OSHA has appealed a decision by the Occupational Safety and Health Review Commission (OSHRC) that held that Eric K. Ho, a Houston contractor 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. OSHRC ruled that the Secretary of Labor unfairly applied per-employee citations against Ho.
OSHA has asked the United States Court of Appeals for the Fifth Circuit to reverse the OSHRC decision. "In accord with agency policy, the [OSHA] citations charged that Ho violated OSHA's training and protective equipment standards 11 times each, once for each worker he failed to protect," Henshaw explained.
Ho challenged the citations before the commission, and an administrative law judge (ALJ) upheld them. This fall, however, on review of the ALJ's 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 percent, from $858,000 to $140,000.
"OSHA believes strongly that the commission decision is wrong," said Henshaw. "OSHA issued 'instance-by-instance' citations in this case because of Ho's egregious conduct. Ho took absolutely no action to protect his workers, and failed even to tell them of their exposure to asbestos." Henshaw pointed out that when the state of Texas ordered Ho to stop work because he was also violating its requirements, Ho's 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 Ho's order to open a valve, even though he did not know what the valve controlled," Henshaw added.
The case began on Sept. 3, 1998, when OSHA charged 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. Ho's 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.
