General Duty Clause Citations

I want to clarify for the non-OSHA people just how we use the General Duty Clause to issue a citation (we generally refer to these as 5(a)(1) citations in favor of the term General Duty Clause), and specifically the role that consensus standards play in those citations (this is for you John).

Section 5 of the OSH Act

Below is Section 5(a)(1) of the OSH Act:

(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

This is the section of the OSH act that we use when we have no written standard but the employer is still subjecting their employees to a hazard.

Documenting Citations

Let's first backup a little for a lesson in CSHO 101. In instances where OSHA has a standard a CSHO must document four elements for each violation: 1) That a hazard exists; 2) That employees are exposed to the hazard; 3) That the employer knew, or should have know with the exercise of reasonable diligence, of conditions that exposed the employees to the hazard (referred to as employer knowledge); 4) That a feasible means of abatement exists to protect employees.

Let's take an example. Suppose I'm driving along and I see people working on a scaffold at a height over 15 feet, and the scaffold has no rails. I am, of course, going to stop and conduct an inspection. This is a simplified version of what I'm going to document for my case:

1. A hazard exists: The hazard in this case is a fall from height. Establishing this as a hazard has been taken care of by the fact that we have a standard that states that employees must be protected from falls when working at heights over 6 feet in construction.
2. Employees are exposed to the hazard: I saw, video taped and interviewed employees working on the scaffold.
3. The employer knew, or should have know, of the conditions: I'll be able to show that the employer (usually in the form of the site super or foreman) saw or walked by the scaffold while it was up with no rails.
4. A feasible means of abatement exists: Following the standard is usually the means of abatement, all the company has to do is put up the top and mid rails.
   

Documenting 5(a)(1) Citations

When we're dealing with 5(a)(1), those same four elements have to be met, plus we add a fifth element, employer recognition. Employer recognition follows from employer knowledge, first we show that the employer knew of the conditions of work, then we have to show that the employer knew (or should have known) the conditions were hazardous.

With a 5(a)(1) showing the first element, that a hazard exists, becomes a bigger task and can get quite involved, depending on what the hazard is. For example, showing that aerosolized wood flour can explode is relatively easy (there is a lot of work to do, but the CSHO just needs to work through the process), showing that nano-particles cause respiratory illness, not so easy (yet).

Showing the second and third elements are the same for a standard as for 5(a)(1).

The fourth element, feasible means of abatement, can be very difficult, or very easy, depending on the hazard, and this is where consensus standards may come in.

What is a Hazard?

Before I get to consensus standards, however, first it's important to understand what a hazard really is and what the purpose of a standard is.

Let's take a hazard close to John Astad's heart, combustible dusts. Dusts in and of themselves are not usually hazardous, yes there are a few temperamental ones like magnesium, but by and large they are not inherently hazardous when left alone. Dusts can become an inhalation hazard when they are aerosolized in high enough concentrations, or they can become an explosion hazard when they are aerosolized in high enough concentrations AND there is an ignition source (assuming it is combustible).

What's the Purpose of a Standard?

The purpose of a standard, whether it has been promulgated by OSHA, MSHA, EPA, or any other federal/state agency or whether it is a consensus standard, to to prevent employees from being exposed to a hazard.

How Does 5(a)(1) Differ?

OSHA standards tend to be very proscriptive when it comes to abatement, telling an employer in detail what must be done to protect their employees from a hazard. The OSH Act lists no specific abatement requirements, which means that an employer is free to use any method they want to abate the hazard.

What does it Mean?

What does this mean for 5(a)(1)? That failure to follow a consensus standard is not a hazard, the aerosolized dust blowing up is the hazard. One feasible means of abatement may be to follow a consensus standard, but any abatement that protects employees is acceptable.

OSHA 5(a)(1) Citations

Let's look quickly at how OSHA 5(a)(1) citations are written. Below is a real citation, although the name has been left off, we all know who it is.

TEXT FOR CITATION: 01 ITEM/GROUP: 005 HAZARD: EXPLOSION P.L. 91-596 Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer does not furnish employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to employees in that employees are exposed to the hazard(s) of explosion and fire:

a. Top of Silos 1, 2, & 3 (9th floor) and Bottom of Silo (tunnel) - On or about 02/07/2008, bulk material steel conveyor belts on the top and bottom of the silos that convey granulated sugar were not equipped with bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys to shut down equipment and/or notify the operator before the initiation of a fire and/or explosion, exposing employees to explosion and fire hazards.

b. South Packing House & Bosch Packing House - On or about 02/07/2008, inside legs (bucket elevators) used to convey granulated sugar were not equipped with bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys to shut down equipment and/or notify the operator before the initiation of a fire and/or explosion, exposing employees to explosion and fire hazards.

One feasible means of abatement is to install bearing temperature, belt alignment, and vibration detection monitors at the head and tail pulleys of all steel belt conveyors and inside legs (bucket elevators), as referenced in National Fire Protection Association (NFPA) 61, 2008 & 2002, Chapter 7.3. Pursuant to 29 C.F.R. 1903.19, within ten (10) calendar days, the employer must submit an abatement plan describing the actions it is taking to prevent the hazards described in instances a and b, above.

The first paragraph is the charging language, it's the part of the citation that says "we, the government, accuse you, the company, of exposing your employees to a hazard." Notice it doesn't say we accuse you of failure to follow a consensus standard.

The next two paragraphs (a. and b.) are the Alleged Violation Description, which says "these are the circumstances under which you exposed your employees to the hazard." Again notice it doesn't say we accuse you of failure to follow a consensus standard.

The final paragraph is the part that shows we have done our jobs and identified a feasible means of abatement (remember element number four from above?). In that final paragraph we do put forth an NFPA standard as a feasible means of abatement, but keep in mind that the employer is free to ignore that and use any means they decide will protect their employees. They can choose to stop processing sugar, they can follow a different consensus standard, they can try to automate the process so no people are ever around, whatever, it's up to them, they just have to stop exposing their employees to the hazard.

As long as that was, it was a very simplified discussion of 5(a)(1), as anyone who makes their living doing this can tell you. I hope, John, that answers your question. If not ask again, if it leads to other questions, feel free to ask those.