WHAT TO DO BEFORE AND WHEN THE DEPARTMENT OF LABOR COMES CALLING:

OSHA Inspections and Citations.

OSHA HISTORY AND MISSION

Inception:Occupational Safety and Health Act (1971).29 U.S.C. §§ 651-678.

Mission:To assure safe and healthful working conditions

by setting and enforcing standards and by providing training, outreach, education and assistance.

Dallas, TNT, Season 2, Episode 10, Guilt & Innocence

OSHA HISTORY AND MISSION

Generally applies to all domestic employers and employees.

Exempted:Self-Employed.Family farm workers with no outside employees.Regulated by other Agency.

○ MSHA, FAA, USCG, BSEE, etc.

OSHA STANDARDS OSH Act Sec. 5: General Duty Clause:

Each employer shall furnish a place of employment free from recognized hazards likely to cause death or serious physical harm.

Specific Standards:29 CFR 1904 – Recordkeeping29 CFR 1910 – General Safety29 CFR 1926 – Construction29 CFR 1928 – Agriculture

OSHA AND OIL & GAS

OSHA Regulations and the Oil & Gas Industry

OSHA AND OIL & GAS INDUSTRY Oil & Gas Well Drilling,

Servicing and Storage Industry Focus.

Available at:http://www.osha.gov/SLTC/

oilgaswelldrilling/

OSHA AND OIL & GAS INDUSTRY

Frequently Cited:Electrical Wiring and Sys.

Guarding Floor/Wall Openings

General Duty Clause

PPE

Hazard Communication

OSHA OIL & GAS SAFETY FOCUS

OSHA Oil & Gas Directives:Oil Well Derrick Stability: Guywire

Anchor Systems.National Emphasis Program:

Crystalline Silica.

Hazard Information Bulletins:Diesel Exhaust/Diesel Particulate

Matter.Barrier Guards for Drawworks Drum

at Oil Drilling Sites.

OSHA OIL & GAS “eTool” Online, interactive website for Oil & Gas Industry.

Provides reference to:Applicable standards.Potential hazards (JSA topics).Safe practices.Suggested training.

Available at:http://www.osha.gov/SLTC/etools/oilandgas/index.html

OSHA OIL & GAS SAFETY CONFERENCE Presenters from OSHA, NIOSH and Industry

Groups focusing on Oil & Gas Industry.

Next: December 2-3, 2014.

2012 Conference Presentations Available:http://www.oshasafetyconference.org/Events/ugm/

Osha2012/

OSHA WORKPLACE INSPECTIONS

Implementing Safety Standards

OSHA INSPECTIONS OSHA Compliance Safety and Health Officer.

Unscheduled and Scheduled Inspections.

May include examination of:Required record keeping.Workplace and site safety evaluation.Abatement and compliance assessment.

OSHA INSPECTIONS CSHO Inspection Priorities :

1. Imminent Danger Assessment.2. Catastrophe/Fatality Investigation.3. Worker Complaints.4. Targeted Inspections (National

Emphasis Programs).5. Follow-up of Prior Inspections for

Abatement and Compliance.

OSHA INSPECTIONS CSHO Must:

Present credentials and define scope.Reasonable accommodations for business.Allow employer/employee representatives to

observe.

CSHO May:Visually observe workplace, photograph and sample.Review required records, placards and postings.Interview employees and take statements.Request additional documentation.

OSHA INSPECTIONS Closing Conference

Note violation(s) observed and nature.

Identify possible abatement measures/deadlines.

Detail employee rights and non-retaliation rules.

Employer’s opportunity to correct factual errors.

Do not admit violation(s)!

OSHA ENFORCEMENT

Citation, Penalties and Procedure

CITATION Citation and Notification of Penalty:

Violated standard(s) observed during inspection.

Assessment of penalty(ies).

Abatement requirements and deadlines.

Posting and notification requirements.

PENALTIES “Serious”: Substantial probability of death or

serious harm.Up to $7,000 per violation.

“Other than Serious”: Probably not cause death or serious harm.Up to $7,000 per violation.

“De Minimis”: Employer implemented different measure with no immediate safety concern.

HEIGHTENED PENALTIES “Repeated”: If cited within 5 years for

same/substantially similar condition.Up to $70,000 per violation.

“Willful”: Intentional disregard or plain indifference to employee safety.Up to $70,000 per violation.Possible criminal charges.

INFORMAL CONFERENCE Explanation of violations cited.

Explanation of applicable standards.Specific standard or General Duty Clause.

Discuss abatement measures and timing.

Negotiate informal settlement agreement.Resolve disputed Citations and penalties.Penalty negotiation.

CITATION OPTIONS Agree and accept violations and penalties; or

contest Citation, proposed penalty(ies) and abatement date.

Compliance for Uncontested Citation:Pay penalty(ies).Abatement compliance certification.

Petition for Modification of Abatement:Seek delay in abatement period or abatement actions.

NOTICE OF CONTEST Notice of Contest:

Must be served within 15 working days from receipt of Citation.

Commencement of Contest:Sec. of Labor files Complaint within 20 days.Employer files Answer within 20 days.May elect “Simplified Proceedings.”

CONTEST PROCEDURE Discovery governed by OSHRC Rules.

Evidentiary hearing before ALJ governed by Federal Rules of Evidence.

Petition for Discretionary Review of ALJ decision before Review Commission.

If not directed for review, employer may file petition for review in Court of Appeals.

CONTEST PROCEDURE Secretary of Labor has initial burden:

1. Applicability of cited standard;

2. Employer’s non-compliance with standard;

3. Employee access to violative condition; and

4. Employer’s actual or constructive knowledge of violation.

AFFIRMATIVE DEFENSES Isolated Employee Misconduct:

Adequate plan for training and supervision with specific instruction, but no employer knowledge of misconduct.

Impossibility/Greater Hazard:Compliance with requirements would have

been functionally impossible or precluded task and no alternative means available.

AFFIRMATIVE DEFENSES Infeasibility of Abatement:

Means of compliance would have been infeasible or necessary work would be infeasible after compliance, and alternative means used or no feasible alternative.

Multi-Employer Citation Policy:Employer did not cause hazard or control

conditions, but took reasonable steps to notify causing party and to protect employees.

PRACTICAL GUIDELINES

How to Avoid Headaches in Dealing with OSHA

BE PREPARED Take advantage of available OSHA training.

Engage outside counsel before issues arise.

Know what to expect during inspections.

Take Advantage of Informal Conference and Contest Citations.

Be proactive at every step!

PRE-INSPECTION PLANNING OSHA funding for inspections has not decreased.

OSHA has many training and compliance resources available at little to no cost.

HS&E personnel must identify and comply with standards and recordkeeping.Illness and Injury Prevent Policy (I2P2).OSHA 300, 300-A and 301.

Paper the file!

PRE-INSPECTION PLANNING Majority are unscheduled inspections.

In the heat of the moment is not the time to make important decisions.

Prepare beforehand!Engage outside counsel before inspection

occurs. ○ Work product privilege if subsequent litigation.

Identify Inspection Response Team.○ Designate “point person” to accompany CSHO.

THE CSHO IS HERE! NOW WHAT? Should request time for counsel or safety

representative to accompany CSHO. CSHO will typically wait if not unreasonable delay.

Can deny entry and demand search warrant.Do not have to consent to inspection.OSHA can obtain ex parte.

THE CSHO IS HERE! NOW WHAT? Counsel/safety representative should

shadow CSHO.Take identical photos, videos and samples.

Request duplicates of all photos, videos, samples and copies of test results.

Limit CSHO’s access only to defined scope.

Protection of Trade Secrets.

THE CSHO IS HERE! NOW WHAT? Employee interviews:

CSHO can interview employees privately.

Employee can request employer presence.

Employer does have right to speak with employees.

No requirement for employee to sign statement.

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INFORMAL CONFERENCE IS KEY Only chance to discuss Citation/violation(s)

informally.

Discuss applicability of standards cited.If specific standard applicable, it should be cited

rather than General Duty Clause.Consider guidance from ANSI, API, IADC, etc.

INFORMAL CONFERENCE IS KEY Request abatement assistance and options.

Impossibility or Greater Hazard Defenses?

Negotiate settlement and penalty.General Duty Clause can only be categorized as

“Serious” violation.Specific standards can be “Other than Serious” or

lesser violation.

CONTESTING CITATIONS Must serve Notice of Contest within 15

working days of receipt of Citation.Informal Conference does not stay deadline.

Must plead affirmative defenses.

Must prepare for evidentiary hearing like any trial and make complete record.

THANK YOU!