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September 6, 2019

What’s Up with KYOSH?


WRITTEN BY

Jami Arnold

TAGGED

Are you aware of what’s been going on with the Kentucky Occupational Safety and Health (KYOSH) Program? Here’s an update with some facts to dissuade some of the rumors. The Federal Occupational Safety and Health Administration (OSHA) has received multiple complaints regarding Kentucky’s OSH investigations of workplace fatalities. OSHA reviewed the complaints and completed a comprehensive audit in 2017 and a follow-up audit in 2018 to track Kentucky’s progress and assess any new deficiencies. OSHA assessed Kentucky’s overall State Plan with specific focus on 44 fatality cases. OSHA provided remarks in the Federal Annual Monitoring Evaluation (FAME) Report. The 2017 report revealed deficiencies in both divisions of Kentucky’s Occupational Safety and Health Program. KYOSH is the compliance division, and the education/training and consultation division has been rebranded as KYSAFE. OSHA’s findings included improper handling of non-formal complaints, failure to conduct programmed health inspections, deficiencies in methods Kentucky used to conduct fatality investigations, inadequate training and staffing, lack or insufficient documentation, failure to accept electronic complaints, high lapse times, and issues with KYOSH’s consultation program.

Since then, KYOSH has been under media scrutiny, policy changes, and significant turnover. In response, Governor Bevin appointed new leadership, re-organized the agency, and abolished the OSH Standards Board, transferring all power to promulgate regulations to the Labor Secretary. While this move is not unlike other cabinets, it has become a source of contention between the political parties this election year.  The 2018 report credited Kentucky for implementing corrective actions and being responsive to the findings and recommendations outlined in the 2017 report. This positive change was attributed to Governor Bevin’s newly appointed leadership team in the Department of Workplace Standards and both Divisions of KYOSH.

KYOSH didn’t get off completely unscathed. The 2018 audit revealed the same finding as the previous year… “investigations were inadequate, and statements were essentially non-existent.”    In the wake of these reports, you can bet that KYOSH will be closely monitoring workplace fatalities and OSHA will be right there watching to see how investigations are conducted.

In addition, OSHA found Kentucky was two years past the federal requirement to increase its penalty structure, as of December 2018. In 2015, Congress passed legislation to increase penalties (unchanged since 1990) by 78% with annual adjustments for inflation.

Violations                                    KY Penalties          OSHA Penalties*

Serious/Other Than Serious           $7,000                        $13,260

Willful or Repeat                                $70,000                     $132,598

*The federal penalties adjusted annually for inflation.

What does that mean to you? Penalties will inevitably go up one way or the other. Although penalties in Kentucky have historically been modest, State Plans are required to raise penalties to at least the federal amounts. If the Kentucky legislature does not vote to increase the penalties to federal standards, OSHA could step in and take concurrent jurisdiction to enforce federal requirements.

Jami Arnold is a health and safety consultant at Smith Management Group. Jami can be reached at jamia@smithmanage.com .


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FEATURED PROJECT


PROBLEM

A permitted manufacturing facility in Kentucky had stopped using equipment and wanted to make operational changes which were not reflected on their air permit. Large old boilers which had not been used for several years were still active on the site’s air permit. Additionally, the facility wanted to increase operating hours for certain affected facilities.
The old boilers were the reason that the site had federally enforceable limits for sulfur dioxide in their permit and were subject to the National Emission Standard for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers Area Sources. This status resulted in additional requirements, higher monitoring and reporting costs, and higher fees to the regulatory agency. Changes to operations required a reevaluation of the site’s potential emissions.


SMG'S APPROACH

Smith Management Group evaluated the permit requirements and operational data. SMG calculated the potential to emit without the large boilers and with the expanded hours. SMG’s assisted the facility in updating the correspondence and permit with the regulatory authority to change the facility status to minor source.


RESULTS

SMG helped the source update their air permit to represent current site conditions and allow for expanded operations. The source fully decommissioned the large oil boilers in place, successfully transitioned from a permit with federal limits (FEDOOP/FESOP) to a minor source permit and updated their potential-to-emit calculations to represent new operating parameters. These changes saved the facility money in monitoring, reporting, and fees and also allowed for expanded operations in compliance with air regulations.