Photo by Tom Hindman, Charleston Daily Mail, via the AP

The August 2008 explosion that killed two workers at the Bayer CropScience plant in Institute, W.Va., was cited earlier this week as an example of why penalties issued by federal safety inspectors are not deterring violations of important workplace protection standards.

In testimony submitted to the House Education and Labor Committee’s Workplace Protections Subcommittee, national AFL-CIO safety director Peg Seminario told lawmakers:

In another case that involved a planned inspection at the Bayer Cropscience chemical plant in Institute, West Virginia, in 2005 OSHA originally cited the company for 2 willful violations and 8 serious violations of the process safety management (PSM) standard and related requirements and proposed $135,000 in penalties. In a formal settlement the serious violations were deleted, and the 2 willful violations were changed to “unclassified” with a $110,000 final penalty assessed.

In August 2008, there was a powerful explosion and fire at the Bayer facility that killed two plant operators and threatened the community. The explosion occurred when there was a runaway reaction during the restart of a methomyl unit.  Methomyl is a highly toxic substance that is sold as a pesticide.  In the preliminary report on its investigation of the explosion, the Chemical Safety Board found significant deficiencies in process safety management that according to the Board likely contributed to the accident. The CSB also found that the explosion could have been catastrophic.  Within 80 feet of the site of the explosion, there is a 37,000 pound capacity tank of methyl isocyanate (MIC), the same chemical that caused the deaths of thousands in the toxic gas release in Bhopal, India in 1994.  The CSB found explosion debris near the MIC unit, which if compromised could have led to a catastrophic outcome.

The OSHA investigation of the 2008 Bayer explosion found extensive violations of the process safety management standard.  OSHA issued 11 serious and 2 repeat violations, but no willful violations, and proposed $143,000 in penalties.  The company  contested all of the citations.

Her larger point:

The initial citations and penalties in OSHA enforcement cases, weak to begin with, are reduced even further in the resolution of cases.  Due to limited staff and resources, OSHA area directors and Department of Labor solicitors are under tremendous pressure to settle cases and avoid time consuming and costly litigation.  In both informal settlements by the agency, and formal settlements after employer challenges to OSHA citations, penalties are routinely cut by another 30 – 50 percent.

Another way the impact of OSHA enforcement is minimized is through downgrading the classification of citations from willful to serious, which greatly reduces civil penalties and undermines the possibility of criminal prosecution under the OSH Act.   In some cases OSHA has utilized a practice of changing the characterization of willful or repeat violations to “unclassified,” even though the OSH Act makes no provision for the issuance of such citations.  Employers will seek “unclassified” violations, particularly in fatality cases, not only to undermine the potential for criminal prosecution, but to lessen the impact of the violations in any civil litigation and to keep willful or repeat violations off their safety and health record.

The use of these “unclassified” violations may allow for settlements with higher monetary penalties or additional safety and health requirements. But these “unclassified” violations greatly weaken the deterrent effect of OSHA enforcement to prevent future occurrence of similar violations.

The hearing was held to gather views on H.R. 2067, the Protecting America’s Workers Act, which would among other things increase civil and criminal penalties for OSHA violations.

The Pump Handle blog has a nice rundown of testimony at the hearing, and the Las Vegas Review-Journal has a fine news story on the hearing.

This entry was posted on Thursday, March 18, 2010 at 8:44 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.