Million-Dollar Recordkeeping Case Still Alive

One of the contested cases arising out of OSHA's 1990 egregious penalty policy is still undecided, although the inspection that resulted in a $1,062,000 proposed penalty against Jindal United Steel Corp. for recordkeeping violations at its Baytown, Texas, plant ended Oct. 19, 2000. The Occupational Safety and Health Review Commission on Aug. 16, 2007, sent the case back to Administrative Law Judge James H. Barkley after the 5th U.S. Circuit Court of Appeals ruled Barkley erred by grouping 82 recordkeeping violations he affirmed as willful and assessing a single penalty of $70,000 for them.

OSHA developed the egregious policy to send a message by penalizing certain employers instance-by-instance. Seven factors were weighed in deciding whether a case qualified as egregious/willful; they included a clear showing of bad faith by the employer and a high number of injuries/illnesses. The Jindal case involves 110 willful violations in all, with the department seeking a $9,000 penalty for each, but OSHRC's chairman in September 2005, W. Scott Railton, concluded the violations were of low gravity and injuries/illnesses that went unreported were relatively minor. OSHRC had just two commissioners at that time who could not agree on the penalty: Commissioner Thomasina Rogers held that the amended OSH Act requires a penalty of at least $5,000 for each willful violation -- amounting to $410,000 in this case, which Railton considered excessive.

Unable to decide the case, the two commissioners vacated the direction for review and allowed Barkley's order to become the final appealable order in the case; the 5th Circuit's decision to vacate his penalty assessment means Barkley must revise his decision.

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