Lawmaker: Time to consider stiffer OSHA penalties
By Dustin Bleizeffer
— October 4, 2014
Brett Samuel Collins, 20, was working his last few days at a construction job near Sheridan before heading back to college classes when a trackhoe bucket struck him in the head. He died Aug. 20, 2012.
“He was finally settling down and thinking school was the answer,” said his grandmother, Mary Jane Collins, of Sheridan. Up to that point, Brett Collins had worked several seasons for the U.S. Forest Service, requiring him to miss fall semesters. He’d attended two spring semesters at Sheridan College. “The construction company job was so he could go to school for the whole year,” Mary Jane Collins said.
The employer, COP Wyoming LLC, initially received five citations related to the accident that caused Brett Collins’ death. Two citations were dismissed, and the Wyoming Occupational Safety and Health Administration (OSHA) proposed $13,860 in fines for the remaining three. About a year later, the company and Wyoming OSHA settled on a much smaller fine; $6,773.
For the Collins family, the fine was an insult. They began to ask how a $6,773 fine was supposed to motivate companies to avoid violating critical workplace safety regulations.
“I find it offensive that lawyers and company representatives can negotiate and reduce fines to that small of an amount,” especially when OSHA violations involved a fatality, Mary Jane Collins told WyoFile in a recent interview.
Mary Jane Collins said she and the rest of Brett’s family in the Sheridan area began looking into the issue, and pushing for tougher consequences for OSHA violators. In September, Mary Jane Collins testified before the Joint Labor, Health and Social Services Interim Committee, proposing a straight-forward change: set a non-negotiable $50,000 fine for companies in violation of Wyoming OSHA regulations involving a workplace fatality. The proposal is not intended to put anybody out of business, Mary Jane said, but to put employers on notice; you’ll get hit in the pocketbook if violating OSHA regulations results in fatality.
“A fatality is a fatality and you cannot negotiate that,” Collins told WyoFile. “It’s pretty offensive when you can put Brett and his 20-year-old happy-go-lucky smiling face next to a $6,000 fine. Come on. It just doesn’t seem real or right.”
Members of the Labor Committee said they’d take the proposal under consideration. The committee meets again Oct. 16-17, but no agenda has been publicized.
“There will be more discussion at the next meeting,” said Labor Committee member Rep. Mary Throne (D-Cheyenne).
Throne sponsored a bill in 2010 that would have raised OSHA penalties, but it didn’t gain traction in the Legislature, despite support from groups that included the oil and gas industry. So are Wyoming lawmakers prepared to add more “stick” to what has been a mostly “carrot” approach to incentivize safer workplaces?
Lawmakers may be warming to the idea, Throne said, certainly the ones on the Labor Committee.
“It’s just offensive to people when a family member dies and the penalty is so low,” Throne told WyoFile in a recent phone interview. “The frustration I’ve had … is it’s time to stop just expressing sympathy and time to do something.”
Wyoming’s struggle with workplace safety
By far, the biggest contributing factor to deaths on the job in Wyoming is vehicle accidents — particularly accidents in which seatbelts are not used. Wyoming’s remote work locations, travel, construction and the nature of working around heavy machinery are all contributing factors to the state’s high rate of workplace fatalities.
For a 10-year period during boom times in the 2000s, Wyoming ranked worst, or close to worst in the nation for the number of workplace deaths per 100,000 workers.
In December 2011, after 16 months on the job as Wyoming’s workplace safety epidemiologist, Timothy Ryan submitted a report to the governor’s office and resigned due to his concern that there was not a serious enough commitment to address the carnage happening to Wyoming workers. After analyzing the scope of the problem and Wyoming’s efforts to address it, Ryan concluded, “Safety occurs as an afterthought.”
Both industry and Wyoming’s government have taken measures to improve workplace safety performance:
° The Legislature appropriated $500,000 for a grant program available to employers who want to establish or improve their own safety programs.
° In 2012 Gov. Matt Mead added seven full-time Wyoming OSHA safety consultants strictly dedicated to the agency’s existing voluntary courtesy inspection program.
° Industry safety alliances: The Wyoming Oil and Gas Safety Alliance (WOGISA) was formed in 2010, “to promote safety and health improvement for the oil and gas exploration, production, transmission and refining industries in Wyoming.” Since, several other industries have partnered to improve safety performance in their respective fields, such as the Wyoming Refinery Safety Alliance, the Wyoming Transportation Safety Coalition, and the Wyoming Construction Safety Alliance.
Workplace fatalities in the state peaked in 2007 at 17 per 100,000 workers — four times the national average, according to the U.S. Bureau of Labor Statistics. There were 21 workplace fatalities in Wyoming in 2013, down from 31 deaths in 2012, according to the state.
The statistics regarding workplace fatalities seem to be trending in the right direction. But whether the state’s efforts — and industry’s — are to credit is difficult to say for certain, according to state officials. It’s also difficult to know to what extent recent safety improvement efforts have helped in regard to injuries.
Claims decreased from more than 16,000 per year in 2006 to about 12,000 in 2013, according to the Workforce Services Department Epidemiology Report for 2013 (download the report). Hospitalizations dropped from more than 1,000 per year to 280 in 2013, the report says.
In the report, Wyoming Occupational Epidemiologist Mack Sewell wrote, “This drop could be related to a combination of events such as improvements in workers’ safety and changes in healthcare delivery with more medical care being delivered in outpatient settings.”
According to a recent Casper Star-Tribune article, Wyoming OSHA has struggled to maintain compliance officers, competing for talent with steady growth in construction and energy development.
Wyoming Department of Workforce Services Director Joan Evans said there’s been high turnover in Wyoming OSHA’s inspection and compliance office “due to salary competition.” She noted that Wyoming OSHA just shifted from three to two vacancies in compliance and inspection positions.
“We’re still ahead of the game. We’ve been able to do more and more consultations each year” since the new positions were added in 2012, Evans told WyoFile.
Wyoming OSHA conducted 158 consultations in 2011 (consultations are when an employer voluntarily asks Wyoming OSHA to review its safety program). There were 152 consultations in 2012, 605 in 2013, and 533 so far in 2014.
Incentives vs. mandates
Setting a non-negotiable fine, as the Collins family proposes, would require legislation and a signature from the governor, according to state officials. And there are challenges to the approach. “Non-negotiable” may be a legal non-starter. Even a parking ticket comes with the opportunity for due-process, say some worker advocates close to the issue. An alternate approach may be to raise minimum fine limits for serious OSHA violations.
“This is how we addressed the drunk driving issue,” said Dan Neal, executive director of the Equality State Policy Center, a nonprofit government watchdog group that represents several organizations, including some labor unions.
Wyoming Workforce Development spokeswoman Hayley McKee said, “OSHA has the authority to fine based on violations of the standards found, not the outcome of the violations.”
Throne said she expects the Labor Committee to discuss raising both the minimum and maximum OSHA fine limits when it meets later this month in Evanston. “You have to have the incentives, but you also have to have a meaningful deterrent,” Throne said.
Mary Jane Collins said that Wyoming’s voluntary incentives approach to date seems to show the state is looking out for employers before looking out for workers. “What they’re doing is helping the companies, not necessarily the workers,” Collins said. “When you hit somebody in the pocketbook you wake them up.”
— Dustin Bleizeffer is WyoFile editor-in-chief. He has covered energy and natural resource issues in Wyoming for 15 years. You can reach him at (307) 267-3327 or email [email protected] Follow Dustin on Twitter at @DBleizeffer
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