Penalties from state workplace safety and health regulators continue to lag behind fines proposed by the federal Occupational Safety and Health Administration, according to reports released Aug. 16 by OSHA.
Of the 23 states with workplace programs covering private employers, only four states' average proposed fine for a serious violation exceeded the federal OSHA average of $1,991: California, $7,161; Kentucky, $4,231; Nevada, $3,257; and Wyoming, $2,391.
Oregon continued to have the lowest average with $416.
The OSHA report on the Oregon Occupational Safety and Health Division acknowledged that Oregon's average proposed serious fine increased in each of the past three years, up from $322 in 2010.
Oregon officials have defended the low average by pointing out that in Oregon, unlike states under federal OSHA jurisdiction, employers must correct cited problems even if they contest a citation (43 OSHR S-8, 1/17/13).
The penalty information is part of OSHA's “federal annual monitoring and evaluation” (FAME) report for each state plan. This year's reports are labeled “abridged” because federal OSHA staff members were not required to audit each state's enforcement records. However, the abridged reports do include new recommendations and reviews of how states have implemented past recommendations.
The change was the result of an agreement between the states and federal OSHA announced in October that called for OSHA to write abridged reports every other year (42 OSHR 925, 10/18/12).
OSHA has limited powers to force states to follow its recommendations, short of declaring that a state program is not meeting the requirement that it be at least as effective as federal OSHA's efforts and taking control of the program. In April, a Government Accountability Office report recommended that Congress look at amending the Occupational Safety and Health Act to provide a mechanism for OSHA to intervene more quickly in state programs (43 OSHR 386, 4/25/13).
For the California Division of Occupational Safety and Health (Cal/OSHA), the largest state plan, federal OSHA found problems continued with how California targets employers for inspections and determines the type of violations and penalty amount.
OSHA said that 19 percent of California's 1,960 programmed inspections did not result in an inspection because businesses had closed. The out-of-date information on employers was one reason why only 20.9 percent of programmed inspections resulted in serious, willful, or repeat violations, the report said. OSHA cited serious, willful, or repeat violations in 58.5 percent of federal inspections.
In the report, Cal/OSHA defended its low percentage of inspections with costly penalties. The state said that since its fines for serious violations are higher than OSHA's fines, some violations that may be considered serious by federal OSHA are cited by California as “general” violations with lower fines.
The federal agency also faulted California's criteria for citing a repeat violation. A violation can be listed as repeat only if the employer previously had the same violation in the same Cal/OSHA region. In this latest report, OSHA renewed its requests from 2010 and 2011 that California change the criteria for determining a repeat violation to consider past violations across the entire state.
Personnel, Experience Shortages
The OSHA findings also indicate that having enough experienced inspectors continued to be a challenge for many state programs.
Because of ongoing staffing and training challenges, OSHA said, the Washington state Division of Occupational Safety and Health conducted fewer inspections than the previous years--5,161 inspections in 2012 compared with 5,402 in 2011 and 7,145 in 2010.
Wyoming, OSHA said, projected 350 inspections for 2012 but completed only 221. Wyoming attributed the shortfall to personnel turnover and the need to train new compliance officers. In addition, two inspectors were involved with five time-consuming process safety management inspections at refineries.
At the Nevada Occupational Safety and Health Administration during 2012, a staff turnover rate of 53 percent continued to be a challenge, OSHA said. The turnover was attributed to a 2.5 percent wage cut in 2011, a pay freeze, and furlough days.
The lack of experienced staff with more than two years' experience has put the program at risk, OSHA said.
OSHA's review of the Vermont Occupational Safety and Health Administration cited concerns that the state agency had no front-line supervisors with the technical expertise in occupational safety and health and knowledge of OSHA enforcement needed to effectively run the program.
“Hiring qualified supervisors is the most critical issue confronting VOSHA at this time,” the report said.