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

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

New Cal/OSHA Issues that California Employers Must Understand [Webinar Recording]

On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.” 

The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.

Participants in this complimentary webinar learned about the following:

  • Cal/OSHA’s New Repeat Violation Rule
  • Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
  • New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
  • Changes to Cal/OSHA Penalties on the Horizon
  • Other Industry Specific Developments

Here is a link to the recording of the webinar. Continue reading

OSHA Issues During Acquisitions and Divestitures – [Webinar Recording]

On November 8, 2016, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding OSHA Issues During Acquisitions and Divestitures.

OSHA compliance issues have been long ignored in the due diligence process for mergers, acquisitions and divestitures.  With OSHA’s focus on follow-up inspections and Repeat citations, and expanding the concept of successor OSHA liability, it is a topic that should no longer be left out of the due diligence process.  This webinar delved into the current landscape of successor liability under the OSH Act, explained what safety and health obligations a new employer may assume as a result of past conduct by a predecessor employer, and provided tips and strategies for managing OSHA compliance related due diligence.

Participants learned about: Continue reading

5 Key Cal/OSHA Issues that California Employers Must Understand – [Webinar Recording]

On July 21, 2016, Andrew J. Sommer and Eric J. Conn, of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding important Cal/OSHA issues that all employers who do business in California must understand.

The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement heavy approved state OSH program in the country.  Cal/OSHA faces many fewer bureaucratic and political obstacles than fed OSHA in developing new rules (really legislation).  Accordingly, California employers face a host of requirements that employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Participants in last week’s webinar learned the following: Continue reading

OSHA’s Severe Violator Enforcement Program: A Severe Injustice

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice Group

It has been five years since OSHA launched its Severe Violator Enforcement Program (“SVEP”), and two years since an agency White Paper trumpeted the program’s “strong start” and progress SVEP White Paper Imageon “key goals.”  A closer examination of OSHA’s SVEP data, however, reveals that:

  • SVEP disproportionately targets small employers;
  • SVEP cases are contested more often than other OSHA citations;
  • OSHA has trouble conducting follow-up inspections of small employers, especially those in the construction industry; and
  • The program fails to reach the recalcitrant employers it was designed to target.

The fact is, SVEP (which succeeded OSHA’s controversial Enhanced Enforcement Program) has shown troubling trends from the start. Not only do the criteria weigh against smaller employers, but the consequences for employers thus labeled are dire, placing them in a precarious position, even before OSHA has proven that the employer violated the law at all, let alone in such an egregious manner as to warrant inclusion in SVEP.

Repeat Overkill

SVEP was instituted to target “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.” To that end, OSHA created four categories that would land an employer in SVEP. However, over the life of the program, one qualifying category has been invoked predominantly: an employer who has two or more willful, repeat, or failure-to-abate citations related to High Emphasis Hazards (NF-2WRF).

Willful violations are those committed by an employer who knows the applicable standard but intentionally disregards it. Repeat violations have a much lower standard and require no aggravated intent. The employer does not have to know the law or be indifferent to safety.

Through the first several years of SVEP, this NF-2WRF category accounted for nearly 70% of all SVEP cases. On the surface, this suggests that the program is reaching those bad actors, who deliberately flout the law; i.e., employers that have committed multiple willful violations. However, the reality is that only one in four qualifying cases involves any willful violations. More than 75% of this category is based on repeat violations, which, again, do not require any specific or aggravated intent.

Moreover, OSHA reports that nearly 60% of SVEP employers have fewer than 25 total employees, and 75% have fewer than 100. Often, these employers are not “recalcitrant” and have not acted with indifference toward safety or the law. Rather, they generally do not know what OSHA’s vast portfolio of regulations require and/or lack the resources to comply.

Bad Timing

An employer is entered into SVEP at the outset of an OSHA case, prior to an opportunity to defend itself and prove wrong OSHA’s alleged violations. Notwithstanding this end run around Constitutional Due Process, once in the program, SVEP employers are immediately subject to:

  • Public shaming by OSHA through both an inflammatory, embarrassing, and one-sided press release detailing the alleged violations and by posting the employer’s name on a Severe Violator list on OSHA’s public website;Severe Violator Image
  • Mandatory follow-up inspections at that cited facility and up to ten sister facilities within the organization; and
  • More expansive settlement terms than ever before, including corporate-wide requirements.

SVEP status also has serious indirect consequences:

  • Harm to the company’s reputation;
  • Loss of customers and clients;
  • Defection by current employees and obstruction of recruiting prospective employees;
  • Denial of, or increased interest rates on, business loans and lines of credit;
  • Higher insurance rates or loss of insurance coverage; and
  • Use of the SVEP designation in talking points for organized labor and interests adverse to the employers.

And all of this happens before any adjudication process—in other words, before OSHA proves that a violation of the law even occurred.

Getting Out

More than half of SVEP citations have been contested, with 30% of those contests still in process. Some disputed citations have taken more than three years to resolve.

Our research shows that Continue reading

2015 OSHA Webinar Series – Archive of Recordings

Webinar Series 1
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming.  It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings.  There are also links below to the registration pages for the remaining webinars in the series.  Check out the completed webinars and plan to join us for all or some of the rest of the series.

Continue reading