By Casey M. Cosentino and Eric J. Conn
On June 2, 2011, OSHA launched an enforcement National Emphasis Program focused on employers and hazards in the Primary Metals Industries (“Primary Metals NEP”). Establishments in the primary metals industries are those involved in extracting and refining metals from rocks containing iron, lead, nickel, tin and other primary metals, and smelting ferrous and nonferrous metals, including ore, pig and scrap, during rolling, drawing, casting and alloying metal operations. Some products manufactured in this sector include nails, wires and cables, steel piping, sheets and bars, and copper and aluminum products.
OSHA decided that it needed to launch the Primary Metals NEP following a review of data collected by the Bureau of Labor Statistics and from previous OSHA enforcement actions in the industry. Through these sources, OSHA learned the seriousness and frequency of workers’ exposure to metal dusts and fumes, carbon monoxide, lead and silica, noise and heat hazards, and exposure to other toxic substances. Workers exposed to these substances may damage their eyes, noses, threats and skin, can experience difficulty breathing, and could suffer chest and joint pain. Sufficient overexposures can ultimately lead to death.
According to Dr. David Michaels, Assistant Secretary of Labor for OSHA:
“[w]orkers who are not properly protected from the hazards of metals refining are at increased risk of serious, potentially deadly health effects. . . . OSHA’s new enforcement program will raise awareness of the dangers of exposure to metals and other chemicals, so that employers can correct hazards and comply with OSHA standards.”
OSHA intends to accomplish the following goals through the NEP:
- minimize workers’ exposure to chemical and physical hazards;
- inspect facilities that manufacture primary metals and metal products (e.g. manufacturers of nails, insulated wires and cables, steel piping, and copper and aluminum products); and
- conduct follow-up inspections to ensure that the hazards have been reduced or eliminated.
For establishments in the primary metals industries, the NEP means increased inspections, more violations, more penalties, and significant additional related costs associated with abating violations (e.g., engineering changes to facilities and equipment). Moreover, the Primary Metal’s NEP is a backdoor for OSHA to cite employers for other health and safety issues. Although the NEP states that inspections are focused on exposures to physical and chemical hazards, it instructs Compliance Safety and Health Officers (“CSHOs”) to review injury and illness records and check for incidents of musculoskeletal disorders. Indeed, the NEP explicitly states that CSHOs “may expand the scope of the inspection if other safety and health hazards or violations are observed and/or brought to their attention.”
We are beginning to see the results of the first wave of inspections under the Primary Metals NEP, and the results are not surprising. OSHA set out to find instances of chemical exposure and safety hazards, and the first reported enforcement action under the Primary Metals NEP included precisely those findings, including alleged hazardous exposures to respirable and combustible dust, various electrical safety violations, lockout/tagout and machine guarding issues.
It is crucial that establishments in the primary metal industries understand that when OSHA comes knocking for an NEP inspection, the agency will also actively seek other safety and health violations. Accordingly, now is the time for employers in primary metals industries to take a close look at OSHA’s Primary Metals Directive, understand what the agency will be looking for if they inspect your facility under the directive, and evaluate your safety and health programs (both written and as implemented in the field) to make certain they are in compliance.