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A. Basis of Violations.
1. Standards and Regulations. Section 5-104(a)
of the MOSH Act (the Act), the "general duty clause",
states that each employer has a responsibility to comply with the
occupational safety and health standards promulgated under the Act.
The specific standards and regulations are found in Title 29 Code of
Federal Regulations (CFR) 1900 series. Subparts A and B of 29 CFR
1910 specifically establish the source of all standards which are
the basis of violations, as an example, the standards are subdivided
as follows:
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| Part 1910 |
Subsection - 1910.23(c) |
| Subpart - D |
Paragraph - 1910.23(c)(1) |
| Section - 1910.23 |
Subparagraph 1910.23(c)(1)(i) |
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NOTE: The most specific subdivision of the
standard shall be used for citing violations.
a.
Definition and Application of Horizontal and Vertical
Standards. Vertical standards are those standards which apply to a
particular industry or to particular operations, practices, conditions,
processes, means, methods, equipment or installations. Horizontal
standards are those standards which apply when a condition is not covered
by a vertical standard. Within both horizontal and vertical standards
there are general standards and specific standards.
(1) General standards are those which address
a category of hazards and whose coverage is not limited to a
special set of circumstances (e.g., 29 CFR 1910.132(a), 29
CFR 1910.212(a)(1) or (a)(3)(ii), 29 CFR 1910.307(b) and 29
CFR 1926.28(a)).
(2) Specific standards are those which are
designed to regulate a specific hazard and which set forth
the measures that the employer must take to protect
employees from that particular hazard; (e.g., 29 CFR
1910.23(a)(1) and 29 CFR 1926.452(j)(2).
(3) There are two types of vertical standards:
(a)
Standards that apply to particular
industries (Agriculture, Construction, etc.) and
standards that apply to particular sub-industries are
contained in Subpart R of 29 CFR 1910 for sawmills, wood
pulping, laundries, etc., and
(b)
Standards that state more detailed
requirements for certain types of operations, equipment,
or equipment usage than are stated in another (more
general) standard in the same part (e.g., requirements
in 29 CFR 1910.213 for woodworking machinery).
(4) If a CO/IH is uncertain whether to cite
under a horizontal or vertical standard when both apply, the
MOSH Supervisor shall be consulted. The following general
guidelines apply:
(a)
When a hazard in a particular
industry is covered by both a vertical (e.g., 29 CFR
1928) standard and a horizontal (e.g., 29 CFR 1910)
standard, the vertical standard shall take precedence. This
is true even if the horizontal standard is more
stringent.
(b)
If the particular industry does not
have a vertical standard that covers the hazard, then
the CO/IH shall use the horizontal (general industry)
standard.
(c)
When a hazard within general industry
(29 CFR 1910) is covered by both a horizontal (more
general) standard and a vertical (more specific)
standard, the vertical standard takes precedence. For
example, in 29 CFR 1910.213 the requirement for point of
operation guarding for swing saws is more specific than
the general machine guarding requirements contained in
29 CFR 1910.212. However, if the swing saw is used only
to cut material other than wood, 29 CFR 1910.212 is
applicable.
(d)
In addition, industry vertical
standards take precedence over equipment vertical
standards. Thus, if the swing saw is in a sawmill, the
more specific standard for sawmills is 29 CFR 1910.265
rather than 29 CFR 1910.213.
(e)
In situations covered by both a
horizontal (general) and a vertical (specific) standard,
where the horizontal standard appears to offer greater
protection, the horizontal (general) standard may be
cited only if its requirements are not inconsistent or
in conflict with the requirements of the vertical
(specific) standard. To determine whether or not there
is a conflict or inconsistency between the standards, a
careful analysis of the intent of the two standards must
be performed. The results of the analysis must show that
the vertical standard does not address the precise
hazard involved, even though it may address related or
similar hazards.
(f)
When determining whether a horizontal
or a vertical standard is applicable to a work
situation, the CO/IH shall focus attention on the
activity in which the employer is engaged at the
establishment being inspected rather than the nature of
the employer's general business.
(g)
Hazards found in construction work
that are not covered by a specific 29 CFR 1926 standard
will normally be cited under a 29 CFR 1910 standard
unless that standard has been identified as not being
applicable to construction.
1 "Construction work"
means work for construction, alteration and/or repair,
including painting and decorating, and includes both
contract and noncontract work.
2 If any question arises as to
whether an activity is deemed to be construction for
purposes of the Act, the Office of the Attorney
General shall be consulted through the Assistant
Commissioner/Authorized Representative.
b. Violation of Variances. The employer's requirement
to comply with a standard may be modified through granting of a variance,
as detailed in Subtitle 3, Part III of the Act and COMAR 09.12.20.17.
(1) An employer will not be subject to a
citation if the observed condition is in compliance with
either the granted variance or the controlling standard. In
the event that the employer is not in compliance with the
requirements of the variance, a violation of the controlling
standard shall be cited with a reference in the citation to
the variance provision that has not been met.
(2) If during the course of a compliance
inspection, the CO/IH discovers that the employer has filed
an application for variance regarding a condition which is
determined to be an apparent violation of the standard, this
fact shall be reported to the MOSH Supervisor who will
obtain information concerning the status of the variance
request.
2. General Duty Requirement. The MOSH general
duty clause requires that "Each employer shall provide each
employee of the employer with employment and a place of employment
that are...free from each recognized hazard that is causing or
likely to cause death or serious physical harm to the
employee."
a. Evaluation of Potential MOSH General Duty Clause
Situations. In general, Court cases decided under the general duty
clause have established that the following elements are necessary to
provide a violation of the general duty clause:
(1) The employer failed to keep the workplace
free of a hazard to which employees of that employer were
exposed;
(2) The hazard was recognized, through actual or
constructive knowledge;
(3) The hazard was causing or was likely to
cause death or serious physical harm; and
(4) There was a feasible and useful method to correct the
hazard.
b. Discussion of General Duty Clause Elements. The
above four elements of a general duty clause violation are discussed in
greater detail as follows:
(1) Hazard to Which Employees Were Exposed.
A general duty citation must involve both a serious hazard
and exposure of employees.
(a)
Hazard. A hazard is a danger
which threatens physical harm to employees.
1 Not the Lack of a
Particular Abatement Method. In the past, some
general duty clause citations have incorrectly alleged
that the violation is the failure to implement certain
precautions, corrective measures or other abatement
steps rather than the failure to prevent the
particular hazard. It must be emphasized that the
general duty clause does not mandate a particular
abatement measure; it only requires an employer to
render the workplace free of certain hazards by any
feasible and effective means which the employer wishes
to utilize.
a In situations where it is
difficult to distinguish between a dangerous
condition and the lack of an abatement method the
MOSH Supervisor shall consult with the Assistant
Commissioner/Authorized Representative for
assistance in articulating the hazard properly.
EXAMPLE 1.
Employees doing sanding operations may be
exposed to the hazard of fire caused by
sparking in the presence of magnesium
dust. One of the abatement methods may be
training and supervision. The
"hazard" is the exposure to the
potential of a fire; it is not the lack of
training and supervision.
EXAMPLE 2.
In another situation, a danger of
explosion due to the presence of certain
gases could be remedied by the use of
nonsparking tools. The hazard is the
explosion hazard due to the presence of
the gases; it is not the lack of
nonsparking tools.
EXAMPLE 3.
In a hazardous situation involving high
pressure gas where the employer has failed
to train employees properly, has not
installed the proper high pressure
equipment, and has improperly installed
the equipment that is in place, there are
three abatement measures which the
employer failed to take; there is only one
hazard (namely, exposure to the hazard of
explosion due to the presence of high
pressure gas) and hence only one general
duty clause citation.
b Where necessary, the
Assistant Commissioner/ Authorized Representative
shall consult with the Office of the Attorney
General.
2 The Hazard Is Not A
Particular Accident. The occurrence of an accident
does not necessarily mean that the employer has
violated the general duty clause, although the
accident may be evidence of a hazard. In some cases a
general duty clause violation may be unrelated to the
accident. Although accident facts may be relevant and
shall be gathered, the citation shall address the
hazard in the workplace, not the particular facts of
the accident.
EXAMPLE:
A
fire occurred in a workplace where flammable
materials were present. No employee was
injured by the fire itself but an employee,
disregarding the clear instructions of his
supervisor to use an available exit, jumped
out of a window and broke a leg. The danger of
fire due to the presence of flammable
materials may be a recognized hazard causing
or likely to cause death or serious physical
harm, but the action of the employee may be an
instance of unpreventable employee misconduct.
The citation should deal with the fire hazard,
not with the accident involving the employee
who broke his leg.
3 The Hazard Must be
Reasonably Foreseeable. The hazard for which a
citation is issued must be reasonably foreseeable.
a All the factors which
could cause a hazard need not be present in the
same place at the same time in order to prove
foreseeability of the hazard (e.g., an explosion
need not be imminent).
EXAMPLE:
If combustible gas and oxygen are present
in sufficient quantities in a confined
area to cause an explosion if ignited but
no ignition source is present or could be
present, no general duty clause violation
would exist. If an ignition source is
available at the workplace and the
employer has not taken sufficient safety
precautions to preclude its use in the
confined area, then a foreseeable hazard
may exist.
b It is necessary to
establish the reasonable foreseeability of the
general workplace hazard, rather than the
particular hazard which led to the accident.
EXAMPLE:
A titanium dust fire may have spread from
one room to another only because an open
can of gasoline was in the second room. An
employee who usually worked in both rooms
was burned in the second room from the
gasoline. The presence of gasoline in the
second room may be a rare occurrence. It
is not necessary to prove that a fire in
both rooms was reasonably foreseeable. It
is necessary only to prove that the fire
hazard, in this case due to the presence
of titanium dust, was reasonably
foreseeable.
(b) The Hazard Must Affect the
Cited Employer's Employees. The employees affected
by the general duty clause hazard must be the employees
of the cited employer.
1 An employer who may have
created, contributed to, and/or controlled the hazard
normally shall not be cited for a general duty clause
violation if his own employees are not exposed to the
hazard.
2 In complex situations, such
as multi-employer worksites, where it may be difficult
to identify the precise employment relationship
between the employer to be cited and the exposed
employees, the MOSH Supervisor shall consult with the
Assistant Commissioner/Authorized Representative and
through the Assistant Commissioner/Authorized
Representative with the Office of the Attorney General
to determine the sufficiency of the evidence regarding
the employment relationship.
3 The fact that an employer
denies that exposed employees are his/her employees
does not necessarily decide the legal issue involved.
Whether or not exposed persons are employees of an
employer depends on several factors, the most
important of which is who controls the manner in which
the employees perform their assigned work. The
question of who pays these employees may not be the
determining factor.
(2) The Hazard Must Be Recognized.
Recognition of a hazard can be established on the basis of
industry recognition, employer recognition, or "common
sense" recognition. The use of common sense as the
basis for establishing recognition shall be limited to
special circumstances. Recognition of the hazard must be
supported by satisfactory evidence and adequate
documentation in the file as follows:
(a)
Industry Recognition. A hazard is
recognized if the employer's industry recognizes it.
Recognition by an industry other than the industry to
which the employer belongs is generally insufficient to
prove this element of a Section 5-104(a) violation.
Although evidence of recognition by the employer's
specific branch within an industry is preferred,
evidence that the employer's industry recognizes the
hazard may be sufficient. The MOSH Supervisor shall
consult with the Assistant Commissioner/Authorized
Representative on this issue. Industry recognition of a
particular hazard can be established in several ways:
1 Statements by industry safety
or health experts which are relevant to the hazard.
2 Evidence of implementation of
abatement methods to deal with the particular hazard
by other members of the industry.
3 Manufacturer's warnings on
equipment which are relevant to the hazard.
4 Statistical or empirical
studies conducted by the employer's industry which
demonstrate awareness of the hazard. Evidence such as
studies conducted by the employee representatives, the
union or other employees should also be considered if
the employer or the industry has been made aware of
them.
5 Government and insurance
industry studies, if the employer or the employer's
industry is familiar with the studies and recognizes
their validity.
6 State and local laws or
regulations which apply in the jurisdiction where the
violation is alleged to have occurred and which
currently are enforced against the industry in
question. In such cases, however, corroborating
evidence of recognition is recommended. In cases where
State and local government agencies have codes or
regulations covering hazards not addressed by MOSH
standards, the MOSH Supervisor, upon consultation with
the Assistant Commissioner/Authorized Representative,
shall determine whether the hazard is to be cited
under Section 5-104(a) or referred to the appropriate
local agency for enforcement.
EXAMPLE:
A
concrete block wall under construction is
improperly supported at a height which poses
little or no hazard, but is a violation of the
local building code, and it is determined that
the hazard is not clearly covered by Section
5-104(a). However, there is a local building
code which addresses this hazard and a local
agency enforces the code. The situation shall
be referred to the local enforcement agency
instead of citing Section 5-104(a).
7 Standards issued by the
American National Standard Institute (ANSI), the
National Fire Protection Agency (NFPA), and other
private standard-setting organizations, if the
relevant industry participated on the committee
drafting the standards. Otherwise, such private
standards normally shall be used only as corroborating
evidence of recognition. Preambles to these standards
which discuss the hazards involved may show hazard
recognition as much as, or more than, the actual
standards. It must be emphasized, however, that these
private standards cannot be enforced like MOSH
standards unless they have been adopted as MOSH
standards. They may serve as evidence of industry
recognition, seriousness of the hazard or feasibility
of abatement methods.
8 NIOSH criteria documents; the
publications of EPA, the National Cancer Institute,
and other agencies; OSHA hazard alerts, the IH
Technical Manual, and articles in medical or
scientific journals by persons other than those in the
industry, if used only to supplement other
evidence which more clearly establishes recognition.
Such publications can be relied upon only if it is
established that they have been widely distributed in
general, or in the relevant industry.
(b)
Employer Recognition. A
recognized hazard can be established by evidence of
actual employer knowledge. Evidence of such recognition
may consist of written or oral statements made by the
employer or other management or supervisory personnel
during or before the MOSH inspection.
1 Company memorandums, safety
rules, operating manuals or operating procedures and
collective bargaining agreements may reveal the
employer's awareness of the hazard. In addition,
accident, injury, and illness reports prepared for
MOSH, Workers' Compensation, or other purposes, may
show this knowledge.
2 Employee complaints or
grievances to supervisory personnel may establish
recognition of the hazard, but the evidence should
show that the complaints were not merely infrequent,
off-hand comments.
3 The employer's own corrective
action may serve as the basis for establishing employer
recognition of the hazard if the employer did not
adequately continue or maintain the corrective action or
if the corrective action did not afford any significant
protection to the employees.
(c) Common Sense Recognition. If
industry or employer recognition of the hazard cannot be
established in accordance with (a) and (b), recognition
can still be established if it is concluded that any
reasonable person would have recognized the hazard. This
theory of recognition shall be used only in flagrant
cases.
EXAMPLE:
In a
general industry situation, a court has held that
any reasonable person would recognize that it is
hazardous to dump bricks from an unenclosed chute
into an alleyway between buildings which is 26
feet (7.8 meters) below and in which unwarned
employees work. (In construction, Section 5-104(a)
could not be cited in this situation because 29
CFR 1926.252 or 1926.852 applies.)
(3) The Hazard Was Causing or Was Likely to
Cause Death or Serious Physical Harm. This element of a
Section 5-104(a) violation is virtually identical to the
substantial probability element of a serious violation under
Section 5-809 of the Act. Serious physical harm is defined
later in this chapter. This element of a Section 5-104(a)
violation can be established by showing that:
(a)
An actual death or serious injury
resulted from the recognized hazard, whether immediately
prior to the inspection or at other times and places; or
(b)
If any accident occurred, the likely
result would be death or serious physical harm. For
example, an employee is standing at the edge of an
unguarded piece of equipment, 25 feet (7.6 meters) above
the ground. Under these circumstances if a falling
incident occurs, death or serious physical harm (e.g.,
broken bones) is likely.
(c)
In a health context, establishing
serious physical harm at the cited levels may be
particularly difficult if the illness will require the
passage of a substantial period of time to occur. Expert
testimony is crucial to establish that serious physical
harm will occur for such illnesses. It will generally be
easier to establish this element for acute illnesses,
since the immediacy of the effects will make the causal
relationship clearer. In general, the following must be
shown to establish that the hazard causes or is likely
to cause death or serious physical harm when such
illness or death will occur only after the passage of a
substantial period of time:
1 Regular and continuing
employee exposure at the workplace to the toxic
substance at the measured levels reasonably could
occur;
2 Illness reasonably could
result from such regular and continuing employee
exposure; and
3 If illness does occur, its
likely result is death or serious physical harm.
(4) The Hazard May Be Corrected by a Feasible
and Useful Method. To establish a Section 5-104(a)
violation the agency must identify a method which is
feasible, available and likely to correct the hazard. The
information shall indicate that the recognized hazard is
abatable, rather than indicating that a particular accident
is preventable.
(a)
If the proposed abatement method
would eliminate or significantly reduce the hazard
beyond whatever measures the employer may be taking, a
Section 5-104(a) citation may be issued. A citation
shall not be issued merely because the agency knows of
an abatement method different from that of the employer,
if the agency's method would not reduce the hazard
significantly more than the employer's method. It must
also be noted that in some cases only a series of
abatement methods will alleviate a hazard. In such a
case all the abatement methods shall be mentioned.
(b)
Feasible and useful abatement methods
can be established by reference to:
1 The employer's own abatement
method which existed prior to the inspection but was
not implemented;
2 The implementation of
feasible abatement measures by the employer after the
accident or inspection;
3 The implementation of
abatement measures by other companies;
4 The recommendations by the
manufacturer of the hazardous equipment involved in
the case; and
5 Suggested abatement methods
contained in trade journals, private standards and
individual employer standards. Private standards shall
not be relied on in a Section 5-104(a) citation as
mandating specific abatement methods.
a For example, if an ANSI
standard deals with the hazard of exposure to
hydrogen sulfide gas and refers to various
abatement methods, such as the prevention of the
build-up of materials which create the gas and the
provision of ventilation, the ANSI standard may be
used as evidence of the existence of feasible
abatement measures.
b The citation for the
example given shall state that the recognized
hazard of exposure to hydrogen sulfide gas was
present in the workplace and that a feasible and
useful abatement method existed (e.g., preventing
the build-up of gas by providing an adequate
ventilation system). It would not be correct to
issue a citation alleging that the employer failed
to prevent the build-up of materials which could
create the gas and failed to provide a ventilation
system as both of these are abatement methods not
hazards.
6 Evidence provided by expert witnesses which demonstrates the
feasibility of the abatement methods. Although it is not necessary to
establish that the industry recognizes a particular abatement method, such
evidence shall be used if available.
Continued
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