By Mark A. Lies, II and Meagan Newman

The 10th Circuit Court of Appeals recently issued a decision that effectively and measurably lowers OSHA’s burden of proof to establish an OSHA violation to “what a reasonably prudent employer would do.” Compass Environmental, Inc. v. Occupational Safety and Health Commission; Department of Labor, No. 10-9541 (Dec. 19, 2011). The decision is contrary to the Review Commission’s long-standing four-part Atlantic Battery test and establishes no measurable criteria for an employer to use to determine what is required and whether the employer is compliant. An analysis of the decision is available here.