Wednesday, June 10, 2009


If anyone wonders why I get so frustrated at the OSHA Underground, just read Mondays post and then follow along below.
"The Press release is posted on the OSHA site.
Who ever is running the site is keeping up with the times."
The press release came out the same day the citations were issued! We can't issue a press release before the citations, can we?
"Why is it so hard to put these General Duty Clause violations up?"
This case is still open, the company hasn't even had their 15 working days to respond yet, so of course the citation language isn't available yet. Any one who works for OSHA should know that we do not release that kind case file information until the case is closed. It has to do with that pesky Constitution and an employers rights.
"No industry consensus standard used."
These are the kind of statements that make me question whether or not Kane has ever actually worked for OSHA. Every CSHO should know, as the National Office has memoed us numerous times, WE CAN NOT CITE FOR FAILURE TO FOLLOW A CONSENSUS STANDARD! We can't do it, it's not allowed, it's forbidden, it's anathema, and it's going send your AD into a tizzy.

Beyond that, I can't even find a consensus standard for crowd management.
"No prior OSHA or NIOSH guidance on the issue."
Why would we have ever written guidance on this? How many times has it happened? The other instances Kane mentioned were The Who concert in 1979 and the AC/DC concert in 1991, yet in both instances the people who died were concert goers, not employees. Certainly the fact that they were concert goers doesn't help the families with their grief, but it does preempt us from having jurisdiction. So I ask again, with our limited resources, why would we have ever even have thought to work on guidelines?
"This will be a tough one to affirm.
WE salute NY for trying this.
Too many people would have washed their hands clean of this.
No one would blame them."
This I agree with, go Long Island.

I just wish that the OSHA Underground would, at least once in awhile, stop just throwing negative comment after negative comment out there and take a realistic look at our budget and staffing levels and help to find better ways of doing things. If we went by what they've posted, we would working on so many standards and so many guidelines, receiving so much training, and conducting so many inspections targeted towards so many hazards, that we would need 300,000 CSHOs doing no more that three inspections per year, but spending 14 weeks doing each of them.

Let's get real, let's role up our sleeves and try to figure out what works, what could work better, and what doesn't work. That is how we're going to make things better.


  1. I agree Abel. I subscribe to both blogs and I have to admit, the underground does plenty of complaining without proposing a realistic solution to make things better. Complaining for the sake of complaining gets us no where. Keep up the good work!

  2. Abel,

    If you're saying that copies of citations by OSHA cannot and should not be made public until a case is closed, that's just complete nonsense.

    I'm hoping I'm misunderstanding you here, because clearly such documents are public record that must be released under a FOIA -- and under the current law should be posted on the Web because OSHA should anticipate multiple requests for the same information.

    Ken Ward Jr.
    The Charleston Gazette

  3. Abel,

    Citations when issued are public record and immediately releasable, period. This is in accordance with FOIA regulations. In this case, they must have timed the press release with a hand delivery of the citations. It really doesn't take the AP all that long to pick up a story and put it on the wire.

    The rest of the case file is of course protected information until the case becomes final order. It's been that way since 1970 when FOIA became law.

  4. Okay I'm confused now Abel. You mention that OSHA cannot cite for failure to follow a consensus standard, it's not allowed, it's forbidden. Yet when reviewing the OSHA IMIS database I note numerous OSHA citations utilizing the General Dust Clause, which references NFPA Combustible Dust Standards.

    Keep up the great work here on OSHA Aboveground. For many of us who don't work at OSHA we learn quite a bit in addition to reading OSHA Underground. Two great sources of the inside workings of OSHA.

  5. Opps misspelling, suppose to be General Duty Clause Section 5(a)(1) in the first paragraph of my recent comment. Got to much dust on the mind.

  6. Let me clarify the citation language issue by first saying that I know next to nothing about FOIA, that is an administrative function that I do not have to deal with. I do know that we do not release the citations until we know the company has received a copy of them first, then they are releasable.

    I also want to point out that I made no suggestion one way or the other as to whether the citations should be made public until a case is closed, and to imply that I think they shouldn't be released, well that's just complete nonsense.

  7. Abel,

    What do you mean OSHA "CAN NOT CITE FOR FAILURE TO FOLLOW A CONSENSUS STANDARD! We can't do it, it's not allowed, it's forbidden, it's anathema, and it's going send your AD into a tizzy."

    Employers get cited under General Duty all the time for not following ANSI, API, etc. Why is that not allowed?

  8. True or false: Cal/OSHA does not have a general duty clause, and therefore cannot cite consensus standards (NFPA, ANSI, NEC) unless thay are incorporated by reference into our standards.

  9. RT, see if todays post explains it, if not ask again and I'll try to expand on what I said.

    As for the Cal/OSHA question, I'm not sure, I don't over see state-plan-states, but my guess is that's false. States are required to have programs that are at least as effective, and I don't know how a state could claim they were as effective if they didn't have a general duty clause. But I stress again, I don't know. Maybe someone from Region 9 knows?

  10. Abel, you have not standing. You are incorrect about how OSHA Cites 5 A1. We do use Consensus Standards. How. The Consensus Standard is used in terms or context of "the employer should have known" in order to support citing the employer. You need to take the Legal Aspects Course.

  11. Consensus Standards are not enforceable in and of themselves, but when a 5A1 is contested, the only support for the citation is the Consensus Standard if it is applied and included as supporting documentation to the "A" paragraph as an addendum. Administrative Law Judges have to judge the citations on a case by case basis, since the applicability of the consensus standard will be the main crux of the matter. This is why CSHOs research and provide Consensus Standards in the first place, since the argument is that employers in a certain industry "should have known" about the hazard(s), since they are well recognized within the employer's own industry.


  12. Excellent! I've seen some great post with exceptional use of the language, but to cut to the chase like Lawman takes experience and wisdom.



  13. The statement by Abel that he does not know about FOIA is revealing. This is very typical of CSHOs and it is not their fault. Management at OSHA is based on a hierarchical military model of "need to know" basis. This is antiquated and presumes and compartmentalizes what a CSHO needs to know.
    I adamantly oppose this orientation, since the more the CSHO knows about the legal process, the better. CSHOs are not trying to be lawyers, but they by and large have the passion and acumen to understand how to build a good case (supporting documentation) for their inspection(s). The more they know, the better prepared they are to give our solicitors the ammo they need. By the way, don't we have to use some common sense about which cases (inspections) are most likely going to go to a formal contest based on previous experience or history with certain large companies where it is status quo, or when their is a large penalty or fatality where an OSHA inspection could be used in a civil case against an employer.

    "Kanabal"-- yes the brother of Kane and Abel -- the Hegelian Synthesis of the dialectic. As if you two won't hear from me again.

  14. Hmmm. Kane and Abel -- this is Kanabal, who has mastered the Kabala of OSHA and/or AHSO. Why haven't you responded to my post. Happy Labor Day!


  15. Sorry, Kanabal, I was on the road for two weeks and when I got back I responded to a few comments, but didn't have time to get to them all.

    Certainly we work in a hierarchal organization, but I'm not sure it's fair to the military to compare us to them. The military seems to be moving beyond their traditional command and control structure and is headed towards a "git 'er done" approach.

    The thing is, as long as we are an agency run by political appointees, that will never change. The man who won the election, gets to set our direction. Good, bad or indifferent, that's simply the way it works.

    The question is how do we, as CSHOs, make the biggest impact on workers lives within that kind of a system?

    Some of you are familiar with the Serenity Prayer (don't worry, I'm not posting this advocating a religious or temperance position, I just like the wisdom of it):

    God grant me the serenity
    To accept the things I cannot change;
    Courage to change the things I can;
    And wisdom to know the difference.

    I know I can not change the policies that OSHA sets. I know I can work hard to help protect workers and still be fair to employers. The point where those two meet, often in conflict, that's where I sometimes get fuzzy.

  16. BTW, Lawman, thanks for stating that more clearly.

    There is a difference between citing a consensus standard and using a consensus standard to support a citation.

    We can, and obviously do, use consensus standards to support a citation, either by using it to show employer recognition or to demonstrate a feasible means of abatement (or both). But that still isn't citing the standard.

    If I could cite a consensus standard, there would be citations for each part of the consensus standard that wasn't followed.