Judge Moves to Grant OSHA Power to Compel Abatement at Multiple Locations
01/12/2016
In a decision that holds the potential to impact thousands of employers across the country, a judge with the Occupational Safety & Health Review Commission (OSHRC) — an independent federal agency that reviews and rules-on contested OSHA inspections — has found that OSHA has the power to compel businesses with multiple locations to conduct an enterprise-wide abatement of hazards in those locations.
The ruling stems from a 2014 case in which OSHA cited Central Transport LLC for its “knowing and repeated disregard for basic worker safety” at a freight shipping terminal in Massachusetts. Violations ranged from dangers posed by defective forklifts, to electrocution hazards, to slip and fall violations. In its 2014 citation, OSHA noted that these violations were similar to ones for which Central Transport had previously been cited at facilities in other states. OSHA leveled a $330,800 fine again Central Transport and, crucially, also ordered that the company conduct an enterprise-wide abatement of these hazards.
An OSHA abatement order requires employers to follow a series of involved steps to correct hazards in their facilities, including:
• Fixing the hazard for which they have been cited
• Certifying that the hazard has been fixed
• Notifying employees of the fix
• Sending documentation to OSHA confirming the elimination of the hazard
• Tagging certain cited equipment in their facilities with warning tags and/or copies of the OSHA citation
Implementing all of these required steps at a business location can be expensive and time-consuming. Central Transport has nearly 200 facilities to which this abatement order would potentially apply.
Central Transport appealed the abatement order to the OSHRC soon after it was issued. Central Transport claimed that OSHA had overstepped its powers and that OSHA does not have the authority to issue an abatement order across organizations. Central Transport also contended that OSHA should be required to obtain more evidence if it is to issue so wide-ranging an order.
In the new ruling denying this appeal, OSHRC Judge Carol Baumerich made clear she believed there was already excellent evidence to support the idea that violations likely exist across Central Transport’s facilities based on its “history of numerous serious and repeat violations of this standard [. . .] in numerous states.” Since 2006, citations had been issued for similar violations at 11 Central Transport shipping terminals in Pennsylvania, Connecticut, Massachusetts, Wisconsin, Georgia, Ohio, New Jersey, Nebraska, and Illinois — and OSHA maintained that Central Transport has “willfully failed” to correct most of these violations.
Judge Baumerich made clear she agreed with the language in the original complaint against Central Transport — which she reproduced in her decision — contending that “employees who perform similar work at other [Central Transport] Shipping Terminals have been, and likely are, exposed to similar violative conditions.”
She also said that she was compelled to “find overstated [the] Respondent’s claim that the enterprise-abatement claim will require substantially different and broader evidence than the specific facts necessary to resolve the merits of the underlying citations.”
OSHA seems pleased with this ruling by the OSHRC judge, and issued a statement calling it “significant and precedent-setting.”
"When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites," Kim Stille, OSHA's regional administrator for New England, said in the statement.
Judge Baumerich’s ruling is not necessarily the end of this case, but it means that OSHA may move forward with presenting its evidence again Central Transport at a trial, if needed. It also means that OSHRC is likely to look charitably on similar enterprise-wide abatement cases that OSHA might bring in the future.
Obviously, this has potentially enormous impacts for those of us in the compliance and EHS space. If OSHA finds that a multi-site organization is repeatedly failing to comply at some locations, it can order all locations to expend the time and money necessary to show compliance through an abatement order.
A silver lining in all of this may be that high profile cases like Central Transport will help companies to understand the necessity of investing in safety and compliance programs throughout their organization, and make EHS a priority.
It is not yet known exactly how Central Transport will proceed in light of this decision against them. Look for updates and further developments here on our blog.
