Safety First: OSHA on the Offensive

Despite the impressive decline in U.S. workplace fatalities in 2009, the Occupational Safety and Health Administration (OSHA) is turning up the heat on employers by adding new tools to its enforcement toolbox. Solid waste companies and other employers need to be aware of these new developments.

Increased Penalties

On Oct. 1, OSHA implemented major changes to how it calculates penalties for violations. Although OSHA will continue to consider several factors in deciding each proposed citation penalty, the overall impact is likely to result in much higher fines for employers, which, after the comparatively laid-back Bush Administration OSHA, may be surprisingly steep.

Several administrative changes will make it more difficult to negotiate reductions in fines. For example, the time frame for considering an employer’s past safety history and whether a citation qualifies as a “repeat” citation will increase from three to five years. OSHA expects employers to pay between $3,000 and $7,000 for serious violations under its new penalty structure.

The maximum penalty reduction for small employers (25 or fewer employees) will be 40 percent (currently 60 percent). Medium-sized employers with 26 to 250 employees will also face smaller penalty reductions. A “good faith” penalty reduction will only be allowed if the employer has a written safety and health program.

Solid waste companies saw sharply higher OSHA penalties last year, with the average penalty assessed increasing to more than $1,500. The 2010 data has not been published yet, but a further rise is expected. These administrative changes virtually ensure that OSHA will assess even higher penalties in 2011 at solid waste employers.

New Regulations

OSHA issued new regulations this year governing hexalavalent chromium and the use of cranes and derricks in construction. Next year, OSHA is likely to propose or finalize several rules that will have a substantial impact on the solid waste industry. OSHA is revising the Hazard Communication Standard to make it consistent with international standards.

The agency intends to propose regulations addressing combustible dust in 2011 and thinks solid waste disposal facilities should be covered by these regulations, which could be both costly and difficult for many transfer stations and recycling facilities to comply with.

Perhaps most importantly, OSHA held stakeholder meetings this summer to gather information that will be used to propose a rule requiring employers to implement an Injury and Illness Prevention Program (I2P2). This proposal, which will require most employers to develop a written plan for preventing workplace injuries and illnesses, will likely lead to a major battle with business groups next year.

Multi-Employer Liability

The Occupational Health and Safety Review Commission recently upheld OSHA’s multi-employer citation policy. This allows OSHA to cite an employer for workplace safety violations — even when that employer does not have any employees at the site — if that employer “controls” working conditions and is responsible for safety. Some solid waste facilities could be vulnerable to citations under this revived OSHA policy.

Conclusion

OSHA is taking its duty to protect employees very seriously, and so should you. More than 4,300 workers died in 2009, and OSHA is committed to aggressively enforcing existing rules, issuing new regulations and imposing higher fines. Employers should evaluate their safety and health programs and ensure full OSHA compliance, as the changes in OSHA’s penalty calculations are expected to at least double the average penalties for violations. Don’t wait until you have an accident or an injury, or until the OSHA inspector arrives, to get serious about OSHA compliance. Start now.

David Biderman is general counsel for the National Solid Wastes Management Association. He oversees the organization's safety programs.

Opinions in this column do not necessarily reflect those of the National Solid Wastes Management Association or the Environmental Industry Associations. E-mail the author at [email protected].

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