Greater Illinois OSHA News September 1, 2006 Vol. 2. No. 8
Z Project Conference, May 2, 2006, Aveoli Award, for your health
In a continuing effort to share the hazard controls from the Z Project Conference, here is the information on the recipient of the Z Project Aveoli Award, which recognizes hazard control(s) related to employee’s health. American Filtration Systems Inc., in Champaign, IL designed a room to protect employees from the hazards of carbon dioxide and noise during a blasting operation. The following photos show the blasting containment room and ventilation system.
NOTE: The applications for 2006 hazard control entries for the Z Project Conference, May 1, 2007 will be sent out to the newsletter mailing list. So, if you receive this newsletter, you will be receiving the application information shortly. Entries are due by April 6, 2007 to zweber.peggy@dol.gov. If you have any questions on the program, feel free to email me at the above address or call at 309/589-7033.
Phone & Fax Complaints
Just a little update to inform you that there have been some changes to our complaint directive and the new one can be found at our website at the following link: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3389
The following action remains the same in our response to inquiries. If the employer fails to provide an adequate response to an inquiry, or the individual who provided the original information provides further evidence that the employer's response is false or does not adequately address the hazard(s), the action is still listed in the section “Criteria Warranting an Inspection”.
Industrial Truck Accident
Quincy, IL – An employee was unloading a trailer using a powered industrial truck. The forklift operator was crushed between overhead bar of the vehicle and the overhead door of the dock. This case is currently under investigation. Just as a reminder, the Illinois Area Offices do have a Local Emphasis Program (LEP) on Powered Industrial Trucks because of the history of fatalities involving these types of industrial vehicles. Because of the LEP, Illinois OSHA offices will do an on-site inspection on any serious complaint or referral we receive involving powered industrial trucks in general industry, service industries or construction.
Southern Illinois Occupational Safety and Health (SIOSH) Day, October 19, 2006
The annual full day Southern Illinois Occupational Safety and Health Day (SIOSH) will be held this year at John A. Logan College in Carterville, Illinois on October 19, 2006. Sponsored by the Southern Illinois Safety Council (SISC) and Southern Illinois Environmental Managers Association (SIEMA) with support from the Occupational Safety and Health Administration (OSHA), the conference features breakout sessions, vendor fair and lunch for a $60 fee for non-members and vendors and only $30 for companies who belong to SISC and SIEMA. OSHA and Consultation will be providing an Updates on agency activities in Construction and General Industry, Electrical and Recordkeeping. Other sessions include: highway workzone safety, storm water permitting, environmental contingency planning, cranes and lifting devices, physical therapy, and employer rights after OSHA inspections.
For more information contact Dennis White at 618-985-2828 Extension 8510. See you there.
First Aid/CPR/AED Training for OSHA Fairview Heights District Office Staff
In conjunction with our Alliance with Richland Community College, Andy Perry provided the updated American Heart Association First Aid/CPR/AED training to the Fairview Heights District Office OSHA staff. Here is Andy with our OSHA staff.
Top row, left to right:
Wes Taylor, Compliance Assistance Specialist; Dustin Miller, Safety Specialist; Becky Styron, Safety Specialist (Peoria AO); Cyndi Wagner, Assistant Area Director; Jeff Strain, Industrial Hygienist (Peoria AO); Bonnie Knisch, Management and Program Assistant; and Andy Perry, RCC
Middle row:
Larken Akins, Industrial Hygienist; and Paula Lethiot, Industrial Hygienist
Sitting:
Orville Crawford, Safety Specialist
Thanks Andy!!!
18th Annual Chiagoland Safety & Health Conference
The 18th annual Chicagoland Safety & Health Conference will be held September 18-20, 2006. Topics to be covered include: industrial hygiene; safety in construction; safety in general industry; safety management; environmental safety; and emergency preparedness.
This conference is for employers, employees and all others interested in safety and health. The conference will be held at Northern Illinois University—Naperville. The presentations will be on the most current issues in safety and health.
For additional conference information please call Jim Smith (708) 450-3270 or Eugene Satrun (815) 521-7739, email info@chisafetyconf.org. Information is available on the website at: www.chisafetyconf.org
35th Annual Governor’s Safety Conference – October 4, 5 and 6 – Des Moines, IA
For those of you interested in hearing about OSHA’s Enforcement Programs, Richard Fairfax, Director of our National Office of Enforcement Programs will be the keynote speaker at the above conference. The conference will be at the Holiday Inn Hotel & Suites, 4800 Merle Hay Road, Des Moines, Iowa. For more information on the conference and its schedule, go to www.iowaworkforce.org/labor or call 515/281-8067.
Greater St. Louis Safety and Health Conference – October 3 – Busch Student Center, St. Louis University Campus.
This conference is hosted by the Safety Council of Greater St. Louis, Saint Louis University and OSHA. For those of you closer to St. Louis, Richard Fairfax is one of the featured speakers at this conference also. For further information on the conference, its schedule and registration, go to www.stlsafety.org/conference.
Peoria Changes
Just to let you know, our Area Office will have a new Acting Area Director, George Yoksas, who currently is Area Director in our Milwaukee, Wisconsin Area Office. He will be here September 5, 2006. George is our Regional Process Safety Management expert. He also was involved in the investigation of the “Big Blue” accident during the construction of the new stadium in Milwaukee a few years ago. He was also led the team that investigated the explosion at Formosa Plastics in Illiopolis in 2004. Welcome George!!! We want to thank Frank J. Winingham, from our Madison, Wisconsin Area Office, for his help in managing our office.
Some News on Employer Knowledge
BNA, August 14, 2006, Foreman's Knowledge Improperly Imputed, Court Rules, Reversing Review Commission
An administrative law judge at the Occupational Safety and Health Review Commission committed a legal error by imputing a foreman's knowledge of his own safety violation to an employer without first determining if the foreman's conduct was foreseeable, a split U.S. Court of Appeals for the Fifth Circuit ruled Aug. 4 (W.G. Yates & Sons Constr. Co. v. OSHRC, 5th Cir., No. 05-60216, 8/4/06).
The court majority accordingly granted the employer's review petition, vacated the OSHRC final order affirming the employer's fall protection violation, and remanded for further proceedings. Judge Harold R. DeMoss Jr. concurred in the court's majority opinion, written by Judge E. Grady Jolly. Judge Thomas M. Reavley dissented, arguing that the majority's decision "places an unjustifiable obstacle on enforcement of the law."
Supervisor's Violation
The Occupational Safety and Health Administration cited W.G. Yates & Sons Construction Co. under 29 C.F.R. § 1926.501(b)(1) after foreman Martin Olvera was observed working on a slope without fall protection. The employer contested the citation before ALJ Stephen J. Simko Jr. The ALJ affirmed the violation, concluding that W.G. Yates knew of the violation through the imputed knowledge of its foreman, a supervisory employee.
OSHRC declined to review Simko's decision, and it became a commission final order on Jan. 31, 2005.
On appeal, the Fifth Circuit majority explained that the issue in this case was when it was appropriate to impute a supervisor's knowledge of his own misconduct to the employer. The court noted that the federal circuit courts do not agree on the issue, and the Fifth Circuit itself has not directly answered the question. The court ruled however that its 1976 decision in Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, was "instructive."
"We read Horne to hold that a supervisor's knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, and discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable," Jolly wrote. This is the key. The employer must establish the above to have an affirmative defense. We must gather the evidence to refute this affirmative defense. You must ask for and gather company safety policy, discipline policy and establish through employee interview that discipline is enforced.
Therefore, Olvera's knowledge could be imputed to W.G. Yates only if the foreman's conduct was foreseeable, and it was part of the secretary of labor's burden of proof to establish that Olvera's violative conduct was foreseeable, Jolly continued. "By failing to conduct the foreseeability analysis before imputing Olvera's knowledge, the ALJ effectively relieved the government of its burden of proof to establish a violation of the [Occupational Safety and Health] Act and placed on Yates the burden of defending a violation that had not been established," the judge said. Simko's failure to conduct this "further inquiry" was tantamount to "imposition of a strict liability standard, which the Act neither authorizes nor intends," Jolly concluded, quoting from Horne Plumbing. In his dissent, Reavley argued that the secretary established a prima facie case "by proving the participation or knowledge of a supervisor in the violation." The employer could then rebut the prima facie evidence by showing, as an affirmative defense, that it had safety rules that were communicated and enforced. Contrary to the majority decision, Horne Plumbing did not stand for the proposition that imputing the supervisor's knowledge without making a foreseeability analysis would "amount to the imposition of a strict liability standard," the judge argued.
Amendment to Respiratory Protection Standard for APF and MUC
A Final Rule was published on August 24, 2006 which becomes effective November 22, 2006 which includes assigned protection factors (APF) and maximum use concentrations (MUC) in the Respiratory Protection Standard 1910.134(d)(3)(i)(A) and (B). For more information, here is the weblink: http// www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=18846
Here is a summary of the changes:
In this final rule, OSHA is revising its existing Respiratory Protection Standard to add definitions and requirements for Assigned Protection Factors (APFs) and Maximum Use Concentrations (MUCs). The revisions also supersede the respirator selection provisions of existing substance-specific standards with these new APFs (except for the respirator selection provisions of the 1,3-Butadiene Standard).
The Agency developed the final APFs after thoroughly reviewing the available literature, including chamber-simulation studies and workplace protection factor studies, comments submitted to the record, and hearing testimony. The final APFs provide employers with critical information to use when selecting respirators for employees exposed to atmospheric contaminants found in general industry, construction, shipyards, longshoring, and marine terminal workplaces. Proper respirator selection using APFs is an important component of an effective respiratory protection program. Accordingly, OSHA concludes that the final APFs are necessary to protect employees who must use respirators to protect them from airborne contaminants.
DATES: The final rule becomes effective November 22, 2006.
What were they thinking?
One of our Safety Specialists caught some construction workers putting themselves in harms way. (Photos by Dustin Miller)
At least 3 safety issues here Arrow shows the employee without fall protection
Comments – NOTE: New Information for Peoria Area Office Contact
If you would like to receive this newsletter via e-mail, contact zweber.peggy@dol.gov . Due to costs, we cannot mail to individual companies. Comments on the newsletter should be addressed to Peggy Zweber, Compliance Assistance Specialist, USDOL/OSHA, 2918 West Willow Knolls Rd., Peoria, IL 61614
Peoria office Phone - (309) 589-7033
The information contained herein has been compiled and reported with the intent that it is both reliable and up-to-date, and is offered for general guidance only. Additional safety measures may be required by your facility under certain conditions or circumstances. Please seek professional advice for your specific situations. The Illinois Department of Commerce and Economic Opportunity (IL DCEO) can be contacted at 1-800-972-4216.
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