|<<< Back to 2003 OSHSPA Report|
|Enforcement: Targeting High-Risk Worksites|
The primary mission of all state plans is to ensure that every worker goes home healthy and whole. Enforcement plays a critical role in fulfilling this mission. Each state plan has legislative authority to monitor safety and health conditions in the workplaces covered by their program.
The state plan states continually review their targeting systems to make sure they are inspecting those establishments that have the most problems, and avoid inspecting those establishments that are providing a safe and healthful work environment.
Each state plan’s legislation proscribes how these monitoring or inspection visits will occur. Since this statutory authority prevents the programs from giving advance notice, compliance officers may not set up an appointment prior to the initial visit. The state plans are also required to issue citations and assess penalties for identified hazards.
Every day, more than 1,300 enforcement personnel in the state plan states work diligently to help ensure that workplaces are as safe and healthy as possible. It is the goal of these compliance officers to conduct inspections in a professional and efficient manner, with minimal disruption in the workplace.
FY 2003 Compliance Inspections by Kind
Text Version of Chart: FY 2003 Compliance Inspections by Kind
Type: Horizontal Bar Graph
Graph Elements: 2 - Segments by kind of inspection based on the number of inspections.
FY 2003 Compliance Inspections by Type
Text Version of Chart: FY 2003 Compliance Inspections by Type
Type: Horizontal Bar Graph
Graph Elements: 6 - Segments by type of inspection based on number of inspections.
FY 2003 Case Data
A number of state plans have site-specific targeting data available from their workers’ compensation system. The foundation of an effective enforcement program is the ability to target workplaces with the most hazardous conditions, and state plans use a variety of data sources to direct their enforcement and consultation efforts toward businesses with a high rate of preventable injuries and illnesses. Site-specific claims history, rather than industry-wide data, is a better indicator of worksite safety and health deficiencies.
States may also participate in the federal OSHA Data Initiative to collect data from individual employers for targeting high-risk worksites. The Data Initiative gives OSHA a new targeting tool: the ability to determine the lost-workday injury and illness (LWDII) rate for every employer included in the sample.
The annual survey has been mailed since 1996 to 80,000 employers in non-construction industries. To verify the accuracy of information submitted, OSHA audits a sample of employers. From the information submitted by employers in the Data Initiative, each state determines its cut-off rate for site-specific targeting inspections. For example, in 1999 federal OSHA targeted workplaces with an LWDII rate above 16. The national LWDII rate for 1997 and 1998 was about three–that is, three injuries or illnesses resulting in lost workdays for every 100 full-time workers.
Alaska continues to merge workers’ compensation data with other state data, so they can target their workplace inspections toward employers with accidents and excessive lost workdays.
Arizona has also developed an inspection targeting program that uses workers’ compensation data to identify individual employers with high rates of claims.
California OSHA continues to receive funding provided under workers’ compensation reform legislation for a targeted consultation program with a more proactive focus. Consultation visits are offered to high-hazard employers as an alternative to targeted inspections. The targeted consultation program supplements the enforcement program and targets industries selected for targeting by enforcement. The Cal/OSHA consultation program has developed numerous publications including model injury and illness prevention training programs dealing with such topics as workplace security, RMI’s, and other topics.
Iowa continues to use Bureau of Labor Statistics (BLS) total injury and illness case rate data to set high injury/illness Standard Industrial Classification (SIC) codes and Iowa information for establishment specific data to target enforcement inspections. In addition, our Consultation Division has established an LEP with Iowa’s Department of Public Health regarding residential lead removal. The LEP included contractors and Department of Health employees.
Michigan pioneered a general industry safety inspection scheduling program that relies on survey data as well as site-specific injury information. Most significant is the addition of workers’ compensation data to the information sources used. Under the new system, employers reporting higher numbers of compensable workers’ compensation cases in selected Standard Industrial Classification (SIC) codes and randomly selected establishments will be identified for inspection. Most of the specific SICs are based on the goals of the MIOSHA Strategic Plan.
MNOSHA inspection activities concentrate on workplaces with high injury and illness rates. In general industry inspections, it prioritizes based on industries identified in the federal OSHA Data Initiative, workers’ compensation information and Bureau of Labor Statistics survey as being the most hazardous. Health inspections are prioritized based on NIOSH-identified industries with a high potential of Chronic Obstructive Pulmonary Disease and BLS-identified industries with high nonfatal occupational illness rates. For construction inspections, MNOSHA prioritizes based on large construction sites occurring within the state and based on the activity being performed, such as roofing and trenching.
The state of Nevada inspection activities concentrate on workplaces that have high hazard conditions present. Statewide BLS data is evaluated each year to help in the inspection site determination process. The ability to make sure that employees working in the most hazardous and critical areas throughout the state are protected, is a major goal for Nevada OSHA.
North Carolina has established a site specific targeting system based on data secured through the OSHA Data Initiative. The system is based on establishment specific employer DART data. The state has also initiated a public-sector survey. The data from this survey is used to determine high injury and illness incidence rates at specific public-sector establishments that may receive a consultation, a comprehensive compliance inspection, and/or education and training assistance.
Oregon OSHA ranks employers on one of four inspection scheduling lists based on their history of accepted disabling claims, industry, violation history, a weighted claims count, a weighted claims rate. The system assigns employers point values for each category based on specific criteria. Employers eligible for inspection are then ranked by their inspection history.
Oregon OSHA has also established a site-specific inspection program for construction sites. Based on active project site data received from several sources, a randomly sorted inspection scheduling list of construction sites is generated monthly. All employers on a selected inspection site are subject to a comprehensive inspection.
Utah uses the Utah Labor Commission Industrial Accident’s data base and a workers’ compensation system (a non-exclusive state fund) that provides accessible information for targeting of employers and industries.
Vermont uses workers’ compensation data to develop a safety inspection schedule, using information on the total number of injuries, the number of lost-time injuries, and employment at the firm.
Washington was the first state in the nation to have both an exclusive state fund workers’ compensation system and an OSH program, WISHA, in the same agency. This provides an unequaled opportunity to use injury, illness and claims data to identify hazardous industries and problem employers. WISHA targets employers for services coordinated by enforcement, consultation, education and training, and risk management.
In 2001, Washington initiated a special emphasis program to address safety hazards and reduce the overall injury rate in the residential wood framing industry. This program was launched to bring all residential wood framers in compliance with workplace safety and workers’ compensation requirements. The goal is to reduce injuries to the thousands of framers in Washington and to bring premiums, now among the highest in the industry, in line with other trades.
In 1994, Wyoming’s state plan merged with its workers’ compensation system giving it access to employers compensation data. This information is used to identify employers for inspections or if the employer chooses, a consultation visit. The parameters used for this purpose are: experience modification rating, loss ratio (cost of claims compared to premium), claims to employee ratio, and average cost of claims.
State plan states today are using settlement agreements, at either the pre-citation or post-contest level, to resolve complex investigations of catastrophic incidents, most of which involve fatalities. Settlement agreements are unique and innovative resolutions, and are designed to assure a safer and healthier work environment for all affected employees in the future. Historic settlement agreements have been negotiated by Michigan, Washington, California, and Oregon.
The agreements allow the participants to focus their efforts on helping the companies create a safe and healthy workplace in the future–rather than spending limited resources on litigation. The agreements can include: a monetary sanction/penalty; assurance of abatement for the cited conditions; establishment of programs to achieve lasting improvements in safety and health; research to increase the understanding of industrial safety and health; training programs with monitoring capabilities; and other components specific to each individual incident.
On May 2, 2002, Michigan announced a Settlement Agreement with ATOFINA Chemicals, Inc., and PACE International Local No. 6-0591, with a combined total of $6.2 million in penalties, safety enhancements, and the resolution of multiple violations. The settlement closed a seven-month investigation of a catastrophic accident at the ATOFINA Riverview facility on July 14, 2001, that claimed the lives of three workers. This is the second-largest monetary sanction ever levied in Michigan as a result of a MIOSHA investigation. The Settlement Agreement agreed to by the company and the union includes a MIOSHA penalty of $500,000, abatement of all cited hazardous conditions, and dedicates significant resources to safety improvements.
In 2001, Michigan negotiated a settlement agreement with Lomac LLC in Muskegon and its union representatives, with a combined total of more than $3 million in penalties and additional activities. The settlement closed a nine-month investigation of a double explosion at Lomac on April 12, 2000, that injured 10 workers. The Settlement Agreement agreed to by the company included an action plan with 15 safety enhancement initiatives.
On Sept. 2, 1999, Michigan OSHA concluded its seven-month investigation of a fatal explosion at the Ford Rouge Complex power plant with an unprecedented $7 million settlement agreement with Ford Motor Company and the UAW. One of the worst automotive industry accidents in Michigan, the February 1999 explosion in the power plant at the Ford Rouge Complex in Dearborn resulted in the death of six workers and serious injury to 14 others. The unique and innovative resolution included a record $1.5 million penalty, the largest monetary sanction ever levied in Michigan as a result of a MIOSHA investigation.
In Washington during FY 1999 the Washington Department of Labor and Industries negotiated settlement agreements in two different industries that were unprecedented in the history of state-administrated occupational safety and health programs, and ranking among the top compliance agreements ever obtained by federal OSHA. The combined settlement terms exceeded $6.9 million, including a total of $1.7 million in penalties.
In the first case, six workers at the Equilon-owned refinery in Anacortes, Washington, died in a fire as they were attempting to restart the delayed coking unit. A storm the previous day had interrupted power and shut down refinery operations. The tragic event marked the worst industrial catastrophe since the Department of Labor and Industries began enforcing the Washington Industrial Safety and Health Act (WISHA).
WISHA concluded its six-month investigation with an unprecedented $4.4 million compliance agreement designed to make the Equilon-owned refinery, a joint operation of Shell and Texaco, safer and healthier for workers. The settlement included a record $1.1 million penalty, the highest penalty that had ever been assessed by a state program, and among the largest penalties issued nationwide.
In the second case, WISHA concluded its investigation of a fatal fall at an aircraft maintenance plant with a $2.5 million compliance agreement. A 64-year-old worker at the Paine Field, Everett facility fell from a portable stairway stand used for access to airliners and died five days later. WISHA’s agreement with the B.F. Goodrich Aerospace Group, the largest aerospace maintenance, repair and overhaul facility in the country, included payment of a $600,000 penalty; an $800,000 investment to promote worker and community safety; the company’s acknowledgment that nine worker safety rules were violated, one willfully; and that the company make $1.1 million in safety improvements beyond what was required for correcting the violations, including a third-party audit to verify compliance with the agreement.
These creative and significant enforcement actions provide immediate and ongoing benefits to Equilon and B.F. Goodrich workers. The agreements provided for timely abatement of hazards and eliminated protracted legal battles that would have held compliance and abatement in limbo pending outcome of the conventional enforcement and appeal process. The settlement terms send a strong message to all employers that workers’ lives will not be compromised.
Cal/OSHA and the Sonoma County District Attorney reached a settlement agreement with Spectrum Organic Products as a result of a 2002 incident when two workers died in an oil tank at the company’s processing facility. The company pleaded no contest to two misdemeanor charges and agreed to pay $150,000 in criminal penalties, $150,000 to the California DA’’s Association’s, $25,000 each to police and fire departments and the county DA’s office. The company will also pay $70,000 in Cal/OSHA penalties and $30,000 in assessments to the Worker’s Compensation Appeals board.
Cal/OSHA spent six months on an exhaustive investigation of the February 1999 Tosco refinery accident that killed four workers and seriously injured a fifth. The division’s investigations found that Tosco failed to shut down the naphtha piping operations prior to maintenance work. Naphtha flowed through the line onto hot surfaces of the adjoining tower and ignited, causing a fire that spread up and down the tower and engulfed the four workers.
Cal/OSHA cited Tosco Refining Company for 33 alleged violations of state workplace safety and health regulations. The total amount of the proposed penalties was $810,750—the highest penalty amount ever issued against a single employer by Cal/OSHA. The division conducted a concurrent criminal investigation through its Bureau of Investigations, and the case was referred to the district attorney’s office for prosecution. The Contra Costa County District Attorney filed criminal charges against Tosco, which pleaded no contest and agreed to pay the maximum fine of $945,000. In addition, Tosco reimbursed Contra Costa County up to $100,000 for its investigative and legal costs. Tosco offered to contribute $1 million to the county to aid in development of the Los Medamos Health Clinic, which the county had identified as a needed facility because of recent closure of Los Medamos Community Hospital.
Alaska has had several major settlement cases. An Alaskan grand jury indicted Whitewater Engineering Corporation and its president for manslaughter in the death of one of its employees. The state later dismissed the case against the president and the corporation pled no contest to criminal negligent homicide. The court assessed a penalty of $275,000 against the corporation with $125,000 suspended so long as the corporation complies with Alaska Occupational Safety and Health and OSHA requirements. The court also gave the corporation three years to pay the penalty. In addition to the criminal fines, the Whitewater Engineering Corporation paid $50,000 in fines and penalties for four willful violations cited by Alaska Occupational Safety and Health.
Another case involved British Petroleum (BP) and a worker who was badly burned due to an explosion at the wellhead. The case was investigated for five months and a settlement brought a fine and abatement costs in the millions. In December of 2002, a Norcon employee was killed at Pruhdoe Bay. A settlement agreement was reached with Norcon (the employer) and BP Exploration (the owner of the Gathering Center). Norcon settled with no reduction in the fine and is changing the way pipe is purged while welding when hydrocarbons are present in the pipe. Other oil well service companies around the country will employ this new method. BP also settled with a fine and abatement to install the new method of purging the pipe while welding.
In Kentucky, one of the performance goals of its Strategic Plan encourages any settlement agreement resulting in a penalty reduction of $10,000 or more to include a provision requiring the money involved in the reduction be used to develop and implement a comprehensive safety and health program. These programs must involve the workers as well as committed management officials and must be based on the 1989 Safety and Health Management Guidelines, as published in the Federal Register.
In Maryland, the burden of proof when employee misconduct is raised and the definition of a repeated violation, was challenged by an employer. This July 1997 case involved employees of Cole Roofing Co., Inc. that were engaged in installing and repairing a flat roof at a local high school without fall protection, adequate monitoring, or warning lines. Cole raised the issue of unpreventable supervisor misconduct and moved to dismiss the citations on the ground that it was the Commissioner’s burden to prove the absence of unpreventable employee misconduct. The Maryland Court of Appeals reaffirmed the Commissioner’s longstanding position that employee misconduct is an affirmative defense that must be raised and proven by the employer. The court held that to establish a repeat violation, MOSH must show that the same standard was previously violated. Prior to this decision, an employer in Maryland would have been cited for violation of the same or similar standard as a repeat.
In August 2002, the Maryland Court of Special Appeals affirmed a MOSH citation that alleged a violation of the Logging Operations standards (29 CFR 1910.266). This June 1997 case involved employees of Asplundh Tree Expert Co. who were removing brush, vegetation and tree growth near electrical power facilities so that the gas and electric company could install new telephone poles. A 20-foot tree was cut down which hit another employee who was nearby. MOSH alleged that a sufficiently safe distance was not maintained between the employees (29 CFR 1910.266(d)(6)(ii)). Asplundh argued that the Commissioner was wrong as a matter of law in finding that its activities fell within the scope of the logging standards since it is a line clearance tree-trimming business, not a logging company. The Court analyzed the case, as did the Commissioner, in light of the purpose of the standard and the regulatory history underlying it and affirmed the violation. Asplundh filed a writ of certiorari with the Court of Appeals, which was denied.
In July 2002, a settlement of $240,000 was reached between an employer, Minnesota OSHA and the Minnesota Pollution Control Agency. The investigation concerned the employer’s failure to properly disclose the hazardous materials content of some of its powdered paint supplied to local and national purchasers. More than 60 material safety data sheets were identified being in error. Final payment was received in June 2003.
Oregon OSHA utilizes "Conditional Settlement Agreements" on a limited basis, when such agreements are in the best interest of workers, employers and the agency. These agreements require the employer to take actions which are over-and-above those required by rule. They are intended to move a willing employer toward "self-sufficiency" in managing workplace safety and health. In exchange for successful completion of the settlement terms, consideration is provided by Oregon OSHA in the form of penalty reductions or violation modification.
Oregon OSHA has achieved a settlement rate for contested cases that is consistently over 90 percent. Oregon OSHA works closely with the Oregon Department of Justice in their approach to contested cases and has significantly reduced legal costs over the past five years through this partnership.
Wyoming uses a consent or settlement agreement to document every informal, pre-contest conference with inspected employers. The document shows what actions were agreed upon such as penalty reductions, workers’ compensation claims and penalty reduction plans; the establishment of a safety and health program; and the attendance at a Management Excellence Seminar. The impetus for the seminar is that nothing within an organization is done or done well unless management commits to it! If deemed necessary, training offered by the consultation staff is discussed with the employer as well as a consultation audit.
Next Section: State Initiatives: Changing the Work Environment»