OSHA Accused of ‘Pitifully Weak’ Enforcement of Job Safety Rules

The federal Occupational Safety and Health Administration is cloaking a “pitifully weak” enforcement program behind highly publicized proposed fines that the agency settles for a pittance, according to a report issued Thursday by a nonprofit organization.

The report, issued by the Chicago-based National Safe Workplace Institute, also asserts that the United States is doing worse than any other major industrialized nation on construction safety, that OSHA is issuing considerably fewer “willful” and “serious” citations now than during the Carter Administration and that the economic impact of OSHA fines has been seriously eroded by inflation.

Further, the report states that there is no consistency from state to state on fines levied by OSHA officials on construction trenching accidents involving fatalities, even though OSHA officials are supposed to be working from the same guidelines. Joseph A. Kinney, executive director of the institute said this demonstrated a lack of leadership.

Terry Mikelson, OSHA’s chief spokesman, blasted the report as “filled with inaccuracies and faulty analysis and . . . unsupported conclusions.”

However, five outside experts, three suggested by the institute and two others, including the director of OSHA under President Gerald R. Ford, agreed with many of the report’s conclusions.

The institute said that nine of 11 highly publicized proposed fines OSHA issued in the last two years were dramatically reduced--including cases involving Union Carbide Corp., Shell Oil Co., Scott Paper, USX Corp. and Yale-New Haven Hospital. For example, proposed fines totaling $1,483,360 against Union Carbide in 1986 were settled for $408,500, a 72.5% reduction.

Public ‘Deceived’

The 11 cases cited in the institute’s report are among 40 large fines the agency has levied in the past two years, mostly against firms for failing to keep accurate records. The large proposed fines represented a sharp departure from earlier policies of OSHA under President Reagan and were viewed by some as a sign that the agency had changed its stripes.

The institute’s report contends that the public has been deceived by the proposed fines and that the settlements present a truer picture of the agency’s enforcement posture.

Mikelson of OSHA countered by saying that each settlement also included “corporate-wide abatement agreements.” For example, he said that Chrysler had not only agreed to pay hefty fines but that OSHA secured agreement that “immediate corrective” steps would be taken in Chrysler plants in Dover, Del., and Belvedere, Ill. “Our primary mission is to remove hazards, not to collect penalties,” he said.

Additionally, Mikelson said that with the exception of the fines against Fina Oil Co., USX and Yale, all the other fines were larger than any obtained by the administration of President Jimmy Carter.

He said the largest proposed penalty in the 1970s was $366,800 in October, 1978, against Berwick Forge & Fabricating Co., based in Berwick, Pa. He said that case was settled by Carter Administration officials for $94,000, a 75% reduction from the fine originally proposed.

Morton Corn, who led OSHA under President Ford and is now a professor at Johns Hopkins University, said he was surprised to hear that there was a debate about the worker safety enforcement policies of the Reagan Administration.

“There has not been vigorous enforcement in this Administration,” Corn said in a telephone interview from his Baltimore office. “That is recognized among health and safety professionals. There is an attempt to get employers to do more without enforcement. . . . Most businesses out there see this as a period of infrequent contact with the government and when there is the contact is not vigorous.”

Inflation a Factor

John B. Moran, former director of safety research for the National Institute of Occupational Safety and Health and now a private consultant, said he found much of the information in the report “very distressing. There has been a serious lack of enforcement by this Administration. That’s reflected in data from the Bureau of Labor Statistics on the lost work day injury rate, which is higher now than it was right after the (OSHA) act was passed” in 1970.

The institute report also asserts that the impact of OSHA fines has been blunted considerably by inflation because maximum fine levels have not been raised since 1970. “A willful violation, with a penalty of up to $10,000, would be worth $29,700 in 1988 if adjusted for inflation,” Kinney said.

“You now have the outrageous situation that OSHA may fine someone (only) $10,000 who’s killed a worker,” said Sidney Shapiro, professor of law at the University of Kansas, who headed a special government study group that reviewed OSHA’s work during the past two years. “Congress should establish a fine structure that accounts for inflation,” Shapiro said.

He also agreed with a conclusion of the report that OSHA has not developed a meaningful strategy for targeting unsafe jobs for inspection. However, he said the agency was not totally at fault.

Shapiro said the Bureau of Labor Statistics, OSHA’s primary source for data, is prohibited by law from providing specific company data to OSHA and also does not provide the agency with data on specific cities. So, for example, OSHA is told that construction is one of the most dangerous occupations in the country but not specifically where, thus impeding its efforts. Shapiro said statutes should be changed to enable OSHA to get better data on which to base a more sophisticated enforcement strategy.

Accidents Reduced

The institute study contends that vast disparities in fines levied for the same misdeeds in accidents where trenches collapse and injures or kills construction workers show a lack of leadership that would produce uniform results.

For example, the average fine for a trenching citation in Illinois has been $1,196.97, whereas in adjoining Wisconsin it has been $126.67, according to OSHA records.

OSHA’s Mikelson said he cannot account for the disparities since all OSHA inspectors use the same field operations manual. However, he said that trenching accidents had been dramatically reduced in Milwaukee in recent years due to a special agency program.

Nicholas Ashford, associate professor of technology and policy at the Massachusetts Institute of Technology, and an OSHA expert, said the disparity showed there was “not enough good control from the top of OSHA.”

The institute report also notes that the 1987 rate of death for U.S. construction workers was more than twice as large as countries such as England and France.

David V. MacCollum, former president of the American Society of Safety Engineers, said he thought it was particularly important for OSHA officials and members of Congress to stiffen requirements for construction safety in the United States.

He said he was not surprised by the figures because “European safety standards far exceed ours. Here, we license barbers but not crane operators.”

PROPOSED PENALTIES/FINAL SETTLEMENTS The National Safe Workplace Institute contends that the following data shows how OSHA has failed to enforce large fines.

Company Citation Date Proposed Penalty Doe Run Co. 2/11/88 $2,780,000 International Paper Co. 7/28/88 $872,220 General Motors Co.* 10/5/87 $500,000 Ford Motor Co.* 4/30/87 $476,600 Union Carbide Corp.* 4/1/86 & 9/16/86 $1,483,360 Chrysler Corp. 11/5/86 & 7/6/87 $2,486,749 Scott Paper* 9/25/87 $813,000 Shell Oil Co.* 12/23/86 $244,960 Fina Oil Co.* 11/10/86 $184,000 USX Corp.* 12/10/86 $130,000 Yale-New Haven Hospital 5/21/87 $374,300

Company Settlement Reduction Doe Run Co. $1,250,000 55% International Paper Co. $872,220 0 General Motors Co.* $500,000 0 Ford Motor Co.* $325,000 31.8% Union Carbide Corp.* $408,500 72.5% Chrysler Corp. $1,861,570 25.2% Scott Paper* $475,000 41.6% Shell Oil Co.* $103,480 57.8% Fina Oil Co.* $83,500 54.6% USX Corp.* $65,000 50.0% Yale-New Haven Hospital $40,300 89.2%

* Considered by OSHA to be primarily based on record-keeping violations.

Data current as of Aug. 3

Source: OSHA