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Review commission tosses citations against refinery

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Legal ruling

The Occupational Safety and Health Review Commission on Friday vacated a citation leveled against a refinery company, holding that an administrative law judge erred in finding that the company had constructive knowledge of a violative condition as a controlling employer at its worksite.

The U.S. Occupational Safety and Health Administration inspected the Commerce City, Colorado, refinery owned by Suncor Energy Inc. of Calgary, Alberta, in response to a complaint that an employee had fallen and sustained a serious injury, according to the ruling in Secretary of Labor v. Suncor Energy Inc. As a result of the inspection, OSHA issued two serious violations and one other-than-serious violation, with a proposed penalty of $12,000. One of the serious citations, which addressed a personal protective equipment provision, was subsequently amended to a construction violation standard requiring fall protection on scaffolds over 10 feet high with a proposed penalty of $7,000. Suncor appealed to the commission, which reversed the judge’s decision and vacated the citation.

In the fall of 2012, at the time of the alleged injury, Suncor engaged in a 30-day shutdown at one of its plants to perform capital projects, inspections, cleaning and maintenance. Several contractors were involved in the work and none of Suncor’s employees were working on the site.

The U.S. Department of Labor alleged that Suncor failed to ensure that its contractor’s employees were protected from falling while working on scaffolds. Although Suncor did not dispute that it was a controlling employer, it argued that the DOL failed to establish that the company had constructive knowledge of the violative condition as a controlling employer on a multi-employer worksite.

The Occupational Safety and Health Review Commission agreed. The commission noted that on a multi-employer worksite, a controlling employer is liable for a contractor’s violations if the DOL can show that the controlling employer failed to take reasonable measures to “prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”

The commission noted that the judge found that Suncor failed to exercise reasonable care because did not make use of opportunities “to become aware” of the condition and prevent the accident. But the commission found that the judge erred by focusing on whether Suncor should have known that the guardrails on the scaffold were absent rather than whether it knew that the contractor’s employee failed to use personal fall protection. The court noted that the absence of guard rails alone is not a “violative condition,” and that therefore, the judge should have assessed whether Suncor failed to exercise reasonable care in determining that no form of fall protection was being used.

Likewise, the commission held that the administrative law judge erred in determining that Suncor could have debriefed its contractors to find out about other potential violations charged by OSHA.

The commission found that given the scope of the project, which involved 250,000 worker hours, Suncor documented more than 350 audits of scaffold tags, 408 audits of scaffold use and 524 audits of fall protection, issuing 16, 13, and 33 infractions, respectively. The commission also found that Suncor provided evidence that it made concerted efforts to hire only safety conscious contractors, and that its auditing efforts showed “Suncor’s safety efforts were more than commensurate with the size, complexity, and short time frame associated with this project.”

As a result, the commission reversed the judge’s decision and vacated the citation.

Suncor was unable to be reached for comment.

 

 

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