September/October 2014
OSHA could inspect your yard at any time. To avoid violations and fines, be prepared, know your rights and responsibilities, and keep a constant focus on safety and regulatory compliance.
By Jim Parsons
“The OSHA inspector is here.”
Those five words can put scrap recyclers on edge. Even though most know that an inspector from the Occupational Safety and Health Administration (Washington, D.C.) could show up at any time, when one does show up, it can send a manager or owner’s thoughts racing from anxiety over what prompted the visit to how much time the inspection could take to what the inspection might reveal—and whether it will result in fines. In 2009, when the new U.S. secretary of labor, Hilda Solis, declared “there’s a new sheriff in town,” that signaled OSHA’s plans to more strictly enforce worker safety regulations. But with some preparation and a plan, an OSHA inspection doesn’t have to be a stressful event.
“In general, people have a fear of regulation,” says Debbie Hays, a regional safety, health, environment, and community director for Sims Metal Management (Chicago). “But if you’re doing nothing intentionally wrong, there’s nothing to be afraid of. OSHA will always try to find something—understand that, and use the experience as a way to make the operation safer or in compliance with regulations.”
As Tony Smith, ReMA safety outreach manager, puts it, “Nobody likes someone coming in and putting a microscope on your business.” At the same time, if fear of an inspection motivates you and your staff to constantly think about safety, that might be a good thing. “Safety can’t be a ‘cross your fingers, roll the dice’ kind of thing,” Smith says. “There has to be an everyday focus on it, and the best operations have that attitude. Those that don’t may be getting by, but if you don’t take action [to improve safety] until something happens, you’re always in reactive mode, which doesn’t work.”
In addition to keeping that everyday focus on safety, you can make your next OSHA inspection go more smoothly by understanding what might trigger an inspection, preparing for it, and knowing your rights and responsibilities during the inspection process.
Why Us? Why Now?
OSHA has the legal right to inspect a business without prior notice to protect workers’ safety and health. Scrap processing facilities are more likely than many other types of businesses to be the target of such inspections for a few reasons. First, the scrap and waste industries together meet the agency’s definition of a high-risk industry because the frequency and severity of injuries and illnesses are greater than the national average. OSHA’s national, regional, and local emphasis programs, which the agency creates to address specific hazards or industries, also can make inspections more likely. Most of Region 1—which consists of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont—and the state of Missouri in Region 7 have emphasis programs specifically targeting scrap and recycling hazards. And scrapyards could receive scrutiny under national or special emphasis programs, such as those for combustible dust, amputations, hexavalent chromium, lead, and shipbreaking.
Several other factors could trigger an OSHA inspection of your yard: It could follow a reportable accident, injury, or fatality at the site; it could result from a referral or complaint from an employee, neighbor, government agency, or other outside entity; or it could be a follow-up to a previous inspection. If a complaint triggered the inspection, you have a right to see the complaint, but if an employee lodged it, you won’t see his or her name.
Unannounced inspections are the norm, but OSHA gives advance notice of an inspection in four circumstances: when it believes the danger is imminent (to ensure the company addresses it immediately), when the inspection must take place after regular business hours or requires special preparations, when managers or worker representatives are not likely to be on site unless they have advance notice, and when an OSHA area director thinks advance notice will result in a more complete inspection.
Although you might feel the inspection is inconvenient or unnecessary, the OSHA inspector is there to do his or her job. Being professional, courteous, and respectful from start to finish might not prevent a citation, but that attitude is far more productive than being gruff or uncooperative, says Rick Hare, director of safety and environment for Consolidated Scrap Resources (York, Pa.). “Show them confidence and respect, and they’ll give it back to you. We both have the same goal—keeping people safe.”
Building the Response Team
Because anyone who works at the yard could be the first person the OSHA inspector meets, all employees—from office staff to scale operators to field supervisors—should know what to do when the inspector enters the yard. They should “be polite, say ‘sir’ or ‘ma’am,’ and ask them if they’d like some coffee and if they take milk or sugar,” says Joe Bateman, ReMA safety outreach manager. The inspector is supposed to present identification and first ask to speak with the owner or employer representative.
In anticipation of an inspection, designate which staff members should receive that call announcing the inspector’s arrival—the members of the inspection response team. Usually the team will consist of the owner and/or the top safety professional, and possibly the company’s legal counsel, says attorney Melissa Bailey of Ogletree Deakins (Washington, D.C.), who specializes in occupational safety and health law. “If there’s been a death, injury, or high-profile accident, bring in the attorney right away,” says attorney Mark Lies, who has the same specialty area at Seyfarth & Shaw (Chicago). “If there’s a labor dispute involved, you know OSHA is coming, so it’s good to have your counsel help get you and your employees ready for the inspection.” An employee representative also has a legal right to accompany the inspector, Bailey says.
The scrapyard owner or safety manager should be present for the entire inspection, but it’s a good idea to involve other staff as well. Have a note-taker to write a detailed record of the entire inspection, including what the inspector observes, with whom the inspector speaks, and what he or she says, Bailey says. Another person should take photographs of each condition OSHA photographs during the inspection. Bailey does not recommend audio or video recording the inspection, however. If you have employees who are not fluent in English, you might need another employee to translate. Once you know where in the yard the inspection will take place, include the manager from that area as well as the yard’s overall manager. She also recommends putting on the team the maintenance manager, who can arrange to make immediate repairs as appropriate. Train each person for his or her role in the inspection process.
Also determine ahead of time where the inspector should wait while this team assembles. Someone on staff should stay with the inspector at all times, Bailey adds.
Defining the Scope
Each OSHA inspection consists of up to five basic parts: an opening conference, documentation review, site inspection, employee interviews, and closing conference. Determine ahead of time where the opening and closing conferences will take place. Once the scrapyard’s team has assembled there, ask to see the inspector’s credentials and ask the purpose of the inspection, Bailey says. The inspector should outline the reason for the visit and explain exactly what he wants to do, where he wants to go in the yard, and what he will do with the information when the process is complete, Hays says.
You have a right to ask as many questions as you need until you have a full understanding of what will take place before you continue with the inspection. This includes asking questions about the walk-through—including any tests, measurements, or samples the inspector wants to take. You also might want to clarify that if the inspector will interview employees, the interview must take place in a conference room or somewhere outside of the facility. Having an inspector pull employees away from their work duties and speak to them while in the work area is distracting and can pose safety hazards. Also be clear with the inspector that she must protect any proprietary information she comes across during the inspection process, Bailey adds.
The goal of your questions is to know all the facts, Hays says. “Always be sure you know why you need to provide some information or need to do something,” Lies says. “If an activity doesn’t take place at your site, or you honestly feel you’re not required to do something, say so and ask for an explanation.”
The inspector will have questions for you as well. Be honest, and don’t be afraid to tell an inspector, “I don’t know, let me find out,” Hare says. “Avoiding questions or trying to fudge an answer isn’t solving the issue. In addition to putting people at risk, you’re setting yourself up both for failure and for an OSHA violation.” Still, be careful about what you say to the inspector during each stage of the inspection, Bailey warns—it could be considered an admission. The opening conference typically takes no more than 15 to 20 minutes.
The scope of an OSHA inspection has to be reasonable. Inspectors can’t disrupt normal operations or ask someone to halt a machine or process, and don’t volunteer to do so, Bailey says, even if that machine or process is the focus of the inspection. Instead, inspectors must simply observe while a machine is operating or a worker is completing a task. From this they can assess things like whether the machine guarding or noise controls meet requirements or whether the equipment jams or seems to function properly.
Inspections cannot take place outside normal business hours, except in rare circumstances in which OSHA specifically requests it. “We shut down at 5 p.m.,” Hays says. “If the inspector shows up at 4:30 on Friday, he gets a half-hour. If that’s not enough, he has to come back on Monday.”
Jeff Wilke, director of health and safety for Alter Trading Corp. (St. Louis), says the inspectors he’s encountered are usually flexible about the timing of inspections. “We have 53 facilities but not 53 safety managers,” Wilke says. “We have nine people who cover different areas. Often, if OSHA shows up, the safety manager for that site is an hour away. But more often than not, the inspector will wait until the manager arrives. I can’t recall an OSHA inspector wanting to get started right away.”
You have the right to ask the inspector to get a search warrant. You can do this as soon as the inspector arrives on site if you question the reason for the inspection. And at any point during the inspection, if you believe the inspector is not sticking to the established scope, you can stop the proceedings and ask the inspector to get a warrant. But Bailey says she’s rarely encountered businesses that do so. “In emphasis inspections, OSHA has a neutral process [for] selecting companies to look at,” she says. “There’s no real value in trying to contest them.” It might take the inspector as little as an hour or as much as a week to return with a warrant, depending on the civil court he or she has to go to, but the inspector will return. And while that could buy you some time to address any safety issues, you also run the risk of turning the inspection into a more adversarial process than it would have been otherwise, Bailey says. “You shouldn’t have anything to hide during the inspection,” Bateman says.
The Paper Chase
During the opening conference, the inspector must specify what documentation he or she wants to see in the review. As far as OSHA’s concerned, if it’s not documented, it didn’t happen, Hare says. Make a list of the documentation the inspector might request so there’s no confusion over what you do and don’t need to provide, and keep reliable, thorough, consistent records. “A scrapyard [safety team] may routinely audit the facility itself but not its own records,” Hays says, “and that’s typically what OSHA will want to look at first.”
The inspector will almost always want to see your OSHA log, which is your injury and illness record, and you must produce it within four hours, Bailey says. The inspector also might ask to see your hazard communication plan, confined space plan, or equipment checks and maintenance records. “It’s good to have all the documentation in one place where it can be controlled,” Hare says. Even so, “information that may be at another site in another state may require the inspector to come back, which usually isn’t a problem.”
Also know what kinds of documents and other information you can keep private. For example, “an inspector may ask for a root-cause or post-accident analysis of an accident or an audit inspection report from your liability insurance carrier. There is no regulation that requires an employer to prepare these analyses or duty to voluntarily provide them to OSHA,” Lies says. If the employer voluntarily produces them, OSHA can use them as a basis for citations. If the employer refuses to produce them voluntarily, OSHA would have to subpoena them. “It’s critical that the employer correct any hazards that may have been identified in these reports so that employees are protected and also to avoid the reports’ being used to support citations,” he says. If these documents have been prepared under the direction of an attorney, the employer can also refuse to provide them on the grounds of legal privilege.
Further, Lies says, OSHA is increasingly asking for the names of all employees as well as their home addresses and telephone numbers. Again, “there is no regulation that requires the employer to provide this information, and the employer can refuse the request on the grounds of no legal requirement and employee privacy.” Lies says he has seen numerous situations over the last several years where OSHA inspectors have received this information and have begun calling employees at home to conduct interviews and, in some cases, have even gone to employee homes unannounced and attempted to conduct interviews. As a result, “the employer has lost the ability to control the course of the OSHA inspection.”
Such contact creates additional problems, Lies says. “In these instances, not only have employees reported feeling intimidated, they have also told their employers that they were upset that their personal contact information was provided to a governmental agency without their permission.”
One of the biggest mistakes people make is being too generous with information, these sources say. “If the inspector wants to look at the hazard communication or confined space plan, just bring those sections, not the entire safety book,” Smith says. “By volunteering information, you’re opening yourself to a wider inspection that may involve areas [in which] you’re not up to date.” Bateman agrees. “Don’t be evasive, but don’t willingly give away the farm, either. … If the inspector asks for X, give them X. Don’t give Y or Z, too.” And keep a record of what documentation and information you provide, Bailey says.
The Walk-Through
The site inspection, or walk-through, can address the entire site or a specific piece of equipment or process. Think in advance about the logistics of conducting walk-throughs of each potential scope. Chart the most direct routes to specific areas of the yard or pieces of equipment. That way, once you know where in the yard the inspector wants to go, you can get there from the opening conference without exposing more of the yard to the inspector’s view than necessary. Anything the OSHA inspector can see is fair game for a violation or fine under the “clear view” rule, Bailey says.
Be careful about what you say to the inspector during the walk-through. “There’s the risk of admitting that things the inspector points out are indeed violations,” Bailey says. At the same time, “if the inspector spots something that can be fixed right there, do it,” Wilke says. “You may or may not be cited for it, but your responsiveness will work in your favor.” Fixing the problem sends a better message than refusing to fix something, Bailey adds.
Realize that you are responsible for all activities on your site, including those performed by contractors. Hare recalls an OSHA inspector spotting a contract torch operator who had not placed proper fire protection between his oxygen and propane tanks. “As a one-person operation, the contractor wasn’t subject to OSHA rules,” Hare says, “but we have a responsibility for his actions. We were cited for the violation—and it’s understandable, since there was a potential risk to our workers.”
Coach workers on how to respond when an inspector observes them operating a machine or doing other work in the yard. “Some people may get nervous if they know someone is watching and worry about not doing the job right,” says Tamara Deiro, director of safety for SA Recycling (Anaheim, Calif.). “We tell them not to worry and to simply imagine they’re training someone. That helps them focus on the task at hand.”
Track what the inspector collects during the inspection. “Take pictures when they take pictures,” Bateman says. “And if they want to do air or soil sampling, make arrangements to do your own as well. Whatever the inspector tests or takes as samples, you should, too.” This gives you the same evidence collected under the same conditions, which could be critical if you want to contest any findings or violations. Be aware of every piece of information associated with the inspection, and ask why the inspector collects something “so that when it’s done, you know as much as OSHA knows and more,” Bailey adds.
Employee Interviews
If the inspection arises from an incident or a complaint from inside or outside the company, the inspector might want to question one or more employees. Most yard managers prefer that inspectors conduct interviews in an office rather than in the field to eliminate safety risks.
Who can be present during the interview is up to the employee. He or she can request that it be private or ask to have an attorney present. The company cannot mandate the presence of a company representative. If the employee asks OSHA to permit the company attorney to sit in on the interview, OSHA may or may not agree to permit it. If OSHA does allow the company’s attorney to be present, make sure the employee understands the attorney is there to protect the company’s interests, not the employee’s. If a conflict between the two arises, the company attorney should leave the interview, Bailey says.
“OSHA doesn’t always tell employees their rights, so make sure you do,” Hays says. Employees “don’t have to participate [in interviews], they can refuse to be recorded and end the interview at any time, and they can have anyone they want sit in—the union steward or another representative of the company,” for example. “But employees who do agree to be interviewed must also know that they’re obligated to answer the OSHA inspector’s questions truthfully.”
Lies also recommends informing employees of their rights so they can intelligently respond to OSHA interviews. In his experience, a majority of OSHA citations result from employee statements during interviews and, in many cases, the employees were not informed of their rights. If they had known of and exercised such rights, he believes the information provided during the interviews would have represented a more accurate picture of the workplace and reduced the likelihood of inaccurate or erroneous citations issued to the employer.
Language barriers are another important issue to consider with employee interviews. “OSHA is increasingly focusing on whether employees for whom English is a second language understand the employer’s safety training,” Lies says. In the OSHA interview, the employee has a right to have another person available—including another employee who is bilingual—to act as an interpreter. If OSHA refuses, the employee can decline the interview. “In some instances, OSHA brings an interpreter, but the employee still has the right to have his own interpreter present,” Lies says. He has seen instances in which the OSHA interpreter was unable to communicate with the employee because of the interpreter’s particular dialect or use of idioms, as well as instances in which the OSHA interpreter was in fact not accurately interpreting the employee’s responses to OSHA questions. If employees are not informed of these rights, they cannot exercise them.
Closing Conference
At the inspection’s conclusion, at a formal or informal closing conference, the inspector will describe the findings of the inspection and name what citations, if any, OSHA will issue. Limit your participation in the closing conference to seeking information from the inspector rather than providing any, Bailey says. Also, try to determine exactly what the inspector believes you must do to abate identified hazards. Don’t agree or admit that a hazardous condition exists or that any particular time frame is reasonable to fix a problem, she advises.
Above all, Bailey says, don’t argue with the inspector—just gather information. Based on what you learn, you might be able to provide additional information that convinces OSHA not to issue certain citations. If it does issue citations, you can appeal by filing a formal “notice of contest” (usually a one-page letter) with OSHA within 15 working days of the issuance. Bailey recommends this route, particularly to address findings with which you disagree.
Post-Inspection Analysis
It’s OK to breathe a sigh of relief once the OSHA inspection is over. But that also means it’s time to begin readying for the next one, as even the most meticulously managed safety program has room for improvement. Hare recommends keeping abreast of best practices in the safety and occupational health professions and monitoring OSHA’s local and national emphasis programs at the agency’s website, www.osha.gov. “We also try to learn from other companies’ mistakes and failures,” he says. “When we hear of something happening, we talk about whether it could happen here as well, and what we can do to prevent it.”
Continually work to improve safety by walking the yard, looking around, and talking with employees, Bateman says. Many scrapyards regularly conduct surprise self-inspections to look for potential violations and shortcomings from an OSHA inspector’s perspective. “It helps managers and employees understand what OSHA looks for and reinforces the need to be ready,” Wilke says.
In fact, a few hours after Wilke’s interview for this story, he received a call alerting him that an OSHA inspector had arrived at one of Alter’s yards. “It went just the way we had prepared,” he says. “The on-site manager did what he was supposed to, I sat in on the opening conference by phone, and then they did the walk-around.”
The facility received a few small citations, Wilke adds, but nothing major. “The inspector even complimented us on the condition of our yard,” he says. “But it was a good reminder that these inspections can happen at any time, and good planning and good safety always pay off.”
Jim Parsons is a writer based in Bristow, Va.
OSHA could inspect your yard at any time. To avoid violations and fines, be prepared, know your rights and responsibilities, and keep a constant focus on safety and regulatory compliance.