|2004 OSHSPA Report > State responsibility: Enhanced enforcement|
|State responsibility: Enhanced enforcement|
A Cal/OSHA investigation of Northern Lights Company involved an explosion during the cleaning of an aboveground storage tank containing gasoline. The employers and supervisors failed to test for and subsequently purge flammable vapors in the tank, in addition to failing to ensure the equipment used to clean the tank would not discharge static electricity. As a result of the explosion, one employee was killed and another was severely burned and permanently disfigured. The corporation and the general manager were charged with six felony counts. Based on additional testimony, the employer and general manager were charged with three additional counts and for involuntary manslaughter.
On Sept. 7, 2004, MNOSHA investigated a workplace fatality at a major Minnesota employer. Employees were threading an adhesive webbing machine, located on three floors of the plant. While an employee on the third floor was in a hazardous area, removing debris from a vacuum roller, the employee located on the first floor engaged the machine to continue the threading process. The employee on the third floor was pinned between the vacuum roller and threader bar. MNOSHA cited the employer for failure to develop, document and use specific lockout/tagout procedures for the thread-up process. The threading bar could be activated from the first, second or third floor and the operator on the first floor could activate the controls without a clear view of the operator on the third floor. In addition, the employer was cited for failing to guard the hazardous area located on the third floor, where the victim died. The employer abated the violations and paid the penalties, without contest.
On Aug. 21, 2004, several youth employees at a summer camp were engaged in the end-of-season beach cleanup, including disconnecting buoys from submerged stationary anchors and connecting extension cables to shallow anchors to facilitate finding the stationary anchors in the spring. Due to windy conditions, cold lake water and anchor cables being entangled in underwater vegetation, the employees were having difficulty in completing the task. A 16-year-old worker, who had been treading water for more than 25 minutes, submerged without verbal warning or indication. The victim resurfaced and another employee grabbed him, but because the victim was pulling the other employee under, the employee let go of the victim and he drowned. No flotation devices were used during this process. MNOSHA cited the employer under the general duty clause for failing to render its workplace free of the hazard of drowning, including the failure to provide personal flotation devices and emergency equipment, such as a personal flotation throw-ring. The employer was also cited under Minnesota’s A Workplace Accident and Injury Reduction (AWAIR) program for failure to conduct a job assessment and provide employees with adequate safety procedures. The employer abated the violations and paid the penalties, without contest.
Enforcement activity continues to be an integral part of North Carolina state-plan activity. In 2004, the Division of Occupational Safety and Health conducted 5,580 safety and health inspections. The state’s strategy for investigating significant cases includes mobilizing adequate resources, including equipment and personnel, conducting a thorough investigation and sharing any significant findings with others who might benefit from the information. North Carolina prepared and widely distributed an industry alert about combustible dust after investigating an explosion of fine plastic powder that killed six employees at a pharmaceutical plant. In another fatality investigation, in which a 53-year-old man died from carbon monoxide poisoning, the hazards associated with DX generators were shared with federal OSHA and other state-plan states. This included a presentation at a meeting of the Occupational Safety and Health State Plan Association.
Tennessee OSHA issued willful, repeated and Right to Know citations with fines totaling $429,600 to Lowell Industries, Inc. in a workplace fatality inspection involving metal working machinery. Tennessee OSHA also issued willful and serious citations with fines totaling $166,500 to Safeway Services, Inc. following the investigation of a scaffold collapse in which five employees were injured and one employee was killed.
In 2004, Washington issued citations with penalties totaling $593,000 for three significant enforcement inspections, all with willful violations. One of the inspections followed a fatality that could have been prevented if the employer had adhered to WISHA safety standards for lockout/tagout procedures.
In the first of these cases, a construction employer working on an underground utility installation project in the Tri-Cities area exposed workers to cave-in hazards from trenches as deep as 30 feet in Type C (very loose or sandy) soil. The company had repeatedly failed to use proper shoring, sloping or shielding protection for work being performed during fall 2003. Although it was some of the most dangerous trench work ever observed by WISHA inspectors, fortunately, no one was killed or seriously injured. During the past six years, 10 workers in Washington have been killed in other trenching incidents.
WISHA issued this employer a citation with five willful and one serious violations, and a combined penalty of $245,700. In addition, because of the seriousness of the violations and the company’s pattern of disregard for safety, Washington used the egregious policy for the first time in determining the penalties. Also in 2004, WISHA fined a Spokane area asbestos removal contractor $144,000 for seven willful violations of asbestos exposure rules. The supervisor on site during the inspection claimed no asbestos work was being done and that she did not have a key to a locked boiler room. WISHA inspectors left the area but returned several minutes later to find the supervisor and another employee removing asbestos insulation from the boiler room. The citation included violations related to air monitoring and air quality; safe handling and disposal of asbestos debris; use of personal protective equipment; and establishment of a decontamination area for employees.
In the third case, WISHA fined a southwestern Washington paper mill $203,100 for three willful and one repeated serious violation following the death of an employee caught inside a paper cutter when another employee inadvertently started it up. The investigation found a pattern of company disregard for lockout/tagout procedures and training, evidenced by an injury in 1998 and a near miss in 1999. Both of those incidents occurred on the same paper machine as the 2004 fatal injury. The company had been cited for 11 serious lockout/tagout violations in the past.
When appropriate, Alaska works to achieve settlements that directly support and contribute toward goals to reduce workplace illnesses, injuries and fatalities. While these settlements are more time consuming to develop and execute than simply issuing a monetary fine that is paid into the general fund, the importance of targeting penalty settlements to achieve workplace safety and health goals is worth the effort.
Indiana OSHA (IOSHA) entered into an agreement with Hayes Lemmerz International in April 2004, following an inspection triggered by a fatal explosion in November 2003. IOSHA investigated concurrently with the U.S. Chemical Safety and Hazard Investigation Board. The agreement included several steps to improve safety for those at the site, improved communication and coordination with the local fire department and steps to share lessons learned with the entire industry.
In January 2004, IOSHA entered into an agreement with RPT Painting, following an inspection resulting from a catastrophic fire that seriously injured 11 painters and fatally burned two others while the employees were riding in the back of a box truck traveling from the job site. The agreement included several provisions for additional employee training (construction 10- and 30-hour courses, sponsor employee attendance at smoking cessation classes), development of a written vehicle transport policy, publication of articles concerning lessons learned and a donation to a local hospital burn unit.
IOSHA continued to use the informal settlement process to promote 10- and 30-hour training for both management and non-salaried employees with safety and health responsibilities. Approximately 60 percent of informal settlement agreements contained stipulations for attendance at 10- or 30-hour training or other specified training.
Indiana OSHA implemented an expedited informal settlement agreement process. Approximately 50 percent of eligible employers are taking advantage of this process.
In Minnesota, as a result of litigating a discrimination case, the complainant was given his position back with the employer, awarded $58,000 in back pay (the original estimate of $242,033 for wages and benefits was offset by the complainant’s earnings before the case settled) and the agency received $8,000 in attorney fees.
Oregon OSHA uses conditional settlement agreements on a limited basis, when such agreements are in the best interest of the workers, employers and the agency. These agreements require the employer to take actions that are over and above those required by the 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 modifications.
Utah includes an informal settlement agreement with citations issued to small employers (250 employees or fewer) for a first-time inspection where penalties are issued. The employer is offered up to a 60 percent reduction in the penalty for implementing a comprehensive safety and health program that includes provisions for management leadership, employee participation, hazard identification, prevention and control, employee training and program evaluation. On average, Utah Occupational Safety and Health settles 42 percent of its citations through the informal settlement process.
In 1999, the Washington Department of Labor and Industries negotiated settlement agreements in two industries; the agreements were unprecedented in the history of state-administrated occupational safety and health programs, and rank 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, Wash., 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, Wash., 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 had 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.
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 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.
Violation approach in cases involving death or serious injury
Arizona statute directs the Industrial Commission to assess an additional $25,000 penalty against any employer for each employee who suffers permanent disability or death as a result of a willful or repeated OSH violation. The following provisions must be met: the citation was a final order; workers’ compensation benefits were paid as a result of the employee’s permanent disability or death; and the OSH violation did not result from employee disobedience. The additional penalty is paid to injured employees or their dependents.
In January 2000, legislation became effective in California that provides increased penalties and prison terms for willful violations causing an employee’s death or prolonged bodily impairment, if charged by a district attorney. Under new felony provisions that became effective in 2000, an individual can be fined up to $250,000 and a corporation up to $1.5 million. Heavier penalties for those criminally responsible for workplace death or injury and the criminal investigations are a powerful deterrent.
During its 2000 session, the Legislature amended the Minnesota Occupational Safety and Health Act by increasing the minimum penalty assessed in cases where a violation causes or contributes to the death of an employee. The minimum nonnegotiable fine for all citations connected to the death of an employee if there is a willful or repeat violation is $50,000. If there is no willful or repeat violation, the minimum fine is $25,000. In the 2002 session, the Legislature amended the minimum nonnegotiable fine to reduce the penalty amount for employers with fewer than 50 employees. As a result of this legislation, 49 nonnegotiable fines have been issued.
Alaska continues to assess meaningful penalties for serious violations.
Kentucky offers a unique system for protecting workers’ safety and health rights. Violations of Kentucky’s anti-discrimination provisions may result in citations and penalties of up to $10,000 for each violation, in addition to reinstatement and back pay to the employees. Litigation in such matters is taken through the OSH Review Commission, which is authorized to order all appropriate relief, including reinstatement, back pay, etc. In addition, upon initial finding of illegal discharge in violation of the anti-discrimination provisions, the secretary may order reinstatement pending the outcome of litigation, leveling the playing field during the potentially lengthy period of litigation.
Under Kentucky law, liens may be placed against employers that are in violation of any requirement of the Kentucky safety and health statutes, after administrative and judicial appeals have been exhausted.
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