OSHA Issues High Penalty Failure-To-Abate Citations
August 11, 2010
An employer that has entered into a settlement agreement with OSHA, or that has been found in violation of OSHA regulations or the general duty clause--either by order of an Administrative Law Judge or as a consequence of accepting a citation--should adhere to all provisions of any agreement, and abate all cited conditions. An OSHA Area Office may assess a failure to abate penalty of up to $7,000 per citation item per day for each day the condition is not abated. Normally, the maximum time period is 30 days, for a maximum penalty per citation item of $210,000, but that time period may be increased in exceptional circumstances.
Last week, OSHA issued citations of over $200,000 each to two New York businesses. The first, totaling $210,000, was issued to Broadway Corp., doing business as Broadway Concrete, for failing to abide by a settlement agreement entered into after first receiving a citation for lack of fall protection back in 2008. OSHA conducted a follow-on inspection in January of this year, and in the new citation alleges that Broadway Concrete performed work at eight sites in New York City without adequate fall protection, in violation of the settlement agreement. The second citation issued last week, totaling $247,000, was issued to U.F.S. Industries, doing business as Sally Sherman Foods, for failing to abate conditions previously cited--lack of fall protection, machine guarding, and inadequate lockout/tagout--following a prior inspection at its Mount Vernon facility.
New York Area Offices have recently issued several other high-penalty failure-to-abate citations, suggesting that this may signal a new direction in enforcement in Region 2 (which includes New York and New Jersey):
- On July 20, OSHA issued citations totaling $112,000 in penalties to a Home Depot in West Nyack, chiefly for failure to abate items regarding potential employee exposure to methylene chloride.
- On June 2, OSHA issued citations totaling $346,500 in penalties to CEC Elevator Cab Corp in the Bronx, chiefly for failure to abate items regarding various programs and training.
- On April 28, OSHA issued citations totaling $107,000 to the Service Manufacturing Group in Buffalo, chiefly for failure to abate items regarding cranes, slings, fire extinguishers, and other issues, at its sheet metal fabrication plant.
Last, but certainly not least, last week OSHA issued the third largest citation in history, $16.6 million to several contractors and subcontractors for alleged violations associated with the February 7, 2010 explosion at the Kleen Energy power plant in Middletown, CT. (The two largest OSHA citations were issued to BP in association with a 2005 explosion at its Texas City refinery, and alleged failures to abate conditions following the expiration of a settlement agreement.)
