Page 52 - MetalForming September 2017

You and The Law
By Douglas B.M. Ehlke
OSHA Citations and Fines
Dismissed in Refinery-Explosion Case
AWashington State judge’s ruling clearly communicates that when a tragic accident occurs in the workplace, it does not necessarily mean that there’s been a violation of a process-safety management stan- dard—the basis of willful citations.
Serving as an example is a case involving the Tesoro Refinery in Ana- cortes, WA, where a nearly 40-yr.-old heat exchanger ruptured in 2010, caus- ing an explosion and fire that killed seven workers. Following summary judgment motions and trial proceed- ings in an OSHA citations appeal of 40 issued willful citations, five issued seri- ous citations, and proposed fines of $2.39 million, the citations and penal- ties—the largest number ever issued in a single case in Washington State— were dismissed in their entirety by Mark Jaffe, assistant chief judge of the Washington Board of Industrial Insur- ance Appeals.
Jaffe found that the Department of Labor & Industries, Division of Occu- pational Safety and Health (DOSH), which issued the citations, failed to meet its burden of proof elements on any of the 45 citation items or on any of its proposed penalties:
“I have heard the testimony and reviewed the record and exhibits numer- ous times, and I have not found that the
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-
ronmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 tel. 253/839-5555 dehlke@ehlkelawoffices.com
department, which has the burden of proof, has shown that Tesoro is respon- sible, based on the rules cited in the citation. I also must point out that the majority of the alleged violations did not directly relate to the explosion and fire. Some were related to the aftermath when Tesoro responded to the explosion, some with processes that had no effect on the equipment being defective and others for violations that apparently were found during the inspection.”
What This Means
The department’s citations covered a variety of regulations—from personal protective equipment (PPE) and safety engineering practices, to safety pro- gram policies and safety training con- tent for new job assignments and oper- ations. Here are some of the rulings pertaining to the citations:
Doctrine of collateral estoppel pre- vents relitigation of a previously decided issue. In its 2010 citations, DOSH claims Tesoro “did not imple- ment written inspection procedures” to “maintain the on-going integrity of the process equipment.” According to Jaffe’s ruling, the claims basically approved the same Tesoro citation appeal, which was dismissed for not being applicable.
Employers have flexibility when complying with safety and health stan- dards. In his ruling, Jaffe discussed the flexibility of process-safety management (PSM) standards according to Washing- ton Administration Code ( WAC):
“WAC 296-67-037(2) requires that the employer establish and implement written procedures to maintain the ongoing integrity of process equip- ment. There is no dispute that Tesoro had the written procedures. The issue is whether they were implemented. This WAC is a PSM standard that allows the employer the flexibility to pick and
choose the best way for them to comply with the standard. Mr. (Christian) Ban- nick (Department of Labor & Indus- tries) also testified that it is up to the employer to pick and choose what it feels is the best inspection and test to perform. This does not give Tesoro carte blanche relief from following department rules because it has the written procedure, but it certainly gives it the ability to design the procedure. If followed, I find it hard to second- guess them, especially under the cir- cumstances in this appeal. In fact, the board has found that the department cannot substitute its judgment for that of the employer as long as the stan- dards are consistent with recognized and generally accepted engineering practices. I could cite this in all of the alleged violations, since it seems the department did this exact thing throughout its inspection.”
“Per instance” penalties not allowed.
The department’s attempt to assess $55,000 “per instance” penalties for each of the seven employees killed was rejected because this is considered a single-violation case with a $70,000 maximum penalty. Though the depart- ment attempted to build its case on a WAC that allows for separate penalties for separate instances where an employer fails to follow a specific requirement, Joffe steadfastly dis- agreed. The judge ruled:
“It is apparent that the department was cognizant of the $70,000 maximum penalty since its WAC specifically states that it cannot be exceeded if the vio- lation is a repeat or willful or the failure to abate. I see no statutory authority cited by the department that justifies a penalty that exceeds the statutory maximum where one violation is cited in the citation.” MF
For a copy of the decision, contact Doug Ehlke at dehlke@ehlkelawoffices.com.
50 MetalForming/September 2017
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