CRIMINAL PROSECUTIONS UNDER THE OSH ACT

Transcription

1 CRIMINAL PROSECUTIONS UNDER THE OSH ACT Ronald W. Taylor Venable LLP February 2009 Portions of this presentation are adapted from a presentation made with Scott Dunham, Paul Waters, and Kenneth Hellman at the September 2008 OSHRC Judicial Conference 1

2 Overview Statutory Bases for Criminal Prosecution Review Commission Procedures Use of Criminal Prosecution: Examples Proposed Legislation 2

3 Statutory Bases for Criminal Prosecutions OSH Act, 29 U.S.C. 651 et. seq., 29 U.S.C. 666 (f) Criminal penalties for giving advance notice of an inspection; not more than $1000 fine and/or 6 months imprisonment (g) Criminal penalties for knowingly making false statement, representation, or certification in any application, record, report, or other document filed or required to be maintained ; not more than $10,000 fine and/or 6 months imprisonment (e) Criminal penalties for willful violation of a safety standard causing death of an employee; not more than $250,000 (or $500,000 if the employer is a corporation) fine and/or 6 months imprisonment. 3

4 Statutory Bases for Criminal Prosecutions, cont. Government must prove: Defendant is an employer engaged in a business affecting commerce; Employer violated a standard, rule, or order or any regulation under the OSH Act; The violation was willful, and The violation caused the death of an employee Willful means: Employer knowingly and purposely violated a standard with intentional disregard for the standard or with indifference to its requirement. That is, voluntary and intentional. United States v. Dye Construction Co., 510 F.2d 78 (10 th Cir. 1975). Government does not have to prove specific intent to harm Ignorance of the standard is generally not a defense because it shows plain indifference. 4

5 Statutory Bases for Criminal Prosecutions, cont. State Plan Counterparts 26 states have adopted and approved state OSHA plans (3 are public sector only). Most private state plans have adopted federal standards and enforcement procedures, including provisions similar to 666 (e.g., MD. LAB. & EMPL. CODE ANN ). State criminal laws OSH Act does not preempt prosecution under state criminal laws generally For example: Reckless endangerment Manslaughter Criminally negligent homicide 5

6 Statutory Bases for Criminal Prosecutions, cont. Environmental and Other Federal Statutes In addition to criminal prosecution under Section 17(e) of the OSH Act, employers may potentially face prosecution under a number of other sections of the United States Code, including, but not limited to: Crimes and Criminal Procedures (e.g., conspiracy, making false statements, fraud, obstruction of justice, and destruction, alteration or falsification of records during a federal investigation); Clean Water Act; Clean Air Act; Resource Recovery and Conservation Act; Comprehensive Environmental Response, Compensation, and Liability Act. See generally Instruction CPL (2005) 6

7 Illustrative Environmental Crime Investigations Clean Water Act: Plant manager at a metal finishing company directs employees to bypass the facility's wastewater treatment unit to avoid having to purchase chemicals that are needed to run the wastewater treatment unit. The company sends untreated wastewater directly to the sewer system in violation of the permit issued by the municipal sewer authority. The plant manager is guilty of a criminal violation of the Clean Water Act. Resource Conservation and Recovery Act (RCRA): To avoid the cost of properly treating its hazardous waste, the owner of a manufacturer of cleaning solvents places several dozen 5-gallon buckets of highly-flammable and caustic waste into the company s dumpster for disposal at a local, municipal landfill that is not authorized to receive hazardous waste. The owner of the company is guilty of a criminal violation of RCRA. Clean Air Act: The owner of an apartment complex solicits bids to remove 14,000 square feet of old ceiling tiles from the building. Three bidders inspect the building, determine that the tiles contain dangerous asbestos fibers, and bid with understanding that, in doing the removal, they would be required to follow the work practice standards that apply to asbestos removal. The fourth bidder proposes to save the owner money by removing the tiles without following the work practice standards. The owner hires the fourth bidder on this basis and, so, the work is done without following the work practice standards. The owner is guilty of a criminal violation of the Clean Air Act. Source: 7

8 OSHA Review Commission Procedures Stays During Criminal Cases Rule 63 governs stays Motion filed with ALJ and Chief Judge: ALJ, with Chief Judge s concurrence, may grant the stay for requested or other period, as ALJ determines. Parties must submit reports to the ALJ at least every 90 days. 8

9 OSHA Review Commission Procedures Stays During Criminal Cases Comm n considers whether "the interests of justice" require stay, and "make such determinations in the light of the particular circumstances of the case." Secretary of Labor v. Pitt-Des Moines, Inc., OSHRC Docket No (1997). A stay furthers the public interest and precludes relitigation of issues resolved in the criminal matter. Id. A principal factor favoring a stay [ ] is the potential for subversion of the criminal discovery process. Id. The duration of a stay is determined based on a showing of "the limits of any reasonable need, and stays of indefinite duration are generally not entered unless no alternative is available. Id. 9

10 10 Federal Prosecution FY 1990 FY 2008 Criminal Referrals by OSHA FY08 FY90 FY91FY92 FY93 FY94FY95 FY96 FY97FY98 FY99 FY00FY01 FY02 FY03FY04 FY05 FY06FY07

11 Federal Prosecution 2003 to 2008 Cases Prosecuted by the DOJ Source: Discounting Death: OSHA s Failure to Punish Safety Violations That Kill Workers (April 2008) Source: 11

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15 Recent Federal Prosecutions United States v. Tyson Foods, Inc., W. D. Ark., No. 4:09MJ4001, Jan Maintenance worker asphyxiated after inhaling hydrogen sulfide while repairing a machine that converts chicken feathers into a pet food additive. Prosecuted under 29 USC 666(e). Entered guilty plea for willful violation resulting in the death of an employee, agreed to pay a $500,000 fine, and received a term of probation up to five years. Also civil OSHA fine of $436,000 for the same incident. 15

16 Recent Federal Prosecutions United States v. Hylton, W.D. Okla, CR , City manager and building superintendent used prisoners to remove asbestos without PPE Indicted under 42 USC 7413(c)(5)(a) (knowingly releasing asbestos into air); 7413 (c)(1)(knowingly violating asbestos waste disposal rules); 18 USC 1001(false written statements) Convicted of negligent endangerment (lesser included charge) under 7413 (c)(4) and sentenced to 6 to 8 months, plus $15,000 fine, plus community service. 16

17 Recent Federal Prosecutions Winter s Architectural Roofing Co., C.D. Ill. Apr Employee fell 16 feet through a skylight and was killed. Proposed civil penalties of $224,000 8 willful violations issued Superintendent/employee charged with 3 counts obstructing OSHA s investigation, 1 count of making false statements under 18 USC 1505 and Trial is scheduled for March 9,

18 Recent State and Local Prosecutions People v. Rapetti, N.Y. Sup. Ct., case no. not available, crane collapse in Manhattan caused the death of seven people. William Rapetti and his company were recently indicted on: Seven counts of second degree manslaughter, punishable by up to 15 years in state prison; Seven counts of criminally negligent homicide, punishable by up to 4 years; Three counts of second degree assault, punishable by up to seven years; One count of second degree reckless endangerment, punishable up to 1 year; and Two counts of failure to file tax returns. 18

19 Recent State and Local Prosecutions People v. Belofchik, N.Y. Sup. Ct., case no. not available, indictments announced 12/08. Subcontractor, two managers, and a foreman indicted with manslaughter, criminally negligent homicide, and reckless endangerment. Indictments resulted from an investigation into a fire at Deutsche Bank after it was damaged during the 9/11 tragedy. During asbestos abatement, the sprinkler system was disabled, and acetylene torches were being used for abatement and demolition work caused small fires. Subsequently, fatal fire started by a discarded cigarette that killed two firefighters and injured more than 100 other firefighters. Containment barriers also blocked firefighter s ability to access and exit from the building. 19

20 Recent State and Local Prosecutions People v. Lattarulo, N.Y. Sup. Ct., No. 5516/2008. Foundation collapsed and crushed an undocumented worker. Defendant indicted for second degree manslaughter, criminally negligent homicide, and reckless endangerment for failing properly to support the foundation of a neighboring building while digging a new deeper foundation for his business. 20

21 Other Notable Prosecutions Hershey Creamery Company, Pa Criminal prosecution under the Clean Air Act s Risk Management Program ( RMP ). Hershey pled guilty to a felony for its storage and use of anhydrous ammonia as a part of the refrigeration operations at two facilities. The action was based on the company's failure to develop and implement a RMP for its use of anhydrous ammonia, after twice certifying to EPA that it had done so. Fined $100,000 Case is an example of the DOJ, OSHA and EPA cooperative initiative to target and prosecute worker safety violations. 21

22 Proposed Federal Legislation Protecting America s Workers Act, S. 1244/H.R.2049 (2008) Increased Coverage/Civil Penalties Would extend coverage to more workers, e.g., flight attendants, state correctional officers, and employees in government agencies. Would increase penalties from $7000 to $70,000 for serious/other citations Would increase penalties from $70,000 to $100,000 for willful/repeat citations Would amend 4(b) preemption Increased Criminal Sanctions Would authorize felony charges for repeated and willful violation that results in death or serious bodily injury. Would set minimum penalty of $50,000 for a death caused by a willful violation; maximum of $250,000, and/or imprisonment for up to 10 years (20 years for a second violation) Would clarify that states may prosecute crimes under state law. 22

23 Proposed Federal Legislation Protecting America s Workers Act (cont d) Greater Whistleblower Protections Enhance Public s Right to Know Would mandate that DOL investigate all death and serious injury cases. Would give workers and families the right to meet with DOL investigator. Would expand employee right to contest to citations and penalties Would eliminate use of unclassified violations Would require employers to inform workers of protections under 11(c) 23

24 Questions? 24