A Texas newspaper takes a look at how the $118,300 OSHA fine for the West Fertilizer explosion stacks up against those for other catastrophic workplace incidents. Its conclusion: OSHA fines aren’t proportional to loss of life.
The Dallas Morning News analyzed OSHA’s 56,800 inspections since 2001.
The paper noted the West, Texas, explosion that killed 15 people, injured 300 others and damaged at least 150 buildings in the area, is nowhere close to OSHA’s top five largest fines. Not only that — it’s nowhere close to the top 25. No. 25 on the list involving Union Carbide in 1991 had a total issued penalty of $2.8 million.
The people of Texas are familiar with the largest fine in OSHA’s history: $84 million in proposed fines for the 2005 BP Texas City explosion that killed 15 and injured 170.
Another way to consider the West Fertilizer fine is to look at other recent ones from OSHA.
The agency just fined the general contractor and five subcontractors working on the construction of a power plant in New Hampshire $280,000.
There were no deaths in this case. OSHA inspected the work site due to complaints.
The general contractor alone faces $116,280 in fines.
How did the New Hampshire fines wind up more than two times those for the Texas explosion? The fines for the violations at the power plant site included three willful violations which carry a maximum penalty of $70,000. West Fertilizer’s parent company faces 24 serious violations which carry maximum $7,000 fines, but no willful ones.
The ten-times higher willful penalties can add up quickly.
Defining willful and serious
What’s the difference between the two types of fines?
- A willful violation is defined as one in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.
- A serious violation exists when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation.
OSHA has had trouble of late getting some willful citations to stick.
In 2010, OSHA fined BP $3 million for process safety management violations at its refinery near Toledo, Ohio. The bulk of the fine — $2.94 million — was for 42 willful citations.
On appeal, an administrative law judge of the Occupational Safety and Health Review Commission threw out 36 violations. OSHA agreed to throw out one more.
Then for the five left, the ALJ reduced their severity from willful to serious. Result: What started as a multi-million dollar fine was reduced to under $100,000.
In another case, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious. What had been $1.975 million in fines dropped to $197,500.
What’s the take-home from all this? It may be that just how OSHA fines are determined is still a bit of a mystery. We know some facts, such as that maximums for serious and willful citations are $7,000 and $70,000 respectively.
But despite written definitions of serious and willful violations, it’s still hard to tell how OSHA and the courts decide which type of violation falls under which category.
What are your thoughts on how OSHA fines are determined? Let us know in the comments below.