Not spotting hazmat was wrong, but was it ‘willful’ & ‘egregious’?

by on October 2, 2012 · 0 Comment POSTED IN: Workplace Safety Network
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Supervisor Mitch Ganz walked into his boss’ office, took a seat, and said, “You wanted to let me know what OSHA decided?”

“They hit us hard,” said General Manager Ray McCrory. “Very hard. 11 willful citations, including five per-instance violations under their egregious violations standard. The proposed fines are massive.”

“How did a mistake – granted, a big one – and a misunderstanding get that far?” asked Mitch. “We cooperated with the OSHA inspection completely, including an immediate shutdown of operations when the OSHA inspector asked.”

No credit for good faith?
“We didn’t get any credit for that,” said Ray. “They saw a company just tearing out pipe insulation in a commercial-building basement and piling up the debris using workers wearing ordinary work clothes and with no asbestos protection at all.”

“We didn’t think there was any asbestos down there, just fiberglass insulation,” said Mitch. “We didn’t know that years ago, a previous contractor hadn’t removed the asbestos completely and left loose debris under fiberglass insulation.”

“We even hired a consultant who gave us a report showing us where the asbestos was in that building – and we took care of that properly,” said Ray. “But you should have noted that the conditions changed once you started to remove the fiberglass.”

Fine print
“I agree,” said Mitch. “And we all should have read the fine print on the consultant’s asbestos report. We thought it said, ‘No asbestos in the basement.’ But in the fine print it basically said, ‘Given the limitations of our inspection, there doesn’t appear to be any asbestos.’”
“I should have caught that, too,” said Ray. “We probably deserve some kind of fine. I’m glad OSHA caught the problem so soon, and no one’s been hurt – yet. But “willful and egregious” is outrageous.”

The company challenged the “willful” and “egregious” designations of the citations.

Did it get the citations and penalties downgraded?

The Decision
Yes, the individual citations – which allow OSHA to cite for every exposed worker – were downgraded from “willful and egregious” to “serious.”

The associated penalties, while expensive, ended up costing about 10% of what they could have.

The OSHA judge agreed that the company made three huge mistakes:

  • It relied too heavily on a consultant’s report and thus just assumed there was no asbestos.
  • It didn’t read the fine print in the consultant’s report, so didn’t recognize the consultant’s limitations on its conclusions.
  • It didn’t keep an eye out for changing conditions.

Supervisors’s take home: Reports are just that – reports. The fine print will usually be something like, based on what we know now, it doesn’t appear ….”

For a frontline supervisor, you know that sometimes new information comes to light, and conditions change in the field. In this case, when the fiberglass was stripped away and crumbling old insulation was found, the supervisor should have shut down ops and reported the problem.
Cite: Sec’y of Labor v. Cambria.

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