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OSHA Sharpens Its Enforcement Tools

Stephanie Salmon

The Occupational Safety and Health Administration (OSHA) is stepping up its investigation and enforcement activity, updating its procedures for inspections to permit citations for each instance of alleged non-compliance.

In January, OSHA issued a new enforcement guidance, allowing instance-by-instance (IBI) citations for high-gravity serious violations for (a) fall protection, (b) lockout/tagout, (c) machine guarding, (d) permit-required confined space, (e) respiratory protection, and (f) other-than-serious violations of recordkeeping requirements. Notably, these standards are among many of the most frequently cited OSHA standards and ones commonly received by foundries.

OSHA’s application of IBI to high- gravity serious violations is a significant departure from current agency policy in place since 1990, which only considers applying IBI citations in “egregious willful” cases. OSHA’s revised enforcement policy permits the agency, in many cases, to issue a citation and corresponding penalty for each instance of alleged non-compliance for each separate machine, location, entry, or employee, and when the instances of a violation cannot be abated by a single method of abatement. Under the new IBI policy, OSHA could greatly expand IBI citations, which would result in drastically increased proposed penalty amounts. 

For example, if OSHA concludes a facility has five different machines that lack machine guarding—exposing employees to hazards such as amputations, cuts, or lacerations—OSHA may cite the employer for five serious machine-guarding violations rather than grouping them together in one serious violation. The maximum penalty for a single serious violation is more than $15,000. Five separate machine-guarding citations could result in a more than $60,000 monetary penalty. The new enforcement policy goes into effect on March 27. 

On the same day OSHA issued its memorandum announcing changes to its IBI policy, it issued a separate memorandum reminding regional administrators and area directors of their authority to use their discretion not to group violations in appropriate cases. OSHA typically groups violations when the same abatement measures correct multiple violations and/or in the presence of substantially similar conditions. Grouping violations significantly reduces the monetary penalty associated with OSHA citations. This policy change will also result in higher penalty amounts and more total violations for employers, including foundries. 

Increased OSHA Penalties for 2023

OSHA has increased its minimum and maximum penalties for workplace safety and health violations by 7.7% effective January 17. Today, a “serious” and other-than-serious violation has increased from $14,502 per violation to $15,625, and the maximum penalty for willful or repeated violations increased from $145,027 per violation to $156,259. OSHA also requires state plans to increase their penalties in alignment with the agency’s increases. These civil penalties are now updated annually for inflation.

Injury and Illness Recordkeeping Enforcement Program

In February, OSHA announced it was revising its Site-Specific Targeting (SST) inspection program to update the Form 300A data it requires. Form 300A is an annual summary of work-related injuries and illnesses. Under current OSHA regulations, establishments with 250 or more employees and those with 20-plus employees in certain high-hazard industries, including all foundry sectors, must submit Form 300A data to the agency in March of each year. The SST program assists OSHA in directing agency enforcement resources toward establishments with the highest rates of injuries and illnesses. Under the SST program, OSHA may select an employer’s establishment for a comprehensive safety or health inspection without an accident or complaint.

Among the significant changes listed in the agency’s new directive, OSHA will use:

  • Calendar year 2021 data, instead of 2019 data, to select which “high rate” establishments the agency will inspect. “High rate” is considered above the average DART (days away, restricted or transferred) rate for manufacturing establishments. 
  • DART rates that were at least twice the national average of the private sector’s rate in 2019 and have continued to trend upward through 2021 for “upward trending” establishments utilizing 2019-2021 data instead of 2017-2019 data.
  • A random sample of low-rate establishments (DART rate is lower than the industry average) to test the reliability of Form 300A data.
  • 2021 data for a random sample of non-responding facilities that didn’t send in Form 300A data during the year.

The SST program does not set a specific number of inspections per area office or total number the agency must conduct per year. Selection is random, computer program-driven, and the OSHA area office determines the number of establishments subject to SST inspections. For foundries in states with OSHA-approved state plans, they must have inspection “targeting” systems, which must be at least as effective as OSHA’s targeting programs, but the directive does not require state plans to adopt OSHA’s SST program.

These new enforcement guidance directives, along with the annual increase in OSHA penalties, is anticipated to create more serious financial ramifications and additional inspections for foundries in 2023. Furthermore, metalcasters need to be more cautious in how they approach every OSHA inspection and settlement of citations, as the revised instance-by-instance policy will enhance potential liabilities for the next five years if an employer resolves a case that involves accepting willful, repeat, or failure to abate citations or if the case involved a fatality or catastrophe.

To learn more about OSHA’s newest enforcement initiatives and other key rulemakings, AFS encourages its members to participate in its quarterly safety committee meetings, as well as attend the EHS/OSHA Hot Topics session during Metalcasting Congress in Cleveland, Ohio, April 26.