The turning of the leaves; the World Series; trick-or-treating; and the OSHA Top 10 list.

Well, maybe it's not quite as rich in tradition as the first three, but OSHA's annual unveiling of its 10 most frequently cited violations for the year to date does hold a special place in the heart of OSHA watchers. As it does every year, OSHA announced its top 10 list at the annual National Safety Council conference in October. Here's a look at the results and some analysis of what they tell us about safety enforcement patterns.

Total Citations for the Year

When you add them all up, the total number for all of the Top 10 citations for the year to date (from January through September 2006) is 36,885. That's 3,578 fewer violations than last year's Top 10, and 7,800 fewer than 2004 totals. Here's the entire Top 10:

Number 1: Scaffolding, General Requirements - 7,895 citations (2005: 8,130)

Comment:Scaffolding secured the top spot on the Top 10 list for the fourth year in a row. And it wasn't even close. Scaffolding beat second place Fall Protection by more than 2,000 violations, or roughly 25 percent.

Number 2: Fall Protection - 5,746 citations (2005: 5,504)

Comment:Fall Protection had been listed in the third position for two years in a row. In addition to jumping up a spot, Fall Protection bucked a trend insofar as the absolute number of citations in this category actually increased from last year's total.

Number 3: Hazard Communication - 5,586 citations (2005: 6,641)

Comment:Haz Com had been number two on the Top 10 list for the previous two years. This year, it fell one spot. Total Haz Com citations for the year are also down by more than 1,000 as compared to this time last year.

Number 4: Respiratory Protection - 3,410 citations (2005: 3,904)

Comment:Respiratory Protection was also in fourth place at this time last year. Total citations in the category were down about 500 from last year.

Number 5: Lockout/Tagout - 3,068 citations (2005: 3,711)

Comment:Lockout/Tagout remains locked in at the fifth spot.

Number 6: Powered Industrial Trucks - 2,582 citations (2005: 2,871)

Comment:Powered Industrial Trucks first cracked the Top 10 in 2004. Last year, it jumped two places from eighth to sixth. But its climb up the chart seems to have stalled, at least temporarily.

Number 7: Electrical Wiring Methods, Components, and Equipment for General Use - 2,396 citations (2005: 2,785)

Comment:This is the second year in a row that wiring has occupied the seventh position.

Number 8: Machine Guarding, General Requirements - 2,396 citations (2005: 2,743)

Comment:Last year, Machine Guarding fell back one place from seventh to eighth. This year, it stayed in the eighth position.

Number 9: Ladders - 2,115 citations (2005: 2,054)

Comment: In 2005, Ladders cracked the Top 10 for the first time. This year it advanced one position to ninth. And, it was one of only two standards in the Top 10 that had a larger number of citations in 2006 than in 2005 at this time. (Fall Protection was the other.)

Number 10: Electrical, General Requirements - 1,791 citations (2005: 2,120)

Comment: Electrical, General dropped one spot from ninth to tenth.

What Does It Mean?

The fact that scaffolding was the most frequently cited standard isn't terribly surprising when you consider:

• The disproportionate number of construction sites included in the OSHA list of priority enforcement targets;
• The high incidence of fall injuries; and
• The complexity of the scaffolding standard itself.

The most striking observation we can make from this year's Top 10 list is how similar it is to last year's. In fact, all 10 of the standards are holdovers from last year; only the positioning has changed. And even those changes were miniscule. Two sets of standards swapped one spot (Fall Protection replacing Haz Com at number 2; and Ladders supplanting Electric, General at number 9); all of the other standards remained in the same position as last year.

The other aspect of this year's Top 10 that stands out is the continued drop in the overall numbers of citations. Eight of the 10 standards in the Top 10 had fewer citations than they did last year at this time. Is this a sign of a fall-off in overall OSHA enforcement? Or is OSHA "spreading the wealth" more evenly among the standards it cites? We will need to await total OSHA citation figures for the year before we can answer that question.

THE CANADIAN PERSPECTIVE

Due Diligence Patterns from 2005-2006

By Glenn Demby

In the interest of equal time, here's an overview of Canadian OHS enforcement trends.

Bill C-45 took effect on March 31, 2004. Since that time, there have been at least 22 OHS prosecutions across Canada decided on the basis of an employer's due diligence defence.

The Scorecard

• Employer Wins: 6
• Employer Losses: 15
• Mixed Results: 1

The 6 Wins

• R. v. Timminco Ltd., [2004] O.J. No. 5324 (No liability for failure to guard machine given lack of foreseeability of injury and warnings from JHSC and MOL);
• R. v. Ledcor, [2005] A.J. No. 766 (No liability for boom collapse at oil rig because worker involved had received adequate training);
• R. v. CIC Foods Ltd., [2004] S.J. No. 479 (No liability for worker's loss of two fingers because victim had been trained and warned and deliberately violated safety rules);
• R. v. Starcan Corp., [2005] O.J. No. 4725 (No liability for submitting audit report late after company made every reasonable effort to comply with government's order);
• R. v. GC-North Inc., [2006] NU C.J. 18 (CanLII) (No liability for indoor smoking violation since company made all reasonable efforts to remove ashtrays, post signs, provide warnings and enforce rules and employees deliberately violated the no-smoking policy);
• R. v. Vipe Construction Ltd. [2006] O.J. No. 2034 (No liability for failure to shore trenches by small company with first rate safety program, excellent training and flawless record of compliance).

The 15 Losses

The cases where employers lost were decided in ON (8), AB (2), SK (2), BC (1) and NS (1).

The Mixed Results Case

The case where an employer was found to have exercised due diligence on some counts but not on others was a federal decision involving a barge company (R. v. Miller Shipping Ltd., [2005] N.J. No. 54.

For More Details

If you want to read about the particulars of each case and its significance to you and your safety program, see Bongarde Media's Safety Compliance Insider, Vol. 1, No. 11-12; and Vol. 2, No. 11-12.

NICK O'SHAY WARNING

The next installment of the Nick O'Shay diaries will be Monday, November 13. Consider yourself warned.

YOU MAKE THE CALL

What Happened
Contractor A forgets to remove a bag of unused cement after excavation work is completed. The bag is buried and the cement inside hardens. Three years later, Contractor B is hired to perform excavation at the same site. During the work, the buried cement bag is hurtled into the air, landing on the head of one of Contractor B's workers. The victim sues Contractor A for failing to clean the site properly. Contractor A denies responsibility.

Who Won?
Contractor A.

Explanation
The Supreme Court of Hawaii rules that the injury was a freak occurrence and throws out the case. The risk that a buried bag of cement would become unearthed and injure a worker at a project three years later was not one that Contractor A should have been reasonably expected to foresee, says the court.

Cite
Pulawa v. GTE Hawaiian Tel., 2006 Haw. LEXIS 477, Sept. 14, 2006

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