OSHA has appealed a decision that could harm its ability to
protect worker safety and health. When an employer commits especially flagrant
violations of its requirements, OSHA has a longstanding policy of citing each
instance of the violative conduct. In the case we have just appealed, however,
the independent Occupational Safety and Health Review Commission held that Eric
K. Ho, an employer who failed to provide protective equipment or training to 11
workers exposed to asbestos committed only a single violation of OSHA personal
protective equipment and training requirements. We are asking the United States
Court of Appeals for the Fifth Circuit to reverse that decision.
OSHA is committed to doing everything in its power to promote
safe and healthy workplaces. The egregious policy that we are defending in this
case allows strong enforcement measures against particularly irresponsible
employers, like Ho, who blatantly ignore their obligation to protect their
workers, and knowingly subject the workers to serious hazards. In our appeal we
will make clear that the Commission decision would prevent us from providing
the protection Congress intended to workers employed by this minority of
irresponsible employers.
In accord with agency policy, the citations charged that Ho
violated OSHAs training and protective equipment standards 11 times each,
once for each worker he failed to protect. Ho challenged the citations before
the Commission, and an administrative law judge upheld them. This fall,
however, on review of the ALJs decision, the full Commission held that Ho
was only liable for a single violation of each of those standards, regardless
of how many workers he failed to protect. It reduced the proposed penalties for
these violations by more than 80%, from $858,000 to $140,000.
OSHA believes strongly that the Commission decision is wrong.
OSHA issued instance-by-instance citations in this case because of
Hos egregious conduct. Ho took absolutely no action to protect his
workers, and failed even to tell them of their exposure to asbestos. When the
state of Texas ordered Ho to stop work because he was also violating its
requirements, Hos only response was to perform the work at night, with
the building locked, so he would not be discovered. The effort to avoid
detection failed when a gas explosion seriously injured three workers. The
explosion was caused by Hos order to open a valve, even though he did not
know what the valve controlled.
This case began on September 3, 1998, when OSHA charged Eric K.
Ho with 28 willful violations of the Occupational Safety and Health Act and its
asbestos standards, and proposed civil penalties totaling nearly $1.5 million
dollars. Hos violations included assigning workers to remove fireproofing
at a building in Houston, Texas, without telling them that the fireproofing
contained asbestos, without training them to remove it safely, and without
providing them with protective clothing and respirators.
OSHA is dedicated to assuring worker safety and health. Safety and
health add value to business, the workplace and life. For more information,
visit www.osha.gov.