Update

1. Update Angelo Giannakos, CSP Corporate Safety Director Smoot Construction 1907 Leonard Ave Columbus, OH 43219 614-253-9000

2. Update Focus of DOL Penalties Protecting America’s Workers Act OSHA April 22, 2010 MEMO from David Michaels Top Ten Citations General Industry Construction New Director of Construction New Crane Standard – brief summary Path of a Contested Violation Questions

3. Update

4. Update The following rules are in the “crosshairs” for pre-rule, proposed rule or final rule acceptance as reported in Spring 2011 Unified Agenda of the DOL at: http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=UNIFIED_AGENDA&p_toc_level=0&p_keyvalue=

5. Update Pre-rule Stage –Construction Focused Beryllium Bloodborne Pathogens Injury and Illness Prevention Program Reinforcing and Post-Tensioned Steel Construction Backing Operations Proposed Rule Stage Crystalline Silica Walking Working Surfaces and Personal Fall Protection Systems Occupational Injury and Illness Recording and Reporting Requirements Final Rule Stage Confined Spaces in Construction

6. Update Protecting Americas’ Workers Act (PAWA) H.R. 2067, S. 1580 As of 2/1/11 no movement in congress

7. Update The legislation: Extends the OSH Act and existing job safety protections to all state and local public employees, federal workers and millions of other workers who currently have no OSHA coverage or only limited protection. Increases OSHA penalties for job safety violations and establishes mandatory minimum penalties for violations resulting in worker deaths, so fines are more than a slap on the wrist.  Criminal violations of the OSH Act would be made a felony, instead of a misdemeanor, and be expanded to cover cases that involve serious bodily injuries, not just worker deaths.  

8. The legislation (continued) Enhances anti-discrimination protections for workers who raise job safety concerns and report job injuries.   It provides workers the right to pursue their case if OSHA fails to act in a timely fashion and writes into the law a worker's right to refuse unsafe work.  The bill makes clear that employers cannot retaliate against a worker for reporting a job injury or illness and prohibits any employer policies or practices that discourage or discriminate against workers for reporting injuries and illnesses. Expands workers' and union rights in OSHA inspections and enforcement cases.  The bill requires that workers be paid for the time spent participating in OSHA inspections.  It provides workers and unions the right to contest the classification of violations and proposed penalties and to object to settlements that are inadequate. Provides victims of job injuries and illnesses and family members the right to be heard in OSHA investigations.

9. Update PAWA Effects on Employers Civil Penalties will be increased Willful or repeat – from $70K to $120K Serious –from $5000 to $8000 Deaths – civil penalties up to $250K but not less than $50K (except companies w/ 25 or fewer- and then no less than $25K) Inflation adjustments each 4yrs based upon Consumer Price Index OSH Criminal Penalties will also be increased according to section 3571 of title 18 US Code to include imprisonment

10. Update § 3571. Sentence of fine (a) In General.— A defendant who has been found guilty of an offense may be sentenced to pay a fine. (b) Fines for Individuals.— Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of— (1) the amount specified in the law setting forth the offense; (2) the applicable amount under subsection (d) of this section; (3) for a felony, not more than $250,000; (4) for a misdemeanor resulting in death, not more than $250,000; (5) for a Class A misdemeanor that does not result in death, not more than $100,000; (6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or (7) for an infraction, not more than $5,000. (c) Fines for Organizations.— Except as provided in subsection (e) of this section, an organization that has been found guilty of an offense may be fined not more than the greatest of— (1) the amount specified in the law setting forth the offense; (2) the applicable amount under subsection (d) of this section; (3) for a felony, not more than $500,000; (4) for a misdemeanor resulting in death, not more than $500,000; (5) for a Class A misdemeanor that does not result in death, not more than $200,000; (6) for a Class B or C misdemeanor that does not result in death, not more than $10,000; and (7) for an infraction, not more than $10,000

11. Update Kim Stille, area director for Madison’s OSHA office, said the bill would set intent as the difference between criminal charges and standard fees. For example, she said, if a backhoe operator backs over and crushes a co-worker’s leg, criminal charges would follow if the project manager, CEO or safety director knew the backhoe had service issues and instructed the worker to use it anyway. Under current rules, Stille said, the company would face a maximum penalty of $70,000 for that kind of willful violation. If the federal bill passes, the penalty could be $120,000 or 10 years in prison. According to the bill, repeat offenders could face 20-year sentences. The Daily Reporter Publishing CompanyMay 4, 2010, Paul Snyder reporting

12. Update When will PAWA be enacted? Bill was introduced April 5, 2009 Hearing on April 28, 2010 No final passage as of February 1 2011

13. Update April 22, 2010 Internal OSHA Memo from David Michaels History Reductions History Increases Repeat Violations Area Director and Informal Conference Considerations Expedited Informal Settlement Agreements Severe Violator Enforcement Program (SVEP) Gravity Based Penalty (GBP) Size Reduction Good Faith Increase Proposed Minimum Penalties Additional Administrative Modifications to the Penalty Calculation Policy

14. Update Historical Reduction Change from 3yr ‘window’ to 5yr window for review of repeat Historical Increase Change from 3yr ‘window’ to 5yr window for repeat – leading to 10% increased penalty Repeat Violations Change from 3yr to 5yr ‘window’

15. Update Area Director & Informal Conference Considerations Can still grant up to 30% penalty reduction 250 or less employee companies eligible for additional 20% reduction –If agree to retain consultant Expedited Informal Settlement Agreement Area Directors limited to a 30% reduction Added 20% reduction if agree to retain consultant

16. Update Severe Violator Enforcement Program High gravity serious violations no longer need to be combined, but can be cited as separate violations, each with its own penalty. Example would be crew of ten masons on an unsafe scaffold could result in 10 individual citations if the Area Director feels the circumstances warrant

17. Update Gravity Based Penalty (GBP)

18. Update Size Reduction

19. Update Good Faith Penalty reductions are allowed in recognition of an employer’s effort to implement an effective workplace safety & health management system. A 15% Quick Fix reduction is available as an abatement incentive for immediately abating hazards at the job site during an inspection Not available for companies in strategic partnerships

20. Update Increased Proposed Minimum Penalties From $100 to $500 Additional Administrative Modifications to the Penalty Calculation Policy Now will reduce individual penalties rather than adding all together and granting a reduction of the total Will be a serial calculation instead of a summed calculation

21. Update In the example given; there would be an increased penalty by about 50%

22. Update Conclusion regarding the Memo Changes will generally increase overall penalty dollars. Average serious violation up from $3K to $4K

24. Update - Construction Top 10 of 2010

25. Jim Maddux was named OSHA's new director of the Directorate of Construction by agency administrator David Michaels on Dec. 20. Maddux has been with OSHA since 1990, when he worked as a statistician. He later joined the Directorate of Standards and Guidance, where he most recently served as the director of the Office of Physical Hazards and acting director of the Office of Engineering Safety. Before Maddux's appointment, the Directorate of Construction was led by acting head Ben Bare, who also serves as its deputy director.

26. New Crane Summary --All power operated equipment that can hoist; lower; and horizontally move a suspended load Ground Conditions- sufficiently firm, drained and graded Operator Certification Assembly/Disassembly-competent & qualified Power Lines- begin at 20ft Signaling- qualified Tower Cranes- Foundations, Structural support, Plumb Tolerance, Climbing Procedures, Post-Erection Load Test and Monthly Inspection

27. Path of a Contested Violation Once an employer chooses to contest a citation or penalty (or both); it goes through several steps

28. Violation occurs, employer cited Employer appeals; case is assigned to an administrative law judge ALJ holds hearings, goes over evidence and listens to testimony ALJ renders a decision Parties disagreeing with ALJ can appeal to the Commissioner Level

29. At this point two paths become evident: 6A. A select number of commissioners accept the case (gets heard) 6B. An inadequate number of commissioners wish to hear the case (doesn’t get heard)

30. 6A Path Commissioners (OSHRC has 3) review the case, evidence, filings and ALJ decision and may hear oral arguments (nominated by President and confirmed by Senate) Commissioners render their decision Parties disagreeing with the commissioners’ decision may appeal to the US Court of Appeals

31. 6B Path The party may take the case to the US Court of Appeals

32. Last step available to both 6A and 6B Paths Case appealed to the US Court of Appeals