In this recent case the Occupational Safety and Health Review Commission (OSHRC) found that the Secretary had not established employee exposure because, although the cited standard applied to the electrical adaptor at issue, “grounding is not necessarily required for all equipment that could be plugged into it.” The Occupational Safety and Health Administration (OSHA) had issued a serious citation alleging that Shaw Areva Mox Services, LLC (Shaw Areva) had failed to ground an electrical adaptor and the plug of a fuel pump cord, in violation of 29 C.F.R. § 1926.404(f)(6). Secretary v. Shaw Areva Mox Services, LLC, Docket No. 09-1284 (February 6, 2012). OSHA issued the citation following an inspection of the worksite in Aiken, South Carolina, where Shaw Areva was constructing a nuclear fuel conversion facility.

In a trailer that Shaw Areva had used as an office at the worksite, the OSHA compliance officer observed a three-plug adaptor plugged into an energized 120v wall outlet, and determined that it did not have a grounding prong. Shaw Areva argued that the administrative law judge (ALJ) erred in finding that the requirements of the cited standard applied to the adaptor, and that the Secretary established employee exposure to an electrical hazard. In order to prove an OSHA violation, in addition to proving (1) the existence of a hazard, OSHA (2) must prove that an employee was exposed to the hazard (i.e., could have been harmed by the hazard). The OSHRC found that the Secretary established applicability of the cited standard, but not that there was an employee exposure to the hazard.

In reviewing the standard for establishing employee exposure, the OSHRC indicated that the Secretary proves exposure by showing that it was “reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). In addition, access to a hazard is considered reasonably predictable where noncompliant equipment is “available for use.” Dover Elevator Co., 16 BNA OSHC 1281, 1284 (No. 91-862, 1993). In Shaw Areva, the ALJ found that exposure to the hazard posed by the adaptor was reasonably predictable because it was available for use and a Shaw Areva employee plugging ground-required equipment into it would have been exposed to an electric shock hazard. The OSHRC found that the Secretary had not established exposure because, although the cited standard applied to the adaptor at issue, “grounding is not necessarily required for all equipment that could be plugged into it. For example, cord- and plug-connected equipment that is not used in a damp or wet location need not be grounded. See 29 C.F.R. § 1926.404(f)(7)(iv)(C)(2).”