Duplicative OSHA Citations Must Be Deleted

INTRODUCTION

Employers are subject to tens of thousands of federal and state OSHA regulations.   A single OSHA standard or regulation may trigger multiple responsibilities, and a single condition or event can result in multiple citations under the OSHA standards.  For instance, a failure to have an employee don respiratory protection can result in a dozen citations for failure to implement engineering controls to address the hazard, failure to assess for respiratory hazards, failure to do personal air monitoring, failure to do mandate respiratory protection, failure to do fit tests, failure to do medical evaluations, and failure to train employees on the proper use of a respirator. If OSHA issues multiple citation items that are abated by correcting a single alleged violative condition, some or all of the citations may be legally duplicative.  Duplicative citations are legally incorrect and must be deleted.  Employers must carefully review multiple OSHA citation items that arise from a single event or condition to determine whether they have a complete defense to some or all of the duplicative items.

WHAT MAKES CITATIONS DUPLICATIVE?

The Occupational Safety and Health Commission has stated that "[u]nder Commission precedent, citation items involving the same abatement are duplicative."  Secretary of Labor v. E. Smalis Painting Co., Inc., 22 OSHC (BNA) 1553 (Apr. 11, 2009).  That is, alleged violations are considered duplicative by the Commission "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."  Secretary of Labor v. Big Sky Well Serv., 22 OSHC (BNA) 1642 (Feb. 17, 2009).  Violations are not duplicative where they involve standards directed at fundamentally different conduct or where the conditions giving rise to the violation are separate and distinct. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). The Commission has repeatedly vacated duplicative citation items.  See Secretary of Labor v. North Eastern Precast, LLC, 6 O.S.H. Cas. (BNA) 2275 (Feb. 28, 2018). 

The following cases illustrate what constitutes a duplicative citation item:

Secretary of Labor v. E. Smalis Painting Co., Inc.

OSHA cited E. Smalis Painting Company for multiple violations of the construction industry lead standard.  OSHA alleged that the Company violated the standard's lead exposure limits (29 C.F.R. § 1926.62(c)(1)) and failed to implement proper engineering, work practice, and administrative controls (29 C.F.R. § 1926.62(e)(1)).  OSHA did not specify a means of abatement for the lead exposure violations, but the Commission found that the abatement sought for the lead exposure items was engineering, work practice, and administrative controls, which was the exact same abatement sought for the alleged violations of the engineering, work practice, and administrative control citation items.  As a result, the Commission vacated 20 out of 203 willful ites as duplicative and 132 willful items on others ground.  Secretary of Labor v. E. Smalis Painting Co., Inc., 22 OSHC (BNA) 1553 (Apr. 11, 2009). 

Secretary of Labor v. Big Sky Well Service

OSHA cited Big Sky Well Service ("Big Sky") for multiple violations of the general industry welding, cutting, and brazing standard.  OSHA alleged that Big Sky violated 29 C.F.R. § 1910.252(a)(2)(iv) 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."  OSHA also alleged that Big Sky violated 29 C.F.R. § 1910.252(a)(3)(i) 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."  Judge Spies found that the abatement was the same for both cited standards: "prohibit cutting the tank with a grinder while it contains crude oil.."  The Judge therefore vacated the second of the two items as duplicative.  Secretary of Labor v. Big Sky Well Serv., 22 OSHC (BNA) 1642 (Feb. 17, 2009).

Secretary of Labor v. North Eastern Precast, LLC

OSHA cited North Eastern Precast, LLC for multiple violations of construction safety standards as well as two willful violations that address work in proximity to high-voltage power lines.  The ALJ had affirmed the willful violations and rejected the employer’s arguments that they were duplicative.  The ALJ had held that conditions giving rise to the violations were separate and distinct, and that the same measure could not abate both items because Respondent lacked authority or ability to relocate a power line that caused the hazard.  Since other measures Respondent could feasibly perform would, standing alone, not have fully abated both violations, he concluded that the violations were not duplicative. Before the Review Commission, the employer argued that the ALJ’s decision was in error because the hazardous condition for both items was the proximity of the overhead power line and the abatement for both items consisted of removing and relocating the power line.  The Commission found that abatement is any conceivable action to comply with the standard, and that abatement is not limited to abatements it can alone control.  Accordingly, the Court vacated the duplicative violation. Secretary of Labor v. North Eastern Precast, LLC, 6 O.S.H. Cas. (BNA) 2275 (Feb. 28, 2018).

CONCLUSION

In the event that OSHA issues multiple citation items for a single condition or event, an employer should carefully evaluate whether the citation items are duplicative and legally improper.  Failing to appreciate the Review Commission’s precedent on this issue, OSHA Area Directors and even Solicitors deny that duplicativeness is a complete defense.  Rather that offering to delete citation items, OSHA will instead offer to “group” the items for penalty purposes, meaning affirm both violations and eliminate one or more of the penalties.  Grouping is an inferior solution that creates an erroneous record of OSHA violations, each of which could serve as a predicate for a future Repeat.  Duplicative citations should not be grouped – they must be vacated / dismissed during the informal conference process.  If OSHA will not dismiss, employers should consider contesting the citation items not only to avoid accepting legally defensible citation items and their associated penalties, but also to avoid creating a heightened risk of receiving repeat citations in the future, which could carry fine of up to $165,514 per citation.  An employer should seriously consider engaging with legal counsel who practices occupational safety and health law to be able to analyze citations to see if they are in fact “duplicative” in order to assert this important defense.