DOL Seeking to Strengthen Use of 'Duplicative Citations'

Originally published by: ForbesNovember 30, 2018

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If you have received an OSHA citation and felt like the agency piled on multiple citation items for a single alleged violation, you are not alone. Multiple OSHA standards often apply to a single workplace condition or event, which can result in multiple violations of OSHA’s standards. This can cost employers up to $12,934 for each Serious or Other-Than-Serious citation and up to $129,336 for each Repeat or Willful citation.

The Occupational Safety and Health Review Commission tends to disfavor duplicative citations, which has been fortunate for employers seeking to establish a duplicative citation defense. The Secretary of Labor, however, is attempting to restrict the availability of the defense. Under the Commission’s longstanding precedent, “[v]iolations may be found to be duplicative where the standards cited require the same abatement measures, or where abatement of one citation item will necessarily result in abatement of the other item as well.” Big Sky Well Serv., 22 OSHC (BNA) 1642 (No. 07-1290, 2009). OSHA cited the employer for multiple alleged violations of OSHA’s general industry welding standard. One citation item alleged a violation of 29 C.F.R. § 1910.251(a)(2)(vi)(C), which prohibits cutting or welding “in the presence of . . . explosive atmospheres that may develop inside uncleaned . . . tanks . . . which have previously contained [mixtures of flammable gases, vapors, liquids, or dusts with air],” where “[a] grinder was used to cut the side of a tank which had just been pumped out. The tank contained crude oil, natural gas and brine.”

The other citation item alleged a violation of 29 C.F.R. § 1910.252(a)(3)(i), which prohibits “welding, cutting, or other hot work” on used tanks “until they have been cleaned so thoroughly as to make absolutely certain that there are no flammable materials present,” where “[a] grinder was used to cut the side of the tank which had just been pumped out and had not been cleaned; approximately 3 inches of crude oil and brine remained in the tank.” The administrative law judge vacated the second item after finding “the abatement is the same for both standards: prohibit cutting the tank with a grinder while it contains crude oil.”

In another example, OSHA cited an employer for multiple violations of the process safety management standard. In two citation items, OSHA alleged the employer failed to comply with two separate process safety information provisions of the standard. The first requires employers to compile design codes and standards; the second requires documentation that equipment complies with recognized and generally accepted good engineering practices (RAGAGEP). The administrative law judge found no meaningful distinction between the two items because compliance with the second item’s provision required documentation of RAGAGEP and documentation of RAGAGEP required developing the same list of standards and codes required by the first item’s provision. Consequently, the ALJ vacated the second item. Wynnewood Refining Co., 2016 OSHARC LEXIS 13 (Nos. 13-0644 and 13-0791, 2016).

In a pending matter, two Willful citation items at issue relate to work performed in proximity to power lines. The employer, North Eastern Precast, was hired to provide masonry work on a mixed use construction project. In the first item, OSHA alleged the employer violated OSHA’s construction standard for electrical safety in four separate instances when employees worked between four inches and three feet from live power lines. The cited standard requires that, “[n]o employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means.” 29 C.F.R. § 1926.416(a)(1). In the second item, OSHA alleged the employer violated OSHA’s construction standard for power line safety for crane and derrick operations when the rigging equipment on a crane the employer was using came within eight feet of power lines. The cited standard requires employers to “determine if any part of the equipment, load line or load (including rigging and lifting accessories), if operated up to the equipment’s maximum working radius in the work zone, could get closer than 20 feet to a power line. If so, the employer must meet [one of three enumerated options].” 29 C.F.R. § 1926.1408(a)(2).

The administrative law judge held the two citation items were not duplicative and upheld both of the Willful items. The employer appealed the ALJ’s decision, and the Occupational Safety and Health Review Commission overturned it. The majority focused on whether abatement of one item would necessarily abate the other. After noting OSHA defines abatement as “action by an employer to comply with a cited standard,” the majority found the action of “removing and relocating the energized power line” was “the very measure the Secretary expressly concedes on review abated both violations.” Accordingly, the Commission vacated the second item as duplicative. The Secretary appealed the decision to the Second Circuit.

The Secretary advocates for a “multi-factor and fact-based” test containing five elements: “(1) the conditions giving rise to the violations are the same or very similar; (2) the two standards violated are closely related sister standards; (3) the two violations occurred on the same date and at the same location, and the facts supporting both violations are the same; (4) the same employees were exposed to the hazards involved in the two violations; and (5) compliance with one standard would ordinarily presuppose or substitute for compliance with the other, and the same abatement would abate both violations.”

If adopted, this test would make it easier for OSHA to issue multiple citation items for single events or conditions. Employers should be mindful of this pending appeal and the possibility of a more stringent test for establishing duplicative items. They should also remember that, while any employer may at some time be susceptible to OSHA’s enforcement actions, having a robust and fully compliant safety and health program remains the best and most proactive defense.

Editor's Note: As the conclusion of this article states, 'having a robust and fully compliant safety and health program remains the best and most proactive defense. If you haven’t already, subscribe to NFC’s FrameSAFE program, a bilingual, framer-focused safety plan based on OSHA 1926. If you are already a FrameSAFE subscriber, spend some time in the next few weeks with the program’s updated Implementation Guide to ensure you are getting the most out of every resource FrameSAFE provides.