Louisiana Record

Tuesday, February 18, 2020

OSHA citations over practices at company that led to employee death upheld on appeal

By Anna Aguillard | Sep 2, 2014

Isfa federal osha compliance manual

NEW ORLEANS – The U.S. Fifth Circuit Court of Appeals has ruled against Texas-based Austin Industrial Specialty Services’ in its appeal of Occupational Safety and Health Administration’s (OSHA) citations over circumstances that led to the death of a worker. 

The citations, issued in response to an investigation that came about after an Austin employee died due to chemical exposure, were centered on Austin’s rail car cleaning process.  Although Austin employees wore hydrogen sulfide monitors while cleaning, the company did not conduct any other air-quality tests in the environment, according to the underlying complaint. Employees would perform “spit” and “sniff” tests to determine the toxicity of the cars, which required close contact with more than 200 types of potentially hazardous materials.

After investigating the rail car cleaning process, OSHA charged Austin with failing to identify and regulate respiratory hazards in the workplace, failing to ensure that employees were not exposed to high hydrogen sulfide levels, failing to provide equipment and controls to limit employee exposure to hydrogen sulfide, failing to provide data sheets on each of the chemicals employees were exposed to and failing to provide adequate employee training about hazardous chemicals.

After Austin appealed  the charges, an administrative judge vacated all but two of the violations, affirming the violation for failing to identify and regulate respiratory hazards; and the violation for failing to provide employee training regarding certain hazardous chemicals.

The commission then denied Austin’s request for further review, holding that the administrative judge’s decision was final. Austin then appealed the decision in the U.S. Fifth Circuit Court of Appeals, seeking a judgment that the administrative judge's decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 

The appeals court sided with the OSHA Review Commission, denying Austin’s petition along with each of its four arguments.

Austin had argued that OSHA had no jurisdiction to regulate employee conditions regarding rail car cleaning. Because the Occupational Safety and Health Act bars the administration from controlling any working conditions that another federal agency exercises control over, Austin argued that the Locomotive Inspection Act, the Federal Railway Administration, and the Federal Railroad Safety Act all exercised control over rail car cleaning, so OSHA could not control matters that these other agencies regulated. But the appeals court ruled that the controls exercised by the three other agencies never specifically addressed employee safety, so the acts do not amount “to an exercise of authority sufficient to preempt [OSHA] here.”

Austin then argued that because it participated in the Voluntary Protection Program, it was entitled to receive “fair notice” of any potential violations, which OSHA failed to provide, according to the company.  The Fifth Circuit, however, ruled that in order for a citation to be “unfair,” it has to contradict a previous official statement of approval made by the administration. Austin had never received approval of its rail car cleaning process; in fact, no official reports even mentioned the rail cleaning area. Because there had been no previous reports informing Austin that its process was approved, the court ruled that there was “no fair expectation” present in the issue.

Austin then opposed the administrative judge’s decision upholding the citations, claiming that the charges were made outside of the six-month statute of limitations defined in the Occupational Safety and Health Acts. According to Austin, the violation occurred when an Austin employee physically performed the act of cleaning a rail car, and because the administration could not prove that this occurred within six months of its issuance of the citation, the statute of limitations applied. However, the court ruled that the violation actually occurred after the death of the employee, when OSHA discovered them. Thus, the statute of limitations was not expired at the time that the violations were cited.

Austin finally argued that the evidence presented at the hearing before the administrative judge was insufficient to support the violations. However, after analyzing the evidence, the appeals court determined that the evidence “amply” supported the decision.

The case was heard by Chief Judge Carl E. Stewart, Judge Patrick Higginbotham and Judge Jennifer Elrod.

Case no. 13-60521.

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