OSHA’s 'Top 10' most-cited violations
Imagine a roofing contractor performing a job task he or she doesn’t typically do – gutter cleaning or pressure washing, perhaps.
These types of jobs call for eye and face protection, but because they often lie outside the contractor’s domain, he or she may not have conducted a proper hazard assessment.
As a result, a workplace injury occurs.
The type of scenario outlined above is one possible reason for the appearance of Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102) on OSHA’s Top 10 list of most frequently cited violations for fiscal year 2018, said Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs. The new entry ranks No. 10, joining familiar company that includes Fall Protection – General Requirements (1926.501) at the top for the eighth consecutive year.
Kapust described the past year at the agency as “enforcement as usual” after presenting preliminary violation numbers on Oct. 23 at the 2018 National Safety Council Congress & Expo in Houston. Here, Safety+Health unveils the updated top 10 list, the "penalty box” of the year’s largest fines and an exclusive interview with Kapust.
Most-cited violations, fiscal year 2018
Top 10 "serious" violations, fiscal year 2018
OSHA defines a “serious” violation as “one in which there is a substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.”
Top 10 "willful" violations, fiscal year 2018
OSHA defines a “willful” violation as one “committed with an intentional disregard of or plain indifference to the requirements of the Occupational Safety and Health Act and requirements.”
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This list of OSHA’s highest proposed monetary penalties in fiscal year 2018 comprises those stemming from a single incident or related incidents in which one or more employers are alleged to have failed to adhere to safe work practices. These failures put workers at risk – in some cases fatally. The following information is gathered from OSHA enforcement press releases issued by federal OSHA between Oct. 1, 2017, and Sept. 30, 2018.
(Note: Dollar amounts may be reduced as part of a settlement agreement or litigation.)
Employer: Didion Milling
Location: Cambria, WI (OSHA Region 5)
Business type: Grain milling facility
Inspection trigger: Explosion that resulted in five worker fatalities and 12 injuries, including an amputation Event: Inspectors determined that the explosion likely was the result of the company neglecting to address the leakage and accumulation of combustible grain dust in the facility, as well as insufficient maintenance of equipment to control ignition sources. Among the workers injured was a 21-year-old who was crushed by a railcar, necessitating a double leg amputation.
Major citations: In total, Didion Milling was cited for 14 willful violations – including eight egregious instance-by-instance willful violations – and five serious violations. The willful violations stemmed from failure to shut down ignition sources, prevent static electricity discharge, provide adequate personal protective equipment to employees, correct malfunctioning dust collection systems, maintain equipment safety controls and have an emergency alarm system. The egregious citations were for failure to perform required maintenance on operating equipment and establish a housekeeping program to control dust accumulations. The serious violations involved fire and explosion hazards, as well as a lack of employee training. OSHA placed the company in its Severe Violator Enforcement Program.
“Didion Milling could have prevented this tragedy if it had addressed hazards that are well-known in this industry. Instead, their disregard for the law led to an explosion that claimed the lives of workers, and heartbreak for their families and the community.” – Ken Nishiyama Atha, OSHA regional administrator in Chicago
Employers: First Marine LLC; Thermal Control and Fabrication Inc.; Hutco Inc.; Day Help LLC (operating as Wise Staffing Group); and Joe Rupcke
Location: Calvert City, KY (OSHA Region 4)
Business types: Ship repair contractor, insulation contractor, blasting and painting contractor, staffing agencies Inspection trigger: Explosion that resulted in three worker deaths and two critical injuries
Event: OSHA determined that an explosion occurred aboard a tugboat while employees performed cutting and welding operations in an atmosphere in which flammable gases were present.
Major citations: Altogether, First Marine was cited for 30 serious and three willful violations, one other-than-serious violation and one repeat violation over two inspections. Thermal Control and Fabrication and Hutco each were cited for 15 serious violations, with Thermal Control and Fabrication cited over two inspections. OSHA also cited Rupcke for 17 serious and one other-than-serious violation, and cited Day Help for one serious violation. Violations were for failure to test confined spaces before entry, train workers on confined space entry operations and label chemical containers; exposing employees to asphyxiation, fire, explosion, chemical, trip and drowning hazards; and allowing hot work/welding operations without testing for an explosive atmosphere.
“This tragedy could have been prevented if the employers had followed proper confined space procedures and implemented appropriate safety measures.” – Kurt Petermeyer, OSHA regional administrator in Atlanta
Employer: HB Fuller Co. (operating as Adhesive Systems Inc.)
Location: Frankfort, IL (OSHA Region 5)
Business type: Adhesives manufacturer
Inspection trigger: Planned inspection
Event: Inspectors reported witnessing numerous health and safety violations, including failure to provide employees with respirator fit tests and respirators appropriate for hazardous atmospheres, failure to require bonding and grounding when transferring flammable liquids, failure to ensure approval of electrical equipment used in hazardous atmospheres, and failure to conduct an assessment of personal protective equipment.
Major citations: HB Fuller was cited for 18 serious, willful, repeat and other-than- serious violations across two inspections.
“This employer failed to provide a safe and healthful workplace. The company needlessly exposed workers to hazards by failing to provide necessary training or conduct a required workplace hazard assessment.” – Kathy Webb, OSHA office director in Chicago
Employer: Nox US LLC
Location: Fostoria, OH (OSHA Region 5)
Business type: Luxury vinyl tile manufacturer
Inspection trigger: Worker injuries
Event: Responding to separate employee injury reports in less than two weeks, OSHA inspectors found that one worker had his hand crushed in a tile machine, while another had parts of two fingers amputated while operating a recycle material system. OSHA concluded that Nox US had failed to use adequate lockout/tagout procedures to prevent unintentional machine movement and had not trained employees. Further, the company had exposed workers to fall hazards.
Major citations: Nox US was cited for five willful and two serious violations over two inspections. OSHA placed the company in its Severe Violator Enforcement Program.
“When dangerous machines are not properly guarded or de-energized, employees face an increased risk of serious injuries. Employers must monitor their facilities continuously to ensure workplace safety and health procedures are adequate and effective.” – Kim Nelson, OSHA area director in Toledo, OH
Employer: Gavilon Grain LLC
Location: Wichita, KS (OSHA Region 7)
Business type: Grain bin operator
Inspection trigger: Worker fatalities
Event: OSHA determined that a lack of worker lifelines, fall protection, lockout equipment and rescue equipment contributed to two workers being fatally engulfed in a soybean storage bin. Additionally, the company allowed workers to enter a bin containing bridged or hung-up grain.
Major citations: Gavilon Grain was cited for 12 serious, willful and repeat violations across two inspections. OSHA placed the company in its Severe Violator Enforcement Program.
“Moving grain acts like quicksand and can bury a worker in seconds. This tragedy could have been prevented if the employer had provided workers with proper safety equipment and followed required safety procedures to protect workers from grain bin hazards.” – Kim Stille, OSHA regional administrator in Kansas City, MO
Employer: Trade Fair Supermarkets
Location: Queens, NY (OSHA Region 2)
Business type: Supermarket
Inspection trigger: Planned inspection
Event: While inspecting three supermarket locations around New York City, OSHA representatives found blocked exit routes, blades without safety guards and a lack of sufficient eyewash stations to mitigate exposure to corrosive substances. The company also failed to provide workers with training and Safety Data Sheets on exposure to hazardous occupational chemicals.
Major citations: Trade Fair Supermarkets was cited for 14 repeat, serious and other-than-serious violations. OSHA found similar violations at the company in 2013.
“The recurrence and pattern of these violations is troubling. These grocery stores must focus on safety and make it a priority.” – Kay Gee, OSHA area director in Manhattan
Employer: Kamphuis Pipeline Co.
Location: Kidder County, ND (OSHA Region 8)
Business type: Excavation contractor
Inspection trigger: Planned inspection
Event: OSHA uncovered various violations while investigating a water project site, including employee exposure to trench cave-ins and other trenching and excavation hazards during installation of water metering pits and lines. The agency also found that Kamphuis Pipeline failed to protect employees from struck-by hazards, place excavated soil piles at the proper distance away from trench edges or use appropriate trenching protective systems.
Major citations: In two inspections, Kamphuis Pipeline was cited for 16 serious, willful and other-than-serious violations.
“Trenching and excavation are among the most hazardous construction operations, and employers have an obligation to follow safety requirements designed to protect their workers. This employer’s failure to install protective systems put workers at risk of serious injuries from a trench collapse.” – Eric Brooks, OSHA area director in Bismarck, ND
Employer: Douglas Stephen Plastics Inc.
Location: Paterson, NJ (OSHA Region 2)
Business type: Plastics manufacturer
Inspection trigger: Complaint
Event: An inspection stemming from a complaint involving hazardous work conditions and blocked emergency exits also found that the company had exposed workers to excessive noise levels while not administering a hearing conservation program. Further, Douglas Stephens Plastics exposed workers to amputations, electric shock and burns by allowing employees to use machines with improper guarding while failing to control hazardous energy and train operators of powered industrial trucks.
Major citations: Douglas Stephens Plastics was cited for 19 serious, willful and other-than-serious violations over two inspections.
Employer: Farmers Cooperative – Dorchester
Location: Raymond, NE (OSHA Region 7)
Business type: Grain handling cooperative
Inspection trigger: Response to entrapment
Event: A worker entered a grain bin to clear clumps of soybeans with the machine’s auger in operation. During the course of the work, as the beans cleared and the grain shifted, the employee was knocked off his feet. The beans dropped to the bottom of the bin and filled it enough to partially entrap the worker, engulfing him up to his chest.
Major citations: The cooperative was cited for four serious, two willful and one repeat violation. OSHA also placed the company in its Severe Violator Enforcement Program.
“It is well-known throughout the industry that entering a bin is extremely dangerous, especially while the auger is operating. Entering a storage bin should always be avoided – if at all possible.” – Kim Stille, OSHA regional administrator in Kansas City, MO
Employer: Vigor Marine Inc.
Location: Portland, OR (OSHA Region 10)
Business type: Shipbuilder
Inspection trigger: Complaint
Event: Upon investigating a complaint about occupational hazards during hot work in the engine room of a passenger ferry, OSHA inspectors determined that employees were allowed to work on energized circuit boxes. The agency also found that Vigor Marine had failed to conduct fit testing and medical evaluations before providing respirators, and further neglected to enact an effective hearing conservation program or ensure employees wore seat belts when operating powered industrial trucks.
Major citations: Vigor Marine was cited for 16 willful and serious violations.
About the Severe Violator Enforcement Program
OSHA’s Severe Violator Enforcement Program “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” For a closer look at the program, go to sh-m.ag/2Cwob4f.
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Q & A with OSHA's Patrick Kapust
Preliminary data for OSHA’s Top 10 most cited violations for fiscal year 2018 was announced Oct. 23 at the National Safety Council Congress & Expo in Houston. Later that day, Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, sat down with Safety+Health Associate Editor Kevin Druley to talk about the list, including how several recent initiatives have helped the agency track and target the most frequently cited violations.
Safety+Health: What is the most important message you’d like to send to employers regarding the Top 10?
Patrick Kapust: The Top 10 represents the most frequently cited standards, and they are a good place for the employer to start [to] identify hazards in their own workplace. Another good tool that we have available on OSHA’s website is a page that allows users to research the frequently cited OSHA standards by industry.
So, while the Top 10 is a good place to start, if you’re really serious about finding the hazards in your workplace, you may want to take the extra step to find out what’s the most hazardous in your industry and what we are seeing in terms of violations in your particular industry. And, of course, OSHA does offer compliance assistance at no cost for employers that are interested in correcting hazards before an inspection. Another free service, designed especially for small businesses, is the consultation program. And our website has a number of helpful eTools and publications, as well. We encourage anyone who’s interested to take advantage of these resources.
S+H: How does OSHA assess the addition of the Eye and Face Protection Standard to the Top 10 list? To what extent did violations reflect worker negligence or substandard training programs?
Kapust: In many of the cases, eye protection was not provided or just was not used. It’s hard for me to get that granular from the Top 10, but this could be due to new tasks that employees have been assigned, or new tasks that the employer has taken on and didn’t do what we call a hazard assessment.
Whenever an employer takes on a new job or does a new task, they should do a hazard assessment of that workplace to see what hazards there are and how you can protect your employees from them. Maybe eye and face protection was needed in these, and because the employer hadn’t done that hazard evaluation, they weren’t able to recognize it.
S+H: What can employers do to help the OSHA inspection process go smoothly?
Kapust: The most important thing for an employer to remember is to participate in the inspection and ask questions about the things you don’t understand.
When the compliance safety and health officer (CSHO) arrives, he or she will conduct an opening conference and explain why OSHA is doing the inspection and its scope. Then, the next phase of the inspection is called the walkaround. During the walkaround, compliance officers may point out some apparent violations that can be corrected immediately. While the law requires that these hazards be cited, prompt correction is a sign of good faith on the part of the employer.
Compliance officers try to minimize work interruptions during the inspection and will keep confidential any trade secrets they observe. Employers are encouraged to participate in the walkaround, but the interviews that we do with your employees are done privately.
At the end of the inspection, the CSHO will conduct what we call a closing conference, where he or she reviews all the apparent violations and talks about what your rights and responsibilities are after the inspection. But we encourage employers to ask questions so that they understand what the next steps are and what the hazards are that need to be corrected and how they can be corrected.
S+H: OSHA listed one proposed penalty in excess of $1 million in FY 2018, compared with three in each of the past two fiscal years. How should employers view this? What does it represent to OSHA? Was the agency less forceful as pertains to penalties in FY 2018?
Kapust: Every inspection and the circumstances of an incident are unique. The majority of egregious cases – that would be those with the largest penalties – are the result of an unprogrammed event, such as a fatality or a complaint. OSHA does not have control over how or when these incidents will occur. It’s also important to keep in mind that OSHA does not set goals for the amount of penalties – either overall or by individual inspection. OSHA has a stringent review process in place to ensure the agency is enforcing the standards and regulations and applying penalties fairly and consistently.
The average penalty per violation increased significantly in 2016 due to the Federal Civil Penalties Act Improvement Acts of 2015. As a result, OSHA was directed – based on the consumer price index difference between 1990 and 2015 – to raise our penalties by approximately 78 percent.
S+H: On Sept. 28, the deadline to comment passed on a proposed rule that would roll back two major parts of the Improve Tracking of Workplace Injuries and Illnesses final rule. What are the latest developments here? What can employers expect going forward?
Kapust: OSHA received 170 comments in response to its notice of proposed rulemaking; 163 can be found in the rulemaking docket at regulations.gov, “OSHA-2013-0023.”
The remaining seven submissions were not related to the docket subject matter, or they were duplicates. OSHA is currently evaluating the comments submitted to the rulemaking docket and drafting a final rule. OSHA expects to publish a final rule by or before June 2019.
S+H: OSHA transitioned to its more web-based OSHA Information System more than five years ago. How has the change improved data tracking and evaluation? In which other areas has OSHA seen benefits from the use of emerging technologies?
Kapust: The OSHA Information System (OIS) has increased OSHA’s ability to analyze program activity to better identify trends and emerging issues. For example, when OSHA implemented the new severe injury reporting requirements in 2015, a new module was added to OIS that allowed us to track injury reports and whether they were handled as either rapid response investigations or inspections.
Integrating the new injury data directly with the enforcement data allowed OSHA to closely monitor the new program as it was being implemented – a process that would have been much more challenging prior to OIS.
OSHA continues to look for ways to apply new technology, as resources allow. OSHA field staff have piloted the use of drones during the inspection process to reduce risk to CSHOs. Compliance officers in the Seattle region have used drones to photograph a barge while remaining on shore, and they were able to see the underside of an overpass during sand blasting activities. So that’s just another area, and we put out a memo to our field on drone use this past summer.
S+H: How are things going in the enforcement directorate?
Kapust: OSHA has continued to address the hazards that are causing the more serious injuries and illnesses for workers. We recently launched a site-specific targeting program that will allow our CSHOs to find and inspect establishments with injury and illness Days Away, Restricted Activity, and Transferred (DART) rates that are well above their industry average. And we continue to respond to fatalities, complaints and catastrophes as well. We’re in the fourth year of the severe injury reporting program, which has resulted in an average of 1,000 reports per month. OSHA has and will continue to look for the most effective and efficient means of addressing workplace safety and health.
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10. Eye and Face Protection
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