Don't go to the Bangor federal building looking for OSHA. The long delayed relocation of the Bangor District office was finally accomplished in November, with OSHA simply moving its office down the street. The new address for the OSHA Bangor District Office is 382 Harlow Street, Bangor, Maine, 04401.

Currently, the Area Director for OSHA in Maine is Kimberly M. Castillon, CIH, CSP. Castillon, who is approaching her one-year anniversary as Area Director, is a Board Certified Industrial Hygienist who previously served as Assistant Area Director for OSHA's office in Kansas City, Missouri. Stay tuned, however. The word on the street is that Castillon may be leaving. If the rumor mill is accurate, and it frequently is, Maine employers are likely to be confronted once again with heightened unpredictability from OSHA with respect to compliance issues as well as when defending themselves against erroneous or unreasonable citations.

The Maine Area Office of OSHA continues to employ the Expedited Informal Settlement Agreement as an element in its arsenal for enforcement actions. This is how it works:

Citations issued by OSHA following an inspection are typically served on the employer by certified mail, return receipt requested. In certain cases, OSHA sends with the Citations an Expedited Informal Settlement Agreement (EISA), along with a letter highlighting certain aspects of the Agreement. Employers would do well to remember that the proffered EISA is OSHA's proposal, which is based upon their view of the world, and is designed to enforce that view on the employer as expeditiously as possible.

Not surprisingly, the explanatory letter accompanying the proposed EISA touts the agreement as the means by which the employer can reduce the amount of the penalties set forth in the Citations by either 25% or 50%. While that may seem like a "good deal" on the face of it, the reality is that the penalty proposed in a particular Citation is only one of the three major components of a Citation that the employer should consider before determining how to proceed.

The two other components of a Citation most important to the employer are the "classification" which OSHA has chosen to assign to the alleged violation, and the "abatement" obligations imposed by the Citation, including, but not at all limited to, the date by which abatement must be completed.

If during an inspection the OSHA Compliance Officer finds what she believes to be a violation of an OSHA Standard, a decision must be made within OSHA as to what "type of violation" it is. This decision is made by the Area Director, not the Compliance Officer. The classifications typically used by OSHA to identify the "type of violation" are: other-than‑serious; serious; willful; criminal/willful; repeated; and de minimis. In some circumstances, OSHA will issue a Citation for an alleged violation and classify it as a violation of the "general duty clause," which is a reference to a particular section of the Occupational Safety & Health Act, and not a specific OSHA Standard.

In order to make use of the Expedited Informal Settlement Agreement an employer must accept the particular classification which OSHA has chosen to describe the type of violation    found. The classification of a particular alleged violation dictates the permissible penalty range for that violation. In addition, and more importantly, the classification of a violation becomes a crucial element of the employer's "history" with OSHA. That history becomes a factor which OSHA will consider in future instances when determining the classification of a Citation for a new violation, as well as the amount of the penalty which will be assessed for any new violation. In other words, an employer's OSHA "history" is analogous to the criminal history ("rap sheet") of an individual person. The greater the number of violations, and the greater their severity, the worse it is for the employer going forward.

Even though the classification is of crucial importance and will impact the employer for years, OSHA conditions the use of the Expedited Informal Settlement Agreement (and hence the proffered reduction in penalty) on the employer's acceptance, carte blanche, of OSHA's classification of the type of violation. As the cover letter accompanying the Expedited Informal Settlement Agreement states, "if you wish to discuss, change or object to any aspect of the inspection or citations - - - including abatement dates, validity of violations, classification of violations - the Expedited Informal Settlement Agreement can not be used."

The catch here is that in virtually all instances the employer should want to discuss and negotiate those very issues so as to get the fairest and most workable deal possible. The penalty is, in effect, simply the "price" the employer has to pay for the "product" being purchased, and that product is a settlement agreement with OSHA. It is best for the employer to get the most bang for its buck by reducing the total number of violations, obtaining the most favorable classification of each violation, and by structuring the abatement obligations so that they are workable for, as well as an added value to, the employer's ongoing operations.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.