Government Seeks To Pursue OSHA Violations Using Enhanced Environmental Penalties
The U.S. Department of Justice (DOJ) is in the early stages of implementing a new hard-hitting enforcement initiative for cracking down on violations of worker safety and environmental laws. AGC members are urged to take note that the federal government seeks to investigate and enforce alleged violations of the Occupational Safety and Health Act (OSH Act) and related worker safety laws under the Clean Water, Clean Air, Resource Conservation and Recovery, and Toxic Substances Control Acts, whenever possible, which carry much harsher fines and significant jail time. Under a provision in the fiscal 2016 spending bill that covers every federal agency, civil penalties for safety and health as well as environmental violations will go up each year.
DOJ has launched a “Worker Endangerment Initiative” that is primarily focused on criminal prosecutions. Under the new plan, the Justice Department’s Environment and Natural Resources Division (which handles all environmental litigation on behalf of the United States) will take the lead on enforcement cases that arise under the federal worker safety statutes. DOJ and the U.S. Department of Labor (DOL) signed a Memorandum of Understanding that establishes a process and framework for notification, consultation and coordination between the two agencies. The MOU sets forth key points concerning criminal referrals, information sharing and cross-training in order to boost the number of criminal charges in worker endangerment and worker safety cases.
AGC members should expect that alleged worker endangerment violations will be increasingly prosecuted by DOJ’s Environmental Crimes Section in conjunction with environmental crimes, which the government believes often occur concurrently on a jobsite. DOJ’s Environmental Enforcement Section will employ similar measures as it pursues civil cases involving worker safety issues. According to DOJ, each case referral is being reviewed for potential worker safety concerns and, where appropriate, the worker safety issues are being investigated and developed alongside any other alleged environmental violations.
In its announcement, the government stated its belief that environmental offenses often occur in conjunction with worker safety violations. Given the government’s coordinated response and potential ramifications for industry, AGC members may want to consider the benefits of pursing an integrated health, safety and environmental program. Companies exploring such risk/management and compliance matters should also take note of a September 2015 memorandum from DOJ’s Deputy U.S. Attorney General Sally Q. Yates (the “Yates Memo”) that describes a policy shift that makes it clear the DOJ intends to hold individuals responsible for corporate wrongdoing. Click here for more details.
Penalties Are Going to Get Bigger
By funneling more safety violations through DOJ’s environmental sections, U.S. attorneys can demand larger fines, and possibly lengthy periods of incarceration, for worker safety violations. For example, OSH Act penalties are up to $7,000 for each “serious” violation, up to $70,000 for each “willful” or “repeat” violation; and up to six months in jail for a worker death associated with a willful violation. Most OSH Act penalties are per violation, not per day of violation. Compare penalties under the Clean Air Act and Clean Water Act, which can reach up to $37,500 per day/per violation, and for knowing endangerment, imprisonment can be up to 15 years.
In related news, an amendment to the federal budget signed into law in November 2015 permits OSHA fines to be raised by 80 percent, as previously reported by AGC. This upward adjustment in fines will commence by August 2016; the first increase since 1990. The amendment also changed the frequency of the inflation increases from “once every 4 years” to “every year.” Under the Federal Civil Penalties Inflation Adjustment Act of 1990, EPA penalties have increased every four years. Between 1996 and 2013, EPA implemented four adjustments to its statutory civil payment amounts. Annual inflation adjustments will now be required for EPA penalties.
EPA, OSHA Inspectors Being Cross-Trained
Each referral sent to DOJ by the U.S. Environmental Protection Agency (EPA) is now being scrutinized for OSHA violations. Both agency inspectors are being cross-trained so they understand each other’s authorities. Neither EPA nor OSHA inspectors will be authorized to write up citations in each other's area of jurisdiction; rather, their role will be to spot potential violations. Both DOJ and DOL agreed to develop and conduct periodic training programs to ensure the validity of referrals and to increase the frequency of criminal prosecutions.
EPA’s Office of Enforcement & Compliance Assurance (OECA) publishes a monthly “Environmental Crimes Case Bulletin” that summarizes publicized investigative activity and adjudicated cases by EPA's Criminal Enforcement special agents, forensic specialists, and legal support staff. Monthly bulletins are archived on EPA’s website – click here. The biggest environmental criminal cases in 2015 were generally tied to individual conduct, and that conduct resulted in incarceration of over 129 years, plus individual and corporate fines over $88.0 million, with an additional $4 billion in court ordered environmental projects and $112 million in restitution, according to EPA figures.
EPA recently announced that its public criminal case information has been integrated into the EPA Enforcement Case Search on the ECHO (Enforcement and Compliance History Online) website at https://echo.epa.gov/.