OSHRC Comforts Corporate Crooks

Say Goodbye to OSHA's Egregious Penalty Policy

In another victory for compassionate conservatism, Republican members of the Occupational Safety and Health Review Commission have eliminated one of OSHA's only remaining weapons for citing employers with big enough violations to make a difference.

In a 2-1 decision, the Board dismissed the "egregious" portion of an OSHA asbestos-relation citation against Eric K. Ho, Ho Ho Ho Express, Inc.

Under its "ergregious penalty" policy, OSHA was able to cite each instance of a violation per employee. For example, where eleven employees were over-exposed to asbestos, OSHA could cite eleven different times.

The egregious penalty policy was first introduced under the Reagan administration and was often used during the 1990's to cite ergonomic and recordkeeping violations. The policy allowed OSHA to impose much higher fines for extreme violations of OSHA standards than it would normally be able to do with a single penalty.

The decision is particularly despicable considering the conduct of the employer:

Ho signed a property disclosure form indicating that he had been made aware of the presence of friable asbestos in the building. Nonetheless, with full knowledge of the conditions and the need for professional removal of the ACM, Ho began asbestos removal with untrained, unprotected Mexican nationals, none of whom spoke English or understood the hazards associated with asbestos.

Ho's disregard for the law is evidenced by his failure to obtain work permits for the site, as required by the City of Houston and his surreptitious removal of asbestos after the City attempted to close down the site. When the ongoing work was discovered by an inspector for the City of Houston the Bellaire site was red tagged for probable violations of asbestos abatement requirements. Ho was ordered to cease its demolition operations. However, the City's attempt to close down Ho's worksite failed. After soliciting a bid for asbestos removal from a certified asbestos abatement contractor, Ho chose to recommence removal operations under cover of darkness with the same untrained, unprotected laborers, rather than engage the qualified contractor at the named bid price of $172,266.

Ho retained the qualified abatement contractor to complete the asbestos abatement only after the March 11, 1998 explosion brought his nighttime activity to light and the Texas Department of Health onto the site.

Not only does the evidence specifically demonstrate Ho's disregard for his employees' exposure to asbestos, the record contains ample additional evidence of Ho's indifference to those same workers' general health and welfare. Ho's laborers worked 12 hour shifts 7 nights a week under substandard conditions: the workers were locked inside the Bellaire site; they worked without electricity or ventilation; adequate sanitary facilities were not available; no potable water was provided.

The two commissioners voting to overturn the policy were W. Scott Railton and James M. Stevens, both recent Bush Administration appointees. Dissenting was Thomasina Rogers, originally a Clinton Administration appointee recently re-appointed by Bush.

The majority's rather creative reasoning was that because OSHA's asbestos standard refers to a training program and a respirator program, only the individual program can be cited once, rather than citing for each individual worker who was overexposed, and also that the employer did not know that the standard could be cited on a per-employee basis.

Railton argued that "While we agree that Ho is one of the worst employers the Commission has had come before it, we cannot allow harsh facts to result in bad law -- a result which would clearly follow should we accept the Secretary's proposed penalties." Suddenly decades of "good law," created under the sainted Ronald Reagan has become "bad law" under our compassionately conservative President.

Rogers called the decision "A radical departure from settled Commission and court precedent recognizing the Secretary's authority to issue multiple citations for violations of the same standard where the standard can reasonably be read to permit multiple units of violation."

Give a bunch of monkeys a bunch word processors, a lot of time, and high legal fees and they will eventually come up with enough legal garbage reasoning to justify overturning any legal precident that protects workers. But the bottom line here is that OSHA has lost one of its last ways to bring significant penalties down on the heads of particularly bad employers who are fully aware that they may be killing their employees. Without the ability to inflict large penalties or to bring criminal violations, the Bush administration has succeeded in moving OSHA yet one more step toward becoming a completely toothless tiger.

The Department of Labor can appeal OSHRC's decision. That decision to appeal will show whether or not OSHA, DOL and the Bush Administration are serious about bringing corporate criminals to justice.