By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By Wan Li, Brent I. Clark, and Craig B. Simonsen
According to Cai Renjun, an official from the People’s Republic of China, Legislative Affairs Commission, of the National People’s Congress Standing Committee, “about 70,000 people died in work safety cases last year, [with] about 60,000 of them in road accidents.” Policy Watch, China Daily (August 26, 2014).

Under new amendments, adopted August 31, 2014, by the Standing Committee of the National People’s Congress, to the Law on Work Safety, employers that are responsible for employment related accidents could be fined as much as 20 million yuan ($3,231,000). The law, which was adopted in August, and became effective on December 1, 2014, also provides that businesses that produce and transport dangerous products and operate mines must employ full-time “qualified safety engineers” to take charge of work safety issues, and the safety engineers are to be reported to the local government. In addition employers may be fined up to one million yuan if they use uncertified safety equipment, and refuse to rectify the situation, in high-risk industries such as mining and the storage of dangerous materials. The fine was previously 50,000 yuan.

Cai Renjun, in the Policy Watch article, cited to a couple of other examples of industries that will be regulated under the amended safety law. For instance, a fire killed 121 people at a poultry plant in Jilin province in June 2013. In August this year a blast at a wheel hub polishing workshop in Kunshan, Jiangsu province, killed 75 people and injured more than 180. “A preliminary investigation found that the explosion was caused by excessive metal dust in the workshop igniting.”

To enforce the new law, government agencies are authorized to take compulsory measures, including “cutting the electricity supply,” if companies refuse to improve their safety procedures. In summary overview, the amendments focus on toughening laws against companies and “persons in charge” of worker health and safety responsibilities.

International employers would be wise to look into their operations in the People’s Republic of China, to ensure compliance with these new amendments. Besides the now large fines and penalties for worker safety incidents, businesses may now also anticipate the facility power being unilaterally shut down — so proceed with any negotiations and discussions with government officials very carefully.

By Ilana R. Morady and Eric E. Boyd

The Pipeline and Hazardous Materials Safety Administration (PHMSA) recently released a five-year Strategic Plan that sets targets to improve the safe handling and transportation of hazardous materials.  PHMSA is the principle arm of the U.S. Department of Transportation (DOT) that promulgates and enforces regulations pertaining to the movement of hazmat by all modes of transportation, including pipelines. By 2016, the agency aims to reduce the number of pipeline incidents involving death or major injury to between 26-37 per year, and the number of other hazmat incidents involving death or major injury to between 21-32 per year.  The Strategic Plan notes that hazardous materials transportation (all modes, including pipelines) accounts for an average of 28 deaths per year.  Oddly, that number fits squarely within the agency’s new goals for 2012-2016.  The Strategic Plan also sets environmental goals for 2012-2016: to reduce the number of hazardous liquid pipeline spills with environmental consequences to between 65-81 per year, and to reduce the number of other hazmat incidents with environmental damage to between 44-64 per year.  The Strategic Plan does not, however, state the per-year number of environmental hazmat incidents in past years. 

Overall, the Strategic Plan is long on words but short on information and explanation.  For example, it also provides “key challenges” the agency expects to face, but addresses these challenges vaguely.  One key challenge is “advances in technology,” which PHMSA apparently intends to address by “systematically identify[ing] and evaluat[ing] trends” in technology development.  The agency does, however, offer a couple relatively specific challenges on which it will focus in 2012-2016: hazmat that presents a risk of fire aboard aircraft and bulk transportation of hazmat that is toxic by inhalation.  To address these challenges, the agency’s strategy includes developing standards for loading and unloading bulk hazardous materials, and publishing new safety rules for transporting flammable and combustible liquids aboard aircraft.  PHMSA also states its intention to strengthen current rules for transporting lithium batteries by air.

For more information about PHMSA’s hazmat program and agency enforcement, click here.