Avoiding the Most Common OSHA Citations

Just one mistake could put sanitation industry employers in hot water with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). But OSHA’s standards aren’t always on par with what’s happening in waste and recycling operations.

According to Kirk Sander, National Waste & Recycling Association (NWRA) vice president of safety and standards, the top five cited federal standards for 2018 in the North American Industry Classification System (NAICS) for solid waste collection were general requirements, general duty clause, hazard communication, powered industrial trucks and lockout/tagout (the control of hazardous energy). This compares to fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout as the top five federal OSHA citations, explains Sander.

“Our industry is facing a different set of hazards than what OSHA is citing,” says Sander. “Regulators and the industry may not fully appreciate the challenges each other face. I want [WasteExpo panel] attendees to have a better understanding of the OSHA process and for OSHA to have a better understanding of our industry.”

Sander will be moderating a WasteExpo panel session titled “The Million Dollar Mistake: Avoiding the 5 Most Common OSHA Citations” on Tuesday, May 7 from 2 p.m. to 3:15 p.m. PT in Las Vegas.

“I think we need to communicate better about what our industry is achieving by protecting public health and communicate about the hazards we face,” says Sander. “We want our members’ employees to go home at the end of the day with the same number of fingers they started with. To that end, we publish a weekly newsletter with important safety information. We have a safety committee that meets regularly. We are serious about safety.”

Session speaker Aaron Gelb, partner at Conn Maciel Carey LLP, explains that his firm’s research indicates that some of the most commonly cited OSHA standards in the sanitation industry include respiratory protection; lockout/tagout; powered industrial trucks; walking working surfaces; wiring methods, components and equipment; and machine guarding.

“We also found a surprising number of recordkeeping/reporting violations stemming from the failure to report fatalities, hospitalizations or amputations as well as a significant number of General Duty Clause violations, which suggests that a number of operators have failed—in OSHA’s opinion—to address hazards recognized in the industry,” adds Gelb.

While Gelb says he has rarely met employers who don’t care about safety, time and again, his firm is called in to assist employers after they receive a series of citations. He says this suggests that there is a disconnect somewhere—whether it be that the company’s senior leadership, EHS (environmental, health and safety), human resources and/or operations are not on the same page when it comes to safety.

“There can be any number of reasons why that may be—ranging from financial limitations, operational pressures or the lack of an effective safety culture,” says Gelb. “Beyond that, we see some employers who simply do not understand what certain standards require. There are others who know what they need to do but fail to systematically approach the issue, resulting in failing to conduct inspections, training or make repairs in a timely manner. There also are those who do what is expected of them but fail to document what they’ve done.”  

Without question, Gelb says the most important step that employers can take to avoid million-dollar (or six figure) citations is to respond strategically if and when they receive an OSHA citation, focusing on defenses and abatement considerations that will put them in the best position possible to avoid a repeat citation.

During the Obama Administration, OSHA extended the amount of time (the look-back period) that the agency would use prior citations as the basis for a repeat citation. Extending the look-back period policy, however, was just one of several actions OSHA took to deliberately seek and cite more repeat violations, notes Gelb.

In addition to expanding the look-back period to five years, OSHA broke down barriers between individual establishments, so that a violation at one location of a multi-establishment company could be used as the basis for a repeat violation at any other location in a federal OSHA state within that organization, explains Gelb. He says OSHA also became more proactive in how it selected targets for inspections, which made it more likely for an employer to be visited multiple times during the look-back period. 

“Those policies were ‘successful’ in that the percentage of OSHA violations characterized as repeat doubled during the Obama Administration,” explains Gelb. “Citations characterized as repeat now make up more than 5 percent of all OSHA citations. That trend continued even after Congress gave OSHA new penalty authority, increasing the maximum price tag for a repeat violation from $70,000 per violation to approximately $130,000. As a result, we are seeing more $100,000-plus and $1 million-plus OSHA enforcement actions than ever before.”

“There is also the risk of reputational harm,” he adds. “Surprisingly, under the Trump Administration, OSHA is continuing to issue inflammatory and embarrassing press releases about OSHA citations in significant cases, which includes most enforcement actions involving repeat violations. So, reputational harm can come to an employer just for being alleged to have committed a repeat violation. Worse still is falling into the dreaded Severe Violator Enforcement Program (SVEP). The qualifying criteria for SVEP includes repeat and willful violations in certain categories, but the data shows the vast majority of employers ‘sentenced’ to SVEP are there because of repeat violations.”

Given the potentially costly consequences—both fiscal as well as reputational—for accepting a citation that has a high potential of becoming a repeat citation, Gelb recommends employers strongly consider contesting OSHA citations if a settlement cannot be reached that mitigates the risk of future repeat violations.

Gerald Peters, corporate OSHA compliance manager for Rumpke Recycling, and Eric Brooks, area director for OSHA, will join Gelb and Sander for this session.