Legislature(2001 - 2002)

02/28/2002 01:37 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         SB  31-PENALTIES: OSHA VIOLATIONS CAUSING DEATH                                                                    
                                                                                                                                
CHAIRMAN STEVENS announced SB 31 to be up for consideration.                                                                    
                                                                                                                                
MR.  RICH MASTRIANO,  Director, Division  of  Labor Standards  and                                                              
Safety, supported CSSB 31.                                                                                                      
                                                                                                                                
SENATOR LEMAN  moved to adopt the  committee substitute to  SB 31,                                                              
Lauterbach\C as the working document.                                                                                           
                                                                                                                                
SENATOR TORGERSON objected to hear the changes.                                                                                 
                                                                                                                                
MR. MASTRIANO replied  that the changes in section  1 are that the                                                              
original bill  did not have total  civil penalties of  $25,000 for                                                              
any  violation and  %50,000  for a  willful  or repeat  violation.                                                              
Changes  in  Section  1(4)  say,  "not  subject  to  reduction  by                                                              
negotiation or settlement unless  expressly approved in writing by                                                              
the  Commissioner  of  Labor and  Workforce  Development  and  the                                                              
Attorney General."                                                                                                              
                                                                                                                                
SENATOR LEMAN asked who wanted this CS.                                                                                         
                                                                                                                                
CHAIRMAN STEVENS replied that this came from the department.                                                                    
                                                                                                                                
SENATOR  TORGERSON  asked why  they  subjected violations  in  the                                                              
committee substitute  to AS  18.60.010 - .105  and not  (a)(b) and                                                              
(c), which is in the original version.                                                                                          
                                                                                                                                
MR.  MASTRIANO  responded  that  those  subsection  describe  what                                                              
serious,  willful  and  repeat  violations  are.  "Basically,  the                                                              
existing law allows  for a mandatory reduction  in those penalties                                                              
under (h)…"                                                                                                                     
                                                                                                                                
CHAIRMAN STEVENS said there were  three components to section 1 in                                                              
the original bill, but in the committee  substitute there are four                                                              
components. He asked which section was added.                                                                                   
                                                                                                                                
MR. MASTRIANO replied  that on page 2, they added,  "(1) inclusive                                                              
of  all  final   civil  penalties  under  this   section  for  all                                                              
violations  connected  with the  death  of the  employee;".  There                                                              
would be a total of $25,000 inclusive of all civil penalties.                                                                   
                                                                                                                                
CHAIRMAN STEVENS asked what the existing  statute was on that now.                                                              
                                                                                                                                
MR. MASTRIANO  replied that  now for a  serious violation -  up to                                                              
$7,000, which can  be reduced for size, good faith  and history of                                                              
the employer.                                                                                                                   
                                                                                                                                
CHAIRMAN STEVENS remarked that it says $7,000 per day.                                                                          
                                                                                                                                
MR. MASTRIANO said that was for failure  to correct a problem, but                                                              
ordinarily  it is corrected  within that  time frame, unless  they                                                              
ask for an extension on abatement.                                                                                              
                                                                                                                                
CHAIRMAN STEVENS  asked why  the department  wanted to  change the                                                              
current statute and was it similar to OSHA regulation now.                                                                      
                                                                                                                                
MR. MASTRIANO replied  that it is similar to OSHA  regulation. The                                                              
department is mandated  to reduce the penalty by  size and history                                                              
- and  if it's willful,  they don't give  a good faith  reduction.                                                              
Their   proposed   CS   would  eliminate   the   department   from                                                              
automatically   reducing  the   penalties,  leaving   it  to   the                                                              
commissioner  and the  attorney general.  This  is more  stringent                                                              
that OSHA requirements.                                                                                                         
                                                                                                                                
MR.  MASTRIANO  said  they  are required  to  adopt  a  number  of                                                              
guidelines  by  reference. "If  we  change  anything, we  have  to                                                              
change it and be more stringent than the OSHA requirement."                                                                     
                                                                                                                                
CHAIRMAN STEVENS asked how many cases  per year did this apply to.                                                              
                                                                                                                                
MR. MASTRIANO  said  that last year  there were  18 fatalities  in                                                              
various  industries,  but  he  added that  they  don't  cover  the                                                              
fishing  industry (U.S.  Department  of Labor  covers the  fishing                                                              
industry).   They  cover   shore-based  processing,   construction                                                              
industries and general industry.                                                                                                
CHAIRMAN STEVENS asked who determines  that the employer willfully                                                              
violated the standards.                                                                                                         
                                                                                                                                
MR. MASTRIANO said the OSHA enforcement  officer who works for the                                                              
state  will  write a  citation  and  at  that  point there  is  an                                                              
investigation. Currently, when a  citation is given to an employer                                                              
with  less  than 25  employees,  for  instance, that  citation  is                                                              
automatically reduced  by 60% (from a serious  maximum of $7,000).                                                              
If  this  is  his  first violation,  he  will  get  a  good  faith                                                              
reduction of up  to 20%, which results in an  80% total reduction.                                                              
If he  has no  previous history  with the  department, he  gets an                                                              
additional 10%. So a $7,000 fine  can be reduced by 90%. It can be                                                              
reduced  even  further  in  a settlement.  "A  fatality  could  be                                                              
reduced to $750."                                                                                                               
                                                                                                                                
CHAIRMAN  STEVENS asked  if  this  would have  any  impact on  the                                                              
settlement of the individual's estate.                                                                                          
                                                                                                                                
MR. MASTRIANO replied no.                                                                                                       
                                                                                                                                
SENATOR  AUSTERMAN asked  of the  18  deaths were  the total  that                                                              
applied to this bill.                                                                                                           
                                                                                                                                
MR. MASTRIANO  said there were a  total of 23, but for  willful or                                                              
violations of  the standards that  caused the death there  were 18                                                              
total.                                                                                                                          
                                                                                                                                
SENATOR  AUSTERMAN asked  if these  standards  were stronger  than                                                              
federal law.                                                                                                                    
                                                                                                                                
MR.  MASTRIANO replied  they  would be,  because  the federal  law                                                              
mandates that they reduce the penalty.                                                                                          
                                                                                                                                
SENATOR AUSTERMAN  asked him to  explain why the  department wants                                                              
stricter regulations than OSHA.                                                                                                 
                                                                                                                                
MR. MASTRIANO replied:                                                                                                          
                                                                                                                                
     I think when someone loses their  life in a work related                                                                   
     accident  and it's  a  result of  a  willful or  serious                                                                   
     violation on  the part of  the employer, to  reduce that                                                                   
     penalty for the employer failing  to comply with the law                                                                   
     to  $750  or $1,500  -  what value  do  you place  on  a                                                                   
     worker?  We think  that there should  be something  that                                                                   
     gets the employer's attention.                                                                                             
                                                                                                                                
SENATOR AUSTERMAN  commented, "Irregardless  of how they do  it in                                                              
the rest of the United States."                                                                                                 
                                                                                                                                
CHAIRMAN  STEVENS asked  what percent  of states  under OSHA  have                                                              
more stringent requirements than OSHA.                                                                                          
                                                                                                                                
MR. MASTRIANO  replied that this  bill is modeled  after Minnesota                                                              
where it's  been in effect for two  years. That is the  only state                                                              
he is aware of having a more stringent requirement.                                                                             
                                                                                                                                
MR.  DICK   CATTANAEU,  Executive  Director,   Associated  General                                                              
Contractors, opposed  SB 31. They did not understand  why the bill                                                              
was needed.                                                                                                                     
                                                                                                                                
     I  am  not  aware  of  any  companies  that  are  serial                                                                   
     murderers  - that  have  repeated incidents  of  killing                                                                   
     people and that's what it's  saying. We need to penalize                                                                   
     the company  so they don't do  it again…A fatality  on a                                                                   
     job  is extremely  harmful to  a company.  And it's  not                                                                   
     just the  $750 you  may get fined  or the $7,000.  There                                                                   
     are going  to be other  OSHA fines associated  with that                                                                   
     and workers'  compensation claims and some  civil suites                                                                   
     as well.  You can't put a  price on a person's  life and                                                                   
     we're not  trying to do that.  We just don't see  a need                                                                   
     for this. We're  concerned about the bill  when it says,                                                                   
     "not less than."                                                                                                           
                                                                                                                                
SENATOR LEMAN  asked if  he had seen  the committee substitute  or                                                              
did he not like either bill.                                                                                                    
                                                                                                                                
MR.  CATTANAEU said  they didn't  like either  version even  after                                                              
meeting  with the  department this  summer and  having the  reason                                                              
explained  to  them.  He  reiterated that  he  was  worried  about                                                              
language saying  "not less than"  and the idea that  companies are                                                              
repeat  offenders.   He  said   this  statute  includes   airplane                                                              
accidents and things like that.                                                                                                 
                                                                                                                                
SENATOR  TORGERSON said  he  agreed with  him  on his  fundamental                                                              
figures. He asked  if he would be okay with  increasing the $7,000                                                              
to  another number,  not putting  the  minimum in  and leaving  it                                                              
subject  to  (h),  which  says the  commissioner  shall  give  due                                                              
consideration to  the size of the  business of the  employer being                                                              
charged,  the gravity  of the  violation,  the good  faith of  the                                                              
employer and the history of previous violations.                                                                                
                                                                                                                                
MR.   CATTANAEU   replied  that   he   agreed  that   $7,000   was                                                              
insufficient,  but  by  itself,   it  wouldn't  stop  someone.  He                                                              
reiterated,  if someone  dies on  the  job, there  would be  other                                                              
violations.                                                                                                                     
                                                                                                                                
CHAIRMAN  STEVENS  asked if  he  was  aware  of any  other  states                                                              
working on this issue.                                                                                                          
                                                                                                                                
MR.  CATTANAEU  said  that  he didn't  know  of  any  others  than                                                              
Minnesota.                                                                                                                      
                                                                                                                                
SENATOR  DAVIS asked  if Minnesota  was  the only  state that  had                                                              
adopted this.                                                                                                                   
                                                                                                                                
MR. MASTRIANO  replied yes  and added that  there is  one employer                                                              
this last year that  has killed more than one person.  The way the                                                              
committee substitute  is written right  now, the total fine  for a                                                              
fatality would be the $25,000 or  the $50,000, if it were willful.                                                              
                                                                                                                                
SENATOR LEMAN moved to withdraw his  motion to adopt the committee                                                              
substitute. There were no objections and it was so ordered.                                                                     
                                                                                                                                
CHAIRMAN  STEVENS announced  that  they would  hold  the bill  for                                                              
further work and adjourned the meeting at 2:15 p.m.                                                                             

Document Name Date/Time Subjects