The Pump Handle

OSHA agrees to give advance notice of enforcement actions against BP?

Posted by Celeste Monforton, DrPH, MPH of George Washington University School of Public Health & Health Services on June 10, 2010
(9)
More »

I noticed today on OSHA’s website a new memorandum of understanding (MOU) with the US Coast Guard (USCG). Under the heading “Information Sharing: Enforcement,” OSHA says it:

“will notify the Federal On Scene Coordinator (FOSC) when it intends to take any enforcement action against BP, BP’s contractors, or any other employer engaged in response activities.”

I must be missing something here because the OSH Act is pretty darn explicit in prohibiting advance notice of an enforcement action. It’s a big no-no, punishable with as much as a $1,000 fine or as much as 6 months in jail. The statute says:

“Any person who gives advance notice of any inspection to be conducted under this Act, without authority from the Secretary or his designees, shall, upon conviction, be punished, etc. etc., etc.” [Section 17(f)]

Oh, I see. For everybody else, advance notice is a crime, but not for BP. Labor Secretary Solis is offering BP and its contractors this special treatment because….because….they can’t afford to comply with worker health and safety standards? Because worker health and safety standards are just too inconvenient? Because BP is such a stellar corporation that they can be trusted to meet or exceed safety standards?

If Secretary Solis has a five star reason for giving BP special treatment, I hope she reveals it to us. I can’t comprehend why OSHA would agree to no first instance sanctions for a company with a vile record of killing and maiming workers? Nobody else is exempt from first instance OSHA violations.

I’ve checked out the National Oil and Hazardous Substance Pollution Contingency Plan, which is referenced in the OSHA/Coast Guard MOU, and I don’t see language in there instructing the Secretary to abdicate her enforcement authority. In fact, I see the provisions requiring that OSHA’s hazardous waste and emergency response standard (29 CFR 1910.120) should be followed; OSHA recently said it has thrown out the window modified for now the rule’s full requirements.

I know, I know, it’s an unprecedented disaster. But special treatment for a company that OSHA’s own deputy asst. secretary said: “…has serious, systemic safety problems”? Why does this employer (or contractors hired by this company) deserve a free pass?

If companies hiring workers to do clean-up of this toxic mess can’t meet OSHA standards–which we all know are a bare minimum—these firms don’t belong down there hiring workers to do this hazardous work. If someone is bending the Secretary ear that BP or its contractors will balk if they get a citation, then contest it and drag it out for years, let BP do it. I’d love to see the press:

BP fighting OSHA citation for failing to provide safety gear,
or threatening workers who complain about hazards,
or skimping on cooling trailers and rest breaks.

There’s already loads of uncertainty about stopping the gusher, drilling the relief well, tracking the underwater oil, and the like. OSHA enforcing health and safety protections to give workers the best change of surviving this hazardous work should be a sure thing.

If Secretary Solis has a five star reason for giving BP special treatment, I hope she reveals it to us. I can’t comprehend why OSHA would agree to no first instance sanctions for a company with a vile record of killing and maiming workers? Nobody else is exempt from first instance OSHA violations.

I’ve checked out the National Oil and Hazardous Substance Pollution Contingency Plan, which is referenced in the OSHA/Coast Guard MOU, and I don’t see language in there instructing the Secretary to abdicate her enforcement authority. In fact, I see the provisions requiring that OSHA’s hazardous waste and emergency response standard (29 CFR 1910.120) should be followed; OSHA recently said it has thrown out the window modified for now the rule’s full requirements.

I know, I know, it’s an unprecedented disaster. But special treatment for a company that OSHA’s own deputy asst. secretary said: “…has serious, systemic safety problems”? Why does this employer (or contractors hired by this company) deserve a free pass?

If companies hiring workers to do clean-up of this toxic mess can’t meet OSHA standards–which we all know are a bare minimum—these firms don’t belong down there hiring workers to do this hazardous work. If someone is bending the Secretary ear that BP or its contractors will balk if they get a citation, then contest it and drag it out for years, let BP do it. I’d love to see the press:

BP fighting OSHA citation for failing to provide safety gear,
or threatening workers who complain about hazards,
or skimping on cooling trailers and rest breaks.

There’s already loads of uncertainty about stopping the gusher, drilling the relief well, tracking the underwater oil, and the like. OSHA enforcing health and safety protections to give workers the best change of surviving this hazardous work should be a sure thing.

(9)
More »

Comments

  1. #1 Blaise Pascal
    June 10, 2010

    I’m not so sure anything wrong is going on here…

    The law you quote says that giving advanced notice of an inspection without authority from the Secretary is illegal.

    The MOU says that one Government Agency (OSHA) will mutually cooperate with another Government Agency (USCG) when it comes to managing issues of the health and safety of emergency response workers. As part of this cooperation, OSHA will inform the Federal On Scene Coordinator (who works for the Coast Guard in this case, and not BP) when it intends to take an enforcement action, not an inspection, against BP.

    So how does BP get any special treatment here? I can easily see a result of this MOU that some day a BP/Haliburton facility involved in the cleanup gets raided by OSHA agents with USCG backup — without any prior notice to BP, but prior knowledge by the USCG.

  2. #2 SusanC
    June 11, 2010

    This is unspeakably outrageous!! I hope more people will speak out about it!

  3. #3 Abel
    June 11, 2010

    Celeste: This is going to sound snarky, and I’m sorry I don’t mean for it to be, but you really should check your facts before you print something like this. Blaise is correct, there is no special preference going on here (at least not with respect to the MOU and advanced notice).

    First, an inspection is not an enforcement action, it is an investigation of working conditions. The citations from that inspection are the enforcement action. So all the MOU says is that OSHA agrees to tell the FOSC when we’re about to issue citations to BP, NOT when we are about to inspect them. That’s not advanced notice, even the company is usually told during the closing conference what kinds of citations to expect.

    Second, the Federal On Scene Coordinator (FOSC) is not BP, it is the person in charge of the incident for the federal government, for this spill that person is currently Rear Admiral James Watson, USCG. So all we’re doing is telling another federal agency that we are about to issue citations to a company they have supervision over.

    Let’s take this in a slightly different direction, and assume the MOU agreed to tell the FOSC when we were about to conduct an inspection. Even that wouldn’t be advanced notice, and the Rear Admiral and his staff would be prohibited by the OSH Act from telling BP. It’s not an uncommon occurrence for OSHA to tell another federal agency that we’re about to inspect a private company under their supervision, especially on military bases. When we conduct that inspection, there is a reasonable chance that we’ll disrupt that agency’s operations as well as the company’s, so giving them fair warning is reasonable.

  4. #4 Michael Wood
    June 11, 2010

    As I read the MOU (and as already noted), the Federal On-Scene Coordinator works for the Coast Guard, or at least for the Department of Homeland Security. That is not the same thing as notifying BP.

    Without knowing more of the details, I can only say that agreements such as this are not unprecedented, particularly (but not only) in relation to secure areas and facilities. And the OSHA FIRM gives specific examples of case-specific situations when advance notice might be appropriately authorized.

    If the understanding is that the FOSC will then notify BP, then that would be a cause for significant concern. But I don’t see that in the document (I would hope that there has been a clear conversation about NOT notifying BP, but that’s not really spelled out in this portion of the document either).

    Michael Wood
    Administrator, Oregon OSHA

  5. #5 Celeste Monforton
    June 11, 2010

    I’ll take all comments you care to send me, especially those pointing out that I’m incorrect or don’t have my facts straight. I see from Abel’s and Michael’s comments that OSHA insiders don’t use the terms “inspection” and “enforcement action,” interchangeably. It sounds like you reserve the phrase “enforcement action” for situations when OSHA issues a citation for violating H&S standards or regs.

    I, on-the-other-hand, see OSHA primarily as an enforcement agency (I know others don’t) so when I think of 20 CSHO’s out in the Gulf, I assume they are there to enforce the law—to me enforcement action and inspections mean the same thing, but I stand corrected.

    With that clarification, it sounds like Michael and Abel still believe it is appropriate for OSHA to notify the FOSC (Adm. Thad Allen or more likely officials under him) when the agency intends to issue a citation against BP or its contractors. I see two problems with that: one practical and one perception. On the practical side, when I read the transcripts from the FOSC’s daily press briefings that guy is up to his chin in issues related to relief wells, controlled burns, underwater oil plumes, storm monitoring, liability inquiries, etc. etc. I don’t see how notifying FOSC of OSHA’s plan to issue citations expedites or enhances worker protections. To me, it’s just another layer of bureaucracy that will delay taking care of the violations. On the perception side, the FOSC is working hand-in-hand with BP throughout this disaster as they try to stop the gusher and contain the oil. By its nature, the response requires them to work together and I see a lot of camaraderie among all the parties working on the emergency response. I can understand that—they’ve been held up together for all these weeks now, they have a common goal, they need each other to get the job done. FOSC is in charge, in command, in control of the scene, including overseeing the recovery operations. I presume that includes the clean-up sites. If OSHA finds violations of H&S standards it reflects poorly on FOCS as the overseer and poorly on their partner BP. That’s why it seems strange to me for OSHA to agree to notify the FOSC if citations to BP or its contractors are planned.

    As someone who believes that OSHA standards are a bare minimum for H&S performance, and reads about the potential for exposures to chemical, biological and physical hazards, and knows how economically vulnerable the response workers are (because their regular jobs are gone) and sees how the lack of H&S enforcement at the WTC site has caused death and disability among workers, I want OSHA to insist on top-notch compliance with H&S training and protections. If the purpose of notifying FOSC is to secure some guarantee that BP or its contractors will immediately eliminate the hazard or fix the inadequate protections, then I’d agree that advance notice of the enforcement action is a good idea. There’s nothing in the MOU explaining the purpose of the advance notification to FOSC, so the public (that’s me) are left wondering.

    Finally, some of my skepticism about OSHA’s authority in the Gulf comes after reviewing the information posted on the agency’s oil spill response website. The info here: http://www.osha.gov/oilspills/oil_directreading_bysite.html
    is confusing, incomplete and obviously not proof-read. It could be one of those games: find all the errors on this page. I’m sorry to say that when I review the information posted at the “Direct Reading by Site” and the “Laboratory Analysis Results by Site,” it doesn’t impart much confidence.

  6. #6 SusanC
    June 12, 2010

    Celeste,

    I see a lot of camaraderie among all the parties working on the emergency response….If OSHA finds violations of H&S standards it reflects poorly on FOCS as the overseer and poorly on their partner BP. That’s why it seems strange to me for OSHA to agree to notify the FOSC if citations to BP or its contractors are planned.

    I’m somewhat bothered with the camaraderie aspect. There’s a real risk, not just a perception, of the blurring of boundaries and interests between the Coast Guard and BP. This has also been commented on by the public on The Oil Drum, one of the most read forums on this oil spill issue. http://www.theoildrum.com/node/6588/647780 like this, for example

    I have a problem being convinced that the public officials are representing public interest. I have a problem believing that they are wearing ONE hat and ONLY one hat, at all times.

    I’m also with you about the unnecessary bureaucracy, and the very minimal standards being applied, including reducing the requirements for training. The WTC shows how poor a track record we have, in general, not just on protecting workers, but on SPEAKING UP about protecting them. And that’s recent history, not like the Exxon spill….

  7. #7 Michael Wood
    June 14, 2010

    Celeste,

    One of the things I’ve always appreciated is that you accept comments that disagree with you — and at times not only acknowledge them but change how you address those issues in future postings. Part of why I like the Pump Handle.

    Just to be clear, I don’t know enough about the specifics of the situation to know whether I agree with the approach or not. My primary point was (and is) that such an agreement is not somehow unique to BP, and I would not draw the conclusion that you did about the agreement’s existence being a special deal for BP. I did not (and will not) weigh in about whether I think the notification provision is necessary or appropriate, mostly because I just don’t know. But there are times when such a notification is necessary — for example, it’s hard to inspect employers working in the secure areas of an airport without notifying the airport that we need to be allowed in (and, of course, in state plan states we have jurisdiction over the airport itself as a public employer).

    Just for clarity, I read the “enforcement action” language the same way you did. Abel’s distinction may certainly be valid (I’ve heard it used before, and Abel actually works for federal OSHA), and may apply in this case. It’s not a distinction I would make in Oregon. I would call opening an inspection taking an “enforcement action.” On the other hand, I would not normally refer to an inspection as “taking an enforcement action AGAINST” an employer. The word “against” does suggest that a decision has been made to issue a citation, rather than simply to evaluate the conditions to see whether a citation should be issued.

  8. #8 sisterbluebird
    July 22, 2010

    Giving warning about impending inspections allows the powers that be, to organize and perform ye olde dog and pony show. I thought the purpose of inspections were to ensure that daily work was done as per regulations, and not just putting up the appearance of compliance for just that one or two days the inspector arrives. Having been active duty military, and dealt with IG Space inspections and OSHA complaince, I know a bit about both, from the other end.

  9. #9 Anonymous
    August 10, 2010

    This was done after fallout from a Marine Site Safety Official Contracted by BP’s prime contractor reporting hazards during the work, improper documentation, electric and numerous others from a previous OSHA inspections he had nothing to do with then trying to correct those and being discriminated against by harassment then fired, he was forced to report it as discrimination to the federal OSHA TX Regional office discrimination section, upon reporting it to OSHA in Houma La. BP ICS to OSHA an inspector went out and cited on a complaint. This and other inspections do to the size of the spill and BP not wanting o ensure workers had proper respiratory protection resulted in the agreement to control safety and documentation. In addition, they do not want miss documentation that is incorrect controversially that OSHA might pose not knowing what they walked into or need escort. Nonetheless OSHA is afraid of litigation and will never protect all these workers from any discrimination because they don’t want to litigate, never has less than 3% get litigated and OSHA does not have enough resources or QA/QC to cover discrimination. If it was the DOE they would and nuclear power plant they would not a spill where people are sought for the lowest prevailing wage and social economic classes to do the cleanup work. People at BP and their Contractor didn’t like it and the Site Safety Official at the BP ICS was temporarily arrested until released at the facility by a BP employee as BP knew he had talked to OSHA at their property. It happened in broad daylight in front of the lunch room full of people where the safety man had talked with many people during his course of work. So that is in part why it was brought up and the USCG was manipulated apparently by BP’s incident command.