Administrative law judge rules against OSHA on enterprise-wide abatement

An administrative law judge has fired what may amount to a legal “shot across the bow” at OSHA, ruling that the agency has been overstepping its bounds on the issue of enterprise-wide abatement.

OSHA has been contending since 2010 that when a violation is proven at an employer’s worksite, the Occupational Safety and Health Review Commission can require the employer to abate similar hazards at its other worksites, even if they were not part of the citation.

OSHRC Administrative Law Judge William Coleman ruled in the case Delta Elevator Service Corp., dba Delta Beckwith Elevator Co. that there was “no commission or other precedent” to support OSHA’s position.

However, Attorney Stephen Yohay of Ogletree Deakins noted in a recent article about the ruling that the administrative law judge’s ruling does not set a precedent under OSHRC law.

Given that, Yohay wrote, “Having openly touted the merits of the theory, it will be interesting to see now if OSHA exposes its statutory argument to examination by OSHRC, and perhaps a federal appellate court” and risk a precedent-setting decision against its stance.