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Breaking the chain of “substantial continuity” — Tenth Circuit clarifies test for repeat OSHA violations

By Jon Schaefer, Chris Eddy, Peter Knight & Megan Baroni on February 19, 2021
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Below in an excerpt from an article authored by Robinson+Cole Environmental, Energy + Telecommunications Group lawyers Megan E. Baroni, Christopher Y. Eddy, Peter R. Knight, and Jonathan H. Schaefer that was published in ISHN (Industrial Safety & Hygiene News).

The Occupational Safety and Health Act provides for increased penalties for employers who fail to rectify conditions following an Occupational Safety and Health Administration (OSHA) citation resulting in a similar incident. Such “repeat citations” are an essential element of the Occupational Safety and Health Act (OSH Act) enforcement scheme. As OSHA practitioners and environmental, health and safety professionals know, avoiding repeat citations is often a central issue when resolving an OSHA enforcement matter. OSHA policy instructs the agency to consider several factors when determining whether to characterize a citation as “repeat.” One of those factors involves a situation in which there has been a change in corporate structure or ownership between the initial and subsequent violations. In such instances, OSHA will evaluate whether there is “substantial continuity” between entities that warrants characterization of a citation as “repeat.” If, however, there is enough change in the corporate structure between the initial and subsequent violation, the citation will not be classified as “repeat.”  Read the full article.

Photo of Jon Schaefer Jon Schaefer

I am a Partner in the Robinson+Cole’s Environmental, Energy + Telecommunications Group. I focus my practice on environmental compliance counseling, permitting, site remediation, occupational health and safety, energy regulatory compliance and siting, and litigation related to federal and state regulatory programs. My experiences…

I am a Partner in the Robinson+Cole’s Environmental, Energy + Telecommunications Group. I focus my practice on environmental compliance counseling, permitting, site remediation, occupational health and safety, energy regulatory compliance and siting, and litigation related to federal and state regulatory programs. My experiences working on complex matters for over a decade enable me to work effectively with experts and legal counsel to help clients minimize risk and solve compliance, enforcement, transactional, and regulatory matters. My full firm bio can be accessed here.

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Photo of Chris Eddy Chris Eddy

I am an Associate in the Environmental, Energy + Telecommunications Group. I focus my practice in the areas of environmental compliance and litigation, retail energy supply, and utility regulatory matters.  My full bio is here.

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Photo of Peter Knight Peter Knight

A Partner in Robinson+Cole’s Environmental, Energy + Telecommunications Group, my practice focuses on environmental litigation and enforcement matters. I routinely assist clients with private cost recovery and complex multiparty CERCLA cases and class actions, as well as environmental remediation projects. In addition to…

A Partner in Robinson+Cole’s Environmental, Energy + Telecommunications Group, my practice focuses on environmental litigation and enforcement matters. I routinely assist clients with private cost recovery and complex multiparty CERCLA cases and class actions, as well as environmental remediation projects. In addition to my land-based practice, I also represent a variety of coastal and maritime interests in connection with large vessel casualties, oil spills and emergency response, and counseling on U.S. Coast Guard regulatory matters. My full firm bio can be accessed here.

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Photo of Megan Baroni Megan Baroni

I am a Partner in the Environmental, Energy + Telecommunications Group. I have extensive experience counseling clients on a wide variety of environmental, health, and safety issues. I frequently represent manufacturers and distributors and I am a contributing author to the firm’s Manufacturing …

I am a Partner in the Environmental, Energy + Telecommunications Group. I have extensive experience counseling clients on a wide variety of environmental, health, and safety issues. I frequently represent manufacturers and distributors and I am a contributing author to the firm’s Manufacturing Law Blog, focusing on environmental, health, and safety trends that will impact the industry. My full bio can be accessed here.

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  • Posted in:
    Administrative and Regulatory
  • Blog:
    Environmental Law +
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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