Thursday, July 17, 2003

West Pharmaceutical Statement: The Buck Doesn't Stop There.

The West Pharmaceutical statement regarding the NCOSHA fine for the dust explosion that killed six employees is here.

As I wrote yesterday, West settled the case for a $100,000 fine and a $300,000 contribution to local organizations that provided assistance to West and its employees in the aftermath of the January 29th incident. Kevin Beauregard, interim director of the the North Carolina Depart of Labor's occupational safety and health division, said that the probe raised three safety issues: dust accumulation, electrical equipment placed in an area where it was not approved and ineffective employee training on the hazards of the chemicals used. NCOSHA initially cited West for 86 violations related to those three issues. The company had faced a $602,000 fine.

But under the settlement, the company was cited for one "general duty" violation - failing to provide a safe workplace. The other 85 violations were dismissed.

But the company was not happy with the settlement.

Donald E. Morel, Jr., Ph.D., Chairman and Chief Executive Officer stated:
West cooperated fully with NCOSHA's investigation and we are very disappointed that any citations were issued. West vigorously disagrees with its allegations of non-compliance with certain NCOSHA requirements and we firmly believe that we would prevail if we contested the citation.
Now let's look at this. West "vigorously" disagrees that it had done anything wrong. This is a curious argument for a company where working conditions killed six employees.

No one is saying that West killed the employees intentionally, or even negligently. They may even be good corporate citizens. They're rebuilding in Kinston and have kept most of their employees working at other West plants.

West is probably arguing that it didn't violate any specific OSHA standards that led to the deaths. But even discounting the other 85 violations that were dismissed (which I haven't seen), the OSHAct does contain a general duty clause, Section 5(a)(1) of the law, which states that
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
In order to sustain a general duty clause citation, the hazard must be able to cause death or serious physical harm and it has to be "recognized." reconsidered doesn't just mean recognized and acknowledged by the employer; it can also mean recognized in the industry. And there is no doubt that the hazards of dust explosions are well known in industry. Do a Google search. I came up with over 100,000 hits. Clearly all are not relevant, but you get the idea.

Congress in its wisdom wrote the General Duty Clause into the act because it recognized that OSHA would not be able to issue a standard to cover every recognized hazard. They probably didn't realize in their wildest dreams how difficult it would become to issue new standards -- which makes effective use of the General Duty Clause all the more needed.

So stop whining and just focus on not letting anything like this happen again.