When OSHA Comes Knockin’

As Alexander Graham Bell famously said, “Before anything else, preparation is the key to success.” No truer words could be said to employers in the grain industry today about OSHA inspections. Secretary of Labor, Hilda Solis, summed up OSHA’s enforcement philosophy during her swearing in, when she stated: “There is a new sheriff in town. Make no mistake about it, the Department of Labor is back in the enforcement business. We’re serious. We’re very serious.” OSHA has certainly lived up to that tough talk.

Through increased penalties, inconsistent and confusing interpretations of grain-related regulations, aggressive special emphasis enforcement programs, inflammatory press releases, and criminal referrals to the Department of Justice, OSHA has hit the grain industry particularly hard. Accordingly, OSHA’s current enforcement philosophy makes the consequences of being unprepared for an OSHA inspection direr than ever before.

Over the past three years, the Department of Labor’s budget has funded a substantial increase in the size of OSHA’s enforcement team, and required OSHA to redirect many of its compliance assistance resources into enforcement. OSHA also rewrote its penalty policies to increase the size of enforcement actions, introduced new forms of punishment, and launched new special emphasis programs that have greatly impacted the grain industry. These changes have more than doubled the frequency of significant cases (citations with fines more than $100,000), and have made it much easier for employers to be penalized as willful or repeat offenders.

Historically, OSHA found fewer willful/repeat violations because it treated workplaces within a corporate family as individual, independent establishments, limited review of employers’ OSHA records for prior citations to three years, and took a reactive approach to selecting inspection targets, making a follow-up visit to the workplace and repeat violations less likely. Now, OSHA treats workplaces within a corporate family as one workplace, looks back five years in an employer’s OSHA record for past citations to serve as the basis for repeat citations, and takes a proactive approach, often specifically selecting past violators as inspection targets. OSHA also sent letters to thousands of grain employers in 2010 and 2011 informing them of their responsibilities related to grain bin entries. OSHA has treated all employers who received these letters as being “on notice,” setting the stage for OSHA to issue willful violations if employers disregarded the obligations outlined in the letters.

OSHA has also increased its use of national and local emphasis programs to target the grain industry. These programs allow OSHA to randomly choose any employer in the grain industry for inspection without the need for an incident or employee complaint to create probable cause to inspect. These inspection programs direct substantial inspection resources to grain elevators, looking for violations of OSHA bin entry requirements, housekeeping and combustible dust issues, and other grain related hazards. Under these emphasis programs since 2009, OSHA has visited approximately 9,000 grain elevator facilities for enforcement inspections, almost all of which resulted in at least one alleged violation, and more than 3,500 total violations with untold millions in total penalties.

OSHA inspection preparation

One of the most important tools in preparing for an OSHA inspection is to understand the rights of the respective participants in the inspection process. These rights are defined by the U.S. Constitution, the OSH Act, and the Administrative Procedure Act. The lists below describe OSHA’s, employees’, and employer’s inspection rights..

OSHA has the right to…

• Inspect workplaces with probable cause;
• Conduct inspections without advance notice;
• Access employer records;
• Collect physical evidence, including photographs, video recordings, air and noise samples, etc., during the inspection; and
• Conduct employee interviews.