Wednesday, June 17, 2009

5(a)(1) Follow-up

I received the following comment from RT that I want to bring out and respond to:
"Good description of 5(a)(1), I agree. But I still see it all the time where OSHA uses consensus standards to prove up a 5(a)(1).

For example, in the example you mention, at the hearing, when OSHA is asked to show that the hazard was recognized by the employer or the employer's industry, the SOL attorney will typically attempt to introduce the NFPA standard as evidence of industry recognition of a hazard. "Everyone in the industry follows the NPFA, therefore this employer (in this industry) recognizes the hazard cited." Isn't that using the NPFA standard to prove a 5(a)(1)?

This happens frequently to the oil and gas industry, where OSHA trots out American Petroleum Institute (API) recommended practices in support of their 5(a)(1) citations."
The question RT asked, "Isn't that using the NPFA standard to prove a 5(a)(1)?" is a good one, and the answer is yes, but if a consensus standard was the only evidence we had for employer recognition, I think we would get laughed out of court. Also, using a consensus standard as evidence of employer recognition or as one feasible means of abatement is not the same as citing a company for failure to follow a specific consensus standard. This may seem like a distinction without a difference, but it's not. Let me give you a practical example of citing 5(a)(1) versus citing a standard.

Let's start with a fictional workplace called Abel's Metal Fab Shop. Abel's is a metal fabrication shop that specializes in metals with high cadmium content. They do typical metal fab work there, cutting, welding and grinding. Abel doesn't believe that science has adequately proven that cadmium is dangerous so he does nothing to protect his workers.

Now suppose a CSHO walks into Abel's and sees black dust everywhere, people eating lunch right out in the shop, people smoking in the shop area, etc., every IH's worst nightmare. The kind of place you're going to spend weeks in. For the purposes of this example let's assume we can't cite willful or instance-by-instance, and that there will be no reductions for size, history or good faith.

Scenario 1: No OSHA standard exists that addresses cadmium, no expanded health standard and no PEL, but there is a consensus standard. Assuming I can prove all of the necessary elements of a violation, I will get to issue a 5(a)(1) citation for one violation with a $7,000 penalty to Abel for failure to protect his employees from exposures to dangerous levels of cadmium. That's the end of the cadmium related citations.

Scenario 2: OSHA has an expanded health standard for cadmium and my AD and RSOL trust me enough to classify the citations myself. Assuming I can prove all of the necessary elements of a violation, I will get to issue a citation with multiple violations for over exposures, not conducting initial monitoring, not establishing regulated areas, not having a written program, not implementing engineering controls, no emergency response plan, not providing hygiene facilities, housekeeping, not conducting medical surveillance, training, etc., etc., etc. The cadmium standard also has respirator requirements, which call in part of the respirator standard, so I get to cite some of that standard too. Citing each of those as separate violations at $7,000 each means I've gotten into the significant case range just on cadmium violations.

The difference between the number of violations and penalties for a 5(a)(1) versus an expanded health standard is pretty obvious. If we were allowed to cite a consensus standard, the citations would look like the second scenario not the first.


  1. Thanks for the response. Can you elaborate on why you think if a consensus standard was the only evidence you had for employer recognition, the ALJ would toss the case? Do the memos from the National Office ever explain why you can't cite for failure to follow a consensus standard?

  2. Additional thought - what keeps an OSHA inspector from going down the Scenario 2 route?

    E.g., citing an employer for 5 different 5(a)(1) citations/items if they didn't follow 5 different provisions of a consensus standard like the NFPA, and rack up $35k in penalties?