Process Safety Management

Wood Cutter Takes Water BreakAs it gets hotter outside, employers should consider how best to protect their employees from work-related heat illness.  Thousands of workers fall victim to heat illness each year, and, tragically, many die from heat exposure at work.

Over the past several years, OSHA has significantly increased its focus on protecting employees from succumbing to heat illness.  Most recently, the agency has released a heat safety tool, available in both English and Spanish, which can be downloaded on an iPhone or Android device.  Employers can and should take advantage of this free app, which calculates the heat index for the worksite and displays a risk level to outdoor workers.  The app also provides a list of the measures that should be taken at that risk level to protect workers from developing heat illness.

Although all employers should be vigilant about protecting their employees from heat illness, employers whose employees spend most of the summer working outdoors (such as those in the construction, trade, transportation and utilities, agriculture, building and grounds maintenance, landscaping services, and support activities for oil and gas operations industries) should be particularly cautious.  Employers should have a heat illness prevention plan in place and ensure that their employees fully understand the dangers of heat illness and how to avoid it.

Although federal OSHA does not have a heat illness standard, the agency relies upon the general duty clause to issue citations for incidents involving heat illness.  Employers with worksites in California should be aware that Cal/OSHA does have comprehensive heat illness regulations in place, which have recently been enhanced, requiring employers to take many of the actions listed below—and then some—including maintaining a set of written procedures for complying with the state’s heat illness prevention standard.  Stricter regulations went into effect on May 1, 2015.

By taking just a few extra precautions, employers can significantly reduce the possibility of workers being affected by heat illness and demonstrate their commitment to worker safety.  Simple steps that every employer can take include:

  • implementing a period of acclimation into employees’ work schedules—gradually increasing the amount of time that they spend working in the heat, as well as the level of exertion;
  • making water readily available and encouraging employees to drink water at least every 15 minutes, even if they do not feel thirsty;
  • training employees on the signs of heat illness and how to respond to a heat illness emergency;
  • encouraging employees to wear a hat and light-colored clothing; and
  • encouraging employees to rest in the shade and cool down, as needed, and ensuring that they understand that they will not be reprimanded for taking such action.

On January 11, 2015, a multi-vehicle pile-up took place in west Michigan involving nearly 200 vehicles, including at least one truck carrying fireworks, and another carrying formic acid.  The formic acid caused a HAZMAT event and the fireworks exploded in the truck that was carrying them.  Many were badly injured in the accident, including two firefighters who responded to the exploding fireworks.  Tragically, the driver of another semi-truck was killed.

Winter weather and hazardous driving conditions were significant causal factors in the pile-up.  Although OSHA does not have regulations specifically addressing winter driving, the agency does provide guidance for employers to help ensure the safety of employees engaged in this work.  Specifically, OSHA urges employers to take the following measures:

  • Train drivers how to recognize winter driving hazards, such as snow and ice-covered roads
  • Train drivers on the safeguards they should take in winter driving conditions
  • Ensure that drivers are properly licensed for the vehicles they operate
  • Create and enforce driver safety policies
  • Implement an effective maintenance program for all vehicles and mechanized equipment that workers are required to operate
  • Ensure that properly trained employees inspect the following vehicle systems to determine if they are working properly:
    • Brakes – Brakes should provide even and balanced braking.  Also check that brake fluid is at the right level.
    • Cooling system – Ensure a proper mixture of 50/50 antifreeze and water in the cooling system at the proper level.
    • Electrical system – Check the ignition system and ensure that the battery is fully charged and that the connections are clean.  Check that the alternator belt is in good condition with proper tension.
    • Engine – Inspect all engine systems.
    • Exhaust System – Check exhaust for leaks and that all clamps and hangers are snug.
    • Tires – Check for proper tread depth and no signs of damage or uneven wear.  Check for proper tire inflation.
    • Oil – Check that oil is at proper level.
    • Visibility Systems – Inspect all exterior lights, defrosters, and wipers.  Install winter windshield wipers.
  • Ensure that there is an emergency kit in every vehicle

In order to keep employees safe on the road, employers should also quiz employees to ensure that they understood the training.  Results of the quizzes and any other training-related documents should be kept on file.  All paperwork related to vehicle maintenance should be kept on file as well.  Even though there are no OSHA regulations specific to winter driving, and employers certainly cannot control everything, they must always provide the safest possible work for their employees and OSHA can issue citations where it finds that an employer has failed to do so – even where there are no specific standards regulating the potential hazard.  By taking these simple measures, employers can demonstrate their commitment to safety to both their employees and to OSHA.

On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and illness survey data, which, notably, would be made publicly available
  • Issuance of final rules regarding procedures for handling whistleblower complaints under 9 of the 22 federal statutes which include whistleblower protection provisions that OSHA has been tasked with investigating and enforcing

Hidden among the collection of proposed regulatory actions is OSHA’s plan to issue a Notice of Proposed Rulemaking by the end of the year seeking to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.  This proposal is clearly an attempt to circumvent the Volks decision by the D.C. Circuit Court of Appeals (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)), in which the court held that a plain reading of the six-month statute of limitations in the OSH Act limits the period of time in which OSHA can issue a recordkeeping citation to six months.  Otherwise, the court reasoned, the Secretary of Labor could rely upon document retention rules contained within various OSHA standards to tack on extra time to the statute of limitations, potentially leading to absurd results and giving the Secretary the leeway to extend the statute of limitations forever, simply by adding a never-ending document retention requirement to any given recordkeeping rule.

Finally, and predictably, two longstanding controversial topics were relegated to the agency’s long term action list.  Both the proposed stand-alone combustible dust standard and updates to the recently amended Hazard Communication Standard (which includes the undefined term “combustible dust” within the definition of “hazardous chemicals” regulated under the standard) have been added to the list, indicating that regulated industries must continue waiting for a clear and intelligible definition of the term.  And the so-called “I2P2” (Injury and Illness Prevention Program) has also been shelved for an indeterminate period of time.

 

Last week, Washington Legal Foundation published a Legal Backgrounder regarding OSHA’s Severe Violator Enforcement Program (“SVEP”) authored by Eric J. Conn, Head of Epstein Becker & Green’s national OSHA Practice Group.  The Legal Backgrounder expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program.

The article focuses on a White Paper issued by OSHA this Spring, in which OSHA analyzes the first 18 months of its new, controversial enforcement program.  The White Paper concludes that the SVEP is “off to a strong start” and is “already meeting certain key goals,” including:

  1. Identifying recalcitrant employers whose violations of the OSH Act “demonstrate indifference to the health and safety of their employees.”
  2. Effectively guiding OSHA’s enforcement resources toward those employers by “targeting high-emphasis hazards, facilitating inspections across multiple worksites, and by providing Regional and State Plan offices with a nationwide referral procedure.”
  3. Demonstrating its effectiveness by creating a “significant increase in follow-up inspections and enhanced settlements.”

Despite OSHA’s claims, careful scrutiny of the data available regarding the SVEP casts doubt on the Program’s effectiveness and reveals several glaring problems with how the SVEP is being administered.  Most notably, the Severe Violator Enforcement Program:

  1. Disproportionately targets small employers with enforcement rather than compliance assistance;
  2. Provokes more than four times as many legal challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in the execution of follow-up inspections of SVEP-qualified employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted (i.e., the Program is not capturing recalcitrant employers)

Check out the full Legal Backgrounder regarding OSHA’s SVEP here.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program (“SVEP”).  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

  1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
  2. Effectively allocating OSHA’s follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP’s underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

  1. Disproportionately targets small employers;
  2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

 

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees’ health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program (“EEP”), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

  1. Any alleged violation categorized by OSHA as “Egregious”;
  2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
  3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
  4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical). Continue Reading OSHA Claims Its Severe Violator Enforcement Program is “Off to a Strong Start”

By Eric J. Conn, Head of the OSHA Practice Group

Back in September, we posted an article critiquing OSHA’s Severe Violator Enforcement Program (“SVEP”) in general, and the newly announced “exit criteria” in particular.  Since that time, in the beginning of October, OSHA updated its embarrassing SVEP Log that it maintains for public consumption on the OSHA website.  With the new data included on the SVEP Log, we thought this would be a good time to provide an update about the SVEP, including:

  • The types of employers and industries that OSHA is most frequently qualifying for the program;
  • The OSHA Regions that are most active in the SVEP;
  • The pace at which new employers are added to the program; and
  • Other useful information.

As a reminder, on June 18, 2010 OSHA implemented the SVEP to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized by OSHA as “Egregious”;
  • 1+ Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • 2+ Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, such as falls, amputations, grain handling, etc.); or
  • 3+ Willful, Repeat or Failure-to-Abate violations related to OSHA’s Process Safety Management Standard.

Also as a reminder, OSHA qualifies employers for the SVEP not upon a Final Order of the OSH Review Commission confirming that the employer actually violated the law as alleged by OSHA, but instead, employers find themselves on the public Severe Violator list just upon OSHA’s initial, unproven allegations.

Below are some interesting bits of data about the SVEP in general, and the types of employers that are landing on the SVEP List, how frequently, and in what parts of the country:

By Eric J. Conn, Head of the OSHA Practice Group

On June 18, 2010 OSHA replaced its much-maligned Enhanced Enforcement Program (EEP) with a new and equally problematic initiative called the Severe Violator Enforcement Program (SVEP).  The SVEP is intended to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized as “Egregious”;
  • One or more Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, including falls, amputations, grain handling, etc.); or
  • Three or more Willful, Repeat or Failure-to-Abate violations related to Process Safety Management (prevention of the release of a highly hazardous chemicals).

According to an attorney with OSHA’s Solicitor’s office, employers are not added to the SVEP immediately upon receipt of citations meeting these criteria, but rather, are deposited in the Program within fifteen working days of receipt of the citations upon either a settlement at an Informal Settlement Conference, or the filing by the employer of a notice of contest challenging the validity of the citations.  More than two-thirds of SVEP cases are contested by the cited employer, and of the 200+ contested SVEP cases, nearly half of those contests remain open today.  As a result, some employers have been on the list for more than two years despite OSHA not proving that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP.  The constitutional due process implications of the SVEP are glaring.

Once an employer is added to the SVEP (again just based on unproven allegations), the company is immediately subject to the punitive elements of the Program, including mandatory follow-up inspections at the facility where the SVEP-qualifying citations were issued, as well as at sister facilities throughout the enterprise.  The issuance of SVEP-qualifying citations also comes with a heavy dose of public shaming by the Department of Labor.  Specifically, with every SVEP citation comes a public press release issued by OSHA, which now includes an inflammatory quote from a high-ranking OSHA or Department of Labor representative about the employer.  The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.”  The SVEP press releases and an embarrassing public log of all employers in the SVEP are available on OSHA’s website.

The final problematic element of the SVEP has always been the manner in which employers can (or cannot) be removed from the Program once they get in.  For more than two years, OSHA operated the SVEP without providing employers any way out of the Program, other than by eliminating the underlying SVEP-qualifying citation through the multi-year contest process or persuading OSHA to withdraw the qualifying citations in a settlement.  After much clamoring from industry, OSHA finally released a press release summarizing a memorandum from the Director of Enforcement Programs to the Regional Administrators on August 16, 2012, which set forth a series of removal criteria.

The memo provided a framework for getting out of SVEP, but the extremely harsh removal criteria provide little relief to employers.  The memo explains that:

“[A]n employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.”  Of course, it is not as easy as just waiting those 1095 days from a Final Order.  Employers must have also “abated all SVEP–related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional Serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.”

If employers fall short of any of these requirements, they will have to wait an additional three years to be considered for removal.  Even if the employer does meet all the criteria, removal from SVEP is not guaranteed.  In all cases with the exception for those involving corporate-wide settlements, the Regional Administrator has the final say as to whether an employer is removed from the program.  That discretionary decision is based on vague, undefined factors related to follow-up inspections and enforcement data.  Employers who agreed to corporate-wide settlements are reviewed for removal by the Director of Enforcement Programs (“DEP”) in OSHA’s National Office. Continue Reading OSHA Reveals Unfair Exit Criteria from Its Unconstitutional Severe Violator Enforcement Program

By Eric J. Conn, Head of the OSHA Practice Group

The deadline passed last week for OSHA to appeal a recent decision by an Administrative Law Judge (“ALJ”) that struck down OSHA’s attempt to expand its Personal Protective Equipment (“PPE”) standard by way of an enforcement memorandum that mandated oil and gas employers ensure their employees don flame retardant clothing (“FRC”) during drilling operations (OSHA’s “FRC Memo”).  The Judge ruled that the FRC Memo constituted “improper rulemaking under the aegis of an enforcement standard.” See Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).  The Occupational Safety and Health Review Commission (“Review Commission”) also declined to independently take-up the decision for review, so the ALJ’s decision is now officially a Final Order of the Review Commission.

The ALJ’s decision represents a meaningful victory for employers as it relates to any PPE enforcement action, not just those related to FRC. The ALJ chastised OSHA for attempting to circumvent the formal notice and comment rulemaking process required by the Administrative Procedure Act (“APA”), by issuing the FRC Memo rather than amending its regulations. Although OSHA did not appeal the Judge’s ruling, the Agency has expressed, through both words and actions, disagreement with the Judge’s ruling.

The Petro Hunt case arose out of an October 15, 2010 OSHA inspection at an oil production worksite in North Dakota, after the Sherriff’s Department notified the Agency that a fire engulfed a treater shed. Following the inspection, OSHA cited the employer for allegedly failing to provide and require employees to wear FRC. The employer contested the citation, and a hearing was held before ALJ Patrick Augustine in November 2011. In this case of first impression, the ALJ concluded that the FRC Memo did not simply interpret the standard but, rather, amounted to a new standard that should have been subject to the formal rulemaking process under the APA.

Judge Augustine reasoned that the FRC Memo transformed the PPE standard from a “performance-based” standard – which grants employers reasonable discretion to assess the nature of hazards at their workplaces and select appropriate PPE to address those hazards – into a specification standard – in this case, an obligation to provide a specific form of PPE (flame retardant clothing), during oil and gas operations “regardless of the particular circumstances that may be present at any individual facility.” In striking down the FRC Memo, the Judge stated:

Complainant cannot ‘require’ anything more than what is authorized by the regulations. If [the Secretary of Labor] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then she must report to the required notice and comment rulemaking process. Otherwise, [OSHA] must independently prove in each case that Respondent had actual notice, or that a reasonable person in Respondent’s position would have recognized a hazard requiring the use of FRC.

The ALJ also rejected OSHA’s argument that the Review Commission should grant deference to OSHA’s interpretation in the FRC Memo, because, Judge Augustine explained, the interpretation was “unreasonable and inconsistent” with established regulations. The ALJ proceeded to vacate the citation, reasoning that OSHA failed to establish that the employer had actual notice of a need for FRC at the inspected worksite, or that a reasonable person familiar with the circumstances and industry would have recognized the existence of a flash fire hazard. To support his decision, the ALJ highlighted the following facts:

  1. OSHA’s failure to establish that flash fires were a hazard at the worksite;
  2. None of the employer’s employees suffered injuries due to fires in the previous two years; and
  3. The employer conducted a thorough hazard assessment, and reasonably concluded that engineering and administrative controls (methods of addressing hazards generally preferred over reliance on PPE), adequately addressed any potential fire hazard. Continue Reading Judge Strikes OSHA’s Expansion of the PPE Standard — OSHA Ignores the Judge

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

 

  1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
  2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
  3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
  4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
  5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
  6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
  7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
  8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
  9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
  10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.

By Forrest G. Read, IV and Eric J. Conn

The U.S. Chemical Safety and Hazard Investigation Board (CSB) announced earlier this month a new policy disguised as a nod to enhancing employee participation in CSB investigations, but which may actually represent a dramatic limitation in the investigation rights of both employees and employers.  The new policy expands the role of non-management employees in the CSB’s investigations into the causes of chemical accidents that occur at industrial facilities, but does so at the expense of employers’ involvement and employees’ rights.

By way of background, the CSB was created under the Clean Air Act, but does not report under the EPA, nor does it fall under the Department of Labor.  Rather, the CSB is an independent, non-enforcement federal agency charged with investigating industrial chemical accidents.  While the CSB investigates many of the same incidents as the Occupational Safety and Health Administration (OSHA), the CSB distinguishes itself from OSHA in key ways, and really fancies itself as a sister agency to the National Transportation Safety Board (NTSB).  Like the NTSB, which conducts investigations of transportation related incidents, and issues reports and recommendations but not citations or fines, the CSB conducts root cause investigations of chemical accidents at fixed industrial facilities, and issues reports and recommendations but no penalties.

During its investigations, CSB investigators request (or subpoena) records, interview management and non-management employees, evaluate physical evidence, and review applicable regulations and industry practices.  Following its investigations, the CSB holds public meetings to review its finding, and drafts public investigation reports or case studies that include safety recommendations issued to companies, government agencies (often OSHA), trade associations, local governments, labor unions, and other entities.  Although CSB recommendations are technically non-mandatory, CSB tracks the implementation of its recommendations, and uses public shaming to compel employers and others to adopt the recommendations.

Below are the key differences between the manner in which the CSB and OSHA carry out their respective missions:

  1. Unlike OSHA, which has a six-month limitations period to complete its inspections and issue citations, the CSB has no time limit.  Indeed, it is not uncommon for CSB investigations to last more than a year;
  2. Whereas OSHA issues citations that carry monetary penalties, require mandatory abatement, and can result in criminal charges, the CSB issues “non-mandatory” recommendations following its investigations;
  3. In addition to the public shaming related to its recommendations, the CSB is also known for making public statements early and often about its on-going investigations, preliminary findings, interaction with the employer, and just about anything else, unlike OHSA, which, by policy, makes no public comments as to active matters; and
  4. While both agencies frequently make critical mistakes in their findings, OSHA citations can be contested before a body of administration law judges, but because the CSB is a non-enforcement agency, there is no venue to which employers can appeal to correct the CSB’s flawed reports and recommendations (not even by attaching formal comments to CSB’s official reports, like its “sister agency” the NTSB allows).

Another key difference between OSHA and CSB investigations is that OSHA excludes management representatives (e.g., the employer’s attorney) from non-management interviews, but the CSB has historically allowed employer’s representatives in interviews of employees.  The new policy articulated by the CSB in March 2012 includes a policy shift that strikes a major blow to employers’ and employees’ rights in CSB investigations.  The policy states:

“During CSB interviews, any non-supervisory employee may be accompanied by another non-supervisory employee, a personal attorney, or a family member as described in 40 CFR 1610.”

Under 40 CFR 1610.1(a), witnesses who are compelled to appear for interviews are entitled to have counsel present.  Based on CSB’s specific identification of a “personal attorney” or “fellow non-supervisory employee” as acceptable persons to accompany employees in interviews, however, it appears the CSB plans now to exclude company counsel from appearing with non-management witnesses, even if the witness expressly requests that specific attorney as his representative.

While the CSB Chairman stated that “effective employee participation” is the fundamental purpose of the new policy, and that information from employees is the most useful source for CSB understanding a facility’s day-to-day operations, it is troubling that the CSB intends to actually strip away employees’ rights by limiting their choice of interview representative.  It is even more troubling that just as the CSB praises the value of employee participation, they trample on the rights of participation of employers, who design and build the facilities where the accidents occurred, who manage the operations that were involved in the incidents, and who have access to valuable institutional knowledge not available to many non-management employees.

Furthermore, given that CSB findings and recommendations are publicized and used to shame allegedly bad actors, and employers have no venue to challenge errors and misstatements in CSB reports and recommendations, it is even more troubling that the employer is now going to be excluded from key aspects of the investigation process.  Employers have successfully challenged under the Administrative Procedure Act (APA), OSHA’s exclusion of management representatives from non-management interviews.  The same rationale for those challenges should apply in the CSB context as well.  Accordingly, provided the non-management employee and the employer waive any potential conflict of interest, and the employee is not pressured to select a management representative as his interview representative, this new CSB interview policy likely violates the APA, and should be challenged on behalf of employees who desire to have company counsel participate in their interviews.