Employer Succeeds in Efforts to Have OSHA Citation Vacated

Sometimes it pays to contest an OSHA citation.  Take for example, the case of Sec’y of Labor v. K.E.R. Enters. Inc., where the Occupational Safety and Health Review Commission (“OSHRC”) recently vacated an OSHA citation for a serious violation.  In the K.E.R. Enterprises case, the employer was pressure-testing a water pipe as part of a waterline installation project.  The project foreman noticed a small leak near what is referred to as a restraining gland and instructed two workers to tighten the T-bolts on the restraining gland.  During this process, the pipe exploded, sending fragments flying.  Both of the foreman’s legs were broken and three other workers were injured as a result.

OSHA cited the employer with a serious violation of the Occupational Safety and Health Act’s general duty clause, which is basically the Act’s catchall provision, for exposing its employees to the hazard of being struck by pipe fragments.  Specifically, OSHA blamed the employer for failing to follow the restraining gland’s manufacturer’s installation instructions and for failing to adhere to guidelines in the American Water Works Association’s (“AWWA”)  standards.

The employer successfully contested the citation.  An administrative law judge ruled that the employer’s alleged failure to follow installation instructions and the AWWA’s guidelines did not render the employer liable for the pipe explosion.  Rather the judge found that the employer took proper actions and that there was insufficient evidence to support an assertion that anyone involved should have “recognized that it was a hazard to tighten T-bolts to stop a small leak without first depressurizing the pipe.”

Thereafter, in a petition for review, the Secretary of Labor unsuccessfully argued that the employer’s alleged failure to follow the manufacturer’s instructions or the AWWA’s guidelines  evidenced a violation of the Act’s general duty clause.  However, the commission reasoned that neither the instructions nor the standard contained a safety warning or suggested that failure to comply could lead to injury.  Rather, there was a lack of evidence establishing that the instructions or guidelines established that overtightening the T-bolts could create a hazard of being struck by pipe fragments during a pressure test.

If you are an employer who has been cited for an OSHA violation, the attorneys at Harmon & Davies can assist you with contesting a citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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