OSHA Client Advisory: Looking Back on 2007 and
Looking Ahead to 2008

by Rod Smith and Pat Miller

Enforcement Trends
OSHA enforcement stayed strong in 2007 and is expected to remain steady in 2008. OSHA reported a slight increase in the number of inspections over the last year: 39,324 compared to 38,579 in 2006, but the total number of violations cited in 2007, (88,846) increased from the previous year (83,913). "Serious" violations cited by OSHA were up 9% in 2007. However, the number of "willful" classifications decreased from 479 to 415.In all, OSHA proposed over $91 million in penalties during FY 2007.

"Mega-penalty" cases are down from years past. Topping the list, Cintas Corp. in Oklahoma was cited for $2.78 million in penalties, principally for Lockout/tagout violations, followed by Bath Iron Works in Maine with penalties of $441,500.

The top violations cited by OSHA in 2007 were:

1926.501(b)(13)

Residential Fall Protection
1910.1200(e)(1)HazCom/General Industry
1926.501(b)(1)Fall Protection
1926.100(a)Head Protection
1926.453(b)(2)(v)Aerial Lifts/Body Belts and Lanyards
1926.451(g)(1)Scaffolds/Fall Protection
1910.212(a)(1)Machine Guarding
1926.503(a)(1)Fall Protection/Training Program
1926.1053(b)(1)Ladders/Portable Ladder Use
Section 5(a)(1)General Duty Clause


In 2007, OSHA also announced a number of National Emphasis Programs, or "NEPs." NEPs are a tool utilized by OSHA to focus inspection activity on industries which present particularly dangerous or increasing hazards. Among the topics covered by these new NEPs are combustible dust and catastrophic releases of hazardous chemicals at oil refineries. Existing NEPs include amputation hazards, silica, nursing care, and lead. OSHA has also issued a revision of its Enhanced Enforcement Program, or "EEP." An EEP is a tool used by OSHA to target for inspection particular employers based upon established criteria. This revision, in part, modifies the criteria for enhanced enforcement to place more emphasis on an employer's past history of violations.

Rulemaking
The last year was more active in terms of rulemaking. OSHA completed its amended electrical standards for general industry (Subpart S) and adopted a new rule mandating employer payment for personal protective equipment (PPE), effective February 13, 2008. The agency also updated various references to national consensus standards which it found to be duplicative, and issued a proposed rule for construction confined spaces. In 2008, OSHA has announced that it will pursue rulemaking on the "global harmonization of hazard communication," as well as new standards on electric power generation, beryllium, diacetyl, and crane safety and confined spaces in construction.

The Review Commission
At the Occupational Safety and Health Review Commission, 2007 was a notable year. Horace A. "Topper" Thompson was appointed as Chairman of the Commission, replacing W. Scott Railton. The most significant case was Summit Contractors, Inc. That case held that OSHA does not have the authority to enforce the "controlling employer" theory of liability against construction employers that do not create the hazard or have employees who are exposed to the hazard. However, this decision has done nothing to change OSHA's enforcement practices. According to Joseph Woodward, Associate Solicitor for Occupational Safety and Health, "OSHA's multi-employer liability policy is a linchpin of the agency's enforcement efforts in the construction industry, where the employees of several employers frequently work together on a construction site, and hazards created by one can endanger all." Unless the case is affirmed on appeal, now pending before the Eight Circuit Court of Appeals, contractors and homebuilders can expect to see continued enforcement under the "controlling employer" theory of liability.

At the Commission, there is hope that a third commissioner will be added in the near future. Since the retirement of Chairman Railton, the Commission has been operating with only two commissioners. Because of the fact that both commissioners must agree on the outcome of a case in order to have it resolved, there has been a backlog at the Commission. In September 2007, President Bush nominated Madonna Cynthia Douglass, who is the Chairperson and Chief Administrative Appeals Judge of the Department of Labor's Administrative Review Board, to the Commission. Her nomination is still pending before the Senate Health, Education, Labor, and Pensions Committee. If Ms. Douglass is confirmed, she will serve until 2013.

In all, we expect OSHA to remain active throughout 2008. Election year politics have drawn attention to occupational safety and health issues, particularly in the mining industry. The prospect of a Democratic president and congressional majority of Democrats can only mean that more changes are in store for OSHA in 2009.

Who We Are
Rodney Smith, Chuck Newcom and Patrick Miller are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group:

ATTORNEYSEMAIL
Rod Smithrsmith@shermanhoward.com
Patrick Millerpmiller@shermanhoward.com
Chuck Newcomcnewcom@shermanhoward.com

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.


OSHA Update is published to provide information of general interest and not to give legal advice concerning any specific situation. Readers are welcome to copy or distribute OSHA Update articles for educational purposes. Credit given to Sherman & Howard L.L.C. is greatly appreciated. All comments are welcome.

©2008 Sherman &Howard                                                                       February 5, 2008