Abatement: Will This Conundrum Ever End?
Earlier posts on California OSHA’s new abatement rules focused on the old wise rule and the changed dynamic and conflict brought about by the new draconian one.
In case you couldn’t tell how we really feel about the new rules, let’s look at some “real world” issues California employers have had and the quandaries they’ve faced.
The first conundrum comes if an employer fundamentally disagrees that an alleged hazard needs abating, or when effective abatement cannot be completed in the time dictated by Cal/OSHA. Do you rely on the continuing vitality of the Board’s rule that all abatement requirements are stayed pending appeal (8 CCR sec. 373) and, thereby, put your (former) entitlement of a 50 percent credit on a fine at risk? Or do you attempt to satisfy Cal/OSHA by fashioning some sort of abatement in the time allowed?
Our answer: If the basic assumption of the citation - that a hazard exists - is disputed, there really is no conundrum. The need for abatement needs to be fought out in the appeal process.
But what if the employer agrees that abatement is needed, but effective abatement is complex or problematic? Our advice is to attempt, to the extent possible, to abate within the time allotted. This has led to some frantic efforts to meet Cal/OSHA’s arbitrary deadlines when abatement cannot be accomplished simply by re-training or removing a piece of machinery from the line.
One client visited by the High Hazard Unit was already in the process of updating a newly purchased facility. But the need to create written lock-out, tag-out instructions on all machinery on the 10-acre facility overwhelmed their abilities. (And if you are thinking, “Well, an employer in the HHU program needs a kick,” let me point out that their experience-modification insurance rating is in the mid-80's, better than the ex-mod average in their industry. And, they are in the “High Hazard” program based on their industry alone.)
Another client was expected to upgrade – in a matter of weeks - more than 20 massive grinders from design standards which were state of the art in the ‘60's.
In another case of which we are aware, the employer’s only alternative was to buy a new machine which is no longer made in America. This small employer ordered one from Turkey, but had to use the old machine to stay in business during the expected six-month delivery period.
In both of our cases we requested and were refused additional time for abatement. So we had to improvise. Where abatement verifications are normally written in the past tense to report completed work, we used the past, present and future tenses. The verifications we submitted included detailed descriptions of what had been accomplished, what was in the process of being accomplished and commitments to what would be accomplished.
Yet another conundrum is what to do when you submit abatement papers in a timely fashion but the inspector or district manager quibble or ask for more details or outright reject the employer’s fix. In other words, when is abatement “complete”? We have our view, but Cal/OSHA might disagree.
In a related and bizarre event, Cal/OSHA agreed with our client’s abatement of a serious citation and we made a joint request to the Appeals Board that the appeal be removed from the expedited appeal process. The judge supervising the appeal refused, saying he would not grant the request until the employer demonstrated abatement of the general citations too. That had everyone rolling their eyes. Everyone, that is, except the judge.