In April 2004, the New York City Fire Department was called in to rescue Anselmo Alfaro from an underground tank at the Bronx Auto Venture junkyard. It seems that the owner, John Chiapperino and his yard manager, Sinforiano Calix, had

directed the worker to enter the tank, which contained thousands of gallons of automotive petroleum waste products released during vehicle dismantling and crushing, to perform maintenance without any protective equipment. Once inside the underground tank, the worker was overcome by toxic fumes and lost consciousness. The worker was rescued by a member of the New York City Fire Department, who risked his own life to save the victim.

No big deal, according to George Bush's OSHA, which cited the firm for a "serious" violation of the confined space standard and slapped them with a stiff $750 fine, later reduced to $562 -- even though Alfaro had refused requests to enter the tank and clean clogged pipes for several days.

But New York Attorney General Elliot Spitzer and Department of Environmental Conservation Commissioner Denise Sheehan didn't think that the incident was quite so trivial.

After a three-week trial before the Honorable Michael Gross, a Bronx jury found John Chiapperino and his company, Bronx Auto Venture, guilty of one count of Endangering Public Health, Safety or the Environment in the Second Degree, a felony, and two counts of Endangering Public Health, Safety or the Environment in the Fourth Degree, a misdemeanor.

Chiapperino, the corporation, and the yard manager, Sinforiano Calix, were also convicted of one count of Reckless Endangerment in the Second Degree. Judge Gross sentenced defendant Chiapperino to 6 months in jail followed by four and half years probation. Defendant Bronx Auto Venture was ordered to pay a $16,000 fine. In addition, Judge Gross ordered that both defendants hire an environmental consultant to remediate the Bronx Auto Venture site and restore it to an uncontaminated original state.

Once again, I'm compelled to quote our fearless leader, Chairman of the Senate Health, Education Labor and Pensions Committee, Senator Mike Enzi (R-WY) when he spoke those immortal words:

Cooperation, not confrontation is essential in making our workplaces safer. The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of profit is a dangerous myth.

Dangerous, yes. Myth, hardly.

Now Senator, tell me, what's going to make future John Chiapperino's think twice about sending a worker down a confined space to his likely death? Cooperation, along with a $562 fine, or 6 months in jail?

Even if OSHA had wanted to, the agency can't bring a criminal indictment unless an employer's willful violation of an OSHA standard results in the death of a worker. And even then, the charge is a misdemeanor with a maximum of six months in jail. Only Congress, along with the President's signature, can equip OSHA with the ability to use meaningful penalties against employers who kill, and only an administration that is truly interested in worker safety can be expected to use such powers to the maximum.

At this point, we have neither that Congress nor that administration.

Spitzer, by the way, is running for Governor of New York. Hopefully, we can continue to expect great things from him.

Labels: Criminal Prosecution