By James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2019 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2018 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2019 inflation adjustments which again nudges the penalties even higher.  84 Fed. Reg. 213 (Jan. 23, 2019).

Under the 2019 rule, the maximum OSHA civil penalties will be:

2018 Penalties

2019 Penalties
Other than Serious violations: $12,675 $13,260
Serious violations: $12,675 $13,260
Repeat violations: $126,749 $132,598
Willful violations: $126,749 $132,598
Failure to abate (per day): $12,675 $13,260

The new OSHA penalty amounts are applicable to OSHA citations issued after January 23, 2019, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, IIJames L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  New Review Commission decision refines the definition of what OSHA must prove to establish a “Repeat” violation.

On September 30, 2008, OSHA issued a citation to Angelica Textile Services, Inc., a commercial laundry, alleging ten Serious and four Repeat items. Seyfarth represented the employer, Angelica Textile Services, Inc. After the parties filed cross motions for summary judgment, the Administrative Law Judge issued a decision affirming two of the Serious items and vacating the remaining twelve items, including the Repeat citations. The Secretary of Labor appealed, arguing that the judge improperly vacated two Repeat citations that alleged deficiencies of permit required confined spaces (PRCS) and lockout/tagout (LOTO) procedures.

On July 24, 2018, nearly a decade after the citations were issued, the Occupational Safety and Health Review Commission (Commission) affirmed the previously vacated citation items, but characterized and reclassified them as Serious rather than Repeat violations, and issued a single reduced penalty of $7,000. See Secretary of Labor v. Angelica Textile Services, Inc., No. 08-1774.

Most importantly, the Commission refined the definition of what OSHA must prove to establish a Repeat violation. OSHA has traditionally taken the position that all the evidence it had to show to meet the “substantial similarity” standard was merely that the same type of equipment, process or regulation that was involved in the current violation was also involved in a prior final citation which served as the basis for the Repeat violation. In the Angelica decision, the Commission clarified that a showing of “substantial similarity” can be rebutted with a showing of “disparate conditions and hazards associated with these violations of the same standard.”

The decision also refined what defenses an employer may have to a Repeat citation based on the abatement actions it took to abate the earlier violation. Applied to the facts of the case, the Commission noted that the prior PRCS citation identified “critical deficiencies” in the employer’s compliance program.  However, in response to the prior citation, the Company “actively sought out and eliminated similar hazards,” including developing a PRCS program specific to the condition cited.

The majority in Angelica noted that the Company’s prior abatement efforts also resulted in reduced citations in the current matter.  Similarly, the Commission noted that the prior LOTO citation to the Company had identified a “comprehensive failure of compliance.”  However, the present case involved procedures established in the interim, as well as surveys completed for machines that the Company had undertaken in response to the prior violations.  Rather than lacking the previous comprehensive procedures as was the case in the earlier citations, there were only two discrete deficiencies in the employer’s current program.

Significantly, the Commission also remarked in a footnote that the Secretary had accepted the Company’s prior abatement method, thus giving no basis for OSHA to conclude that the Company knew that its interim safety precautions and corrective actions were not compliant.

After comparing the employer’s attempts at compliance with the prior and subsequent citations, the Commission reasoned that, while the prior citations had been based on a complete failure to comply, the current citations reflected only minimal deficiencies. In other words, “[the Company] took affirmative steps to achieve compliance and avoid similar violations in the future.”  Because of these interim abatement actions, the Commission concluded that there was no basis for a Repeat citation.

In light of the Angelica decision, it appears that OSHA’s burden of proof has been measurably increased to establish a Repeat violation and it will be more difficult for OSHA to prove Repeat citations against employers. Following the acceptance of a citation, employers should work with a team well versed in the concepts espoused in the Angelica decision so that it can take the appropriate steps to establish that it acted in good faith and took effective and documented action to correct the violation. Employers should “actively [seek] out and eliminate[] similar hazards,” or “[take] affirmative steps to achieve compliance and avoid similar violations in the future.”  As there is no mechanical way to avoid a Repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions. Most importantly, beyond the concern of legal liability, if an employer takes the interim actions endorsed by the Angelica decision, it will measurably enhance the safety and health of its workplace.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: EPA has promulgated its new per violation penalty rules for 2018.

The U.S. Environmental Protection Agency (EPA) has again issued final regulations adjusting the maximum civil penalty dollar amounts for violations of various environmental regulations. 83 Fed. Reg. 1190 (January 10, 2018).

The action is mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), which not only required an adjustment from 2015 penalty maximum levels to account for inflation, but also included a catch-up provision for inflation. The provision required each agency to evaluate and provide for an inflation adjustment dating back to the enactment of the relevant statute’s effective date. Section 5(b)(2)(C) of the 2015 Act provided that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015. See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016).

The 2015 Act required that, in addition to the initial catch-up, beginning January 15, 2017, each agency was required to make subsequent annual adjustments for inflation. The 2018 penalty adjustments will be effective January 15, 2018 for all violations which occur or occurred after November 2, 2015 and are assessed after January 15, 2018.

The 2018 rulemaking sets the maximum penalty by statute. For example, the $25,000 per-violation maximum penalty under the Clean Air Act will now be inflation-adjusted to $46,192; under the Clean Water Act will now be $46,192; under RCRA will now be in a range of $58,562 to $72,718, and under CERCLA (including most EPCRA violations) will now be $55,907. Other maximum penalties are also adjusted.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2017 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2018 inflation adjustments which will nudge the penalties even higher.  83 Fed. Reg. 7 (Jan. 2, 2018).

Under the 2018 rule, the maximum OSHA civil penalties will be:

2017 Penalties 2018 Penalties
Other than Serious violations: $12,675 $12,934
Serious violations: $12,675 $12,934
Repeat violations: $126,749 $129,336
Willful violations: $126,749 $129,336
Failure to abate (per day): $12,675 $12,934

The new OSHA penalty amounts are applicable to OSHA citations issued after January 12, 2018, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2017 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2016 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2017 inflation adjustments which will nudge the penalties even higher.  92 Fed. Reg. 5373 (Jan. 19, 2017).

Under the 2017 rule, the maximum OSHA civil penalties will be:

                                                                2016 Penalties            2017 Penalties

  • Other than Serious violations:             $12,471                       $12,675
  • Serious violations:                               $12, 471                      $12,675
  • Repeat violations:                               $124,709                     $126,749
  • Willful violations:                               $124,709                     $126,749
  • Failure to abate (per day):                   $12, 471                      $12,675

The new OSHA penalty amounts are applicable to OSHA citations issued after January 13, 2017, whose associated violations occurred within the six month statute of limitations

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: OSHA just updated its annual list of the top ten cited standards. The list provides a starting point for employers reviewing their own safety programs.

OSHA just announced the Agency’s annual listing of the “Top Ten Most Frequently Cited Standards.” OSHA’s release noted that, “one remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.” Statistically, he noted that more than “4,500 workers are killed on the job every year, and approximately 3 million are injured.”

The ten most frequently cited standards are as follows:

OSHA’s 2015 Top Ten image from OSHA.gov.

As in years past, the Top Ten listing identifies fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout (LOTO) as major sources of citations. This annual listing is a testimony to both the difficulty of consistent compliance with these standards, and OSHA’s ongoing emphasis on these hazards.

Employers should use this listing as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will absolutely be looking for violations in these areas when they visit your worksite.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

By Andrew S. Boutros, Benjamin D. Briggs, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: Companies cannot go to prison, but their executives and managers can when they violate the OSHA laws. And, companies can face stiff fines and other business-disrupting (or ending) collateral consequences for conduct resulting in worker deaths. Make sure that your company’s safety programs and training efforts are “up to snuff” if you wish to avoid OSHA liability.

The U.S. Department of Justice announced this week that a high volume ferrous and nonferrous scrap processor was sentenced to five years’ probation, and ordered to pay restitution of $350,000 to an employee-victim’s estate.  According to the DOJ the employer was also previously ordered to pay a fine of $520,000 in a related administrative OSHA case. See also Sentencing Memorandum, and Stipulation and Settlement Agreement, U.S.A. v. Behr Iron & Steel, Inc., No. 3:16-CR-50015 (June 30, 2016 and July 12, 2016, respectively).

Factually, this employer shredded metals with a shredding machine in the employer’s facility. In the process the shredded pieces fell onto a conveyor belt located underground in a “shredder discharge pit.” The shredded materials were then moved by the conveyor belt out of the discharge pit and through a sorting process. During the process it was not uncommon for some of the shredded metals to fall onto the ground of the discharge pit near the conveyor belt. Employees working on the shredding machine were required to clean the discharge pit on a daily basis. The employees shoveled shredded materials from the floor of the discharge pit onto the running conveyor belt. In March 2014, a company employee was cleaning a discharge pit when the employee’s arm was caught by an unguarded conveyor belt.  The employee was pulled into the machinery and killed.

In the court proceedings, the employer admitted that there was “no lock or operable emergency shut off switch in the discharge pit for the conveyor belt, and the conveyor belt did not have guards designed to protect employees.” The employer also admitted that employees in the discharge pit were “not adequately trained to use the shredder or the conveyor belt, and that the company had not developed and implemented confined space protection for employees entering the discharge pit.”

This case provides a solemn reminder for employers that safety is the responsibility that every employer must embrace with the utmost seriousness. When a knowing failure to fulfill this responsibility leads to a tragic fatality, as it did in this case, employers can find themselves facing not only administrative penalties and civil liability, but potential criminal liability. Companies cannot go to jail, but their executives and managers can. Here, Behr Iron & Steel Inc. received a probationary sentence.  But, under different more egregious circumstances, a company could face even stiffer fines and other business-ending collateral consequences that force it to turn off the lights:  The “corporate death penalty,” as it is known.  The old Benjamin Franklin adage applies equally in OSHA cases:  “An ounce of prevention is worth a pound of cure.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the White Collar, Internal Investigations, and False Claims Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Compliance Concept on İnterface Touch ScreenSeyfarth Synopsis: EPA finalized its new per violation penalty rules that in some cases now increase by substantial amounts.

In a federal rulemaking published last week, the U.S. Environmental Protection Agency (EPA) issued interim final regulations adjusting the maximum civil penalty dollar amounts for violations of various provisions of law. 81 Fed. Reg. 43091 (July 1, 2016).

The recently enacted Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), not only required an adjustment form current penalty maximum levels to account for inflation, but also included a catch-up provision for inflation. That requires each agency to evaluate and provide for an inflation adjustment dating back to the enactment of the relevant statute’s effective date. (Section 5(b)(2)(C) of the 2015 Act provides that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015.) See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016). In addition, beginning January 15, 2017, each agency must make subsequent annual adjustments for inflation.

EPA’s interim final rule revises Table 2 to 40 CFR 19.4, showing the results of the Agency’s calculations and adjustments, that include: (1) the maximum or minimum penalty level established when each statutory section was originally enacted or last adjusted by Congress; and (2) the statutory maximum or minimum civil penalty level, adjusted for inflation under the 2015 Act, that applies to statutory civil penalties assessed on or after August 1, 2016 for violations that occurred after November 2, 2015.

Readers familiar with EPA’s penalty structure know that statutory penalties of $25,000 per day per violation were previously adjusted for inflation to $37,500. With the catch up provision under the interim final rule, the maximum penalty will vary by statute. For example, the $25,000 per violation penalty under the Clean Air Act is now $44,539; under the Clean Water Act is now $44,539; under RCRA is now in a range of $56,467 to $70,117, and under CERCLA (including most EPCRA violations) is now $53,907. Other maximum penalties are also adjusted.

The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Compliance, Enforcement & Permitting Team.

By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalized a 78% increase to per violation penalties.

In a an interim final rulemaking published last week, the U.S. Department of Labor (DOL) finalized amendments to adjust the maximum civil penalty dollar amounts for OSHA violations. 81 Fed. Reg. 43430 (July 1, 2016).

We previously blogged about potential increases in OSHA penalties on November 3, 2015 and November 18, 2015.

According to OSHA, its maximum penalties, “which have not been raised since 1990, will increase by 78 percent” as follows:

  • Other than Serious violations:             $12,471
  • Serious violations:                              $12,471
  • Repeat violations:                               $124,709
  • Willful violations:                                 $124,709
  • Failure to abate:                                  $12,471 per day beyond the abatement date

Both Repeat and Willful violations will have a statutory minimum of $8,908 per violation. The new OSHA penalty amounts are applicable to OSHA citations issued after Aug. 1, 2016, whose associated violations occurred within the six month statute of limitations.  Hence, employers with ongoing OSHA inspections should expect to wait until August 1, 2016 or after to receive citations using the higher penalties, as long as the inspection commenced on or after February 1, 2016.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark and Ilana R. Morady

iStock_000076487827_LargeExpedited Hearings

A hot topic today is developments in the law of California OSHA (Cal-OSHA). Panel members are discussing the new and controversial rule on expedited proceedings under 8 CCR 373. Under the expedited proceedings rule, cases are put on a fast track when abatement has been appealed or abatement has not occurred.

Specifically, the rule states “Where the Appeals Board is aware or is notified that an alleged violation appealed is classified by the Division of Occupational Safety & Health as a Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat or Failure to Abate, and either abatement is on appeal, or abatement has not occurred, the Appeals Board shall expedite the proceeding.”

When a case is expedited, a hearing must occur within 150 days of when an employer’s appeal is docketed. This new rule has proved itself to be very burdensome on employers, who are faced with either quickly preparing for hearing or abating alleged hazards which may have no actual basis in law or fact. This scheme brings California closer to other state plans which don’t permit appeals to stay abatement, especially because the effect has been that many employers are abating alleged hazards during the appeal process, regardless of whether the allegations have merit.

Heat Illness

As employers in California know, Cal-OSHA has a heat illness standard. A new provision under the standard involves access to shade. Specifically, 8 CCR 3395 now requires that employees be allowed and encouraged to take a preventative cool-down rest in the shade “when they feel the need to do so” to protect themselves from overheating. While everyone agrees that heat illness is a serious issue that must always be prevented to the extent possible, this new provision has the potential to create problems for employers because of the subjective nature of the rule and the potential for abuse by employees.

If employers encounter situations where they believe an employee is abusing the “when they feel the need to do so” requirement, they must remember to proceed with caution. Unfortunately the vague nature of the rule does not provide a lot of guidance on how employers can react these situations while avoiding potential citations or retaliation allegations.  The new regulation also requires employers to pay an additional hour of pay whenever they fail to meet the requirements of the standard.   This creates an additional non-OSHA penalty monetary obligation that can present challenges for covered employers.

Repeat Violations

The definition of what constitutes a repeat is changing. Currently the “look back” for repeats in California is 3 years. Now, keeping in line with federal-OSHA, Cal-OSHA is expected to start to looking  back 5 years. The other change that will occur is Cal-OSHA will be citing repeat violations based on previous state-wide violations.

This is a significant change; previously, Cal-OSHA could only cite for a repeat violation if the previous violation occurred at the same facility. We will blog an update when this new rule takes effect. The date is uncertain at this time but could be within the next few weeks.