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Commission clarifies OSHA's "egregious violations" policy

Two recent decisions by the Occupational Safety and Health Review Commission (OSHRC) clarify the authority of the Occupational Safety and Health Administration (OSHA) to issue citations and penalties under its "egregious violations" policy.

Established in the mid-1980s, the "egregious violations" policy instructs OSHA inspectors to cite employers for multiple violations of the same standard where the employer has demonstrated one or more of the following characteristics: (1) persistently high rates of illness/injury or fatalities; (2) extensive history of prior violations; (3) intentional disregard of health and safety responsibilities; or (4) bad faith (a plain indifference to standards or requirements).

OSHA's authority to use this policy was challenged in Secretary of Labor vs. Arcadian Corp., OSHRC Docket No. 93-3270, concerning general duty clause violations, and in Secretary of Labor vs. Caterpillar, Docket No. 87-0922, involving violations of the standard on recordkeeping.

Arcadian's challenge stems from a 1992 incident involving a urea reactor explosion that injured three employees and four others at a fertilizer plant in Lake Charles, LA, owned by Arcadian Corp.

OSHA investigated the accident and issued several citations, of which citation No. 2 comprised 87 items, each with an associated $50,000 penalty. The items alleged a violation of the general duty clause of the OSHA statute. The total penalty of $4,350,000 was among the largest ever proposed at the time.

Arcadian took its case to the OSHRC, disputing OSHA's authority to issue multiple citations for the same conditions simply because each employee was separately exposed to the hazard. OSHA, it argued, merely duplicated the citation on the basis that each employee was separately exposed to the hazard. Because the same actions on its part would cure the deficiency, Arcadian said, it was really only one violation and accordingly, OSHA could issue only one citation.

The Commission in the Arcadian case concluded that citations under the general duty clause cannot simply be multiplied by the number of exposed employees, because, it said, the provision is directed at preventing hazards. Permitting the agency to cite employers on the basis of the number of employees who are potentially exposed results, in this case, in the employer being cited 87 times for the same hazard, which admittedly could be remedied with the identical abatement method.

If this were permissible, said the Commission, OSHA could also charge employers for each day, or even each hour, that a violation exists. This would give OSHA virtually limitless citation authority, a result "inconsistent with the language and structure of the Act," according to the Commission.

The Commission observed that the egregious penalty policy altered nearly 20 years of prior enforcement and case law merely by administrative fiat. Even if deemed to be within OSHA's interpretive authority, this "interpretation," the Commission concluded, is unreasonable.

A key factor in the Commission's analysis appears to be the determination that Arcadian could have corrected all of the violations by a single course of action. Testimony by OSHA officials conceded that "Arcadian didn't have to correct the cited hazard 87 times, . . . just once."

Multiple violations can, of course, arise from the same accident; different hazards can be cited separately, but here there was just one violative condition, amenable by one corrective action.

In Caterpillar, the Commission affirmed OSHA's decision to issue citations for failure to record about 170 cases of occupational injury or illness. The Commission distinguished the Caterpillar case from the Arcadian decisions, because the "failure-to-record" violations represented separate instances of recordable injuries, occurring at different times and to different employees, and for several different types of injuries.

According to the Commission, OSHA can, when the regulation contemplates prohibitions of individual acts, cite multiple violations for each separate act not in conformance with the standard. Of course, it is within OSHA's discretion to group violations and propose a single penalty.

The Commission, by virtue of its power to direct other appropriate relief, can assess a single combined penalty for more than one violation. But, the Commission concluded in Arcadian that neither OSHA nor the Commission can assess multiple penalties for the same violation of the general duty clause.

Malcolm D. MacArthur is legal counsel to the Flexible Packaging Association, other trade groups and corporations.

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