United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant, 

v. OSHRC DOCKET NO.: 19-0550 

UHS OF DENVER, INC., DBA 

HIGHLANDS BEHAVIORAL HEALTH 

SYSTEMS,

 

 Respondent. 

 

Appearances:

Alicia A. W. Truman and Beau Ellis, Department of Labor, Office of Solicitor, Denver, 

Colorado, 

 For Complainant 

Melanie L. Paul and Dion Y. Kohler, Jackson Lewis, P.C., Atlanta, Georgia,

 For Respondent 

Before: Judge Joshua R. Patrick – U. S. Administrative Law Judge 

DECISION AND ORDER

I. Introduction

The Commission has remanded the above-captioned case for the Court to determine a 

discrete issue: Whether the Secretary, based on record established at the trial held on June 7, 2021 

to July 8, 2021,

1 proved her proposed abatement methods were economically feasible.2 At the 

outset, it is important to note the existing record lacks any evidence as to what Complainant’s 

1. The trial did not officially conclude on June 23, 2021. Two additional days of testimony were taken via video 

teleconference on July 7–8, 2021. 

2. The ALJ who originally issued the decision retired shortly after issuing the underlying decision, which is why 

the case was remanded to this Court. In the original trial decision, the ALJ that decided this case found 

Complainant established economic feasibility through the imposition of a discovery sanction. The Commission 

found the ALJ erred in imposing the sanction and remanded for consideration of whether the existing record 

established a violation. 
2

proposed abatement measures would cost. Likewise, there is no evidence of Respondent’s ability

to pay for them. Nevertheless, Complainant contends there are alternative bases upon which 

economic feasibility can be determined within the existing record. Thus, the Court must determine 

whether the law permits a finding of economic feasibility on some basis other than cost and ability 

to pay. If so, the Court must also determine whether the evidence presented by Complainant is 

sufficient to establish economic feasibility under one of the alternative bases. 

Based on its review of the existing record, as well as the relevant case law, the Court 

AFFIRMS the Citation and Notification of Penalty alleging a violation of the general duty clause. 

However, as will be discussed in more detail below, the Court also finds Complainant failed to 

establish the economic feasibility of two forms of abatement: additional staffing and a dedicated 

security staff.

II. Preliminary Issues

The Commission recently issued a handful of decisions that present a unique problem: 

When multiple forms of abatement are alleged as a process, there is tension between what is 

required to prove a violation of the general duty clause and the need to provide guidance to the 

community whose work practices Complainant seeks to regulate. See, e.g., Pepperidge Farm Inc., 

17 BNA OSHC 1993, 2034 (No. 89-0265, 1997) (approving of the Secretary’s process approach 

to abatement of the hazard). 

When multiple forms of abatement are alleged as part of a process, proof of the feasibility 

of any individual abatement proposal is sufficient to affirm a violation of the general duty clause. 

See UHS of Westwood Pembroke, Inc., UHS of Delaware, Inc., No. 17-0737, 2022 WL 774272 at 

*8 (OSHRC, March 3, 2022) aff’d, No. 22-1845, 2023 WL 3243988 (3d Cir. May 4, 2023) 

(unpublished). In UHS of Westwood, the Commission affirmed the ALJ’s determination that the 

employer violated the general duty clause; however, in so doing, the Commission only reviewed 
3

the feasibility of some of the abatement proposals. Id. Because it could affirm based on any 

individual proposal, the Commission did not address the remaining abatement measures. Id. In a 

subsequent UHS case, Commissioner Laihow captured the tension described above. Although she 

concurred in the judgment affirming a violation of the general duty clause, Commissioner Laihow

expressed concern that the feasibility of each abatement proposal alleged to be part of an abatement 

process was not addressed. See UHS of Delaware, Inc. and Premier Behavioral Health Solutions 

of Florida, Inc. d/b/a Suncoast Behavioral Health Center, No. 18-0731, 2023 WL 2388069 at *11 

(OSHRC, Feb. 28, 2023) (“[I]n my view, it is important for the Commission to ensure that 

proposed abatement measures, such as the ones in this case, are properly vetted—i.e., that the 

Commission assesses their feasibility and effectiveness.”) (Laihow, Comm’r., concurring). The 

same tension exists in this case.

Although not mandatory precedent, the Court finds Commissioner Laihow’s concurrence 

provides insightful guidance as to how abatement proposals, characterized as a process, should be 

addressed. Indeed, if the Commission does not properly “vet” a handful of abatement proposals as

part of a larger process, the employer could be left wondering which of the abatement proposals is 

affirmed as a final order of the Commission. This is particularly important because, under Section 

10(b) and 17(d) of the Act, an employer can be cited for failure to abate the hazard, which can

subject them to $15,625 per day in penalties. See 29 U.S.C. §§ 659(b), 666(d); see also 88 Fed. 

Reg. 2210, 2220 (Jan 13, 2023) (annual adjustment of penalties). Commissioner Laihow’s 

concurrence also highlights an additional, albeit unstated concern: without a finding that a 

particular form of abatement is feasible, the Commission has ostensibly relieved the Secretary of 

its burden of proof as to that form of abatement. As in many of the UHS cases, it is easier to uphold 

an entire violation based on a paperwork abatement method versus a requirement to hire additional 

staff or make physical changes to the workplace, both of which require capital outlays. Given these 
4

concerns, the Court shall address the question of economic feasibility as to each of the proposed 

forms of abatement. 

III. Applicable Law

In order to address whether the Act permits a determination of economic feasibility on 

some basis other than cost and ability to pay, the Court will review how the Commission, as well 

as the circuit courts, have historically addressed this question. 

A. History of Feasibility under the OSH Act

The Commission first addressed the question of feasibility in Continental Can Co., No. 

3973, 1976 WL 6188 (OSRHC, Aug. 24, 1976) (consolidated). At issue was the interpretation of 

the term “feasible” as it is used in 29 C.F.R. § 1910.95(b)(1), which is the occupational noise 

standard. The Commission determined a cost-benefit analysis was required “to effectuate the 

Congressional purposes underlying the Act . . . .” Continental Can, 1976 WL 6188, at * 6. This 

holding remained Commission precedent for roughly six years until the Supreme Court decided

American Textile Manufacturer’s. Institute Inc. v. Donovan, 452 U.S. 490 (1981) (ATMI). See Sun 

Ship, Inc., No. 16118, 1982 WL 22716, overruled, The Sherwin-Williams Co., No. 14131, 1984 

WL 34904 (OSHRC, July 20, 1984). 

In ATMI, employers challenged the promulgation of the cotton dust standard on the 

grounds of economic feasibility. The Supreme Court was tasked with ascertaining the meaning of 

“feasibility” as it is used in section 6(b)(5) of the Act, which addresses toxic substances. See 29 

U.S.C. § 655(b)(5). Noting the Act did not define “feasibility”, the Court reviewed the Act as a 

whole, as well as its legislative history, and determined Congress intended to accord the term its 

plain and ordinary meaning, which is “capable of being done”. See ATMI, 452 U.S. at 508–509. 

In support of this finding, the Supreme Court stated: 
5

In effect then, as the Court of Appeals held, Congress itself defined the basic 

relationship between costs and benefits, by placing the “benefit” of worker health 

above all other considerations save those making attainment of this “benefit” 

unachievable. Any standard based on a balancing of costs and benefits by the 

Secretary that strikes a different balance than that struck by Congress would be 

inconsistent with the command set forth in § 6(b)(5). Thus, cost-benefit analysis by 

OSHA is not required by the statute because feasibility analysis is.

Id. at 509. 

The next year, the Commission issued its decision in Sun Ship, Inc. In Sun Ship, the 

Commission overruled Continental Can and held the term “feasible” under § 1910.95(b)(1) did 

not require a cost-benefit analysis for the same reasons expressed by the Supreme Court. See Sun 

Ship, Inc., No. 16118, 1982 WL 22716 at *4 (OSHRC, Dec. 17, 1982) (reasoning that “feasibility” 

under either section 6(b)(5) of the Act or under § 1910.95(b)(1) should be given its ordinary 

meaning because Congress did not give any indication it intended otherwise). Id. Instead, the 

Commission held that “administrative or engineering controls would be economically infeasible if

their cost would seriously jeopardize the cited employer’s long-term financial profitability and 

competitiveness.” Id. at *5. The Tenth Circuit Court of Appeals also adopted this concept of 

feasibility in the context of a general duty clause violation.

3 See Baroid Div. of NL Industries, Inc., 

660 F.2d 439 (10th Cir. 1981) (“The Supreme Court recently has made clear that “feasible” for 

purposes of OSHA means economically and technologically capable of being done.” (citing ATMI, 

452 U.S. at 509)); but see Donovan v. Castle & Cooke Foods, 692 F.2d 641 (9th Cir. 1982) 

(crediting Commission’s interpretation of feasibility to include a cost-benefit analysis in context 

of § 1910.95(b)(1) and finding ATMI not controlling for specific standards promulgated under 

section 3(8) of the Act).

3. The case at bar arose within the jurisdiction of the 10th Circuit. See Kerns Bros. Tree Svc., No. 96-1719, 2000 

WL 294514 at *4 (OSHRC, Mar. 6, 2000) (“Where it is highly probable that a Commission decision would be 

appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding 

the case—even though it may differ from the Commission's precedent.”).
6

Only two years after Sun Ship, when the Commission changed by one member, it changed 

course again and reinstituted the cost-benefit analysis of Continental Can. See Sherwin-Williams 

Co., No. 14131, 1984 WL 34904 (OSHRC, June 20, 1984). In Sherwin-Williams, the Commission 

premised its return to cost-benefit on three bases: (1) ATMI’s holding was limited to standards 

promulgated under section 6(b)(5) of the Act; (2) all circuit courts that have considered the costbenefit analysis of Continental Can have upheld it; and (3) the Walsh-Healey Act, which was the 

source of the noise standard found at § 1910.95(b)(1), supports the holding of Continental Can. 

See id. at *4. A deeper dive into those bases, however, illustrates a results-driven analysis. 

First, the Supreme Court’s holding in ATMI is not as limited as the Commission in SherwinWilliams believed it to be. The Court stated its discussion of feasibility was limited to whether 

section 6(b)(5) imposed a cost-benefit analysis. ATMI, 452 U.S. at 512 (“We need not decide 

whether § 3(8), standing alone, would contemplate some sort of cost-benefit analysis.”). 

Notwithstanding that limitation, the Court reviewed the entire Act and its legislative history and 

found Congress did not specifically define the term “feasible”. See id. at 511, 514 (“These and 

other statutes demonstrate that Congress uses specific language when intending that an agency 

engage in cost-benefit analysis.”). Accordingly, the Court accorded the term its plain and ordinary 

meaning, which is “capable of being done.” Id. This was also recognized by Commissioner Cleary, 

who was in the majority in Sun Ship but found himself dissenting in Sherwin-Williams: 

Sun Ship is predicated on a basic rule of statutory construction: regulations are to 

be construed consistent with the statutes under which they are promulgated and 

when terms are not defined in their regulatory context they must be interpreted in 

accord with underlying Congressional purpose. United States v. American Trucking 

Associations, 310 U.S. 534, 542 (1940). Moreover, unless a different intent is 

clearly evident, the same statutory terms are to be given the same meaning, 

Chugach Natives, Inc. v. Doyon Ltd., 588 F.2d 723 (9th Cir. 1979) (and cases cited 

therein), and regulatory language should be given the same meaning as the same 

language appearing in the statute. See Baroid Div. of N.L. Industries, Inc. v. 

OSHRC, 660 F.2d 439, 447 (10th Cir. 1981), and RMI Co. v. Secretary of Labor, 
7

594 F.2d 566 (6th Cir. 1979) (in which the statutory and regulatory uses of 

“feasible” are viewed as synonymous). 

Sherwin-Williams, 1984 WL 34904 at *10 (Cleary, Comm’r., dissenting). 

 Second, with the exception of Castle & Cooke, supra, the circuit court cases approving the 

cost-benefit analysis of Continental Can were decided prior to ATMI. See Sherwin-Williams, 1984 

WL 3904 at *5 (citing Carnation Co. v. Sec’y of Labor, 641 F.2d 801 (9th Cir.1981); Int’l

Harvester Co. v. OSHRC, 628 F.2d 982 (7th Cir.1980); RMI Co. v. Sec’y of Labor, 594 F.2d 566 

(6th Cir.1979); Marshall v. W. Point Pepperell, Inc., 588 F.2d 979 (5th Cir.1979); Turner Co. v. 

Sec’y of Labor, 561 F.2d 82 (7th Cir.1977)). As for Castle & Cooke, Commissioner Cleary adroitly 

pointed out that (1) the Ninth Circuit began its analysis “from a presumption of deference” to the 

Commission; (2) along similar lines, the court held only that ATMI did not require the Commission 

to abandon cost-benefit considerations; and (3) “the fact that there are different types of OSHA 

standards simply does not bear on the question of the meaning of feasibility” and, therefore

provides “no basis for grafting cost-benefit onto the term, whether the Act provides for one type 

of standard or a hundred.” Sherwin-Williams, 1984 WL 3904 at *11. 

Third, the Commission’s discussion of the legislation underlying §1910.95(b)(1)—the 

Walsh-Healey Act—in Sherwin-Williams is light on analysis and heavy on inference. The 

Commission majority starts with a discussion of the Walsh-Healey Act and its purpose and then 

veers into an odd narrative, devoid of legal citation or analysis, regarding the calculus contractors 

engage in when constructing a bid for government contracts. See, 1984 WL 3904 at *6 (“While 

the Walsh-Healey background of the noise standard does not reflect any regulative or adjudicative 

history suggesting the intent of its redactors, it is possible to reach some conclusions about what 

was understood by the word “feasible.”) (emphasis added). Based on that narrative, the 

Commission constructed its rationale for the necessity of a cost-benefit analysis. With the benefit
8

of hindsight, we now know it is improper for the Commission to supplant its own interpretation 

for that of a reasonable interpretation espoused by the Secretary. The Court finds the criticism 

levied by Commissioner Cleary strikes at the heart of the Sherwin-Williams’ majority analysis: 

“The Sun Ship Commission made no “reasonable assumptions” of what government contractors 

consider cost-effective. The Supreme Court has said that a regulatory word is to be given its 

dictionary meaning unless Congress intends otherwise. The ruminations of a mythical government 

contractor cannot substitute for the rule of law.” Id. at *11 n.3.

In addition to Commissioner Cleary’s criticism, it should be noted Castle & Cooke, as well 

as the other circuit court decisions approving of the Commission’s cost-benefit analysis, came 

before the Supreme Court’s decision in Martin v. OSHRC (CF&I), 499 U.S. 144 (1991) (finding 

Congress “did not expect the Commission to possess authoritative interpretive powers” and 

holding “the Commission is authorized to review the Secretary’s interpretations only for 

consistency with the regulatory language and reasonableness”) (emphasis added). Thus, any 

deference circuit courts may have granted to the Commission’s interpretation of the term was 

undue and suggests the cost-benefit approach is no longer good law. 

B. Feasibility & The General Duty Clause

It is hard to pin down the meaning of “feasibility” beyond the broad definition used by the 

D.C. Circuit in National Realty, which continues to be cited as the standard against which the 

Secretary’s burden is measured under the general duty clause. See, e.g., United States Postal Svc., 

No. 16-1713, 2023 WL 2263313 at *7 (OSHRC, Feb. 17, 2023) (consolidated). In National Realty 

& Construction Co. v. OSHRC, the D.C. Circuit established the Secretary’s obligation to prove 

feasibility as part of a general duty clause violation. Nat’l Realty & Constr. Co. v. OSHRC, 489 

F.2d 1257, 1268 (D.C. Cir. 1973) (holding the Secretary must establish “demonstrably feasible 

measures would have materially reduced the likelihood that such misconduct would have 
9

occurred”). Even though cited multiple times for many different propositions, National Realty’s 

holding regarding feasibility in the context of the general duty clause was not adopted by the 

Commission until three years later in Cormier Well Service, No. 8123, 1976 WL 5945 (OSHRC, 

Apr. 6, 1976) (finding Secretary established feasible steps were available to the employer to reduce 

the hazard).

4 The Tenth Circuit Court of Appeals also adopted the concept of economic feasibility

in the context of a general duty clause violation. See Baroid Div. of NL Indust., Inc., 660 F.2d 439 

(10th Cir. 1981) (“The Supreme Court recently has made clear that “feasible” for purposes of 

OSHA means economically and technologically capable of being done.” (citing ATMI, 452 U.S. 

490, supra)).

While National Realty and Baroid require the Secretary to establish feasibility as part of 

her prima facie burden, neither provides much clarity as to the appropriate metric for the economic

half of that analysis. The discussion of economic feasibility in National Realty is almost wholly 

contained in a footnote, wherein the D.C. Circuit stated: 

Similarly, a precaution does not become infeasible merely because it is expensive. 

But if adoption of the precaution would clearly threaten the economic viability of 

the employer, the Secretary should propose the precaution by way of promulgated 

regulations . . . rather than through adventurous enforcement of the general duty 

clause.” 

Nat’l Realty & Constr., 489 F.2d at 1268 n.37 (emphasis added).5 Baroid is equally light in its 

analysis of economic feasibility. In Baroid, the 10th Circuit cited ATMI for the proposition that 

“feasible” means “economically and technologically capable of being done”, but its analysis of the 

4. Administrative Law Judge John J. Morris appears to have issued the first decision referencing the general duty 

clause that ended up before the Commission; however, the Secretary ultimately withdrew its petition for review 

“because of the inability to meet the burden of proof required by National Realty.” Getter Trucking, Inc., No. 

2701, 1974 WL 4078 at *1 (OSHRC, Apr. 29, 1974). 

5. As noted by the Commission, “As with other aspects of the general duty clause, Judge J. Skelly Wright’s 

comments on economic feasibility were obiter dictum; however, Judge Wright’s comments have invariably 

served as authoritative rules in a number of subsequent cases decided by various Courts of Appeals.” Inland 

Steel Co., No. 79-3286, 1982 WL 153528 at *11 n.17 OSHRC, Apr. 7, 1982) (emphasis in original) (citing Nat’l 

Realty, 489 F.2d at 1266 n.37). 
10

evidence on the issue of economic feasibility is limited to a simple statement that “the record 

suggests that the fourth method is not economically capable of being done.” Baroid, 660 F.2d at 

447.6 

What does it mean for an abatement proposal to be “economically . . . capable of being 

done”? The D.C. Circuit (in dicta) indicated an employer would be economically capable of 

implementing an abatement proposal if its adoption would not “clearly threaten the economic 

viability of the employer . . . .” Nat’l Realty, supra. In Waldon Healthcare Group, the Commission 

attempted to compile “factors” it believed were germane to that assessment: 

One of the criteria for determining whether a proposed measure of abatement is 

feasible is whether the proposed measure is cost prohibitive. General Dynamics, 15 

BNA OSHC at 1287, 1991 CCH OSHD at p. 39,759. Under the general duty clause, 

an employer is not required to adopt measures that would threaten its economic 

viability. National Realty, 489 F.2d at 1266 n. 37. One issue to consider when 

determining whether abatement is economically feasible is whether the cost of 

compliance would jeopardize a company’s long-term profitability and 

competitiveness. Sun Ship, Inc., 11 BNA OSHC 1028, 1033, 1983–84 CCH OSHC 

¶ 26,353, p. 33,421 (No. 16118, 1982). Another factor relevant to that consideration 

is whether the employer can pass the costs on to the customer. Walker Towing 

Corp., 14 BNA OSHC 2072, at 2077 n. 9, 1991 CCH OSHD ¶ 29,239, p. 39,161 n. 

9 (No. 87–1359, 1991). 

Waldon Healthcare Grp., No. 89-2804, 1993 WL 119662 at *15. 

At a minimum, the above analysis implies economic feasibility is the ability of the 

employer in this case to afford what the Secretary says is required; cost alone is not sufficient to 

establish feasibility. See id. (holding Secretary failed to establish economic feasibility when it 

presented evidence of cost but failed to provide evidence of profits or financial condition of the 

employer). For some courts, that requires a multi-year, comprehensive look at the company’s 

6. The “fourth method” in question required the employer to monitor the mud men at each drilling site that meets 

certain qualifications. The court determined this method was not economically capable of being done because 

“the record reflects that every mud man works at several drilling sites in a given period of time and that petitioner 

employs numerous mud men.” Baroid, 660 F.2d at 447. Without a more in-depth discussion of cost or the 

employer’s ability to afford the proposed method, however, it is unclear why the logistical issues associated with 

monitoring mud men is economically infeasible. 
11

financial picture. See Smith Steel Casing Co. v. Brock, 800 F.2d 1329, 1339 (5th Cir. 1986) 

(rejecting ALJ’s finding of economic feasibility based on evidence of a single year of income and 

profits because it was unclear if that year was typical for the purpose of assessing whether the 

proposal would threaten the employer’s economic viability). Thus, the question is not merely 

whether Respondent can afford implementing a proposed form of abatement, but whether the cost 

associated with it “would jeopardize [its] long-term profitability and competitiveness.” See 

Waldon, 1993 WL 119662 at *15.7 Accordingly, in most cases, the Commission and circuit courts 

rely on expert financial/economic testimony. See United States Postal Svc., 2023 WL 2263313; 

Beverly Enters., Inc. d/b/a Richland Manor, No. 91-3144, 2000 WL 34012177 (OSHRC, Oct. 27, 

2000) (consolidated). 

As argued by the Secretary, however, there are instances where the Commission and courts 

have found economic feasibility without evidence of cost or ability to pay. In those cases, it appears 

the Commission and courts have been guided in a manner similar to the Ninth Circuit in Castle & 

Cooke, which stated, “[R]ealism and common sense should dictate how the Secretary may meet 

his burden of providing substantial evidence of feasibility.” Castle & Cooke Foods, 692 F.2d at 

650. See also Chao v. Gunite Corp., 442 F.3d 550, 559 (7th Cir. 2006); Sherwin Williams, 1984 

WL 34904 at *7. For example, the D.C. Circuit determined substantial evidence supported an

ALJ’s finding that the Secretary’s proposed abatement was feasible as a general proposition, 

because the employer had already “implemented many of these measures on its own.” SeaWorld 

of Fla. v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2014); see also Science Applications Int’l Corp. 

(SAIC), No. 14-1668, 2020 WL 1941193 at *8 (OSHRC, Apr. 16, 2020). The First Circuit found 

7. In Waldon, the Commission held one factor to consider in making this determination is whether the cost can 

be passed along to the customer. Id. There was no evidence regarding transferring costs or income on a patientby-patient basis, rendering this factor moot. 
12

the Secretary had proved its abatement method was feasible, because the ANSI standard upon 

which it was based had been in effect for nearly 60 years and because other owners of similar 

equipment had implemented the proposed abatement. See Puffer’s Hardware, Inc. d/b/a Beacon 

Hardware v. Donovan, 742 F.2d 12, 19 (1st Cir. 1984). 

Along similar lines, the Seventh Circuit held the Secretary’s abatement proposals were 

economically feasible when it found “the Company’s previous use or contemplated use of a 

protective mechanism indicates a sufficient level of economic feasibility.” Modern Drop Forge, 

Co. v. Sec’y of Labor, 683 F.2d 1105, 1114 (7th Cir. 1982). The court also found “the fact that 

other companies having similar hammers comply with the regulation indicates that it is feasible.” 

Id. at 1114.8 In Coastal Drilling East, LLC, a Commission ALJ found the Secretary’s proposed 

abatement measures were economically feasible in the absence of any evidence of cost, because

“it is reasonable to infer the cost of developing SOPs that include training and observation would 

be minimal, capable of being done, and not at all threatening to the economic viability of [the 

employer].” Coastal Drilling East, LLC, No. 17-1179, 2019 WL 7080227 at *7–8 (OSHRCALJ, 

Dec. 13, 2018). Recently, the Commission provided an additional way for economic feasibility to 

be established without evidence of cost or ability to pay. See UHS Delaware, supra at *4–5. The 

Commission held Respondent’s failure to challenge the economic feasibility of 6 out of the 8 

proposed forms of abatement, in effect, constituted a concession that all abatement proposals were 

feasible, because it only takes proof of a single form of abatement to establish the existence of a 

violation when those forms of abatement are alleged as a process. Id. 

8. In discussing “previous or contemplated use”, the Seventh Circuit was likely referring to the ALJ’s finding of 

fact that the employer had previously experimented with an abatement method similar to that proposed by the 

Secretary but only abandoned it after receiving employee complaints. See Modern Drop Forge Co., (No. 76-331, 

1981 WL 19333) (OSHRCALJ, Apr. 9, 1981). 
13

 Respondent’s principal argument against a finding of economic feasibility is that 

Complainant failed to provide any evidence whatsoever of the cost of the proposed abatements or 

of Respondent’s ability to pay. While there are cases, such as Beverly Enterprises, Inc. and Smith 

Steel Casting Co., which involved extensive expert economic testimony, there are other cases that 

do not reference such evidence at all. Respondent attempts to distinguish Beverly and Smith Steel

by pointing out the cases cited by Complainant do not directly address the question of economic 

feasibility. For example, Complainant cites to SAIC and SeaWorld, wherein the Commission and 

the D.C. Circuit, respectively, determined the proposed abatement was feasible because the 

employer had already implemented it. See SAIC, 2020 WL 1941193 at *8; SeaWorld of Florida, 

LLC, 748 F.3d at 1215. Respondent contends these cases are inapplicable because the employers 

in those cases did not challenge economic feasibility. 

Notwithstanding the employers’ failure to specifically challenge economic feasibility, the 

Court nonetheless finds the Commission’s and D.C. Circuit’s conclusions as to feasibility, as a 

general matter, apply with equal force to both economic and technological feasibility. This is a 

matter of common sense: if a company implements a proposed form of abatement, then its 

implementation would not “clearly threaten [its] economic viability”. Nat’l Realty, supra. As such, 

it falls in line with the Ninth Circuit’s admonition that “realism and common sense should dictate

how the Secretary may meet his burden of providing substantial evidence of feasibility.” Castle & 

Cooke Foods, 692 F.2d at 650. 

The foregoing establishes three things. First, the Secretary is required to prove the 

economic feasibility of her proposed abatement measures. Second, the standard for economic 

feasibility is broad, requiring only proof that the abatement proposal will not “clearly threaten the 

economic viability of the employer . . . .” Nat’l Realty, supra. Third, there are instances where the 
14

Secretary can meet that burden of proof without evidence of the cost of those measures or of the 

employer’s ability to pay for them. 

IV. Analysis

To recap, Complainant proposed the following measures as a process to abate the hazard 

of workplace violence: 

(1) reconfiguring nurse stations to prevent patients from entering and using items as weapons; 

(2) providing communication devices to all staff members; 

(3) developing “one written comprehensive” workplace violence prevention program; 

(4) designating qualified staff to monitor for potential patient aggression and respond to violent 

events;

(5) communicating workplace violence incidents to all employees; 

(6) training staff who may come into contact with patients; 

(7) investigating and debriefing affected staff after each workplace violence incident; 

(8) “[e]nsur[ing] safe staffing levels across all shifts to ensure adequate staff coverage for 

behavioral emergencies”; and 

(9) “[e]valuat[ing] and . . . replac[ing] or redesign[ing] furniture to assure that it cannot be used 

as a weapon.” 

See UHS of Denver, Inc., d/b/a Highlands Behavioral Health Sys., No. 19-0550, 2022 WL 

17730964 at *1, n.3 (OSHRC, Dec. 8, 2022).9

Complainant argues she established the foregoing abatement methods were economically 

feasible because (1) they only require minor modifications to existing practices; (2) Respondent 

need only implement what it already claimed to be doing; (3) Respondent has already implemented 

several of the proposals; and (4) similarly situated employers have implemented those same 

proposals. Although Respondent did not introduce any countervailing evidence to suggest the 

foregoing process, or any element thereof, was infeasible, it contends Complainant failed to meet 

its burden of proof to establish its prima facie case. Specifically, Respondent contends: the 

9. As noted in this Court’s Order on Remand, dated January 10, 2023, Complainant originally alleged ten 

abatement proposals as part of the process to abate workplace violence; however, Judge Ball determined one, 

continuous monitoring of security cameras, would not be materially effective. See UHS of Denver, Inc., d/b/a 

Highlands Behavioral Health Syst., No. 19-0550, 2022 WL 17730964 at *39 (OSHRC, March 1, 2022) (citing 

reference made to ALJ decision, which is appended to the end of Commission Decision and Remand on 

Westlaw). 
15

foregoing arguments are not supported by case law, the cases relied upon by Complainant are 

distinguishable on the facts, and the circumstantial evidence Complainant relies upon (in lieu of 

proof of cost and ability to pay) is insufficient to establish economic feasibility. The Court will 

address these arguments in the context of each of the proposed abatement methods.

A. Reconfiguring Nurse’s Stations 

Complainant contends modifying the existing nurse’s stations is economically feasible on 

two bases. First, Complainant presented evidence from multiple former employees, who testified 

their current employers had enclosed nurse’s stations, which Complainant argues illustrates its 

feasibility. In support, Complainant cites Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 19 (1st 

Cir. 1984), wherein the court found the proposed abatement was economically feasible because 

other employers had implemented the same measure. See also Modern Drop Forge, 683 F.2d at

1114, supra. As such, the court determined it was reasonable to infer economic feasibility due to 

the industry standard’s longstanding vitality. Puffer’s Hardware, Inc., 742 F.2d at 19. Respondent 

contends Complainant’s reliance on Puffer’s is misplaced because the ANSI standard upon which 

the proposed abatement was based had been in place for nearly 60 years, which is considerably 

longer than the current iteration of the Guidelines for Preventing Workplace Violence for 

Healthcare and Social Service Works has been available.

Puffer’s provides an interesting illustration of the issue currently before the Court. While 

the Court agrees the First Circuit’s assessment of the abatement in Puffer’s was premised, at least 

in part, on the fact that it had been long-established as an ANSI standard, the court also noted its 

conclusion is “further supported by the evidence that other owners of similar elevators had 

converted their elevators.” Id. In other words, it was not the existence of the long-standing 

standard, alone, which established economic feasibility, but also its adoption by other, similarly 
16

situated employers. When viewed in this light, this makes Complainant’s case more compelling, 

but is not sufficient in and of itself. 

Second, Complainant argues Respondent showed the reconfiguration was economically 

feasible because it was in the process of raising the counter height in one unit while the trial was 

pending. (Tr. 3293). Respondent’s principal response to this argument is that Complainant 

“contends that all the nurses’ stations must be reconfigured and that modifications beyond raising 

the counter height are required.” Resp’t Suppl. Br. at 4. And, because Complainant did not 

introduce any evidence of cost or ability to pay, there is no proof that reconfiguring every nurse’s 

station would be feasible. Id. at 4–5. The Court is not persuaded by this argument. 

In SeaWorld, the employer had already implemented the proposed form of abatement as to 

one whale, and the D.C. Circuit determined it was feasible to apply that abatement to all humanwhale training interactions. 748 F.3d at 1215. Complainant is asking no more of Respondent in 

this case than to equally apply abatement measures where the hazard has been identified, which, 

according to the Court’s count, includes three units.

10 Irrespective of evidence of cost, Respondent 

has itself shown a design modification intended to “prevent patients from jumping over, reaching 

into or over or otherwise entering into the workstations” was not detrimental to its long-term 

viability, because it was being modified at the time of trial. Citation and Notification of Penalty at 

6. 

Because Respondent modified the nurse’s station in at least one of the three areas within 

the facility, the Court finds it is reasonable to infer similar modifications are “capable of being 

done” to the other areas without impacting Respondent’s viability. See Okland Const. Co., No. 

10. The evidence showed most of the violent interactions occurred in the high-acuity and adolescent units. A 

workplace violence assessment, as required by the WVPP, may show such interventions are not necessary in all 

three units. 
17

3395, 1976 WL 5934 (OSHRC, Feb. 20, 1976) (reasonable inferences can be drawn from 

circumstantial evidence).

B. Communication Devices 

The arguments about the nurse’s station are equally applicable to Complainant’s proposal

that Respondent “[p]rovide all staff members with a reliable and readily available communication 

device, such as a walkie-talkie or panic alarm button . . . .” Citation at 6. According to Thomas 

Braswell, who was responsible for purchasing equipment for Respondent, not only did he purchase 

enough radios for each employee in the units to have a radio on them at all times, but Respondent 

instituted a policy requiring it. (Tr. 3358-3360). This definitively establishes Complainant’s 

proposed abatement is both technologically and economically capable of being done—because it 

was done. Baroid, 660 F.2d 439. 

C. Comprehensive Workplace Violence Prevention Program 

With respect to the WVPP, Complainant has not required Respondent to do something it 

was not already required to do, or, for that matter, something it was not already doing. The 

evidence illustrates Respondent had a WVPP, albeit one that was deficient in many respects, 

according to expert testimony. As found by Judge Ball, Respondent did not need to institute a

completely new program. More than anything, Respondent’s program required a shift in focus. 

For example, Dr. Lipscomb testified Respondent’s program lacked a consistent definition of 

workplace violence, which, in turn, impacted Respondent’s ability to effectively track and respond 

to it. (Tr. 3655, C-62 at 25). Thus, Dr. Lipscomb testified Respondent needed to review and modify 

its program to account for this deficiency. As it turns out, Respondent is already required to 

perform an annual review and implement modifications based on that review. (Ex. C-11 at 8). Not 

only does Respondent have the framework of the proposed abatement, but the plan itself 

contemplates constant review and revision of its provisions based on hazard, illness, and injury 
18

trends identified through various data collections, i.e., OSHA 300 Logs, Post Incident Debriefings, 

and Employee Accident Reports. Id.; see also Modern Drop Forge, Co., 683 F.2d at 1114 (“[T]he 

Company’s previous use or contemplated use of a protective mechanism indicates a sufficient level 

of economic feasibility.”). Modifications, such as those suggested by Dr. Lipscomb, are already 

built into Respondent’s existing WVPP as part of its annual review process. Complainant is asking 

no more of Respondent than it already requires of itself, even if Respondent’s execution of the 

plan left something to be desired. Accordingly, the Court finds this proposed abatement method is 

economically feasible. 

D. Communicating Workplace Violence Incidents 

Whether viewed individually, or in conjunction with the foregoing abatement proposals, 

the Court finds Complainant’s proposed enhancements to its existing regime of communicating

workplace violence incidents would not impact Respondent’s long-term financial viability and, 

thus, is economically feasible. This abatement flows naturally from Complainant’s proposed 

modifications to the WVPP, which include an expanded definition of workplace violence and 

employer commitment to meaningful employee participation. As noted by Dr. Lipscomb, 

employee participation is a vital aspect of a WVPP and can only be realized by including 

employees in programs and committees designed to reduce workplace violence. (Tr. 3643, 3756). 

As with the proposed modifications to the WVPP, Complainant is not really asking Respondent to 

do anything it is not already doing (or says it is doing, according to policy). As noted by Judge 

Ball, “Respondent has policies regarding the exchange of information from intake to the unit, 

between shifts on a particular unit (shift handoff reports), and through meetings/committees such 

as the PIC, PSC, and treatment team meetings.” UHS – Highlands, 2022 WL 17730964 at *42; 

see also id. at *19-20 (identifying the various documents, committees, and meetings used to 

discuss workplace violence). The Court finds it is economically feasible to utilize existing 
19

information and policies to collect information, while simultaneously using existing committees 

and programs to more effectively carry out the stated purpose of a WVPP. 

E. Training Staff 

As with the previous two abatement proposals, Respondent has an existing training 

framework, which includes orientation and regularly scheduled competency fairs “where 

employees sign up for refresher training and develop practical skills.” Id. at *22. Based on this 

Court’s reading of the record, Respondent’s failures vis-à-vis training were twofold: (1) failing to 

train on the WVPP and linking training, such as Handle With Care, to the WVPP; and (2) failing 

to properly track and ensure training was implemented on a per-employee basis. As with the 

Court’s discussion regarding the communication of workplace violence incidents, this abatement 

proposal also arises out of the proposed modifications to the WVPP. A program which requires 

annual modifications to address the hazard of workplace violence will also require equivalent 

modifications to its training program to appropriately address those hazards. (Ex. C-11). 

The modifications proposed by Complainant require no more of Respondent than to train 

its employees on the WVPP11 and to use its existing training regime to show how other policies

are connected to it. Respondent’s competency fairs, through which employees receive refresher or 

periodic training, are custom-built for the implementation of Complainant’s proposal. The 

framework for providing such training already exists. Respondent need only provide training 

specific to its comprehensive plan to prevent workplace violence and connect the plan’s principles 

to Respondent’s existing regimen of training designed for that same purpose. Complainant is not 

seeking anything new here. It is entirely consistent with Respondent’s pre-existing, self-imposed 

obligation to perform an annual review “to assure that the facility is implementing corrective 

11. Respondent claimed to do this, but the weight of the evidence indicates otherwise. (Tr. 137, 845, 988, 1150, 

3341). 
20

actions that are capable of effective and sustainable hazard elimination and/or control.” (Ex. C-11 

at 8). Within Respondent’s then-existing WVPP, that included “Staff Education, Training & 

Competency” as a “core principle” for preventing workplace violence. Id. at 1. 

The Court finds providing training specific to its WVPP and connecting that training to 

other coursesrelated to workplace violence within the framework described above will not “clearly 

threaten the economic viability of” Respondent. Nat’l Realty & Constr., 489 F.2d at 1268 n.37. 

Accordingly, the Court finds this abatement proposal is economically feasible. 

F. Investigating and Debriefing Affected Staff After Workplace Violence Incidents

Like many of the abatement proposals discussed above, this proposal is connected to 

Complainant’s proposed changes to the WVPP. And, for many of the same reasons, the Court finds 

this proposal would be economically feasible. Respondent’s program already requires 

post-incident debriefing for patient aggression incidents resulting in restraint or seclusion. (Tr. 

163-64, C-11, C-40 to C-49). Respondent also claims it conducts similar debriefing after each 

incident of patient-on-employee violence that does not involve restraint or seclusion.

12

Respondent’s true issue with this proposal was the inclusion of so-called “near-misses” as part of 

its debrief and investigation process. But, all the experts, including Respondent’s own Dr. Cohen, 

testified that “‘situation[s] that could potentially have resulted in death, injury, or illness’, should 

be investigated, reported, recorded, and monitored.” (Ex. 65 at 12, 29). Thus, Respondent is only 

being asked to consistently apply a program it already has and to include within its ambit events 

that had the potential to result in death, injury, or illness (but did not). Considering Respondent 

claimed to be providing training using a definition of workplace violence that would include 

12 This was disputed by Respondent’s employees, and there is no documentation to establish whether this claim 

is true; however, that is not relevant to the question of economic feasibility. The fact that Respondent has an 

existing program for debriefing incidents of patient aggression and conducting investigations of such incidents, 

however, is. 
21

near-misses, the economic impact of the foregoing change would appear to be de minimis, at best.

(Ex. C-12 at 3). That all three experts testified to the importance of the foregoing aspects of a 

WVPP further bolsters this conclusion. See Puffer’s, 742 F.2d 12, supra. 

G. Evaluating and Replacing/Redesigning Furniture 

As with the proposal regarding the purchase of sufficient radios to ensure each employee 

on the unit has one, Respondent illustrated the economic feasibility of this proposal through its 

own actions. Jill Orr, former chief nursing officer for Respondent, testified that, after the 

inspection, Respondent had purchased additional weighted furniture and found ways to increase 

the weight of some of its existing furniture to reduce the likelihood it would be used to injure other 

patients or staff. (Tr. 2887). In so doing, Respondent illustrated this method is both technologically 

and economically capable of being done. Accordingly, the Court finds this abatement proposal is 

economically feasible. 

H. Ensuring Safe Staffing Levels 

Complainant argues she established the economic feasibility of the staffing related 

measures “through expert testimony and evidence regarding Respondent’s own practices.” 

Compl’t Suppl. Br. at 5. Regarding whether staffing was adequate, Complainant focuses on 

Respondent’s “previous use or contemplated use” of additional staff members to illustrate the 

economic feasibility of adding more staff. Id. (citing Modern Drop Forge Co., 683 F.2d at 1114). 

In particular, Complainant points out that, in those instances where Respondent did not have 

enough staff called for by the staffing matrix, Respondent could offer bonuses to pick up an extra 

shift, house supervisors could bring in additional staff without permission, and schedulers did not 

need approval of senior management to staff above the matrix. (Tr. 3231–3233, 3546–3547). 

Further, Complainant points out that Respondent’s parent company sent a divisional nursing 

director, who also recommended additional staffing to keep employees safe. (Ex. C-25 at 5).
22

When compared to the abatement measures discussed above, the evidence in support of the 

economic feasibility of additional staffing is lacking. On its face, having programs to compensate 

employees for coming in to cover shifts or provide additional staffing when needed indicates some 

funds are available to address staffing over and above the base levels established in the staffing 

matrix. However, these are stopgap measures and do not address the economic realities of hiring 

multiple, full-time employees, whose cost must be budgeted for in terms of salary, benefits, 

training, and other associated expenses. The Court is without any evidence as to how much 

Respondent paid in bonuses, overtime, or additional shifts, nor is it aware of how often such 

payments were made. There is no evidence of how much a single, let alone multiple, full-time 

employee(s) would cost relative to Respondent’s stopgap staffing measures. Without such 

evidence, Complainant’s reliance on those stopgap measures as proof of economic feasibility is 

misplaced. 

Further, unlike the other measures discussed above, there is no alternative, non-economic 

evidence sufficient to establish economic feasibility. Though not specifically argued by 

Complainant with respect to this abatement proposal, there was evidence the staffing ratios 

changed after the inspection took place. Lori Ayala, a house supervisor for Respondent, testified 

the staffing matrix used at trial was outdated and that more employees would be present when the 

patient census approached an equivalent level in the new matrix. (Tr. 3285-3286; Ex. C-16). On 

cross-examination, however, Ayala also testified the facility changed from three eight-hour shifts 

to two twelve-hour shifts, which changed how employees were allocated on a day-to-day basis but 

not the patient-to-employee ratio. (Tr. 3539-3540). The evidence of changing staff numbers is 

equivocal, at best. Accordingly, the Court finds Complainant failed to prove additional staffing 

would be economically feasible. 
23

I. Designating Staff to Monitor for and Respond to Patient Aggression 

With respect to this form of abatement, Complainant suggests expert testimony provided 

by Drs. Lipscomb and Argumedo, as well as Dr. Cohen, establish its economic feasibility. In 

particular, Complainant argues their testimony, as well as that of former employees, established 

other facilities have successfully implemented dedicated security guards. Thus, Complainant 

argues, because the use of dedicated security staff was “capable of being put into effect” in other 

locations, it must therefore be economically and technically feasible. While these measures were 

capable of being put into effect in other places, the Court is concerned about this location and 

whether Complainant has established, on some basis other than cost, that additional, dedicated 

security staff is economically feasible for Respondent. See UHS of Delaware, supra at *17 

(Comm’n. Laihow, concurring) (finding unpersuasive Secretary’s evidence that other facilities 

used similar abatement because record lacked evidence indicating facilities are similar in type, 

size, function, or impact of staffing costs). The Court finds neither the facts, nor the law cited by 

Complainant support that conclusion. 

Complainant conflates economic and technological feasibility. While there are some 

circumstances where proof of one is sufficient to prove the other, that is not necessarily the case. 

As illustrated multiple times above, implementation of an abatement proposal by this employer 

after the inspection shows it is technologically capable of being implemented, because they 

implemented it. But, it also illustrates economic feasibility, because the abatement was not so 

financially ruinous as to prevent Respondent from implementing it. That evidence is not present 

here. Instead, Complainant invites the Court to take an inferential leap and find Respondent is 

financially capable of hiring dedicated security guards merely because another institution has done 

so. This is where Commissioner Laihow’s concerns come to fruition. 
24

Evidence that another institution could implement a form of abatement may, on its own,

show technological feasibility; however, such proof only shows that institution was able to afford 

it. The general duty clause is a special standard, so to speak. It permits the Secretary to pursue an 

employer for a unique failure to protect its own employees. Thus, it is incumbent upon the 

Secretary to provide evidence this employer can afford the specific, non-promulgated 

recommendations of the Secretary. See Nat’l Realty & Constr., 489 F.2d at 1268 n.37 (emphasis 

added) (“But if adoption of the precaution would clearly threaten the economic viability of the 

employer, the Secretary should propose the precaution by way of promulgated regulations . . .

rather than through adventurous enforcement of the general duty clause.”) (emphasis added). 

There is very little evidence of similarity between Respondent’s facility and any of the 

institutions described in the Road Map, nor is there evidence of Respondent consistently 

employing a dedicated security staff. It is true, Respondent employed the so-called QSR float staff 

for a while to address the very concerns at issue in this case. (Tr. 1143, 2342). That fact established 

the technological feasibility of such a measure; however, the evidence for why the program no 

longer exists cuts against Complainant’s argument for economic feasibility. According to Jill Orr, 

the QSR program was eventually cut due to “budgetary constraints”. (Tr. 2344-2345). There was 

no evidence to contradict this claim. 

Complainant’s reliance on First Judge Augustine’s decision in UHS of Centennial Peaks 

LLC is misguided, as well. Complainant argues First Judge Augustine found similar abatement 

measures were economically feasible because “as illustrated in the Road Map, most, if not all, of 

the [] abatement measures have been implemented in facilities like Respondent’s throughout the 

country.” UHS Centennial Peaks LLC, No. 19-1579, 2022 WL 4075583 (OSHRCALJ, July 14, 
25

2022), appeal docketed, No. 22-9572 (11th Cir. Oct. 26, 2022).

13 That factor was a tack-on to three 

sound bases upon which to find economic feasibility: (1) many abatements only required a change 

in policy, documentation, or practice; (2) Respondent implemented many of the abatement 

proposals, including additional staffing, after the inspection occurred; and (3) Respondent failed 

to provide countervailing economic evidence to undermine the testimony of its own CFO that it 

could afford additional staff or modifications to the nurse’s station. None of those factors are

present here.

Based on the foregoing, the Court finds Complainant failed to prove the implementation of 

a dedicated security staff was economically feasible. 

V. Conclusion 

As argued by Respondent, the Guidelines published by OSHA are not standards nor do 

they alter existing obligations. However, that is not the issue here; rather, the Court was asked 

whether the proposals are economically feasible. The Guidelines’ status as an advisory document 

does not alter Respondent’s obligation to address recognized hazards at its worksite, irrespective 

of the source of the proposed abatement methods. It is not Respondent’s failure to implement 

specific forms of abatement that is the basis of the Citation; rather, it is the overwhelming evidence 

of workplace violence and Respondent’s insufficient attempts to address it. The proposed forms 

of abatement are not requirements in and of themselves; however, to the extent Respondent has a 

workplace violence problem it needs to address, Complainant can use the Guidelines as

recommended means to abate that hazard. 

Along those same lines, however, Commissioner Laihow’s concerns regarding the 

Commission’s obligation to vet individual abatement proposals become particularly acute when 

13. This matter was ultimately settled by the parties prior to it being decided by the Tenth Circuit. 
26

the Secretary proposes multiple forms of abatement as part of a process, as was the case here. In 

such a case, the Commission is not only being asked whether Respondent can afford one form of 

abatement but a series of abatement proposals. With respect to those proposals, courts must address 

a host of questions involving the affordability of those proposals and the scope of their 

implementation. These questions become difficult to answer if Complainant is only required to 

establish the feasibility of a single form of abatement. Further, it provides the Secretary with an

unqualified tactical advantage to plead a series of abatement measures as a process and only require 

proof of the feasibility of one to establish a violation. 

Nevertheless, consistent with existing Commission precedent, the Court finds Complainant 

established a violation of the general duty clause. Complainant established seven out of the 

remaining nine forms of abatement are economically feasible, which is sufficient to prove a 

violation. See UHS of Westwood Pembroke, Inc., UHS of Delaware, Inc., 2022 WL 774272 at *8 

(OSHRC 2022) aff’d, No. 22-1845, 2023 WL 3243988 at *1, fn. 2 (3d Cir. May 4, 2023) (Third 

Circuit affirming the Commission on this specific point of law). Accordingly, the Citation is 

AFFIRMED.

VI. ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is AFFIRMED and a penalty of $11,934 is ASSESSED. 

SO ORDERED. 

 /s/

Dated: June 1, 2023

Denver, Colorado 

Joshua R. Patrick

Judge, OSHRC