The Westside Industrial Complex (Westside) was developed in 1946 by the local business community in response to a need to create jobs not dependent upon the vagaries of agriculture, the largest industry in the area. In, 1947, three companies (Deep Pocket, Small and Dirty, and Able Warehouse) began operations at the Complex. From 1947 until the late 1970’s, the Westside facilities made extensive use of leach beds and unlined evaporation ponds (referred to as pits, ponds, and lagoons) located at the complex. Organic and inorganic wastes, including solvents, were dumped into the leach beds. Additionally, pesticides and chromium III were also dumped into the leach beds. By the late 1990’s the United States Environmental Protection Agency (hereinafter EPA) had ordered the three companies to remediate the complex (soil and groundwater) because of the high levels of TCE, PCB’s, and chromium III in the soil and groundwater.
The three companies formed a corporation (Clean-Up, Inc.) to supervise the remedial activities required by an EPA Order issued under the authority of Superfund (42 U.S.C. Section 9606). This statute provides that EPA can order remedial activities including worker safety measures. In this instance the EPA ordered the three companies to prepare a site specific Health and Safety Plan governing the protective clothing to be worn by workers cleaning up the site. Clean-Up, Inc. hired Jones Environmental to prepare all plans, interface with the EPA, and hire and supervise all contractors needed to actually clean up the site. Jones in turn hired Smith Construction to perform all on-site work. The Health and Safety Plan was prepared by Jones and approved by the EPA. The Health and Safety Plan required workers to wear dust proof outer garments at all times while on the site. Jones provided Smith with a copy of the Health and Safety Plan.
At the site, Jones had a site manager who had authority to tell the Smith supervisors what work needed to be done, but could not talk to the Smith workers. While working on the site, Smith employees discovered that the dust proof garments were retaining body heat and causing heat exhaustion. In fact, two workers were overcome by the heat and were hospitalized for a short period of time. As a result the workers refused to wear the dust proof protective garments required by the Health and Safety Plan and filed a complaint with their union. The Jones site manager and the Smith supervisors made no objections because after discussions with a Certified Industrial Hygienist and union representatives, not using the dust proof garments seemed safer than requiring workers to wear them.
An OSHA inspector happened to live in the nearby community and was aware of the cleanup. One day the OSHA inspector passed by the site and noticed that the workers were working in a dusty environment and not wearing any protective clothing. A call to the EPA confirmed that the workers were supposed to wear protective clothing. The inspector went to the site to conduct an inspection. Entry was refused because the site manager said that only EPA had jurisdiction over worker safety at the site. The OSHA inspector advised the site manager that if she was not let in Clean-Up, Inc. would get all the justice to which it was entitled, which may be more justice than they want. The site manager then said, “ok, come in but I am not agreeing to this inspection”. The OSHA inspector forgot to bring her credentials with her but gave the site manager her business card instead. As a result of the inspection Deep Pocket, Small and Dirty, Able, Clean-Up, Inc., Jones Consulting, and Smith Construction were cited for violation of the general requirement to provide a safe work environment and violation of a specific OSHA standard relating to work at a Superfund site.
OSHA and EPA have a Memorandum of Understanding regarding inspections at Superfund sites such as Westside Industrial Complex. This Memorandum of Understanding can be found at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=MOU&p_id=238
Which agency’s rules, EPA or OSHA, govern worker safety at the site?
Assume for question #2 that OSHA has jurisdiction, can the workers work without wearing the dustproof garments?
Assume for question #3 that OSHA has jurisdiction, was the inspection valid?
Assume for question #4 that OSHA has jurisdiction, which company, or companies, are liable for any violations?
An individual owns an electroplating company with 30 employees and grosses $6M per year. The operation uses 4 large plastic tanks that are 6 feet high, 8 feet in diameter, closed on top with an entry port about 2 feet in diameter located on the top near one side. The owner set up the operation so no one has to enter the tanks to clean them, in essencethey are self-cleaning. No one ever goes into the tanks for any reason. And the owner assumes all the workers know not to go into the tanks, because they never have. At any given time at least one of the tanks is empty.
When the tanks are in use they contain a liquid cyanide compound. Although located in the United States, the workers come fromthree villages in Mexico and tend to be related. The manager of the company, who is from one of the villages, does most of the hiring and firing. The owner is at the company 3 days a week (Tuesday, Wednesday and Thursday). The father of one of the workers comes up from Mexico and because he has no job the owner puts him to work as a janitor at the request of the man’s son. Later on, a nephew of this new janitor comes up from Mexico, without a job, and the owner also gives him a job. One Saturday while cleaning up when the owner and manager are not present, the Uncle (remember he’s a janitor) tells his nephew to go into an empty tank to clean it out. The nephew does so and passes out inthe tank. The Uncle jumps in and manages to get the nephew out. The Uncle then collapses, other workers try to get the Uncle out but he is too heavy. They tip the tank on its side, get the Uncle out but it’s too late,the Uncle is dead. The Uncle had worked at the place for three months and had no training of any kind. Nephew had worked at the place for two weeks, and also had no training of any kind.
The fire department was called during this incident; they in turn notified OSHA. OSHA sent an inspector to the scene where the inspector walked into the plant along with the fire inspector, and conducted an inspection without notifying anyone. The inspector also questioned some of the employees, in Spanish, and hinted that if they did not co-operate they would be sent back across the border. Naturally they co-operated. OSHA now seeks to assess penalties against the owner for violation of the general duty clause and the specific regulation regarding entry into confined spaces.
Question: The owner comes to you for advice, what do you tell him? And why?
Captain John Smith owns and operates a commercial dive boat in a state that has not been delegated the OSHA program. Capt. Smith has the appropriate license to operate the boat and harvest certain marine organisms. The commercial buyers in the area set his price for these marine organisms. In order to harvest these organisms he makes a deal with four divers. If they go out on his boat he will split the proceeds, 40% for him and 60% to be split among the divers. Capt. Smith pays for all expenses of the boat including food, but not for the dive equipment. The divers supply their own dive equipment, and maintain the dive equipment. He establishes where and when the boat goes out, and where they go to find these organisms, and when they will return. Some divers go out with him regularly, and some only go out once. The divers have no guarantee he will ask them to go with himmore than once, and conversely he has no guarantee that the divers will want to go out with him more than once. Capt. Smith does not take any taxes from the 60% share the divers get. And lastly, no one has any health or life insurance coverage.
Upon return from a trip, an OSHA inspector checks his boat for compliance with OSHA dive requirements and finds it deficient. He is then issued a citation for violation of 29 CFR Sections 1910.420(a), 1910.430(a)(2) and 1910.430(e)(3).
Question #6 Capt. Smith goes to you for advice claiming that only the Coast Guard can inspect his boat. Is he correct? Please justify your answer.
Capt. Smith also claims the divers are independent contractors and not employees. Is he correct? Please justify your answer.