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Monday, Jul 6, 2009
Pressure to settle cases means that the Occupational Safety and Health Administration collects less than half the fines it levies. But the real cost comes in worker health and safety.
Editor's note: Lewis is a reporter for ProPublica, an independent, nonprofit newsroom that produces investigative journalism in the public interest.
By Robert Lewis
AP/Houston Chronicle, Brett Coomer
Firefighters pour water on a smoldering unit following an explosion at the BP refinery, on March 23, 2005, in Texas City, Texas.
Sept. 17, 2008 | After an explosion tore through a sugar refinery in Port Wentworth, Ga., this February, killing 14 workers and injuring 40, the federal government's Occupational Safety and Health Administration acted swiftly, announcing an $8.8 million fine against Imperial Sugar for not protecting workers against the hazards of combustible dust. The proposed fine, disclosed in July, is the third highest in the agency's 37-year history. But if that same history is a guide, OSHA will end up collecting half that much money, or less.
ProPublica reviewed the agency's previous 25 highest announced penalties. In 19 cases, the fines were sharply reduced after appeals and negotiations, dropping an average of 65 percent. Three others were settled the day they were announced after closed-door talks between the agency and companies. Three remain open. Citations for "willful'' violations, which can bring criminal prosecution, were frequently adjusted to lesser charges that carry only civil penalties. Some cases plodded through the system; five dragged out for more than a decade. The reduced penalties are the end result of a system that emphasizes reaching settlements -- settlements often proposed by OSHA itself, rather than the company under scrutiny.
An OSHA official told ProPublica that the agency's impact on workplace safety cannot be calculated in the fines it collects. "When we issue a big penalty and a press release, that has an impact above and beyond the company," said Richard Fairfax, OSHA's director of enforcement programs. "Most employers are going to look at that and go back and say, 'Let me see what I'm doing at my place.'"
Bob Leclerc, compliance manager at Maine Contract Farming, a Maine agricultural company with three OSHA citations in the past five years, seconds the idea that the very announcement of a penalty is a form of punishment. "Most companies are concerned with their public image," Leclerc said. "Everyone and their mother see your company screwed up."
But what Fairfax paints as sound policy, ex-OSHA officials and former Labor Department lawyers portray as weaknesses in the department's legal arm, the solicitor's office, that have persisted through Democratic and Republican administrations. These officials said department lawyers were overworked, overmatched and sometimes just afraid to stand up to companies that appealed citations, choosing instead to sharply reduce the proposed penalties. When labor attorneys did defend the agency's findings, the cases often languished before the Occupational Safety and Health Review Commission, a panel of political appointees that has the final word on such cases short of federal court.
"The hard facts are that the department is understaffed," said J. Davitt McAteer, Labor's acting solicitor from February 1996 to December 1997. The system "tends to foster settlements and tends to diminish penalties on sometimes quite dubious grounds."
The case of Donald Smith, a millwright at a General Motors car plant in Oklahoma City, is typical, say former OSHA officials and Labor Department lawyers. Smith was repairing a piece of machinery on the morning of April 4, 1991, when a lift table suddenly turned on, crushing his head and killing him instantly.
Shortly before his death, Smith had asked a supervisor to point out the machine that needed repair, a piece of equipment he was unfamiliar with. According to documents filed in the ensuing health and safety case, the supervisor quoted Smith as saying, "I thought that was it, but wasn't sure. I didn't want to get my damned head caught in that thing." OSHA investigated the death and in September 1991 proposed a $2.78 million fine on the company for 57 violations, mostly regarding so-called lockout/tagout rules that require companies to shut down equipment and ensure the machinery can't turn back on while workers are doing maintenance.
The case was so egregious, the Department of Labor also referred it to the Department of Justice for criminal prosecution, said Terry Goltz Greenberg, a Labor Department lawyer from 1988 to 1995. The Justice Department declined to pursue the case.
G.M. contested the OSHA fines and citation and took its case to an administrative law judge who ultimately concluded that while the plant had procedures for safe maintenance, they hadn't been followed. The judge ruled that workers had not been properly trained to secure machines under repair. In April 1994, he reduced the fine to $1.95 million.
Both GM and the Department of Labor appealed the decision and the case went to the Occupational Safety and Health Review Commission, where it sat. And sat. In December 2007, more than 16 years after Smith died, the commission finished reviewing the case. In the end, less than half of the proposed violations remained -- 26 of 57 -- and the fine dropped 75 percent to $692,000.
G.M. declined to comment on the case.
Delays like those in the Smith case can have an unfortunate side effect: Employers are not required to "abate" potentially dangerous conditions until the case is decided. (In the Smith case, G.M. did address the safety issue as the case was being appealed.)
"Employers can rely on delay," said Stuart Weisberg, who was appointed to the review commission by President Clinton and served from February 1994 to December 2000 as a member and its chairman. "An employer knows: 'I don't have to abate this violation until there's a commission decision.'"
Horace "Topper" Thompson, the current chairman and a Bush administration appointee, declined to discuss specific cases but said he agreed with critics who contend appeals take too long.
"It's very frustrating to everyone who is involved with OSHA," he said. "When a case takes this long to come out, abatement is stayed, payment of the fine is stayed, establishment of the principle is stayed until you can get the decision out."
Next page: "The biggest decision was, 'Where do I go for lunch today?'"
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