More managers now facing criminal charges: Here's why
Feds holding EHS pros personally liable
How likely is it that a safety manager will be thrown in jail or fined - personally - for violating a government regulation? It might be more likely than you think, especially if your duties have expanded beyond workplace safety. From 2007-2010, the Department of Justice (DO]) has acted on just 49 criminal referrals from OSHA.
Much easier under EPA regs
But in this age of job consolidation, take note if you have an "E" in your title. During that same period, the DOJ has handled 1,392 environmental criminal prosecutions, and some EHS managers have gone to prison after violating environmental rules. At the National Safety Council's 2011 Congress, Neil Feldscher, an attorney with the New York City Department of Environmental Detection, said there are only three reasons why OSHA pursues criminal charges:
• falsification of statements or required OSHA records
• a worker fatality tied to a willful violation (and most of these aren't referred for criminal prosecution), and
• forcibly resisting an OSHA officer.
But the Environmental Protection Agency (EPA) can pursue criminal charges against any responsible manager for any violation, and does so about 350 times per year.
Got clean water?
Example: Dhiren Patel, former EHS manager for AMCAN Beverages, was sentenced in June to four months in prison, ordered to do 100 hours of community service and give four talks to at least 100 other EHS managers explaining what led to his jail term.
Patel pled guilty to a felony charge of violating the Clean Water Act, specifically, introducing a pollutant into the sewer system of the City of American Canyon, CA. The former EHS manager admitted he directed AMCAN employees to dilute samples of the plant's wastewater before they were sent for testing. He then prepared reports that contained the inaccurate analytical results.
To protect themselves against prosecution, Feldscher says EHS managers need to:
• Stay in compliance - of course, it's the best defense
• Remember that ignorance of the law and regulations is not an acceptable defense, and
• Document, document, document. That includes discussions, phone calls, meetings and decisions.
Reprinted with permission from: Safety Compliance Alert 12/14/11
Mon, March 5, 2012
by Kim Bowman