|2005 OSHSPA Report > State responsibility: Enhanced enforcement|
|State responsibility: Enhanced enforcement|
For the first time in years, Alaska Occupational Safety and Health (AKOSH) made a health and safety sweep of the North Slope oilfield production and associated facilities by conducting 36 safety and health inspections in four days. These worksites are extremely remote and access is tightly controlled. While numerous serious and other-than-serious citations were issued, the major oil producers (BP Exploration Alaska, Inc. and ConocoPhillips Alaska, Inc.) and their contractors were grateful for the enforcement professionalism and the constructive guidance to correct hazards and help improve worksite safety and health performance.
AKOSH investigated an ammonia leak that required evacuation of a fish processing plant (Waterkist Corporation/Nautilus Foods) and adjacent community areas in Valdez. The inspection resulted in the issuance of two willful citations, one repeat citation, one 5(a)(1) citation with 25 elements related to ammonia refrigeration deficiencies, five serious citations with 18 grouped violations and two other-than-serious citations. The inspection also required that the ammonia refrigeration systems were shut down through a “red-tag” legal injunction to stop work until the violations and deficiencies were corrected. The shutdown lasted more than a week during the peak of the salmon fish processing season, but worker safety and health required this significant action. The case remains in contest as of April 1, 2006. In December 2005, the AKOSH Review Board affirmed $59,225 in penalties for several serious, repeat and failure to abate violations identified in an inspection conducted in 2003 at this same site.
A California OSHA (Cal/OSHA) issued penalties totaling $216,000 to a window-cleaning company in response to an imminent hazard complaint filed alleging unsafe use of boatswain chairs while cleaning the windows of a 14-story building. The employer has a significant history of noncompliance, as evidenced by numerous inspections and citations, mostly in San Francisco, but also in Oakland and Foster City, Calif. jurisdictions. The employer had also been inspected and cited as the result of a near-fatal accident of one of its employees who was cleaning windows at the Golden Gate Bridge Administration buildings.
At the site of this inspection, several employees, along with the operations manager, were engaged in cleaning the windows of the subject building using boatswain chairs that were improperly rigged on the roof of the building, without having received an OPOS from the building owner or having developed one, had working lines and suspension lines tied together, to vent pipes on the roof (which are not approved anchorages), and had knots on these lines, which are not allowed because they reduce their strength. As a result, six citations were issued.
Each of the willful serious repeat citations carried the maximum penalty allowed for a citation, $70,000, bringing the total penalty to $216,000. The willful classifications were submitted for legal review and found appropriate for issuance. This is the first time Cal/OSHA issued citations with both repeat and willful classifications.
Cal/OSHA issued citations with penalties totaling $196,325 to a company involved in the manufacture of fishing tackle. A $70,000 willful citation was issued for failure to prohibit the removal of lead from protective clothing or equipment by blowing, shaking or any other means, which disperses lead into the air. The company has been manufacturing lead fishing lures since 1936. The fishing industry associations post numerous cautionary statements on their Web sites regarding lead; the hazards of lead are common knowledge.
In spite of the company paying the California Franchise Tax Board a Lead Poisoning Prevention Program fee since 1992, and having had hazardous waste regulatory involvement with the City of Long Beach a month before the inspection, an employee was observed blowing dust off with shop air and stated this was how most of the employees removed dusts from their clothing.
Numerous citations were issued for other violations, such as lack of a HEPA filter, failure to maintain surfaces free of lead accumulation, sweeping of lead accumulations, failure to use suitable hoods or enclosures connected to exhaust systems, lack of plumbed eyewash facilities in some locations, failure to provide potable water in eyewash systems, improper storage of respirators and failure to provide guards for band saws.
In Indiana, United Armor Services was cited for a willful violation after a fatality of an employee as the result of the employer not seeking prompt or reasonable medical attention.
As a result of a workplace fatality of a 15-year-old involving a mulch blowing system, Maryland Occupational Safety and Health (MOSH) investigated and issued citations to the employer. Additionally, the MOSH Training and Education Department conducted a special event for employers about teen safety and continued promoting the MOSH train-the-trainer courses Youth at Work – Talking Safety. There was also an increased involvement of compliance officers speaking at schools throughout the state to inform teens of workplace hazards and teen work requirements and regulations.
Following a fatality investigation at EaglePicher Automotive, Michigan OSHA (MIOSHA) issued $100,800 in penalties for failure to enforce lockout procedures. Bing Metals Group received 23 serious, 11 repeat serious, 18 other-than-serious and five repeat other-than-serious citations, with a total penalty of $113,900, following a routine wall-to-wall inspection selected per the 2004 through 2008 strategic plan. An employee complaint and focused inspection at Michigan Sugar found seven willful, 24 serious and 15 other-than-serious violations, with a total of $277,650 in penalties.
On Feb. 24, 2006, Right Rail, Inc., was convicted and sentenced for a MIOSHA felony violation. Right Rail, a guardrail installation company, pled no contest in January 2006, and was sentenced to the maximum fine of $10,000 and placed on probation for two years.
Fatality: In October 2004, a worker from a small demolition company was digging a shallow trench at the base of a poured concrete foundation wall of a 1920s-vintage building. A second employee was following the first employee building framework directly in front of the same existing wall. As the employee was digging the trench and going through a deteriorated cement floor base, a large section of the wall (24 cubic feet; 3,600 pounds) broke free from the upper part of the now-collapsing wall and fatally crushed the employee. The wall that collapsed was not shored or braced at the time of the accident and was in poor condition with cracking, crumbling and moisture present. Minnesota OSHA (MNOSHA) issued two willful citations, $50,000 each, to the employer for failure to conduct an engineering survey by a competent person prior to starting demolition work, and failure to shore or brace walls where employees are required to work within a damaged structure to be demolished. Additional serious citations were issued, resulting in a total of $104,500 in penalties.
Fatality: On April 15, 2005, the victim approached, from the right side, an employee who was occupying a lift truck and told him he needed to use the lift truck immediately. The employee occupying the lift truck assumed the victim was going to mount the lift truck from the right side. However, the victim walked around the rear. Before the employee dismounted the lift truck, he did not shut off the engine nor set the parking brake. As the employee dismounted from the left side of the lift truck, he inadvertently bumped the forward-reverse shift lever into reverse. The lift truck went into reverse, striking the victim and crushing him between the rear of the lift truck and a concrete wall. MNOSHA issued a willful citation to the employer for failure to remove from service a lift truck with numerous defects, including uncontrollable engine high idle speed and RPM fluctuations, ignition key broken off inside the ignition switch and an unapproved knob on the forward-reverse shift lever. MNOSHA also issued serious citations for failure to set the parking brake and replacing the knob on the shift lever with one that was longer than the original design, for penalties totaling $100,000.
Nevada has a specific regulation pertaining to violations that result in the death of an employee. Any employer that willfully violates any requirement of this chapter, or any standard, rule, regulation or order promulgated or prescribed pursuant to this chapter, where the violation causes the death of any employee, shall be punished: for the first offense, by a fine of not more than $50,000 or by imprisonment in the county jail for not more than six months, or by both fine and imprisonment; for the second offense, double the fine and/or imprisonment.
Enforcement activity continues to be an integral part of North Carolina state-plan activity. In 2005, the Division of Occupational Safety and Health conducted 4,964 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 distributed an industry alert about the hazards associated with 1-bromopropane after inspecting a manufacturing facility where employees were exposed to the chemical, which was being used as an adhesive in making furniture cushions. There is no standard for 1-bromopropane, so the North Carolina General Duty Clause was cited. Eight employees in the furniture plant became seriously ill with damage to their nervous system, which caused leg numbness and unsteady walking.
Tri-Met Bus #62 pulled into a commuter transit center for a fall lunchtime stop in Beaverton, Ore., so the driver could take a break. After the driver failed to properly set the brakes and reached through the driver’s window to close the doors, the bus started rolling. The driver attempted to stop the bus with her hands and the force of her body, but was fatally pinned between the bus and a bus stop sign. No penalties were assessed by Oregon OSHA (OR-OSHA), but this offered the tri-county transportation agency a visible example for reinforcing awareness of policies, including properly functioning seat alarms and policies regarding door closure.
At a pharmaceutical manufacturer in Portland, Ore., preparing hydroxybenzotriazole (HOBT), a batch ticket missing critical parameters resulted in run-away reaction. A 500-gallon steel vessel detonated, causing a catastrophic explosion that destroyed several buildings. A unified command was set up between EPA, DEQ, Coast Guard, the employer and OR-OSHA to coordinate several concurrent investigations and the environmental cleanup effort. Three serious violations were cited and a $10,000 penalty assessed.
The dangers of industrial vehicles and workplace policies resulted in a penalty at a Madras, Ore., sawmill operation in the fall of 2004, where a forklift carrying a load of lumber struck a worker. A language communication barrier between the driver and witnesses conveys the mutual responsibility for cross-cultural communications in the workplace.
In 2005, Washington issued citations with penalties for three significant enforcement inspections, several with willful violations. Three of the cases involved fatalities that could have been prevented had the employer adhered to required safety standards.
The first case involved an asbestos removal company working at a local high school. Washington’s DOSH fined the company a total of $106,400 for 10 willful, four serious and four general violations. The company failed to provide basic protection for its employees who perform asbestos removal work. The employer also failed to provide medical testing, proper respirators and respirator fit-testing, failed to conduct air-quality monitoring in the contained work area and failed to provide a decontamination area where workers could clean up and change out of contaminated clothing.
In a significant case involving a wood product company, DOSH fined the employer $76,960 for workplace safety violations that led to the death of one of its employees. The employee died when a rag he was using to wipe water off a debarker drum got caught between two spinning tires and dragged him into the machine that strips bark from the tree limbs. A storm had blown away the roof covering the debarker, allowing it to get wet and not operate efficiently. Rather than turn off the equipment and lock it out before drying it, the employee attempted to clean the drum while it was operating. DOSH cited the employer for several violations, including failure to have proper lockout/tagout protection, failure to protect workers from dangerous machinery, failure to correct malfunctions on the machines and failure to provide proper safety training to employees.
The third significant case in 2005 involved four construction contracting companies fined with penalties totaling $132,600 for exposing workers to fall hazards. Two of the companies were cited with willful violations, following two fatalities. The deaths prompted Washington to issue a hazard alert to all roofing and construction contractors reminding them of the dangers of unguarded openings. Washington’s safety regulations require skylights and roof and floor openings be properly covered or guarded at all times.
California OSHA (Cal/OSHA) issued citations to multiple employers for violations leading to a gas pipeline explosion that occurred Nov. 9, 2004, which fatally injured five employees and seriously injured four others. The owner of the petroleum line was fined $640,000 by Cal/OSHA and pipeline regulators. Cal/OSHA penalties totaled $140,000. The State Fire Marshall’s Office, which regulates fuel lines, fined the company $500,000. Appeals are ongoing. Cal/OSHA also has an active criminal investigation underway through its Bureau of Investigations.
The findings from the criminal investigation, which focuses on possible criminal liability involved in the accident, will be given in a confidential report to the Contra Costa District Attorney’s Office for a determination of whether criminal charges are applicable.
Cal/OSHA determined the explosion was completely preventable. The primary cause of the incident was that the employees working in the area did not know the location of the petroleum line. A fireball erupted when an excavator working on a water project punctured a high-octane gasoline line. The gas ignited, most likely from friction caused by escaping liquid, and fire engulfed workers on a six-foot water main. All of the fatalities and injuries were due to the explosion and fire. There was also extensive property damage.
The major cause of the tragic accident was failure to mark an offset in the gas line around the roots of a long-since removed oak tree, Several employers failed to take required action and committed errors that contributed to the failure to determine and mark the location of the utility line. Cal/OSHA issued serious accident-related citations of $22,500 each to two other employers and a serious citation of $6,750 to another employer.
In April 2006, the owner of the petroleum line signed a settlement agreement with the U.S. Pipeline and Hazardous Materials Safety Administration that requires the company to spend as much as $90 million to improve its problem-plagued pipeline network in California and five western states. The company agreed to review all accidents on its system since March 31, 2001, including the Walnut Creek explosion, an April 2004 spill in Suisan Marsh, Calif., and a February 2005 spill in the Oakland Estuary.
The company has agreed to identify and repair all safety threats, to improve its methods for inspecting the interior of its pipes, to evaluate its effectiveness in assessing pipeline corrosion and to develop a system of “one-call centers,” so excavators can determine the exact location of the company’s underground pipes before digging.
Under the agreement, the company can face fines of up to $10,000 a day if it fails to meet the terms of the agreement.
The Indiana Department of Labor (IDOL) has placed significant focus on confirming and pursuing abatement following settlement agreements and informal conferences and has significantly increased required and appropriate safety training and programs as part of agreed resolutions.
In federal fiscal-year 2004, Minnesota OSHA (MNOSHA) established the 75/25 Program, a penalty reduction incentive program available to qualified employers, that links workers’ compensation claim rates and MNOSHA compliance penalties. This program allows an employer to obtain a 75 percent reduction in penalties, provided it reduces its workers’ compensation claims by 25 percent within a one-year period. The program is available to employers with an initial penalty equal to or in excess of $5,000, provided the inspection was not the result of a fatality, serious injury or catastrophe. In federal fiscal-year 2005, there were 23 employers that entered into the 75/25 Program via settlement agreement. Results of the effect on workers’ compensation claim rates are not yet available.
In Oregon, in a significant case, an administrative law judge found an employer failed to establish the rogue supervisor defense. The case involved four sites around the state – three sites involved supervision, two involved fall protection and one involved traffic control. A serious injury resulted at one of the sites when an employee fell 50 feet due to an improperly inspected climbing rope.
During fiscal-year 2005, the office received 28 discrimination complaints under Section 29 of the Puerto Rico Occupational Safety and Health Act. All complaints were processed with full effectiveness within the 90-day period stipulated by law.
The negotiation mechanism used by federal OSHA was adopted as of the previous fiscal-year, and has been very effective in reaching agreements between employers and employees in discrimination cases. This mechanism allows investigators to analyze the merits of each case to make recommendations before issuing a referral to PR OSHA’s Legal Division. This process has led to a considerable reduction in the investigation period for each case and has increased the confidence of employees when requesting this service.
The decisions pertaining to the discrimination complaints received during the fiscal year can be classified as follows:
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 44 percent of its citations through the informal settlement process.
Although not related to a single employer or specific inspection, Washington recently settled a three-year-old lawsuit involving the manner in which inspections of privately owned farms and other businesses are conducted under the Washington Industrial Safety and Health Act. The Washington Farm Bureau filed suit in 2003, alleging the existing law, which authorized entry without permission or a warrant, was unconstitutional. The Farm Bureau also claimed that without changes to the law, Washington’s DOSH inspectors lacked the legal right to obtain search warrants if permission to enter private property was denied.
While DOSH did not agree with the Farm Bureau’s legal arguments, both parties agreed to work cooperatively to develop and support legislation that could settle the lawsuit. Under terms of the settlement, the Farm Bureau agreed to dismiss its case after the Washington State Legislature approved legislation that requires inspectors to ask permission from the property owner, manager, operator or the on-site person in charge prior to conducting an inspection. The new law also removes any doubts about the constitutionality of Washington’s right to enter and inspect workplaces, and provides clear authority to obtain a warrant.
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 is 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.
A framing company, BLF, Inc., and the owner of a framing company were charged with willfully violating Cal/OSHA safety orders resulting in the death of an employee. The charges arose from the death of an employee when he fell approximately 40 feet through an opening while doing sheeting work on the roof (fifth level) of an apartment house under construction. The employer had failed to install any worker safety protections, such as guardrails or floor covers, and personnel were not provided with personal fall protection, such as safety harnesses. Both defendants pled no contest and were convicted of the same offenses. Part of the agreement included a $40,000 restitution fine paid to the deceased employee’s family, a $19,000 restitution payment to Cal/OSHA for investigative costs, a $5,000 fine paid to the court and a $1,000 fine paid to the State Victim’s Restitution Fund.
The District Attorney for Santa Clara County filed a complaint against United Technologies Corporation. After a six-week jury trial, the jury convicted the defendants on all counts. The complaint alleged that United Technologies failed to inform the employer that the pipe, which the employee cut, might be contaminated with explosive residue. A total penalty of $1,303,650 was imposed upon the defendant – $833,018 in the form of penalties for violations of the Business and Professions Code.
Another case was filed against Bodycote Thermal Processing. Two fatalities occurred when a worker repairing a hydraulic leak on the inside of a vacuum furnace was overcome by lack of oxygen and collapsed. Another worker tried to rescue him and both workers died. Neither worker was wearing a harness or retrieval line. The employer pled no contest to two misdemeanor counts. Under terms of the plea agreement, the employer was fined $350,000 and placed on probation for two years.
Kentucky is currently looking at updating its penalty calculations policy to increase the deterrent effect on violations related to fatality, accidents and imminent danger conditions.
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.
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, MNOSHA has issued nonnegotiable fines in 66 fatality cases.
Next Section: State initiatives: changing the work environment»