Thursday, June 18, 2009

Following up the Follow up

Here are a couple more comments from RT I want to share and respond to, but in reverse order.
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?
We can't cite a company for violating different provisions of a consensus standard, because we can't cite a consensus standard. That is was I was trying to get at in my first post on 5(a)(1). We're citing for exposing employees to a hazard, not for failure to follow a particular abatement method. Remember, a standard (whether OSHA promulgated or consensus) is nothing more than a detailed abatement method.
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?
You're welcome.

A consensus standard is not, by itself, recognition of a hazard. In order to use a consensus standard as a piece of the evidence, we have to link it to the company or industry. You previously mentioned API standards, so let's say I inspect a refinery and find that a relief valve on a reactor isn't sized properly, meaning if there is an over pressurization of the vessel, the relief valve can't handle the release and everything goes boom. Let's suspend the PSM standard for a minute and say I decide to cite 5(a)(1). The charging language will say the government is accusing the refinery of exposing their employees to the hazard of an explosion, not to an undersized relief valve. The AVD will show that the relief valve is improperly sized which could lead to an explosion. The last paragraph will will mention that using the API standard to size the valve would prevent the hazardous condition.

In order for the citation to be upheld, I can either link that API standard to the company, or find some other way to demonstrate recognition. Since we're talking about a refinery, there's a pretty good chance that they are a member of API, so that's one of the things I'm going to check. I'm also going to check to see if that API standard is widely used within the industry. Now I've confirmed that the company is a member of API and every other refinery that's a member of API uses that standard, I have recognition.

Let's flip it, let's say the API standard exists, but nobody in the industry uses it, let's say the industry engineers uses a rule of thumb they all learned in college, and the valve at this refinery meets that rule of thumb. Now, even though the API standard may be the best engineering practice, it's worthless to the case because no one uses it. That doesn't mean you can't establish recognition in other ways, for example, if they keeping blowing the reactor up because it can't release the built up pressure, that's a good way to demonstrate recognition.

As for the memos, I can't find mine right now, but there is a long discussion on 5(a)(1) in the new Field Operations Manual (FOM) starting on page 4-14 you should check out, just be warned, it's a very large .pdf file (about 3.5 mb).


  1. Thanks for the follow up, I think I'm following you now. I think the FOM explains it in the middle of 4-20: "However, these private standards cannot be enforced as OSHA standards, but they may be used to provide evidence of industry recognition, seriousness of the hazard or feasibility of abatement methods."

  2. I beg to differ (a little bit). If no one in an industry uses a consensus standard, but that particular industry wrote the consensus standard, you still have industry recognition. You just have widespread, intentional disregard for the consensus standard.

    Industry recognition isn't the same as employer knowledge, either. A particular industry might have developed a consensus standard to mitigate a hazard, but a partcular employer in that industry might not belong to the industry association. It doesn't matter, as long as 'industry' recognizes the hazard. If the employer recognized the hazard, knew of a the consensus standard, and intentionally disregarded it, you're treading awfully close to a Willful. If there is such a thing as a 5(a)(1) Willful (I can't remember - I know there was a least one negative decision of the commission).

  3. Anon,

    Just a thought - how can something be a "consensus standard" if no one in the industry follows it?