OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

January 17, 1991

MEMORANDUM FOR: GERARD F. SCANNELL
               Assistant Secretary for
               Occupational Safety and Health

THROUGH:        PATRICIA K. CLARK Director,
               Directorate of Compliance Programs

FROM:           CYNTHIA L. ATTWOOD
               Associate Solicitor for Occupational Safety and Health

SUBJECT:        Decision in The Hardaway Co. v. Dole, No. 90-3202

In this OSHA enforcement case, the Eleventh Circuit affirmed a willfulness characterization. The Secretary had proved that Hardaway's supervisors were aware employees entered cement-filled silos without safety belts or other protection from engulfment. However, the Secretary had not proved that Hardaway recognized that OSHA's personal protective equipment standard, 29 C.F.R. 1910.132(a), applied to this operation. On appeal, Hardaway argued that a violation can never be willful unless the employer knows both that its practice is hazardous and that it violates a specific OSHA standard. The court did not consider oral argument necessary and issued a summary affirmance order.