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SAFETY COMPLIANCE LETTER 5

T here are eight million work- places in OSHA’s jurisdic- tion, but only one thousand

inspectors. As a result, the odds of any one workplace being inspected are pretty slim. But suppose that one day your number comes up: as the result of an accident, a complaint, a referral, or perhaps a programmed inspection, OSHA shows up at your door to conduct an opening conference and an inspection. Although there’s about a one-in-four chance your work- place will come up clean, there’s a much greater chance that OSHA will issue one or more citations.

You may feel that those cita- tions are in some way undeserved. Perhaps the violation occurred because a worker broke established safety rules. Perhaps you felt that a flexible electrical cord was not being used improperly, or that fixed permanent access to a work loca- tion was not merited. Or you may acknowledge that the violation occurred but feel that the proposed penalty is unjustly steep. In cir- cumstances like that, you do have options. Here’s how you can con- tact OSHA, either to discuss the citations and penalties, or, if talk- ing it over proves unsatisfactory, to contest the citations.

Step One: Mark Your Calendar OSHA sends citations by certi-

fied mail so they know when the citation is received. Employers have 15 working days, beginning on the date the citation is received, to file a notice of contest in response to a citation. If you do not file a notice of contest in writing within 15 working days, your citation then becomes a “final order,” and neither the citation nor the penalty can be altered. The only change you can obtain after the citation has become a final order is an extension of the abatement deadline.

So, the first thing to do is to mark on your calendar the date that the citation was received and the fifteenth working day that is your last chance to file a notice of contest. Many employers have had their notice of contest rejected when they missed that date; the Occupational Safety and Health Review Commission, which hears such cases, seldom accepts late filings, and then only if there are extenuating circumstances.

Step Two: Schedule an Informal Conference

You may be able to quickly resolve any issues you have with the citation by scheduling an informal conference with your OSHA area director, especially if the condi- tion has already been corrected. Contact information for your area office should be listed in the cita- tion, or you can find it online at www.osha.gov/html/RAmap.html. Call right away, and schedule your informal conference within your 15-working-day window. That way, if you’re not satisfied with the results of the informal conference, you can still file a notice of contest. Participating in an informal confer- ence will not extend your deadline; also, simply participating in an informal conference is not equiva- lent to filing a notice of contest.

During the informal conference, which may be conducted by tele- phone, the area director can answer any questions you may have, including questions about...

• The violations cited • The specific standards that

apply • Methods you can use to correct

the violations

The area director also has the authority to negotiate and enter into an informal settlement agree- ment with employers, including

resolving disputed citations and penalties. If your informal contest resolves your issues with the cita- tion, there will be no need to file a formal notice of contest. If not, however, you’ll need to move on to step three.

Step Three: File a Written Notice of Contest

If you still believe, after the informal conference, that the cita- tions misrepresent the hazards of your workplace or your compliance with OSHA’s standards, or that the penalties are unjust, you must file a written notice of contest with OSHA. Even if the area director is already aware of your objections as the result of an informal confer- ence, you must file in writing.

There is no specific form to use when filing a notice of contest, but your notice must include the following:

• A clear statement of what is being contested. You may con- test the citation, the penalty, the abatement date, or any combi- nation of these factors.

• A clear statement of which viola- tions are being contested, if any. Violations will be numbered and grouped within your cita- tion notice; you should either state that you are contesting all citations, or state which specific citation is being contested.

Send your written notice to the area director whose name and address are listed on your citation.

If you file a notice of contest, you are not legally obligated to cor- rect the condition or pay the fine until the case has been resolved. If you contest only the abatement dates, or if you contest only some of the cited items, you must pay the penalties for uncontested items and correct uncontested items by the abatement dates set in the citation.

Once you have filed a notice of contest, your OSHA area director will forward the case to the Com- mission. The executive secretary’s office at the Commission will notify

Up to Standard Contesting an OSHA Citation By Jennifer Busick, MPH, IH

6 SAFETY COMPLIANCE LETTER

permitted by the current standard. This decision essentially established a standard of medical and scientific certainty and has resulted in OSHA staff having to spend an inordinate amount of effort gathering data to support the need for a standard.

Another example is a 1992 decision in which the U.S. Court of Appeals for the Eleventh Cir- cuit struck down an OSHA health standard that would have set or updated the permissible exposure limit (PEL) for more than 400 air contaminants. The court found that

OSHA had not adequately dem- onstrated that current exposure to each hazard posed signifi cant risk, or that each standard reduced that risk to the extent feasible. Although the decision interpreted a provision of the OSH Act that applied only to health hazards, Labor offi cials said that there is little practical distinction between the evidence OSHA must compile to support health standards compared to safety standards. According to OSHA’s approach to setting safety stan- dards, which has been upheld by the U.S. Court of Appeals for the D.C. Circuit, a safety standard must provide a “high degree of worker

protection”—a showing that differs only “modestly” from that required for health standards.

The court’s decision discouraged Labor offi cials from trying to expe- dite the standard-setting process by combining many standards into one rulemaking effort.

Several experts observed that such adverse court decisions have contributed to an institutional culture of trying to make OSHA standards impervious to future adverse deci- sions. These experts cited the threat of litigation as a disincentive to issu- ing standards.

Continued on page 14 ➤

you that the case has been received, and assign it a docket number. The docket number must be printed on all documents related to the case.

The Commission will also send you a notice you must use to inform affected employees of the case. A preprinted postcard is included with this notice. Once you have notified affected employees, return this postcard to the Com- mission to let them know that employees have been notified.

If you decide, after filing a notice of contest, that you want to settle the case, you should contact the OSHA area director. The area director will give you the name of the OSHA attorney who is han- dling the case. The settlement will be negotiated between you and the attorney according to the rules of procedure of the Commission.

Step Four: Prepare for the Hearing

There are two ways your case can proceed from this point. If your case is relatively simple and the proposed penalties are less than $30,000, your case may be tried under the Commission’s “simplified proceedings”—a streamlined trial procedure that discourages or elim- inates some elements of the tra- ditional trial process, such as dis- covery and interlocutory appeals. There will still be a complaint-and- answer, as well as a hearing before a judge with witness testimony and cross examination.

Traditional proceedings and simplified proceedings both begin with a complaint-and-answer. Within 20 calendar days after the employer submits a notice of contest, OSHA must file a written complaint with the Commission that details the following:

• The alleged violation(s) • The abatement period • The amount of the proposed

penalty

A copy of this complaint will be sent to you and to any other parties (such as employee repre- sentatives). You must file a written answer to this complaint with the Commission within 20 calendar days after you receive it. In your answer, you should include the following:

• A short, plain statement denying allegations of the complaint that you wish to contest. Any alle- gation you do not specifically deny, you are considered to have admitted to.

• Any specific defense you wish to raise, such as unprevent- able employee misconduct, the infeasibility of compliance, or the argument that compliance would create a greater hazard.

If you do not file your answer on time, your notice of contest may be dismissed, and the citation and penalties may become final.

The Hearing Once the complaint-and-answer

have been filed, you will be notified of the time and place of your hear- ing. You’ll be given at least 30 days’ notice, and the hearing will be held at a location as convenient to your worksite as OSHA can manage. You have to post the hearing notice for employees who are not repre- sented, or serve the notice to your union representatives.

At the hearing, you will be able to present evidence before a Com- mission judge about the issues raised in the complaint-and-answer. You can have a lawyer present or you can represent yourself. You may call witnesses, introduce docu- mentary or physical evidence, and cross-examine OSHA’s witnesses (these will probably include the inspector who cited you).

After hearing the evidence and considering all arguments, the judge will prepare a decision. Cop- ies of the decision will be mailed to all parties. If you are still not happy at that point, you can petition for review of the decision by the entire Review Commission; instructions for doing this will be included in the decision. Beyond the Commis- sion, the case may be appealed to the U.S. Court of Appeals.

If you do not appeal to the Commission, it becomes a final order 30 days after it was filed by the judge, which means that you are legally bound by whatever it says. ■

➤ Multiple Challenges Continued from page 4

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