At the start of the year, OSHA announced its highest increase in maximum civil penalties since 2016. The maximum civil penalty for each serious, other-than-serious, posting requirement, and failure to abate violation increased to $15,625 per violation, and the maximum civil penalty for each willful or repeat violation increased to $156,259 per violation.
On January 26, 2023, the OSHA Directorate of Enforcement Programs issued two memoranda authorizing the expanded use of enforcement tools to increase the deterrent effect associated with OSHA citations and penalties.
The first memorandum authorizes OSHA Regional Administrators and State Plan Designees to issue “instance-by-instance” citations for a broad range of violations, including “high-gravity” serious violations of requirements of lockout/tagout, machine guarding, permit-required confined spaces, respiratory protection, falls, and trenching standards, and other-than-serious violations specific to recordkeeping. The agency’s prior policy limited the use of “instance-by-instance” citations to egregious willful citations only.
The second memorandum reminds Regional Administrators that they have the discretion not to group violations in certain cases to achieve a deterrent effect.
On January 27, 2023, OSHA issued a revised Combustible Dust National Emphasis Program (“NEP”). The revised NEP evidences OSHA’s continuing commitment to inspecting facilities that generate or handle combustible dusts and adds new industries to the list of industries that may be subject to planned inspections.
As a result of these developments, employers should expect to see increases in inspection activity and resulting penalties. Now, OSHA Regional Administrators and State Plan Designees have expanded authority to issue an “instance-by-instance” citation for other-than-serious violations of OSHA standards specific to recordkeeping and “high-gravity” serious violations of OSHA standards specific to:
- Machine guarding,
- Permit-required confined spaces,
- Respiratory protection,
- Falls, and
In such cases, OSHA Regional Administrators and State Plan Designees have the authority to issue “instance-by-instance” citations if one or more of the following factors is present:
- The employer has received a willful, repeat, or failure to abate violation within the past five years, where that classification is current.
- The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR § 1904.39.
- The proposed citations are related to a fatality/catastrophe.
- The proposed recordkeeping citations are related to injury or illness(es) resulting from a serious hazard.
OSHA’s stated purpose in expanding the application of the policy is to provide “additional deterrence” to employers and “incentivize employers to proactively prevent workplace fatalities and injuries.” The new policy went into effect on March 27, 2023.
Revised Combustible Dust NEP
The Revised Combustible Dust NEP outlines OSHA’s policies and procedures for “inspecting workplaces that generate or handle combustible dusts, and for determining whether such workplaces have addressed fire, flash fire, deflagration, and explosion hazards associated with combustible dusts.” It replaces a prior NEP from 2008. The Revised NEP went into effect on January 30, 2023, and will remain in effect until OSHA issues a cancellation notice.
Under the Revised NEP, the list of industries that OSHA will target for planned inspections has changed based on OSHA’s review of enforcement under the prior NEP and combustible dust incident reports. OSHA removed six industry groups that were from its prior list because they were found to have a lower likelihood of having combustible dust hazards and a lower number of potential workers exposed. OSHA added the following six industry groups because, according to OSHA, they have a higher likelihood of having combustible dust hazards or experienced combustible dust-related fatalities/catastrophes:
- Commercial Bakeries (NAICS 311812)
- Printing Ink Manufacturing (NAICS 325910)
- Cut Stock, Resawing Lumber, and Planning (NAICS 321912)
- Leather and Hide Tanning and Finishing (NAICS 316110)
- Truss Manufacturing (NAICS 321214)
- Grain and Field Bean Merchant Wholesalers (NAICS 424510)
In total, 86 industry groups will be subject to planned inspections under the revised NEP.
At worksites inspected under the Revised NEP, employers can expect OSHA to:
- Request information that is relevant to combustible dust hazards (such as any history of fires and explosions, safety data sheets, electrical area classification drawings/documents, and dust hazard analyses);
- Observe equipment, procedures, and whether there are accumulations of combustible dust; and
- In some circumstances, collect samples.
As outlined in the Revised NEP, OSHA inspectors will assess whether there are violations under a range of OSHA standards and requirements, including those for housekeeping, ventilation, personal protective equipment, electrical equipment, powered industrial trucks, welding, cutting, and brazing, warning signs, hazard communication, egress, fire protection, spray finishing, and the General Duty Clause.
Spencer-SHE has been providing Safety, Health, and Environmental Compliance Guidance since 1980, offering clients cost-effective, turn-key solutions. Our team can greatly assist with navigating these new enforcement issues.
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OSHA Begins 2023 with an Emphasis on Enforcement (bdlaw.com)