us, Departure"; of Labor Occupational Safety and Health Chicago Regional ow." John Federal Building 230 Dearhurn sweet suite 3244 Chicago. Illinois enema--i594 April 22. 2020 Re CASPA IN 2020-" Dear Mr Stallone This letter is in response to the referenced Complaint About State Program Administration (CASPA) regarding the Indiana Occupational Safety and Health Administration's (IOSHA) handling of safety inspector training, referrals from safety inspectors to industrial hygienists, inappropriate "coaching" during informal conferences, dismissal of safety orders Without proper evidence and programmed inspections not being conducted, Based on interviews conducted with you and IOSHA stafir and a review Field Operations Manual (POM), we found merit in four of the allegations and made recommendations that are discussed below. CASPA Allegation 1: An IOSHA industrial safety inspector did not receive adequate training prior to being assigned a fatality investigation at Manley Meats in June 2017 The inspector assigned to conduct the fatality investigation involving a confined space With hazardous gases and oxygen deficiency did not receive training on the operation of the gas detector meter. In addition, an industrial safety inspector did not receive adequate training prior to being assigned a complaint inspection alleging industrial hygiene hazards at Rush Truck Center in November 2017, OSHA's Findings: In regards to the Manley Meats fatality, it was determined that the IOSHA industrial safety inspector (safety compliance officer) assigned to the inspection had previously received training on conducting accident investigations and confined space hazards, including training received through the OSHA Training Institute and during prior work experience. Prior to initiating the inspection, an IOSHA supervisor demonstrated the use of the gas detection meter for the safety compliance officer. Documentation in the file indicated that the safety compliance ofl'icer was able to successfully operate and utilize the gas detection meter while on-s'ite, In this case, the use of the gas detection meter did not have a bearing on the inspection findings as the fire depammnt had previously been to the site and taken readings and ventilated the space. It was determined that in this case, IOSHA appropriately assigned the inspection to a quali?ed compliance of?cer and provided appropriate guidance on the use of the gas detection meter. In regards to the Rush Truck Center inspection, it was determined that a safety compliance of?cer was assigned a health complaint inspection alleging industrial hygiene hazards (poor air quality and a lack of exhaust system causing employees to get sick). After opening the inspection, the original safety compliance of?cer separated from IOSHA. At that point, IOSHA reassigned the inspection to another safety compliance of?cer. Ideally, this complaint would have been assigned to an industrial hygienist or another safety compliance of?cer with the knowledge and experience to ?illy evaluate the complaint items. However, management makes assignments based on a number of factors, including resources available at the time. Regardless of whether a safety compliance of?cer or an industrial hygienist is assigned to a speci?c inspection, all complaint items must be investigated and adequately documented in the case ?le. In this ?le, there was a lack of documentation showing that the industrial hygiene hazards were fully investigated and addressed. For example, there was no documentation indicating that air monitoring had been conducted or that the exhaust system was evaluated to determine the presence of air containments. It was determined that in this case, IOSHA did not effectively evaluate and document all of the industrial hygiene complaint items. Analysis: According to FOM Chapter 5 Section II Case File Preparation and Documentation, the OSHA-1A (narrative) shall contain a discussion clearly addressing all items on the Complaint or Referral. Chapter 5 Section Health Inspections, states that Compliance Safety and Health Of?cers (CSHOs) shall document all relevant information concerning potential exposure(s) to chemical substances, or physical agents (including, as appropriate, collection and evaluation of applicable Material Safety Data Sheets), such as experienced by employees, duration and frequency of exposures to the hazard, employee interviews, sources of potential health hazards, types of engineering or administrative controls implemented by the employer, and personal protective equipment being provided by the employer and used by employees. Recommendation: Ensure that staff assigned to investigate complaints have the appropriate expertise to fully evaluate and address all complaint items and that all complaint items are appropriately documented in the case ?le. CASPA Allegation 2: IOSHA is not responding appropriately when industrial safety inspectors are assigned complaint inspections alleging industrial hygiene hazards. An industrial safety inspector was assigned an inspection alleging industrial hygiene hazards at Rush Truck Center in November 2017 because an industrial hygienist was not available to conduct the inspection. The safety inspector was also not allowed to make a referral to another inspector experienced with operating the gas detector meter for the Manley Meats fatality investigation in June 2017. *1 dAnalySIs See Findings related to CASPA Allegation 1 for the bucking and Manley Meats inspections. The CASPA investigation determined that as a general course of business, IOSHA makes reasonable attempts to appropriately screen and assign unprogrammed activity (complaints, referrals, and accidents) as the information is received in the office. In the event that a compliance of?cer is assigned an they are not adequately trained to handle, IOSHA does inspection or encounters hazards that have a process for submitting referrals for another compliance of?cer to assist with the inspection or separately investigate speci?c issues, such as health hazards. There was no evidence identi?ed to indicate that compliance of?cers are discouraged or prevented from submitting such referrals when necessary. In fact, the investigation identi?ed over 25 examples where referrals were submitted for industrial hygiene hazards since 2017. There was also no evidence identi?ed to establish that the compliance of?cer assigned the referenced inspections requested and was denied the ability to make a referral. OSHA Recommendations: None nference for a fatality inspection initiated in iana, the IOSHA Director of CASPA Allegation 3: During an informal co September 2017 at the Amazon distribution facility in Plain?eld, Ind General Industry inappropriately "coached" Amazon representatives regarding what documentation would be needed that would allow Amazon to prove employee misconduct, thus assisting with the dismissal of safety orders and penalties. Findings: It was determined that during the informal conference, the IOSHA Director of General Industry held a discussion with Amazon representatives on potential avenues to reach a settlement on the safety orders. As part of this, employee misconduct was discussed, along with other changes that could be considered based on information provided by Amazon Employee misconduct is an af?rmative defense outlined in the IOSHA FOM Chapter 5, that when established will excuse the employer from a citation that has otherwise been documented. During the course of settlement discussions, it is not unusual to discuss af?rmative defenses; however, it is typically and more appropriately done in response to the defense being raised by the employer. In this case, it was determined that the merits of the Violations had not been discussed, nor had employee misconduct been raised by Amazon during the informal conference. The investigation found that this conversation took place unprompted, and as part of an overly broad explanation on the informal conference and settlement process by the IOSHA Director of General Industry. Under these circumstances, having a conversation about employee misconduct or any other changes that could be considered to the safety orders is unnecessary and premature. This level of conversation should be reserved until after the employer has presented their case and the merits of the Violations have been discussed. While the investigation identified this conversation took place, there was no evidence identi?ed to support that this was done as an, intentional or premeditated effort to ?coac Amazon with the dismissal of the safety orders. to FOM Chapter 5 Section VIA, employers have the OSHA Analysis: Accordm burden any af?rmative defenses at the time of a hearing. OSHA Recommendations: It is the burden of the employer to establish an affirmative defense at the time of a hearing. It is recommended that IOSHA review informal conference procedures af?rmative defenses, including employee misconduct, are with appropriate staff to ensure that not discussed unless raised as a defense by the employer. CASPA Allegation 4: IOSHA dismissed safety orders and penalties for a fatality inspection initiated in September 2017 at the Amazon distribution facility in Plain?eld, Indiana, without receiving proper evidence from the employer that the hazards did not exist. IOSHA issued a safety order with four lockout/tagout Findings: On October 26, 2017, facility in Plain?eld, Indiana. On violations related to a fatality at the Amazon distribution November 20, 2017, an informal conference was held with representatives of IOSHA and Amazon, but the parties were unable to reach a settlement agreement. Subsequently, Amazon contested the safety orders on November 21, 2017. Over the course of the next 10 months, Amazon submitted additional documents in an attempt to support their position that the Violations should be deleted due to having established safety procedures and employee training in place at the time of the incident. On September 14, 2018, IOSHA and Amazon entered into an Agreed Entry (settlement agreement) that deleted all four violations originally issued. The Agreed Entry, Section 16 notes that, ?During settlement discussions and informal discovery, Respondent made a suf?cient showing that it met all of the required elements of an unpreventable employee misconduct defense.? During the ASPA investigation, a review of the information provided by Amazon to support deletion of the violations was conducted. It was determined that Amazon did provide a number of documents to help support their position, including policies, training records, site audits, discipline records and a surveillance video showing the deceased employee apparently training another employee to perform the same or similar task with appropriate safety equipment. However, there were some areas identified that warranted additional evaluation prior to deleting the violations. Safety Order 1, Item 001 was a violation of 29 CFR for failing to develop, document and utilize procedures for the control of hazardous energy (lockout/tagout procedures). To support deletion of this item, Amazon provided their Control of Hazardous Energy (Lockout/Tagout) Program. The program provided was a general program and it did not contain a specific hazardous energy control procedure for the equipment being serviced at the time of the incident. To supplement their program, the equipment?s maintenance manual was also submitted which contained warnings about blocking the mast assembly/operator?s platform during servicing. However, the maintenance manual did not identity control techniques for other potential hazards, such as electrical hazards, or the unexpected start-up or movement of the equipment by another employee while being serviced. Additionally, the manual did not identify any speci?c methods to verify that all hazardous energy sources were properly controlled. There was no evidence found in the ?le to indicate that Amazon ever submitted a comprehensive hazardous energy control procedure that was to be used by employees while servicing the equipment. IOSHA should have established the existence of this documented procedure prior to deleting the violation I Safety Order 1, Item 002 was a violation of 29 CFR 1910. 147(c)(7)(i) for the employer not providing adequate training to ensure employees acquired the knowledge and skills required for the safe application, usage and removal of energy control devices. To support deletion of this item, Amazon submitted training records and a surveillance video showing the deceased employee apparently training another employee to perform the same or similar task with appropriate safety equipment in place. In addition, there were three interview statements taken during the inspection of other maintenance employees. Two of the three interviews supported Amazon?s assertion that employees had been trained to block and support the mast assembly during servicing. Based on the information received from Amazon, it was determined that IOSHA was justi?ed in deleting this violation. Safety Order 1, Items 003 and 004 were related to violations of 29 CFR and 29 CFR 1910. 147(d)(5)(i) for not utilizing energy isolation (LOTO) devices while working underneath the mast assembly of a powered industrial vehicle. Amazon contended that the violations should be deleted due to employee misconduct. According to the IOSHA FOM, Chapter 5, Section to meet an unpreventable employee misconduct defense, employers must establish all the following elements: (1) A work rule adequate to prevent the violation (2) Effective communication of the rule to employees (3) Methods for discovering violations of work rules and (4) Effective enforcement of the rules when violations are discovered. Amazon submitted suf?cient evidence to support that the employee had been trained (element 2 of an employee misconduct defense) and that there were methods in place for discovering violations of work rules (element 3 of an employee misconduct defense). However, as previously noted in relation to Safety Order 1, Item 001, Amazon did not establish that a documented speci?c energy control procedure had been developed related to the task being performed (element 1 of an employee misconduct defense). In addition, to support element (4) of their employee misconduct defense, Amazon submitted 25 instances of disciplining employees for work rule lockout/tagout violations from 2016 to 2018. None of these records, however, were from the facility in question and all but one of the violations were from facilities outside of Indiana. To establish whether Amazon had met element (4) of an employee misconduct defense, IOSHA should have pursued evidence of enforcement of safety rules at the facility in question. Based on the information in the ?le, additional documentation related to element (1) and element (4) of Amazon?s employee misconduct defense would have been necessary to justify deletion of these violations. OSHA Analysis: According to FOM, Chapter 5 Section VI.A., employers have the burden of proving any af?rmative defenses at the time of a hearing. According to Section VIB, to establish an unpreventable employee misconduct defense, employers must show all the following elements, (1) A work rule adequate to prevent the violation, (2) Effective communication of the rule to employees, (3) Methods for discovering violations of work rules, and, (4) Effective enforcement of the rules when violations are discovered. OSHA Recommendations: Ensure that adequate evidence has been submitted prior to deleting safety orders, including evidence to support all elements of an unpreventable employee misconduct defense. CASPA Allegation 5: IOSHA inspectors do not conduct programmed planned inspections of workplaces. In addition, an industrial safety inspector was not allowed to expand an inspection at Thor Motor Coach to address additional hazards identi?ed while onsite investigating an amputation. Findings: During the CASPA investigation, it was determined that in 2018, IOSHA did conduct programmed planned inspections from a targeting list based on CPL 03-00-019 National Emphasis Program (NEP) on Amputations. IOSHA adopted this NEP identically from federal OSHA. No additional inspections were conducted from this or other targeting lists since that time. It was determined that the targeting methodology used to select sites under this program did not align with the targeting methodology listed in CPL 03-00-019 National Emphasis Program on Amputations. For example, IOSHA did not use the same industry North American Industry Classi?cation System (NAICS) codes outlined in the National Emphasis Program on Amputations. IOSHA also used a DART rate (Days Away, Restricted or Transferred) criteria, which is not part of the National Emphasis Program on Amputations. In addition, IOSHA has also adopted all other federal OSHA National Emphasis Programs including, Hexavalent Chromium, Lead, Primary Metals, and Process Safety Management. IOSHA did not adopt the Site Speci?c Targeting NEP (SST-16). However, they were required to have something equivalent to it in place by April 2019. To date, they do not have an equivalent targeting program in place. All of these National Emphasis Programs contain pro grammed planned inspection targeting protocol; however, IOSHA is not conducting pro grammed planned inspections based on these emphasis programs. IOSHA responds to hazards identi?ed in these emphasis programs through unprogrammed activity (complaints, referrals, and accidents) received in the of?ce. The investigation also evaluated compliance of?cers? ability to expand inspections to address additional hazards identi?ed during the course of an inspection, including those identi?ed in National Emphasis Programs. The investigation found no evidence to support the allegation that compliance of?cers are not allowed to expand inspections, including the investigation at Thor Motor Coach. The inspection narrative for Thor Motor Coach indicated that the scope of the inspection was expanded to evaluate other hazards and there were no additional concerns identi?ed. There was also no information found in the compliance of?cer?s notes to indicate additional hazards were identi?ed onsite, nor were other hazards depicted in the photographs taken during the inspection. Interviews with staff and management did not identify any concerns or restrictions in regards to expanding inspections to address additional hazards identi?ed during the course of inspections. OSHA Analysis: CPL 03-00-019 National Emphasis Program on Arnputations outlines the targeting methodology used to develop targeting lists. The CPL identi?es speci?c NAICS codes based on historical inspection, injury, illness, and amputation data. IOSHA did not follow the guidance in the CPL for targeting sites for inspection under this NEP. IOSHA also did not follow the targeting guidance provided in other NEPs that they adopted. However, this investigation "Isa-u: r1.? "g?l?i awamcm ?f found that compliance officers are, allowed to expand inspections to address additional hazards identi?ed during the course of inspections. OSHA Recommendations: 1) Ensure that programmed planned inspections are utilized as part of a comprehensive enforcement approach for those industries and hazards identi?ed in National Emphasis Programs adopted by IOSHA. 2) Ensure that all programmed planned inspection-targeting lists are developed utilizing an approved and docmnented selection methodology as outlined in the emphasis program or targeting directive. IOSHA has been noti?ed of the results of our investigation of your complaint, and 15 required to .. 31?: provide a written response to all recommendations. If you have any questions, please do not .. . hesitate to contact me at 312-353- 5977 or Crenshaw darnell@dol. gov If you disagree with our ?ndings, you have the right to request a review by writing to the Acting Regional Administrator 4. at the following address. Nancy G. Hauter Acting Regional Administrator U. S. Department of Labor, OSHA Chicago Regional Of?ce 230 S. Dearborn Street, Room 3244 Chicago, IL 60604 Sincerely, 082.44 Darnell Crenshaw Assistant Regional Administrator