Constructive Interaction with EPA and OSHA

By Diane M. Calabrese / Published August 2023

Interaction is a good word. Moreover, it’s a better one than “inspection”—a word that has a way of causing alarm.

An inspection by the EPA [Environmental Protection Agency] or OSHA [Occupational Safety and Health Administration] is best thought of as an interaction, even when it is also an inspection. From that vantage, everything looks quite doable.

Doable like an interaction with a vendor or a customer. There is give and take.

Just as one prepares for interaction with any business partner, one should prepare for interaction with representatives of EPA and OSHA. In the context of being prepared, Drew Harbour, the general manager at Chappell Supply and Equipment in Oklahoma City, OK, gives a few recommendations.

Take advantage of the assistance in preparation available from both the EPA and OSHA. Harbour talks to us specifically about OSHA.

“We utilize the OSHA On-Site Consultation Program regularly,” says Harbour. “OSHA’s on-site consultation program is an invaluable tool any small business can use to make sure they are doing everything possible to keep their employees safe.”

Harbour gives us an overview of how the program works. “These consultations consist of an on-site inspection with a consultant, or non-enforcement OSHA employee, to identify potential issues within your organization,” he explains.

“The consultant will then provide you with a breakdown of their findings and work with you to mitigate the issues and help keep employees safe,” says Harbour. “All consultations are conducted at no cost to the employer and are always kept confidential.”

To keep up to date on the expectations and regulations of OSHA, Harbour recommends working with industry colleagues. “Join your local Safety Council chapter,” he says.

“These organizations provide training tools and documentation directly from the Department of Labor [the entity under which OSHA falls],” explains Harbour. “You can also join the National Safety Council to access a vast selection of training and courses to set yourself up for success. The National Safety Council sends emails regarding areas of emphasis from OSHA as well as information on national stand-down initiatives and more.”

Take advantage of aids to positive interaction wherever they are found. For instance, a tool that OSHA offers regarding the role of conversations in improving worker health and safety can be broadly applied to OSHA and EPA interaction.

“Safe + Sound” (www.osha.gov/safeandsound) is a seven-page document about better safety conversations across all connections in a workplace, such as executive and manager, safety officer and front-line employee, and among employees. It emphasizes the power of ongoing dialogue in keeping everyone alert and focused on safety.

The approach to a safety conversation mirrors the approach that the best-trained inspectors from OSHA and EPA would take. Use the suggestions for having conversations with employees that are informative and not threatening to better understand how to interact when a regulator is the other party in the conversation.

For instance, in the better safety conversations document, OSHA reviews two methods for engaging with others in a constructive way. Each one, the COIN (connect, observe, impact, next step) and the “Ask, Tell, Ask” method, has a base of published support from researchers.

COIN interaction initiated by a supervisor who wants to be sure an employee is focused on safety begins with a comment aimed at establishing a connection, such as how important knowing loved ones are safe on the job is to families. Then, the supervisor might observe a safety issue, such as having noticed the employee wasn’t wearing safety glasses, followed by a discussion of the risk of going without (impact). Resolution (next step) begins with asking the employee if he or she needs help with fit of glasses and facilitating any needed fix so they will be worn without fail.

The “Ask, Tell, Ask” approach begins with querying an employee to evaluate their own safety readiness and understanding. It’s followed by confirming the correct parts of the self-appraisal and noting the incorrect parts, all aimed at asking the employee to develop a plan for focusing on improvement and adhering to it.

Both COIN and Ask, Tell, Ask are soft ways of weeding out complacency about safety and growing focused commitment to risk reduction. Even if a business owner has no interest in using the methods in-house, they are worth understanding because OSHA and EPA representatives will use some of the same interactive technique with business owners and safety supervisors when they are onsite.

The last section of the better safety conversations document from OSHA puts the onus for example setting on leadership. Not only must leadership model safety in the workplace and beyond 24/7, but also they must communicate in a way that promotes constructive feedback.

Constructive Feedback

The staggering array of regulations for which OSHA and EPA have their respective purviews can, if simply enumerated, cause anxiety because it’s so easy to be found doing something wrong.

Yet most interactions with OSHA and EPA are in the realm of the entities providing constructive feedback. And, yes, there are interactions that deal with enforcement because something has gone awry that clearly puts worker health and/or safety (OSHA) or the environment (EPA) at risk.

OSHA inspectors are called compliance safety and health officers. Their goal is to ensure compliance because compliance helps employers and workers reduce job hazards.

There are more than seven million worksites in the United States, and OSHA has jurisdiction over them.

The highest priorities of OSHA inspectors are imminent danger situations and jobsites that have recorded severe injuries or illnesses. (Within eight hours of occurrence, any workplace death must be reported to OSHA. Any hospitalization, amputation, or eye loss must be reported within 24 hours.)

Inspectors also respond to complaints lodged by employees and referrals from agencies outside OSHA, and they conduct targeted inspections in industries or at workplaces that have recorded high rates of injury or death.

Finally, the inspectors do follow-up inspections. They do so to affirm any identified safety issue has been corrected.

Reading the OSHA Fact Sheet on its inspection protocol, an owner will notice the inspectors tap some of COIN and some of Ask, Tell, Ask methodology. There’s an initial conference, a walk-around, and another conference. The owner’s representative and employees’ representative are in tow.

For workplaces that have been using interactive approaches to safety discussions, the inspection will seem quite familiar. Good faith on the part of the business owner counts for a great deal with regulators.

As such, inspectors categorize any violation found and separate intent from other causes of a lapse. Categories include willful, serious, other-than-serious, de minimis, and more. For willful violations there is no latitude given in reduction of penalty.

The scope of EPA compliance monitoring is quite broad. Its language, for whatever reason, has a harsh edge to it that OSHA language does not, including phrases such as “to ensure the regulated community obeys environmental laws and regulations” (https://www.epa.gov/compliance/how-we-monitor-compliance).

EPA compliance monitoring encompasses on-site inspections, evaluations, and investigations as well as on-site data collection. The agency does make extensive use of incentives to encourage facilities it monitors to self-monitor and correct. It also responds to tips and complaints that may come from any member of the public.

A tip might be about illegal dumping of waste in a stream or unfiltered exhaust from a manufacturing plant. An inspection focused on one problem, such as water quality in a river, can easily expand into a bigger investigation that considers chemical plants and so on.

The Clean Air Act evaluation by the EPA becomes more precise each day. Regulated pollutants may be monitored either for full compliance evaluation (FCE) or partial compliance evaluation (PCE). Several PCEs may be aggregated annually to an FCE.

Meeting the emission-compliance requirements of an FCE is not a small task. EPA assesses air pollution control devices and the conditions in which they operate. And it assesses process parameters–feed rates and raw material composition.

Compliance with the myriad EPA regulations is complicated, something the agency recognizes. EPA offers assistance to the regulated community in developing self-audit protocols. Take advantage of the assistance.

Both EPA and OSHA inspectors/compliance officers are credentialed, and prior to any inspection they can be asked to show their credentials. It seems unlikely that anyone would impersonate a compliance officer,
but this is 2023, so a polite request to verify credentials probably is a good way to begin an interaction.

Readiness for interaction with OSHA and EPA begins with adherence to all regulations. Adherence should be backed by documentation. Time invested in keeping documentation up to date, organized, and quickly retrievable makes any interaction with OSHA and EPA easier.

The last thing an owner wants when an inspector arrives is confusion. No one should be trying to find misplaced records or back-up employees.

Clarity is the first element of successful communication. The second element is a willingness to give and take—listen and respond with a sincere interest in finding the juncture at which both parties agree. Then move forward from there.

Almost all parties agree on the priorities given to worker safety and environmental stewardship.