David Michaels Rena Steinzor and the Battle Over OSHA Enforcement

Occupational Safety and Health Administration (OSHA) chief David Michaels is not happy with Rena Steinzor.

Steinzor is a professor at the University of Maryland Law School.


And she is author of a new book — Why Not Jail?  Industrial Catastrophes, Corporate Malfeasance, and Government Inaction (Cambridge University Press, 2015).

Steinzor has been critical in recent months of OSHA, in particular OSHA’s failure to refer to the Justice Department significant cases for criminal prosecution.

Steinzor says OSHA refers only a handful of cases a year to the Justice Department for criminal prosecution.

And last week, Steinzor posted an article on her blog titled Kill a Worker? You’re Not a Criminal. Steal a Worker’s Pay? You Are One.

In it, she focuses on the death of four workers at a large DuPont chemical plant in LaPorte, Texas, following the unexpected release of mercaptan, a toxic chemical that kills instantly.

“Among other extraordinarily reckless behaviors, senior managers at the plant failed to ensure that pipes carrying the chemicals were configured consistently with crucial drawings of the plant’s infrastructure, did not have enough emergency rescue equipment to save workers in the event of a toxic leak, and failed to call 911 or private emergency responders for a full hour after the fatal incident,” Steinzor writes. “Yet the OSHA regional office in Texas responded by issuing a $99,000 civil fine — a pittance for DuPont — and citing the company for relatively minor violations—worse than a hand slap because it precludes criminal charges.”

In an op-ed in the Houston Chronicle earlier this year, Steinzor argued that “penalties this small relative to a company’s size and revenues do not deter future misconduct by DuPont or its competitors. Instead, they are written off as a mere cost of doing business.”

“That outcome is particularly troubling because the reckless mismanagement that killed brothers Gilbert and Robert Tisnado, Wade Baker and Crystle Wise should have qualified for OSHA’s most stringent punishment,” Steinzor wrote. “Choosing citations that allege ‘serious’ —  rather than ‘willful’ — violations means that senior managers are immunized from federal indictments for criminal recklessness.”

Steinzor argues that what happened at the DuPont facility fits well within OSHA’s definition of a willful violation — as a circumstance where an employer demonstrates “intentional disregard” for the law or “plain indifference” to employee safety.

At an OSHA press conference today, Michaels was asked about Steinzor’s critique, about the DuPont deaths, why DuPont was not cited with willful violations and why there are so few cases referred by OSHA to the Justice Department for criminal prosecution.

“Willfulness is not based on the seriousness of what happens,” Michaels said. “We base our citations on the evidence. Willfulness goes to the state of mind and the knowledge of the employer around a specific incident or the specific hazard.”

“We collect information and we are careful about any sort of allegations we raise in our citations.”

As for Steinzor’s recent article —  Kill a Worker? You’re Not a Criminal. Steal a Worker’s Pay? You Are One — Michaels said — “Professor Steinzor has so much misinformation in that article, it’s hard to respond to it.”

“But she is simply wrong,” Michaels said. “We are not going to discuss that article. It is simply wrong.”

What part of it is wrong?

“Many parts of it,” Michaels said.

Could you name a couple of examples where Professor Steinzor was wrong?

“Let’s move on to something else,” Michaels said.

And Michaels moved on.

Steinzor too would like to know from Michaels what she got wrong.

“I am of course committed to using absolutely accurate information in my policy recommendations, and I would welcome any comments from OSHA explaining where I went wrong,” Steinzor told Corporate Crime Reporter.

“I don’t think there is any doubt in anyone’s mind that OSHA has virtually ignored criminal enforcement as a tool to deter employers from recklessly endangering workers, killing many and maiming even more,” Steinzor said. “The Justice Department has not been sufficiently receptive to such cases, but OSHA has referred far too few of them. One central problem is what happened in the Dupont case — OSHA did not charge willful violations in a terrible accident that killed four workers, and so criminal prosecution is precluded.”

In explaining why DuPont wasn’t charged with willfulness in the four DuPont deaths, Michaels says “we base our citations on the evidence.”

But he refused to address the evidence.

Steinzor has no such hesitation.

“According to OSHA’s citations, the unit was plagued by jerry-rigging of equipment to the point that diagrams depicting the pipes’ configuration were incorrect,” Steinzor wrote in the Houston Chronicle op-ed. “Ventilation fans were out of commission, plugged pipes were never repaired and DuPont ignored fundamental safety requirements. Ultimately, a faulty valve failed on a redirected pipe, channeling the acutely toxic gas into the space where people were working.”

“As the poisonous vapor spilled from the valve, the worker standing nearby radioed for help and others ran to assist her. But the plant lacked enough emergency oxygen masks for rescue purposes. Later, two masks lay abandoned near two dead workers. Managers never set up an incident command center. They never called for help from a highly trained industry-sponsored response team organized to respond with specialized equipment. Most incredibly, no one called 911 until a full hour after the leak began.”

“Even then, shift supervisor Jody Knowles lied to the 911 operator, claiming that the public was not at risk when DuPont had not yet measured exposure at the plant’s fence line. Firefighters sent to the site risked their lives because DuPont never filed an inventory of hazardous chemicals.”

“All these details suggest that the possibility of sending someone to jail for this pattern of reckless neglect should still be on the table,” Steinzor wrote. “If the federal government is too intimidated to bring a criminal case, maybe Harris County District Attorney Devon Anderson could step into the breach. She has the authority to charge responsible managers with reckless manslaughter when people die preventable deaths.”


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