Michaels’ Congressional Testimony Points to Discrepancies between OSHA and EPA Fines and Criminal Penalties

Members of Congress are working to link together key provisions of the Protecting America’s Workers Act (PAW Act, HR 2067), introduced last year, to mining safety and health provisions of the Mine Safety and Health Act of 2010 bill, HR 5663. The Miner Safety and Health Act would amend the OSH Act to allow for higher fines, stiffer criminal penalties and greater protection for whistleblowers in cases involving workplace safety. It also would allow victims and their families access to OSHA citations, notify them if the employer contests the findings of OSHA’s investigation and give them the right to meet with OSHA representatives.

“During the 7 months I have been the assistant secretary of OSHA, explosions at the Kleen Energy power plant in Connecticut, the Tesoro refinery in Washington State, the Upper Big Branch mine in West Virginia, and on the Deepwater Horizon offshore oil drilling platform in the Gulf of Mexico have killed 54 workers,” said Assistant Secretary of Labor – OSHA David Michaels. “We add their names to a long list of recent disasters, like the explosions at the BP refinery in Texas, Sago and Darby mines in West Virginia and Kentucky, and the Imperial Sugar plant in Georgia that killed dozens of workers and injured hundreds more.”

He noted that while those workplace tragedies made headlines, “What is not publicized are the more than 5,000 other workers killed on the job in America each year, the more than 4 million who are injured and the thousands more who will become ill or die in later years from present day occupational exposures. Every day in this country we have a Sago mine disaster, every 2 days an Upper Big Branch, and every month the loss of a fully loaded Boeing 747. These tragedies happen in every corner of the country, usually one at a time, far from the evening news and the morning headlines.”

Michaels thanked the members of the committee and the cosponsors of the Miner Safety and Health Act “for recognizing not only that the nation’s 350,000 miners desperately need better protections to prevent any more Sago or Upper Big Branch disasters, but that this nation’s 135 million workers in general industry who are covered by OSHA also need better, more up-to-date protections.”

Title VII of the Miner Safety and Health Act provides critical amendments to the OSH Act that would increase OSHA’s civil and criminal penalties, enhance whistleblower protections and victims’ rights and give OSHA the authority to require abatement of serious hazards even if and while the employer contests citations issued for them.

According to Michaels, these provisions, strongly supported by the Labor Department and endorsed by the Obama administration, would enable OSHA to more effectively accomplish its mission. “Because OSHA can visit only a limited number of workplaces each year, we need a stronger OSH Act to leverage our resources to encourage compliance by employers. We need to make employers who ignore real hazards to their workers’ safety and health think again.”

Federal OSHA and state plans combined have just over 2,200 inspectors, which translates to about one compliance officer for every 60,000 workers. OSHA’s resources are spread across nearly 9 million workplaces.

Higher OSHA and MSHA Fines

Michaels said he believes safe jobs “exist only when employers have adequate incentives to comply with OSHA’s requirements. Those incentives are affected, in turn, by both the magnitude and the likelihood of penalties.”

According to Michaels, OSHA’s current penalties are not large enough to provide adequate incentives, especially for large employers. Currently, serious violations – those that pose a substantial probability of death or serious physical harm to workers – are subject to a maximum civil penalty of $7,000. Willful and repeated violations carry a maximum penalty of $70,000.

“Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem. The current penalties do not provide an adequate deterrent,” said Michaels.

Supporters of increased OSHA fines often point out that OSHA penalties, which can involve incidents where lives were lost, often fall short of those levied by agencies like EPA. For example, in 2001 a tank full of sulfuric acid exploded at an oil refinery in Delaware, killing Jeff Davis, a worker at the refinery. His body literally dissolved in the acid. The OSHA penalty was $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing EPA to assess a $10 million penalty for violating the Clean Water Act.

“How do we explain to Jeff Davis’ wife Mary, and their five children, that the penalty for killing fish and crabs is so much higher than the penalty for killing their husband and father?” asked Michaels.

Increase Criminal Penalties In OSH Act

Michaels also complained that criminal penalties in the OSH Act are inadequate for deterring criminal wrongdoing. Under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a worker’s life is 6 months in jail, making these willful crimes a misdemeanor. The criminal penalty provisions of the OSH Act are weaker than virtually every other safety and health or environmental law.

The Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act all provide for criminal prosecution for knowing violations of the law, and for knowing endangerment that places a person in imminent danger of death or serious bodily harm, with penalties of up to 15 years in jail. There is no prerequisite in these laws for a death or serious injury to occur. Other federal laws provide for a 20-year maximum jail sentence for dealing with counterfeit obligations or money, or mail fraud; and for a life sentence for operating certain types of criminal financial enterprises.

“It defies logic that serious violations of the OSH Act that result in death or serious bodily injury are treated as lesser crimes than insider trading, tax crimes, customs violations and anti-trust violations,” said Michaels.

The Miner Safety and Health Act would amend the criminal provisions of the OSH Act, as it would also amend the Federal Mine Safety and Health Act, to change the burden of proof from “willfully” to “knowingly.” Specifically, Section 706 states that any employer who “knowingly” violates any standard, rule, or order and that violation caused or contributed to the death of any employee is subject to a fine and not more than 10 years in prison.

Increase OSH Act Protections for Whistleblowers

Michaels also took note of provisions in the Miner Safety and Health Act that would protect whistleblowers who speak out against unsafe working conditions. The OSH Act was one of the first safety and health laws to contain a provision – 11(c) – for protecting employees from discrimination and retaliation when they report safety and health hazards or exercise other rights under the OSH Act. That provision now is one of the weakest whistleblower provisions in any federal law.

The Miner Safety and Health Act strengthens whistleblower protections for workers in both mining and general industries. It makes explicit that a worker may not be retaliated against for reporting injuries, illnesses or unsafe conditions to employers or to a safety and health committee, or for refusing to perform a task that the worker reasonably believes could result in serious injury or illness to the worker or to other employees.

Additionally, the act increases the existing 30-day deadline for filing an 11(c) complaint to 180 days, bringing 11(c) more in line with most of the other whistleblower statutes enforced by OSHA. In addition, the Miner Safety and Health Act amends section 17(j) of the OSH Act to include an employer’s history of violations of section 11(c) as a consideration in assessing civil penalties.

Victims’ Rights

The Miner Safety and Health Act would place into law, for the first time, the right of a victim (injured employee or family member) to meet with OSHA, to receive copies of the citation at no cost, to be informed of any notice of contest and to appear and make a statement during settlement negotiations before an agreement is made to withdraw or modify a citation.

The act also requires the secretary to designate at least one employee at each OSHA area office to serve as a family liaison, similar to the program already in existence at MSHA. The OSHA family liaisons would keep victims informed of the status of investigations, enforcement actions and settlement negotiations, and assist victims in asserting their rights.

Hazard Abatement During the Contest Period

One of the most significant changes that the Miner Safety and Health Act makes to the OSH Act is the provision that requires abatement of serious, willful and repeat hazards during the contest period. Currently, if an employer contests an OSHA citation, that employer is not obligated to correct the hazard during the administrative contest period, leaving workers exposed to serious or deadly hazards for months or years after the hazards have been identified.

“The lack of any requirement for employers to abate hazards during the contest period also seriously undermines the effectiveness of OSHA’s already low penalties,” said Michaels. He added that OSHA is pressured to negotiate away penalties in order to avoid employer contests and ensure that hazards quickly are fixed.

The alternative can be a lengthy contest proceeding, some lasting a decade or more. A recent OSHA analysis found that between FY 1999 and FY 2009, there were 33 contested cases that had a subsequent fatality at the same site prior to the issuance of a final order. The Miner Safety and Health Act would enable OSHA to issue failure to abate notices to a workplace with a citation under contest, which would carry a penalty of up to $7,000 for each day the hazard goes uncorrected, which should serve as motivation for employers to abate hazards.

“Clearly, OSHA can never put a price on a worker’s life and that is not the purpose of penalties – even in fatality cases,” Michaels acknowledged. “By giving OSHA the authority to require abatement during contest, we not only ensure that workers are protected immediately but also can hold employers accountable for keeping a safe and healthful workplace. We must not forget that the stronger the message OSHA sends, the better the deterrence and more lives are saved.”

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