OSHA Violations Against Rail Car Cleaning Contractor At Chemical Plant Upheld By Fifth Circuit

Following the death of a worker at a Texas chemical plant, OSHA investigated and issued multiple citations to the worker’s employer, a subcontractor at the plant that performed a variety of services including maintenance, capital and warehouse work, and rail car cleaning.  The incident in question involved the rail car cleaning process.  The worker died from asphyxiation when he lowered himself, without a confined space permit, into a rail car containing hydrogen sulfide that yet to be cleaned.  An ALJ upheld two of the citations:  failure to identify and evaluate respiratory hazards in the workplace, including a failure to provide reasonable estimates of employee exposure to respiratory hazards and identifications of contaminants’ chemical states and physical forms (violating 29 C.F.R. § 1910.134(d)(1)(iii)) and failure to provide employee training regarding hydrogen sulfide and the other hazardous chemicals (violating 29 C.F.R. § 1910.1200(h)(3)).  The Occupational Safety and Health Review Commission denied discretionary review and the company appealed to the Fifth Circuit, which denied the company’s petition for review earlier this week.

The company claimed that because of its participation in OSHA’s Voluntary Protection Program (“VPP”), which “is a cooperative program that allows qualified companies with rigorous safety practices and strong safety records to avoid regularly programmed … inspections,” it was entitled to a “fair notice” defense.  In other words, the company argued that because OSHA had previously found its procedures and processes related to rail car cleaning safe and satisfactory, the company had a valid fair notice complaint for being cited for the same procedures in a later inspection.  The court agreed that this could be the case if OSHA had previously approved these specific policies and procedures in question, but concluded that nothing in the VPP report obtained from OSHA informed the company that its rail car cleaning procedures specifically were safe and satisfactory.  The court also rejected the company’s arguments that OSHA was preempted from exercising jurisdiction in this instance by the Locomotive Inspection Act or the Federal Railroad Safety Act, that the citation was time-barred, or that the evidence the ALJ relied on was insufficient.