would be for the Secretary to promulgate, pursuant to notice-and-comment rulemaking, a specific
standard addressing such hazards under section 5(a)(2).
II. Beyond the Threshold Issue: The Elements of the Alleged General Duty Clause
Violation
As noted, despite the concerns I raise here, I join my colleagues in their conclusion that the
Secretary has established a violation of the general duty clause. I do so with the understanding
that the citation is affirmed in accordance with Commission precedent regarding the elements of a
not intend the general duty clause to impose strict liability: The duty was to be an
achievable one. Congress’ language is consonant with its intent only where the
“recognized” hazard in question can be totally eliminated from a workplace. A
hazard consisting of conduct by employees, such as equipment riding, cannot,
however, be totally eliminated. A demented, suicidal, or willfully reckless
employee may on occasion circumvent the best conceived and most vigorously
enforced safety regime. This seeming dilemma is, however, soluble within the
literal structure of the general duty clause. Congress intended to require elimination
only of preventable hazards. It follows, we think, that Congress did not intend
unpreventable hazards to be considered “recognized” under the clause. Though a
generic form of hazardous conduct, such as equipment riding, may be “recognized,”
unpreventable instances of it are not, and thus the possibility of their occurrence at
a workplace is not inconsistent with the workplace being “free” of recognized
hazards.
489 F.2d at 1265 (emphasis added) (footnotes omitted). Thus, the D.C. Circuit declined to impose
a general duty clause test requiring an employer to “reasonably free” a workplace of a hazard.
I also note that violations of the general duty clause have been found in a variety of cases where
the hazards were ones that the employer could control. See, e.g., Noble Drilling Servs., Inc., No.
00-0462, 2002 WL 538935, at *5-7 (OSHRC Apr. 3, 2002) (ALJ) (fall hazard from crane-hoisted
personnel baskets could be controlled by installation of inside grab rails); Wiley Organics, Inc., 17
BNA OSHC 1586, 1593 & n.7 (No. 91-3275, 1996) (hazard of “valves and vents of the
reactor . . . not [being] configured so as to discharge to a safe location away from employee work
areas” could be eliminated by “diverting the vent to a catch tank, header pipe, or similar safe
location”); Waste Mgmt. of Palm Beach, 17 BNA OSHC 1308, 1309, 1311 (No. 93-0138, 1995)
(hazard of collapse of trash loader boom, exacerbated by employer’s unauthorized reinforcement
of boom, could be eliminated by replacing boom entirely); Anoplate Corp., 12 BNA OSHC 1678,
1686-87 (No. 80-4109, 1986) (hazard of common storage of cyanide and acid containers could be
eliminated by separate storage); Safeway, Inc., 382 F.3d 1189, 1195 (10th Cir. 2004) (employer
“could have eliminated the hazard of using a forty-pound tank with the grill by simply using a
twenty-pound tank”); St. Joe Minerals Corp., 647 F.2d 840, 844 (8th Cir. 1981) (employer did not
“render its workplace ‘free’ of hazard” when it bypassed broken interlock system on freight
elevator by having employee operate elevator manually; employer could have eliminated hazard
by “fully repair[ing] or replac[ing] malfunctioning equipment”). Thus, my colleagues’ fear for the
virtual elimination of this statutory provision is unfounded.
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