Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

Mark S. Dreux

Mark S. Dreux
Mark S. Dreux
OSHA Practice Group Leader
Washington, DC

Practice Areas

Mark S. Dreux is the head of the OSHA Group in Arent Fox’s Labor & Employment Practice and is nationally recognized for his work in occupational safety and health law. Mark focuses on representing employers and trade associations in all aspects of the Occupational Safety and Health Act (OSH Act). His practice includes counseling clients in regulatory compliance with the standards and regulations which OSHA and the state plans have promulgated, investigating significant workplace incidents, managing OSHA inspections, contesting OSHA citations, defending employers in OSHA enforcement actions, conducting safety and health audits and due diligence reviews, and engaging in regulatory advocacy.

Professional Recognition

Recently, Mark was recognized by EHS Today as one of the 50 most influential leaders in the field of occupational safety and health.

Client Work

Over the last 20 years, Mark has defended employers in 30 fire and explosion incidents, 105 fatality investigations, and hundreds of citations alleging violations of the general duty clause and OSHA standards, particularly, process safety management (PSM), lockout/tagout (LOTO), hazard communication (HAZCOM), emergency response, permit required confined spaces, personal protective equipment, including respirators, recordkeeping, and guarding. From 1984 to 1987, Mark was a federal prosecutor, and he frequently combines his extensive knowledge of criminal and OSHA law to defend employers in criminal OSHA proceedings.

Significant OSHA Cases include:

  • Secretary of Labor v. Dow Corning Corp., KOSHRC No. 4888-12.  Following a two-day trial, the Administrative Law Judge agreed that a reciprocating pump did not need a guard and vacated the citation.
  • Secretary of Labor v. Interstate Brands Corporation, OSHRC Docket No. 00-1077 (April 24, 2003). Following a trial, the administrative law judge rejected the Secretary’s argument for machine specific LOTO procedures and accepted IBC’s generalized LOTO program. Moreover, IBC successfully asserted the employee misconduct defense by a supervisor, and all citations were vacated.
  • Secretary of Labor v. Mead Coated Board, OSHRC Docket No. 01-0551 (December 10, 2002). After an evidentiary hearing, OSHA’s experts were barred from testifying on Daubert grounds, and after a lengthy trial, 5 serious, 1 willful, and 1 repeat citations were vacated. The citations had alleged violations of the emergency response, respirator, HAZCOM, and LOTO standards.
  • American Petroleum Institute v. Secretary of Labor, Docket No. 00-60124 (5th Cir. April 11, 2000). OSHA had issued two interpretation letters that significantly changed two exemptions to the PSM standard. At the close of the litigation, OSHA withdrew both interpretation letters.
  • Chemcentral Corp. et al. v. Occupational Safety and Health Review Commission, Secretary of Labor, et al., No. 97-CI-01384 (Commonwealth of Kentucky, Franklin Circuit Ct., March 30, 1998). For years, federal OSHA has interpreted the PSM standard to cover the blending of flammable liquids. Persuaded the Kentucky Labor Cabinet that federal OSHA’s interpretation of the PSM standard was incorrect, and all PSM citations were withdrawn.
  • Ben Robinson v. Texas Workers Compensation Commission, 934 S.W.2d 149 (Tex. Ct. App. 1996). Lead counsel in a challenge to a state safety program which was declared unconstitutional. Section 18(c) of the OSH Act preempted the state program. Attorneys’ fees were awarded.
  • In re Terra International, Inc., No. 110123 (Iowa Dist. Ct. 3d Jud. Dist. Woodbury Cty., January 24, 1995). Co-counsel in a 10-day televised hearing in a successful challenge to an OSHA inspection warrant.
  • Secretary of Labor v. Computer Science Raytheon, OSHRC Docket No. 93-0232 (OSHRC, November 28, 1994). Following the trial, the administrative law judge accepted the affirmative defense of reasonable alternative measures to compliance with a standard and vacated the failure to guard citations.

Previous Work

Before entering private practice, Mark was an assistant US attorney with the United States Attorney’s Office in the District of Columbia, where he was first chair in 38 criminal trials. He also served as a law clerk to the Honorable Bruce S. Mencher, Superior Court, Civil Division, Washington, DC. Finally, he served as a law clerk to the Honorable Marvin G. Bober, Assistant Chief Judge, Office of Administrative Law Judges, United States Department of Labor, Washington, DC.

Professional Activities

Mark is a member of the American Bar Association, Labor and Employment Law Section, and the Committee on Occupational Safety and Health.


Mark is a member of the Editorial Advisory Board and a contributing editor to the Occupational Hazard Magazine. He has written several articles concerning recurring issues in OSHA criminal enforcement actions, including challenging warrants, defending prosecutions for false statements to OSHA, and using privilege to protect safety and health audits.

Mark frequently speaks at conferences for the petrochemical, ammonia refrigeration, pulp and paper, and manufacturing industries about an employer’s obligations under the OSH Act, an employer’s rights, duties and obligations during an OSHA inspection, managing an OSHA inspection to limit liability, defending OSHA citations, and the collateral consequences of those citations upon related civil and criminal litigation.

A list of Mark’s articles and presentations is below.

Selected Articles

  • Protecting Your Audits From Compelled Disclosure
  • Protecting Audits Using Third-Part Experts with the Attorney-Client Privilege
  • The Warrant Issue: When OSHA Knocks, Should an Employer Demand a Warrant?
  • Prosecutions of Individuals for False Statements to EPA and OSHA Officials
  • Risk, Reliability, and Due Diligence
  • Use of and Challenges to Experts in OSHA Proceedings Following Daubert
  • Lessons Learned from Incident Investigations
  • Indemnification: An EHS Professional’s Right to Have His Corporate Employer Pay Reasonable Litigation Expenses
  • Facility Siting Requirements in OSHA’s PSM Standard
  • OSHA Enforcement Actions for and the Defense of Facility Siting Citations
  • A Facility Siting Checklist Based on OSHA’s Citations and Its PSM Audit Guidelines
  • OSHA’s New Interpretation of the Atmospheric Storage Exemption in the PSM Standard
  • EPA’s Risk Management Program: An Overview
  • Chemical Releases: Joint EPA/OSHA Investigations Raise Concerns
  • Texas Court Upholds Preemption Defense to Texas Extrahazardous Employer Program
  • Pre-emption: A Defense Against Dual Regulation of Safety and Health Issues
  • The Proposed OSHA Ergonomics Program Standard - Extraordinary Cost for Unproven Benefit?
  • Building an ‘Effective Program’ Against Corporate Criminal Liability
  • The Proposed Federal Sentencing Guidelines for Environmental Crimes
  • OSHA’s Failure to Regulate Reactives in a Coherent Strategy>

Selected Courses & Presentations

OSHA General:

  • An Overview of the Occupational Safety and Health Act Of 1970
  • Citations, Penalties and Enforcement Actions Under the OSH Act
  • Managing an OSHA Inspection – A Review of an Employer’s Rights, Duties and Obligations and a Strategy to Minimize Liability
  • Managing the Legal Issues Arising from a Catastrophic Incident
  • Collateral Consequences of OSHA Enforcement Actions Upon Related Civil and Criminal Litigation
  • Managing a Fatality Inspection of a Contractor Employee Losing the Workers’ Comp Bar
  • Managing Contractor Safety
  • OSHA’s Multi-Employer Worksite Policy: No Good Deed Goes Unpunished
  • Contractor Safety and Potential Liability: OSHA’s Multi-Employer Policy, Due Diligence and Independent Contractor Defense
  • Privilege and the Protection of Safety and Health Audits
  • Mergers and Acquisitions: Evaluating Safety and Health Compliance
  • Use of and Challenges to Experts in OSHA Proceedings Following Daubert
  • OSHA Citation Patterns and Enforcement Trends Against General Industry
  • OSHA Citation Patterns Against the Petrochemical Industry and Common Defenses
  • OSHA Citation Patterns Under the LOTO, HAZCOM and Confined Space Standards and Common Defenses
  • OSHA Citations Patterns for the Paper Industry
  • OSHA Enforcement Practices Under the HAZWOPER Standard
  • Using OSHA Citations as a Measurement Tool for Industry Progress
  • "Participating in the Brave New World of Right-to-Know: Meeting Real Public Information Needs" -- OSHA and our In-Plant Community: Material Safety Data Sheets
  • Dual Regulation: The Unconstitutionality of The TWCC’s Extra Hazardous Employer Program
  • OSHA’s Proposed Safety and Health Program Rule
  • Tuberculosis and Liability Associated with Nosocomial Transmission
  • Tuberculosis and OSHA Respiratory Protection Policy
  • Legal Considerations for Complying with Changing Regulations and Consenus Standards
  • OSHA’s Current Enforcement Agenda: Regulatory and Legislative Update – (5/11/10)

OSHA Process Safety Management (PSM):

  • An Overview of the Requirements of the PSM Standard
  • OSHA’s PSM Citation Patterns and Traps for the Unwary
  • Federal Enforcement of the PSM Standard and Defenses for PSM Citations
  • OSHA Enforcement Actions for and the Defense of Facility Siting Citations
  • Facility Siting -- Risk Assessment and Minimizing Liability
  • Facility Siting -- OSHA Enforcement Practices for Facility Siting Citations
  • PSM Citations Patterns, Privilege, and Safety and Health Audits
  • PSM Citations Patterns and Due Diligence Reviews
  • PSM Examining the Regulatory Burden
  • Chemical Safety and Hazard Investigation Board
  • A Critique of Joint EPA/OSHA Investigations Under their Memorandum of Understanding (MOU)
  • PSM Compliance Issues Foretell RMP Compliance Issues
  • OSHA’s National Emphasis Program for Refining and the Baker and CSB Reports
  • Managing an NEP Inspection
  • Preparing for an NEP Inspection: Auditing and Common Day-To-Day Issues
  • Preparing for and Managing a Refinery NEP
  • Preparing for and Managing a Chemical NEP
  • Practical Applications of PSM Lessons Learned and Industry Best Practices
  • NEP Inspections, Employee Participation and the Disgruntled Employee
  • Lessons Learned from OSHA’s NEP for Refining
  • How OSHA’s NPRM Globally Harmonized System Affects PSM – (5/20/10)

OSHA Ergonomics:

  • OSHA’s Draft Ergonomic Standard
  • Ergonomics and Health Care Industries
  • Organized Labor’s Petition for an Emergency Temporary Standard for Cumulative Trauma Disorders in the Work Place
  • Redesigning The Workplace -- OSHA’s Emphasis on Ergonomics


  • Recurring Issues in OSHA Criminal Enforcement Actions
  • Criminal Liability Arising Out of Safety and Health Responsibilities of Corporate Officers, Directors and Managers
  • Rights, Duties and Obligations of a Corporation and its Agents During a Grand Jury Investigation
  • The Fifth Amendment and The Grand Jury Subpoena for Documents
  • Criminal Liability for False Statements to OSHA and EPA
  • Chicago Magnet Wire: The Potential for Criminal Liability
  • Federal Sentencing Guidelines for Individuals
  • Federal Sentencing Guidelines and Environmental Offenses
  • Comments on the Proposed Federal Sentencing Guidelines for Organizations
  • Federal Sentencing Guidelines: Potential Sanctions Against Organizations and their Agents


  • EPA’s Risk Management Program: An Overview
  • EPA’s General Duty Clause and Comparison to OSHA’s General Duty Clause
  • Legal Issues Associated With 112 (R) of the Clean Air Act Amendments
  • An Overview Of Section 112(R)(1) in the Clean Air Act Amendments: EPA’s General Duty Clause

Bar and Court Admissions

District of Columbia Bar
Maryland Bar


Catholic University, JD, 1982
Georgetown University, BA, 1977


Blog Posts by Mark S. Dreux

The Big Freeze: Trump Administration Halts Key DOL and OSHA Rulemaking Activities

In one of the Trump administration’s first official acts, White House Chief of Staff Reince Priebus issued a memorandum on January 20, 2017 implementing an immediate freeze on all pending regulations until they have been reviewed and further action has been approved by President Trump’s new agency heads. Regulatory freezes during a change in administration are not uncommon, and President Obama issued a virtually identical memorandum upon taking office in 2009. However, the Trump administration’s directive takes on additional significance, as it appears to be the symbolic start of President Trump’s efforts to make good on his campaign promise of eliminating what he has characterized as overly-burdensome regulations. It also marks his first steps toward rolling back key components of President Obama’s regulatory agenda, including a number of labor and employment initiatives put in place by the Department of Labor and the Occupational

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Significant Legal Decisions
Second Federal Appeals Court Rejects OSHA’s Efforts to Evade OSH Act Statute of Limitations by Alleging Continuing Violation

On December 29, 2016, a three-judge panel from the US Court of Appeals for the Fifth Circuit unanimously vacated two OSHA citation items issued to a Delek Refining Ltd. (“Delek”) facility for alleged safety violations that occurred years prior to its ownership of the refinery. The decision is a significant victory for employers because it marks the second time that a federal appeals court has rejected OSHA’s attempt to allege the existence of a “continuing violation” that suspends the six-month statute of limitations contained in the OSH Act.

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Managing OSHA Inspections, Audits
EVENT: EPA RMP - THE FINAL RULE: How does this affect your facility?

PSM STANDARD – Recent Fifth Circuit opinion limits OSHA’s power to issue citations for failing to address PHA and audit findings.

PSRG Inc. is pleased to announce that we will hold a special PSM/RMP Forum Luncheon Series from January 18, 2017 to February 22, 2017 in various locations. You are cordially invited to attend the program that is most convenient for you. There is no fee to attend this event. A complimentary buffet lunch will be provided.

After more than three years of review and iterations on proposed modifications to the RMP Rule (40 CFR 68), EPA announced on December 21 the long-awaited FINAL RULE. The 372-page final rule bolsters new requirements for third party audits, incident investigations, emergency preparedness and response, and information sharing which will affect every covered facility.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.