OSHA Enforcement Update: Large Cases, More Press Releases.

At a Congressional hearing last month, Secretary of Labor Alex Acosta extolled the virtues of compliance assistance, cooperation over confrontation and the Voluntary Protection Program. But he also repeated several times that the agency’s compliance assistance program “has to be balanced by a vigorous enforcement program” and especially when the employer engages in repeated and willful violations, there needs to be aggressive enforcement.

The good news is that the large cases we’re seeing below present some evidence that OSHA is continuing to take enforcement seriously, although it’s too early to tell whether we’ll have the same number of large cases as in recent previous years or whether penalty levels remain at the same level as previous years. Another interesting analysis will be whether OSHA has continued to cite under the General Duty Clause for hazardous conditions that aren’t covered by OSHA standards, like workplace violence.

And we’re finally seeing the freeze on press releases covering enforcement cases start to thaw. OSHA issued twelve enforcement case-related press releases during the month of November, compared with a total of twenty issued in the first nine months of this administration. There still doesn’t seem like there’s any kind of consistent press release policy, but the numbers show an apparent return to normalcy, at least for the month of November.

Large OSHA Cases With Press Releases

Let’s start with the largest.

• Didion Milling: On November 17, OSHA issued the second largest citation of the year,  $1,837,861 in fines against Didion Milling Inc. in Cambria, Wisconsin after a May 31, 2017, grain dust explosion that killed five workers and injured 12 others. One of the injured workers lost both of his legs in the explosion.  This is considered an “egregious” case where instead of one willful citation for the violation of the Grain Handling standard, OSHA issued an “per instance” citation against the company for each of the eight workers exposed to the hazard. Egregious citations are issued when the employer “has intentionally disregarded its safety and health responsibilities, exhibits “clear bad faith,” had “actual knowledge at the time of the violation” and the action was taken “intentionally, through conscious, voluntary action or inaction, having made no reasonable effort to eliminate the known violation.” According to OSHA Regional Administrator Ken Nishiyama Atha, in Chicago, “Didion Milling could have prevented this tragedy if it had addressed hazards that are well-known in this industry. Instead, their disregard for the law led to an explosion that claimed the lives of workers, and heartbreak for their families and the community.”

• 11/29/2017 – Region 3 OSHA News Release – U.S. Department of Labor Fines US Environmental Inc. for Safety Violations and Proposes Penalties Totaling $333,756

  US Environmental in Downingtown, PA was received four willful and seven serious citations for violations of OSHA’s confined space and fall protection standards. They had failed to implement rescue procedures for employees in confined spaces; provide protective equipment when working in confined spaces; and provide employees with fall protection training and equipment.

• 11/28/2017 – Region 6 OSHA News Release – U.S. Department of Labor and Pottery Manufacturer Reach Settlement Agreement Following Worker Fatality

Marshall Pottery agreed to pay $545,160 out of an original $830,000 penalty for the death of Arturo Gonzales, a 42-year-old worker at Marshall Pottery Inc.’s Marshall, Texas manufacturing plant was servicing a kiln when it activated, trapping Gonzales inside, and  killing him. Gonzales left behind three children and a wife.

• 11/17/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Tampa Electric Co. (TECO) And Critical Intervention Services Following Hazardous Chemical Release

  This $43,458 citation resulted from an ammonia release when a relief valve activated after a pipeline became over pressurized, although the citation focused on failures of the company’s emergency response plan, not on the release itself. TECO also faces OSHA action as a result of a June 29 incident at the Big Bend Power Station that killed five workers, and on an Oct. 25 incident at the Big Bend plant that sent two workers to the hospital.

• 11/09/2017 – Region 1 OSHA News Release – U.S. Department of Labor Cites Lynnway Auto Auction For Exposing Employees to Numerous Hazards

  Five people were killed after being struck by a vehicle in New Hamshire. This $267,081 penalty from 11 serious violations follows a 2014 citation for exposing employees to similar hazards. TrueBlue Inc., a staffing firm — doing business as PeopleReady — also received a $12,675 fine for assigning workers to Lynnway Auto Auction.

• 11/09/2017 – Region 2 OSHA News Release – U.S. Department of Labor Again Cites Three Queens Supermarkets For Safety Violations

  This involves violations at three separate locations of Trade Fair Supermarkets, including one serious and 10 repeat violations for blocked exit routes, saw blades without safety guards, and found a lack of eyewash stations, in addition to failure to train employees about chemicals they were exposed to.

• 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Farmers Cooperative After Worker Entrapped in Grain Bin

  This was $373,911 in proposed penalties against the Dorchester, Nebraska company, for  two willful, one repeat, and four serious safety violations of OSHA’s grain handling standard. A worker was engulfed up to his chest in a grain bin after entering the bin to clear clumps of soybeans while the auger was running.

• 11/08/2017 – Region 7 OSHA News Release – Missouri Podiatry Clinic Cited for Improper Handling of Medical Waste

  These foot doctors at Anderson Foot and Ankle Clinic don’t have a leg to stand on after receiving a $93,074 citation for improperly handling medical waste and other violations of the bloodborne pathogens standard and the hazard communication standard.

• 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Bimbo Bakeries USA For Multiple Workplace Hazards

  Bimbos, of San Antonio, Texas, received $122,625 in proposed penalties, including three repeat and three serious violations for machine guarding, fall protection, electrical hazards. This was the bakery’s third citation for similar hazards.

• 11/08/2017 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractors in Montana Following Severe Burns

  These $249,516 in proposed penalties  against Coleman Construction Inc. ($189,762) and its subcontractor,  Knife River ($59,754), for violation of OSHA’s confined space standard following a fire resulted in third-degree burns for an employee when compressed oxygen inside an underground duct caused a fire.

• 11/07/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Parts Manufacturer After Injuries Reveal Hazards

  This was a $308,906 citation against Elringklinger USA Inc, an auto parts manufacturer, for exposing workers to electrical, fall, and noise hazards after an employee performing maintenance on a screen print machine was injured. In another incident on July 7, a second worker suffered an amputation of the left index finger while making an adjustment on a punch press machine, OSHA said in a statement.

• 11/01/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Mississippi Company for Exposing Workers To Hazardous Energy, Equipment, and Other Hazards

  This was a $220,544 citation against Custom Nonwoven Inc., a subsidiary of Korea Synthetic Fiber, for willfully exposing its workers to unguarded machines; electrocution and burns from exposed electrical wires and control cabinets; and falls from walkways.

• 11/01/2017 – Region 10 OSHA News Release – U.S. Department of Labor Cites Boise Construction Company For Trenching Violations

  This was a  $106,000 in fines against Alta Construction, Inc. for one willful and two serious violations after failing to follow safe trenching practices.  Employees were found in a 7-feet deep trench without cave-in protection, after two worker complaints were filed.

OSHA Citations That Have Nevertheless Made the News Despite No Press Release

• JP Trucking & Excavating of Bellows Falls, NH, has received a $11,409 fine for the death of Christopher Hewey, 37, who died in a trench collapse on May 16. OSHA cited the company for three violations, relating to the company not implementing an “accident prevention program” and not inspecting the trench; the lack of training; and the presence of employees in an unprotected excavation.
• OSHA cited Sugarloaf Mountain in Carrabassett Valley, Maine for over $11,000 for the death 23-year-old Alexander Witt was preparing a competition course on one of the trails in March when he lost his footing and slid down the course. He was not wearing a helmet. The company now has a helmet policy in place for all employees at all of their resorts. TV5 News learned this after filing a Freedom of Information Act Request.

Large State Plan Cases

• Autoneum North America Inc, an Indiana automotive manufacturing facility has been fined $224,000 by the Indiana Occupational Safety and Health Administration for five alleged safety violations following the death of Melissa Stephens, 44, last October when she was crushed in a machine at the plant.  In May, an Autoneum plant in Ohio received a $569,000 federal OSHA citation after a machine amputated a 46-year-old worker’s right hand, wrist and part of his forearm.  Following Stephen’s death, a spokesman for the company said that “As a globally producing company, Autoneum complies with occupational health and safety regulations at all locations and is committed to the highest local and international standards in this area.”
• Virginia OSHA issued  citations totaling more than $100,000, including one willful violation, against Lucas Tree Experts for the death of 39 year old Muhammad Abdur-Rahee who was electrocuted last he hit a power line last April while cutting a tree
• Indiana OSHA issued a $38,700 fine against the City of Richmond for the death of Danny Caldwell on July 5 who was found submerged in a tank at Richmon’s wastewater treatment plant.The city was cited for eight safety violations, six of them serious, found at the plant, including one for corrosion on a metal grating covering the tank that  created a fall hazard for employees walking on it. (Note: Indiana is one of only 26 states where public employees are covered by OSHA.
• Boeing supplier Vaupell Molding and Tooling has been cited for $8700 by Washington State OSHA for the death of 32-year old Acheni Selifis who was hit on the head by falling machinery on May 30.
• Amazon has been hit with proposed fines of $28,000 for safety violations by Indiana OSHA for the death of warehouse worker Phillip Terry, 59, of Indianapolis who was was fatally crushed on September 24 when a forklift’s lift fell on him while he was doing maintenance work on it.
• Sierra Pacific Industries in Aberdeen, Wash. was issued a $112,000 citation for the death of Andrew Ward who was killed after falling from an elevated platform to the concrete surface below. The Washington Department of Labor and Industries found that “a section of permanent yellow guardrail was removed from the 17-and-a-half-foot-high platform and replaced with yellow caution tape so that a crane could move some equipment. When Ward went to the edge of the platform to communicate with the crane operator below, he leaned forward and fell.”
• Simon Contractors of Cheyenne, Wyoming received a $111,796 fine, including two repeat citations for trenching violations. The company had been cited for the same trenching violations in 2013.
• Vermont OSHA cited Reed & Reed Inc, with a penalty of $12,600 for the death of 59 years old David Sprague, of Windham, Maine, who was electrocuted at a construction site on April 18. The investigation found two “serious” violations related to equipment traveling under or near power lines.

Criminal Action

Wayne A. George, the owner of A Rooter Man of Pittsburgh of Hookstown, PA, pleaded guilty to a charge of willful violation of an OSHA regulation causing the Sept. 2015 death of 21-year old Jacob Casher of Clearfield, who was buried in a trench collapse.  George had been cited for a willful violation of OSHA trenching standards which require employers to take protective measures against cave-ins.

CalOSHA’s Bureau of Investigations is looking into criminal charges in the death of 27-year old Jose Lopez Lopez, a Laguna Farms employee who was killed on April 20 while working at on a berry farm in Somis. CalOSHA fined Laguna Farms $36,935 in fines for violations leading to Lopez’s death.  Lopes was working alone in a field, performing what officials called a “two-man job” and rolling twine and irrigation equipment into a hydraulic powered spool attached to a tractor. the  tractor driver he was to work with never showed up because nobody had been instructed to assist with the operation, so Lopez began to do the task alone. At some point during the operation, the Lopez attempted to remove branches caught in the twine and irrigation equipment while the spool was still in motion. His right leg became tangled in the equipment, causing his entire body to be pulled into the spool. Lopez’s head and torso were struck into the ground.

The Rest

Below is the total list of large cases (over $40,000) issued by OSHA since the beginning of 2017.

Large OSHA Enforcement Cases Through Nov 8, 2017

Large OSHA State Plan Enforcement Cases Through Oct 13, 2017