Q&A with Patrick Kapust

After beginning his career with OSHA in 1991 as a compliance safety and health officer, Patrick Kapust now serves as the agency’s deputy director of the Directorate of Enforcement Programs and leads a staff in supporting OSHA’s mission of enforcing standards. During an interview with Senior Associate Editor Kyle W. Morrison, Kapust discussed the tools available to employers to avoid violations – including using the Top 10 list – and how today’s anti-regulatory climate has affected OSHA.

Safety+Health: Looking at the Top 10 list and the number of violations, what does it represent to you? Can OSHA gauge its success through this list?

Patrick Kapust: I wouldn’t gauge the success of OSHA through this list. I would look at this list more as a potential tool for employers who may be looking for what OSHA finds at workplaces. Employers may want to look at the Top 10 standards – especially the sub-paragraphs in those standards – to make sure they’re complying and doing the right things. An employer who may be interested in what the possible hazards in their workplace are could look at the list and see if they’re covering all hazards and assessing the kind of changes they may have to make to their safety and health program. This would be part of an employer’s hazard analysis, which helps them identify hazards in their workplace and then correct them appropriately.

S+H: OSHA officials have commented that better measurements – other than the standard injury, illness and fatality data – are needed to gauge whether the country’s workplaces are becoming safer. Do you agree with those comments?

Kapust: I would completely agree that we need better indicators. We need a better evaluation of how we’re impacting injuries and illnesses in the workplace. However, from the standpoint of a single inspection, after a compliance officer has been in a workplace and addressed the conditions, they know they’ve changed that workplace for the better. On the macro level, when you’re just looking at these numbers, it gets difficult. We are looking at studies to see how we’re doing. Part of our Site-Specific Targeting Program includes a study to see if that program is effectively reducing workplace hazards for companies that have been inspected by OSHA. We are planning on doing more comprehensive evaluations of our National Emphasis Programs and Local Emphasis Programs because those are the programs we use to target workplaces. Forty-two percent of our inspections are unprogrammed ones we have to do statutorily in response to complaints, fatalities, catastrophes and referrals. The other 58 percent are programmed inspections in which emphasis programs target the workplaces for inspection, so we want to make sure we’re getting to the right places in order to reduce the number of hazards in those workplaces. Rather than just a standard review using enforcement metrics, we’ll do much more analysis.

S+H: There has been a large anti-regulatory push lately. What’s your take on this, and does this influence OSHA’s activities at all?

Kapust: Our mission is to ensure the safety and health of America’s workforce; we’re going forward with that. We’re not here to cite for citation’s sake itself. Our compliance officers are trained to look for hazards; where we have standards to address those hazards, we’ll enforce them. When workers are healthy, I think the fiscal health of the employer is better as well. I think if anything, we’re improving workplaces.

S+H: Last year was the first time every proposed penalty listed in S+H’s Penalty Box section was more than $1 million. This year, only three were in the millions (p. 48). Was OSHA not as forceful regarding penalties this past year?

Kapust: If you look at the number of significant cases – defined as a case with proposed penalties at or over $100,000 – we had about 215 for this past fiscal year. At the beginning of FY 2011, OSHA implemented several changes to its administrative penalty calculation system in order to increase the deterrent effect on employers. As a result of these changes, OSHA regions reported 49 significant cases in FY 2011 that would not have been significant cases under the old penalty calculation system. Of the cases where you are over $1 million, those involve large numbers of violations, egregious-type citations and willful citations. We look at the facts of each case. If the facts lend themselves to those kinds of violations, then of course we’re going to follow that. We clearly don’t emphasize to our enforcement folks that we need to increase the number of egregious violations, which would, of course, increase the penalty amounts. We don’t do it that way. For each possible violation, our compliance officers follow the Field Operations Manual, and certain elements have to be met in order to have a violation. If those aren’t met, we don’t have a violation.

S+H: Do any National Emphasis Programs pertain to the Top 10 list, or are any coming up that employers should be aware of?

Kapust: Right now we’re reviewing our National Emphasis Programs. We do have an emphasis program on amputations, which are addressed in standards such as Lockout/Tagout, Machine Guarding and Electrical to an extent. So we are collecting a lot of violations from that emphasis program in those areas. With the combustible dust NEP, electrical wiring could be applicable in those workplaces because we are trying to control fire and explosion hazards. For respiratory protection, we have NEPs on silica, hexavalent chromium, microwave popcorn (diacetyl substitutes) and primary metals.

S+H: You’re mentioning some NEPs with hazards that don’t have specific standards, such as diacetyl and combustible dust. So employers should really be paying attention to the NEPs, as well as what’s in the Top 10?

Kapust: Clearly, the standards in the Top 10 do address hazards that are targeted in these NEPs. We don’t have a combustible dust standard; however, the Electrical Standard could be applicable there, as well as the General Duty Clause and Hazard Communication. For microwave popcorn, respiratory protection and hazard communication could be cited. Again, employers could use this tool by looking at the Top 10, and then also going to our National Emphasis Program list and seeing if they are in any of the industries within those lists as part of their hazard analysis. Typically, the NEPs will contain an outreach component as well that will be distributing information to employers regarding the hazards in those targeted workplaces.

S+H: What other tools could employers use? Some employers are wary of OSHA; are there ways employers can receive help from OSHA without directly contacting the enforcement agency?

Kapust: We have information on our website that’s available; we have several publications they can download, an 800 number to call with questions and an e-correspondence system to submit questions online. For employers with fewer than 250 employees at a fixed site, we have the free consultation service available to them, which is state-run. When the consultation service comes in, enforcement doesn’t. There are some rare exceptions, but for the most part, enforcement stays out of consultation. If they have questions, we want employers to ask us so we can get the information out. We’re here to assure the safety and health of America’s workforce, and if there’s a way to get that information to an employer in order to do that, we’re more than willing to do that.