December 20, 2017 Celeste Monforton, DrPH, MPH 0Comment

Late last month, OSHA issued a news release announcing a settlement it had reached with Marshall Pottery for violations identified following an employee’s death. But OSHA’s news release was vague on the specifics. It noted that the company would pay a $545,160 penalty for willful and serious violations, but it failed to mention that the original proposed penalty was nearly $830,000. It also didn’t say anything about what Marshall Pottery agreed to do in exchange for the $285,000 discount. Did the company agree to:

  • implement an effective program to identify and correct hazards?
  • follow the steps to develop a workplace health and safety management system?
  • hire a safety team or consultant?
  • upgrade equipment and training?

Before I go on, I’ll add something that has never been commonplace in OSHA’s news release: the name of the worker who was killed on the job at Marshall Pottery.  He was Arturo Gonzalez Tovar. A summary of incident from OSHA’s website reads this way:

“At 7:00 a.m. on April 17, 2017, an employee had entered the tunnel kiln to fix the line switch. The employee became trapped in the tunnel kiln after completing the repairs and an automated process took control, closing the kiln door while the employee was still in the tunnel. The employee was killed from extreme exposure to thermal energy within the kiln.”

Arturo Tovar, 42

Arturo Tovar, 42, worked for 11 years at Marshall Pottery.

OSHA’s news release about its settlement with Tovar’s employer was strange to me. When OSHA announces a settlement agreement, it usually comes after the agency had previously announced details of its enforcement action against the company.

OSHA issued news releases, for example, for these three significant cases. It then followed-up with a second news releases announcing the settlement reached with the firms.

  • Mass Bay Electrical: citations and proposed penalty (here) and settlement agreement (here)
  • Anheuser-Busch Sales of New Jersey: citations and proposed penalty (here) and settlement agreement (here)
  • Harlem Valley Psychiatric Center: citations and proposed penalty (here) and settlement agreement (here)

So when I saw OSHA’s news release about its settlement agreement with Marshall Pottery—but there was no previous news release about the willful violations initial proposed penalty of $829,891—-I got curious. I filed a FOIA request to get a copy of the settlement agreement because the news release did not provide a link to it.

Here’s what I learned:

Following the death of Arturo Tovar, 42, at Marshall Pottery, OSHA conducted two inspections. One was categorized as a health inspection, the other was a safety inspection. The safety inspection resulted in 17 serious and 5 willful violations with a proposed penalty of $715,416. The violations related to confined space entry, lockout/tagout, electrical hazards, guarding, and fall protection. The settlement agreement reduced the penalty for these safety violations to $465,048.

The health inspection resulted in one willful and four serious violations related to noise exposure and personal protective equipment. The proposed penalty was $114,475. The settlement agreement reduced the penalty for these health violations to $80,112.

I don’t see anything in either settlement agreement that indicates Marshall Pottery will be taking steps to improve its safety program. The only thing they promise—in exchange for the $285,000 reduction in the penalty—is to correct the hazards identified in the inspections. Nothing above and beyond complying with the law.

There’s one last piece of information that I think should have been included in OSHA’s news release about Marshall Pottery. The agency fails to say whether the six proposed willful violations were downgraded to serious or changed to unclassified. The settlement agreements are silent on the matter. OSHA’s on-line “establishment search” tool for these inspections (here and here) indicate that the willful violations remain. I asked OSHA for a clarification.

If the willful violations stand, that would be news. It would mean Marshall Pottery could face criminal prosecution under the OSH Act for the death of Arturo Tovar.




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