On April 27, 2015, the Occupational Safety & Health Review Commission issued a decision vacating an OSHA Citation issued against Brand Energy Solutions, LLC in Secretary of Labor v. Brand Energy Solutions, LLC, OSHRC Docket No. 09-1048, which can be found at http://www.oshrc.gov/decisions/html_2015/09-1048.htm. The Citation was issued as a result of an OSHA investigation conducted after a fatality involving a Brand employee at the Shell Oil Company refinery in Deer Park, Texas. The underlying trial on the Citation was for a single housekeeping violation under the OSHA construction standards. Brand was represented at trial and on appeal by J. Albert Kroemer and James T. Phillips of Cantey Hanger LLP.

In the fall of 2008 Shell hired Brand to erect a scaffold around one of its crude distillation columns, a large cylindrical tower at the refinery, in order to conduct insulation work. On December 18, 2008, when the scaffold was approximately half way completed and stood approximately 110 feet high, a Brand employee fell from the unfinished platform to her death.

An OSHA investigation resulted in the issuance of a Citation to Brand alleging a housekeeping violation under 29 CFR 1926.25(a), because scaffold materials were left on the stair tower landings in the scaffold after the project had been shut down because of the accident. The Secretary interpreted the material as “debris” under the housekeeping standard. This citation was affirmed by the Administrative Law Judge at trial, and Brand brought its appeal to the Review Commission.

The majority opinion agreed with Brand’s argument that the scaffold housekeeping standard under 29 CFR 1926.451(f)(13) was more specifically applicable than the general housekeeping standard in the Citation, 29 CFR 1926.25(a) and thus preempted the standard relied on by OSHA in the Citation. It therefore vacated the Citation. It held that because the alleged “debris” was located on a stair landing, the scaffold standard, which applied to the accumulation of debris on “platforms,” was applicable. The scaffold standards defined a “landing” as “a platform at the end of a flight of stairs.” The majority held that this was the specific circumstance involved, and therefore rejected the argument advanced by the Secretary that the general housekeeping standard, which includes the accumulation of debris on “stairs,” was the applicable standard.

A concurring opinion was issued agreeing that Brand had established that the scaffold housekeeping standard preempted the general housekeeping standard. However, it also agreed with Brand’s argument that the Citation should be vacated because the scaffold components left on the stair tower after the accident constituted essential equipment rather than “debris” under either housekeeping standard. It reviewed Commission precedent which holds that “equipment” does not constitute “debris,” and noted the materials which were the subject of the Citation—material used to erect the very scaffold involved—were essential to the work being performed by Brand and thus “equipment.” Although it acknowledged that Commission precedent holds that even equipment can constitute debris when it is not kept in a proper organizational state, the Secretary failed to prove that the organization of Brand’s equipment fell below this standard.

Because the concurrence would have vacated the citation under either housekeeping standard, it provides guidance to housekeeping matters in all areas of construction, not just for scaffolds. Although leftover construction materials and unused tools and equipment will likely be considered debris and thus must be kept clear of work areas, materials and equipment which are in line to be used in a given project may take on a different character under the concurring commissioner’s analysis. While it is important for all employers to be cognizant of the appropriate housekeeping standards and to follow them, depending on the facts and circumstances, this decision may provide cited employers additional bases from which to defend against housekeeping violations.