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. Delek Refining, OSHRC Docket No. 09-0844 (July 11, 2011). Commission extended the attorney-client privilege to certain reports prepared by third-party experts. In a case of first impression, the Commission established a three-part test for determining whether a third-party expert’s report is protected by the attorney-client privilege.
• 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Kentucky Labor Cabinet that federal OSHA’s interpretation of the PSM standard was incorrect, and all PSM citations were withdrawn.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.

• 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