Is OSHA Getting Tougher with
Fines & Penalties?

by David V. Dow on January 27, 2011

Cave-ins such as this can kill. Providing cave-in protection for your workers can save lives. And it is also the law! Is OSHA getting tougher with its inspections, citations, and penalties?

Editor’s Note: When we started this series on Occupational Safety and Health Administration (OSHA) inspections, we had only two articles in mind. However, in December, while we were in the middle of publishing the series, we received news that OSHA had issued stiff penalties to a contractor in Illinois. So, we added this new Part 3 (based on the OSHA news article) because this story clearly brings home the message that OSHA means business. OSHA’s Trenching and Excavation Special Emphasis Program, in concert with its new Severe Violators Enforcement Program, are indicators that OSHA is taking a closer look at excavations and trenching job sites, and issuing stiffer citations as a result.

TrenchSafety does not normally publish the names of companies cited by OSHA, but because this OSHA announcement has been published in numerous other places, including the popular media and the trade press, the incidents are widely known so we have deviated from that policy.

“There’s a New Sheriff in Town”

In June 2009, in a speech at an engineering conference, Hilda Solis, the then-new Secretary of the Department of Labor, said: “There is a new Sheriff in town . . . Make no mistake about it, the Department of Labor is back in the enforcement business. We are serious, very serious.”

Now a couple of years into her tenure, that figurative badge of authority is unmistakable. Her aggressive moves to boost enforcement and crack down on businesses that violate workplace safety rules have sent employers scrambling to make sure they are following the rules.

One of her first steps was to order an enforcement blitz by Occupational Safety and Health Administration (OSHA) “SWAT” teams at construction sites across Texas to combat what she called the state’s “dubious distinction of having the most worker fatalities in the nation.”

And OSHA’s stricter enforcement policies continue, and are being felt in the excavation and trenching business across the U.S.

Illinois Contractor Faces Hefty Penalties

No Trench Cave-in Protection for Workers

OSHA announced in December that it issued eight willful, two serious, and three repeat safety citations to Gerardi Sewer and Water Co., Norridge, Ill., for failing to protect workers from cave-ins during trenching operations at four job sites in the Chicago area.

Gerardi faces proposed penalties of $360,000.

“Cave-ins are a leading cause of worker fatalities during excavations,” said OSHA Assistant Secretary of Labor David Michaels. At each of the four job sites, Gerardi’s president and foreman were present, Michaels added.

OSHA conducted the four inspections during the second half of 2009 under its Trenching and Excavation Special Emphasis Program.

A Brief Look at the Terminology

A willful violation, OSHA noted, is one committed with intentional knowing or voluntary disregard for the law’s requirements or with plain indifference to worker safety and health.

A repeat citation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule, or order at any other facility in federal enforcement states within the last five years.

A serious citation is issued when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

OSHA standards mandate that all excavations 5 feet or deeper be protected against collapse. During the inspections, employees were found to be working at varying depths from 5.9 to 8 feet without cave-in protection. Detailed information on trenching and excavation hazards is available on OSHA’s Trenching & Excavations web site.

Kathy Webb, OSHA Area Director, said, “OSHA implemented a Trenching and Excavation Special Emphasis Program in the 1980s, so the industry is well aware of the safety regulations for trenching operations. Gerardi Sewer and Water has been inspected and cited by OSHA numerous times.”

What’s SVEP?

The Illinois case meets the criteria for OSHA’s new Severe Violators Enforcement Program (SVEP). See the OSHA Instruction here. Initiated in the spring of 2010, SVEP is intended to focus on recalcitrant employers who endanger workers by committing willful, repeat, or failure-to-abate violations.

Prior to the four inspections detailed above, Gerardi Sewer and Water had been inspected by OSHA eight times since 1987, resulting in 15 prior citations.

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