Implementing E-Recordkeeping

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer participate in its annual injury data survey, employers’ injury and illness recordkeeping data was maintained internally.  In a major policy shift, President Obama’s OSHA Continue reading →

REMINDER: Feb. 1st Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work Related Injuries: 5 Common Mistakes Employers Make

Lindsay A. DiSalvo 1 Comment

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

Eric J. Conn Leave a comment

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading →

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

Andrew J. Sommer Leave a comment

By Andrew Sommer, Megan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (Wy OSHA); and
  • Vermont (VOSHA)

Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction.  Specifically, on April 30, 2018, federal OSHA issued a Continue reading →

OSHA’s New Site-Specific Targeting Inspection Initiative

Eric J. Conn Leave a comment

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.”

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading →

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

Eric J. Conn Leave a comment

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.

2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th
Tips to Survive an OSHA Inspection

Tuesday, July 23rd
Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th
Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th
OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th
OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th
Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th
What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd
New Cal/OSHA Enforcement Issues

Tuesday, May 28th
 OSHA PSM and EPA RMP Update

Tuesday, November 19th
The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th
Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading →

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

Eric J. Conn Leave a comment

On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading →

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

Eric J. Conn Leave a comment

The Employer Defense Report

By: Mark M. Trapp and Aaron R. Gelb

On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.

Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.

Department of LaborFall 2018 Agenda_DOL_3

Wage and Hour Division

Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the…

View original post 1,222 more words

Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

Eric J. Conn Leave a comment

On November 13, 2018, Eric J. Conn, Micah Smith, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule.”PSM Webinar Slide

Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?

This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.

Continue reading →

Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

Eric J. Conn Leave a comment

Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions.  The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.

Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.

Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country.  Our experience shows a much different take on process safety.  We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action.  We watch how lessons are being learned and applied from incidents and experience.  We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident.  And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.

More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading →

In the Wake of Criticism of the E-Recordkeeping Anti-Retaliation Rule, OSHA Issues New “Guidance”

Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.

In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA.  These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline.  Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule.  For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.

Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty.  Continue reading →

OSHA’s New Emphasis Program for Fertilizer Grade Ammonium Nitrate and Anhydrous Ammonia

Beeta B. Lashkari Leave a comment

By: Aaron R. Gelb and Beeta B. Lashkari

On September 25, 2018, OSHA announced the launch of a new Regional Emphasis Program (REP) to address the hazards from exposure to fertilizer grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia.  The REP, effective October 1, 2018, covers the states of Arkansas, Louisiana, Oklahoma, and Texas in OSHA Region VI, and Kansas, Missouri, and Nebraska in OSHA Region VII.  OSHA will commence enforcement activities on January 1, 2019, after a three-month period of education and prevention outreach.  FGAN REP_2Generally, enforcement activities will include the inspection and review of: (1) production operations and working conditions; (2) injury and illness records; (3) safety and health programs; and (4) chemical handling and use.  OSHA’s decision to initiate a new REP covering two regions and seven states is yet another reminder that the agency is continuing full-speed ahead with enforcement efforts.  While many anticipated that the Trump administration would retire OSHA’s national, regional and local emphasis programs, that has not happened.  To the contrary, OSHA continues to implement the same number of enforcement emphasis programs as at the end of the Obama administration.

What prompted OSHA to act now?

On April 17, 2013, a fire and explosion involving FGAN occurred at the West Fertilizer Company in West, Texas, resulting in at least 14 fatalities.  While OSHA and the West Fertilizer Company ultimately reached a settlement, OSHA initially issued more than 20 citations, including several under Section (i) of its Explosives and Blasting Agents Standard.  Continue reading →

All You Never Wanted to Know about OSHA Repeat, Willful & Egregious Violations [Webinar Recording]

Eric J. Conn Leave a comment

On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.” 

During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?

This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.

Participants in this webinar learned: Continue reading →

Confounding Expectations, OSHA Enforcement in the Trump Administration Is On the Rise

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA.  Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.

The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.  Quite to the contrary, relevant enforcement data reveals enforcement creep.  With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.

Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:

  • OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
  • The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)

  • The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
  • The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)

Continue reading →

Delinquent State OSH Plans, Particularly Cal/OSHA, Catch-up with Fed OSHA’s E-Recordkeeping Rule

Daniel C. Deacon Leave a comment

By Eric J. Conn and Dan C. Deacon

When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.

Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule.  Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018.  And that is when fed OSHA started to speak up.

OSHA’s April 30, 2018 Press Release

On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule.  In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan State Responses

The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading →

D.C. Circuit’s “Inadvertently Issued” Mandate puts RMP Amendments into Effect for a Weekend

Micah Smith Leave a comment

By Eric Conn, Micah Smith, and Beeta Lashkari

Late last Friday, August 31, 2018, the D.C. Circuit unexpectedly granted Petitioners’ request to expedite the issuance of the Court’s mandate to strike down the delay of EPA’s 2017 RMP Amendments.  RMP DecisionAs we previously reported, the D.C. Circuit held on August 17, 2018, that EPA acted improperly when it issued a final rule delaying the effective date of a certain set of amendments made to EPA’s RMP Rule (the “Delay Rule”).  Providing for a full rehearing petition period, and absent any action from the Court, the mandate for this decision would have issued at the earliest on October 8, 2017.  On August 24, 2018, however, Petitioners filed a motion to expedite, asking that it issue no later than September 7, 2018.

Petitioners’ arguments focus on the public’s “strong interest” in the prompt issuance of the mandate due to “the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” and they point to the 14 months of delay that has already occurred as evidence of the need for expedited relief.

And in a nod to current events, Petitioners claim that time is now of the essence because of the impending hurricane season, specifically mentioning the OIG’s investigation of EPA’s preparedness and response efforts to Hurricane Harvey in 2017.

Under the Federal Rules of Appellate Procedure, EPA and the Intervenors are afforded 10 days to file oppositions to Petitioners’ Motion, so those oppositions had not yet been filed on August 31.

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After the Court issued the mandate late on Friday, August 31, several motions for reconsideration were filed by EPA and Intervenors, but the Court’s closure over the 3-day weekend left all the parties in suspense, anxiously trying to determine the implications of the decision.

After a long weekend of suspense, the Court ordered EPA to return the mandate on September 4, noting that the responses to Petitioners’ Motion were not yet due.  The Court also briefly noted that it appeared “that the court’s mandate inadvertently issued” the previous Friday.  EPA returned the mandate on the same day.

But now that EPA and the Intervenors have filed oppositions to Petitioners’ Motion to expedite the issuance of the mandate, what comes next?  Continue reading →

Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule [Webinar Recording]

Daniel C. Deacon Leave a comment

On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.” 

Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers.  In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule.  The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.

Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.

Participants in this webinar learned:

Continue reading →

D.C. Circuit Strikes Down the Trump EPA Delay of Obama EPA’s Overhaul of the Risk Management Program Rule

Eric J. Conn Leave a comment

By Micah Smith, Eric J. Conn, and Beeta Lashkari

Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard).  Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration. 

This ruling creates significant concern for the regulated community.  The Amendments require major overhauls to they way covered employers implement their risk management plans.  But EPA is still advancing a rulemaking to rescind and narrow those Amendments.  Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.

Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions.  The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:

“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”

While the Court criticized the agency for Continue reading →