Classifying serious OSHA violations

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

October 3, 1977
Honorable Thomas F. Eagleton
United States Senate
[Recipient address omitted]
Dear Senator Eagleton:
This is in response to your correspondence dated August 11, 1977, which transmitted a memorandum dated July 28, 1977, from Mr. Curt Long, Associated Industries of Missouri, St. Louis, Missouri. Mr. Long's memorandum makes reference to the front page article of the August 1977, "Reporter" which he enclosed. The article "Is Non-Serious Becoming Serious?" covers several points of interest concerning the Occupational Safety and Health Administration (OSHA).
The article begins with comments concerning Senator Dole's amendment to the Fiscal Year 1978 appropriations for the Department of Labor and HEW. As of this date, this amendment is no longer attached to the appropriations bill. If the appropriations bill is passed as it now is, the only limitations concerning OSHA penalties are those carried over from the FY 1977 Labor-HEW Appropriations Act. These limitations are interpreted in OSHA Program Directive #76-9 (copy enclosed).
The article further states that evidence indicates some OSHA offices are meeting the challenge (Senator Dole's amendment) by changing non-serious violations to serious violations. The examples of evidence given to substantiate this claim are too general for comment, but I can assure you that all field personnel continue to follow the dictates of Section 17.(k) of the Occupational Safety and Health Act of 1970 (copy enclosed). Section 17.(k) gives the definition of a serious violation as:

...a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

OSHA has not changed this definition but did issue a clarification of its meaning in OSHA Program Directive #200-54 (copy enclosed) dated December 17, 1976. The clarification has caused an increase in the number of serious violations which would indicate that in the past, many serious hazards that were previously classified non-serious are now being properly classified as serious violations.
If I may be of any further assistance, please feel free to contact me. Pursuant to your request, the enclosure is herewith returned.
Sincerely,
Basil J. Whiting, Jr.
Deputy Assistant Secretary