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IOSHA falling down on job?

State workplace safety agency defends its decline in inspections, fines

The Indiana agency charged with keeping workplaces safe performs far fewer inspections than in the past, issues fewer serious violations and in recent years has struggled with employee turnover.

Created in the 1970s as a state-run offshoot of a similar federal agency, the current Indiana Occupational Safety and Health Administration is a dramatically changed – and some say underfunded – agency.

A Journal Gazette review of federal Occupational Safety and Health Administration inspection data, federal reports and interviews with IOSHA officials found that the state agency:

•Inspects about 2,000 businesses a year, down from more than 7,000 in the 1980s.

•Has 40 inspectors, fewer than federal regulators agreed to, and down from about 100 in the ’80s.

•Issued violations in four out of 10 inspections compared with seven of 10 nationally last decade.

•Issues fines for serious violations that average less than half the national rate.

•Declined to go along with federal OSHA changes that increased fines in 2010.

Indiana isn’t alone. Some other states with their own workplace safety agencies did not approve the penalty adjustment, nor have some met federal staffing benchmarks or inspection goals, according to federal reports.

IOSHA officials say the large number of inspections during the agency’s early years isn’t likely to return. Staffing, they say, reflects an economic reality, and the state has petitioned to reduce a 70-inspector federal benchmark as being excessive.

As for lower fines, officials say they’d rather see businesses change and problems fixed than always issue a penalty. They also point to a significant, yearslong decline in reported workplace deaths and injuries nationally and in Indiana, for which IOSHA takes some credit.

“I would say we’ve impacted it,” former Labor Commissioner Lori Torres said before being replaced when Gov. Mike Pence took office last month. The public is demanding a safer workplace, she added. “I think what’s going on presently is that; … employers are able to see that there’s a competitive benefit for being safer in their workplace.”

Inspections decline

When the Occupational Safety and Health Act passed in 1970, creating the federal OSHA, 26 states, including Indiana, chose to operate their own safety programs based on federal standards. Approved in 1974, IOSHA began inspections without federal assistance in 1981.

Federal OSHA sets and enforces workplace safety and health standards. Indiana passes laws mirroring those standards but prohibits more stringent rules.

Employers are required to obey those laws and keep their businesses free of hazards. To make sure they do, IOSHA executes surprise inspections, responds to workplace complaints and follows up on fatalities and incidents of serious injuries.

The number of yearly inspections fluctuates greatly.

The agency had a noticeable decline in inspections in the early 1990s, going from about 6,700 in 1989 to about 2,940 five years later, according to computerized OSHA data through September 2011. Except for some noticeable dips, the number has hovered around the agency’s goal of 2,000 since 1999, according to a Journal Gazette analysis.

New Labor Commissioner Sean M. Keefer has “strongly reaffirmed” the 2,000 inspection goal and that it would be achieved, said Robert E. Dittmer, Indiana Department of Labor spokesman.

Inspections, of course, relate to staffing. The 70-inspector benchmark was approved by the federal government in 1986.

Last year, a federal audit of IOSHA’s performance found staffing to be a major, ongoing problem for the agency. An improved economy, the report noted, might even make the issue worse by luring staff away to higher-paying jobs.

While the Indianapolis OSHA office believes the 70-inspector benchmark needs to be maintained, IOSHA points to improved inspection efficiency, fewer high-hazard manufacturing operations in Indiana and budget constraints as reasons to lower the number, according to the report.

Turnover an issue

IOSHA acknowledges staff turnover has been a problem.

For the fiscal year that ended Sept. 30, the agency said it had performed 1,205 inspections, far short of its goal. IOSHA was still feeling the effects of several staff members leaving in 2010 and the lengthy training period for new hires, which ties up senior inspectors.

Then, a student death at the University of Notre Dame pulled several staff members away. Months later, the Indiana State Fair stage collapse drew heavily from its dwindled staff. IOSHA sent six inspectors to the fair, where they found violations and issued fines for the August 2011 tragedy that killed seven people and injured 60.

Left behind in the six months it took to investigate that catastrophe were the scores of business inspections that went undone.

“Every time we do one of those, that’s going to put our numbers down,” Torres said of high-profile cases. “The State Fair took six months, and it was two compliance officers full time every day for six months and a handful of others during that period of time.”

Staff turnover isn’t new. Former Labor Commissioner Nancy Guyott, now president of the Indiana AFL-CIO, said when she headed the state agency for a couple of years beginning in 2003, some of the best hires were people with pension incomes from former jobs. Salary wasn’t as much of an issue to them, she said.

Currently, a newly hired IOSHA inspector makes $36,374, according to Dittmer, the Labor department spokesman.

When hiring people out of college, “it’s easy for them to get lured away by higher pay, and you wind up with a turnover problem that can lead to a lack of efficiency and expertise,” Guyott said.

Whether federal regulators will waive the 70-inspector benchmark isn’t certain. The state’s request has been around for at least three years, according to federal documents. A 2010 IOSHA response to federal recommendations for improvement says attempts to have the issue addressed “have generally been rebuffed.”

Scott Allen, a U.S. Department of Labor spokesman in Chicago, said by email that IOSHA’s appeal is pending. Allen asked that questions be submitted by email and denied a Journal Gazette request for a phone interview with OSHA officials.

Fewer violations

Meanwhile, IOSHA inspections that are performed are finding fewer violations than other states.

The federal audit, which covered the fiscal year ending Sept. 30, 2011, reported that IOSHA found violations in 39 percent of inspections. The rate was 60 percent in other states with their own agencies and 71 percent in states covered by federal OSHA.

In addition, the number of serious violations discovered during inspections has declined in the last decade. A serious violation is one with “the probability that death or serious physical harm could result,” according to federal standards.

In calendar year 2001, slightly more than half of all IOSHA inspections found at least one serious violation, according to the newspaper’s data review. In 2010, there were more inspections but less than a third found a serious violation.

Torres gives three possible reasons for the decline: Computerized guides aren’t targeting the right industries to inspect, businesses have become safer or new inspectors are not spotting serious violations.

“If our compliance officers are not well trained, they will not identify the hazard,” she said. “And so that is something we have been working on.”

The average fine for a serious violation, while up in recent years, is far under the national average. The federal audit found a state/federal gap of $875/$2,133, after fine modifications. The average for other states with their own safety agencies was $963.

The difference can be partly attributed to the 2010 change in federal penalty policy Indiana didn’t adopt. Companies are allowed adjustments to fines for an employer’s good faith, violation history, number of employees and other factors. OSHA modified the formula, which had not changed in 40 years, to raise penalties as a deterrent.

Allen, the U.S. Department of Labor spokesman, said several states declined to adopt the change, though he did not have a number. A May 2012 Oregon OSHA document mentions two states adopted the policy, while some others took steps to raise penalties somewhat.

IOSHA officials say they are more concerned about correcting problems than penalizing businesses.

“Our philosophy about safety in Indiana is not always about the fine,” said Tim Maley, deputy labor commissioner. “And what we’re about is to increase safety in the workplace and to really, I want to say, change a company’s safety culture and direction. And we have seen this happen in a number of key cases.”

Still, he added, “we do have the ability to be very demanding if the company is not willing to cooperate.”

The U.S. Labor Department’s Allen responded that while penalties lower than the federal average for serious violations are common, “Federal OSHA believes higher penalties are a stronger deterrent and is currently working with certain State Plans to have penalties that are more consistent with federal OSHA.”

Mixed reviews

The federal penalty change was negatively received by industry, said Mark S. Kittaka, a Fort Wayne lawyer who represents employers on state and national OSHA matters.

“What they see is increased emphasis on inspections and big fines as opposed to more of a cooperative outreach or working for better compliance and education with employers,” said Kittaka, who discards any notion IOSHA isn’t doing its job.

“With my clients, it seems like OSHA’s been pretty busy,” he said. “As far as I know, they’re not ignoring complaints, I can tell you that.”

Mark A. Crouch, associate professor of labor studies at IPFW, sees IOSHA differently.

“Are they feared for their powerful incursions into Indiana workplaces? No,” Crouch said in an email.

“If you make the salaries for the agency low enough, no one in business has to worry about inspections at random when they don’t have enough staff to answer the phones and deal with complaints,” Crouch said. “As bad as Indiana workers’ comp is, there is no incentive to have a strong OSHA, or any OSHA at all.”

Thomas Black, a safety consultant and owner of Safer Worker Systems in Fort Wayne, said some employers, especially in the construction sector he deals with, have gotten the message.

“I think from the commercial construction end, we’ve got a lot of people in compliance,” Black said. “They’ve stepped up their roles, and they’ve had to do that because OSHA was really pretty fierce for a while in dealing with some of the commercial building issues.”

Black said he understands why Indiana has not pushed for higher violation fines, believing it’s good for business. While he considers himself an “advocate of more enforcement,” Black is not sure more inspectors or higher fines will push employers to follow those, such as the construction companies he knows that already obey the rules.

“I think that when you’ve got a group of people like that, I think maybe Indiana is saying, ‘Hey, we know our market, we know our people, and we know that we don’t need to be hammering people,’ ” he said.

But Guyott, the AFL-CIO leader who as labor commissioner oversaw IOSHA, said even the upgraded federal fines are too low.

“Certainly the Indiana average of less than $1,000 for a serious violation probably doesn’t have the deterrent impact that penalties are supposed to have,” she said.

IOSHA has historically been underfunded, she added. During her years in state government, budget cuts were not disproportionate to other agencies, “but I do think that there probably has been a lack of political enthusiasm for the work that IOSHA does.”

As for more inspectors, Guyott notes that it would take about 80 years to inspect all Indiana workplaces under current staffing levels.

“It’s certainly of concern,” she said. “I sort of liken it to the difference between theoretically there’s a highway patrol officer somewhere in the state versus there’s one on the corner that you can see with his radar gun out.”

rshawgo@jg.net

Coming Monday

•There are about 5,000 workplace deaths annually in the U.S. Meet a Fort Wayne woman who lost her son in an industrial accident and her frustration with the employer’s fine for serious violations.

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