Monday, June 22, 2009

Quick follow-up

Quick follow-up on a comment from the June 15, 2007 post. The commenter said:
feasible abatement is NOT a requirement to support a citation where a standard is being used.
It may however be an affirmitive defense from the employer. All the CSHO has to establish is hazard, exposure and knowledge.

Feasible abatement is part of the 5a1 supportive documentation, but not when there is a standard.
This statement is not quite true. In order to establish a prima facie case, the agency must demonstrate all four conditions have been met, a hazard exists, employees are exposed to the hazard, the employer knew of the conditions, and a feasible means of abatement exists. We have to do that for all cases, period.

OSHA standards, however, allow the CSHO to skip documenting that a hazard exists and that there is a feasible means of abatement, because the rulemaking process does that for us. A standard is written because a hazard exists, and the standard itself is the means of abatement (if you read the preamble of any standard, and I don't know why you would, it documents all of this). This means that we do not document that a hazard exists, we document that a violative condition exists. That the guard is not on the saw does not prove a hazard, in order to do that we would have to provide research into the impact of saw blades on human hands and this happens when the machine isn't guarded, etc. But, not having a guard on is a violation of the standard and also the means of abatement.


  1. Not quite right. Remember, many standards have not gone through the rulemaking process. They were adopted by the Secretary when OSHA was formed. The Review Commission has held that the existence of a standard presumes a hazard, therefore the Secretary does not have to prove a hazard in each case. Burden of proof, in effect, moves to the employer to prove there is not a hazard.

  2. Burden of proof, in effect, moves to the employer to prove there is not a hazard.
    ... Nice under Napoleonic Code... you must prove your innocence... Which is why it is so important to have the judge under the appeals process make the CHSO prove their case.

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