California is not the only state to have prosecuted employers or supervisors under state criminal statutes. Usually the charge is manslaughter or criminally negligent homicide. Prosecutions are rare, and usually they involve extreme circumstances. In one case an employer using cyanide to recover silver from recycled x-ray film deliberately removed warning labels from the cyanide solutions, causing a death; another was the infamous fire in a poultry processing plant in North Carolina, where a number of workers died because the exit doors were locked.

State prosecutions occur because the criminal provisions of the OSHA statute are ridiculous. First, while you can be prosecuted under a different law for lying to a federal inspector, you cannot be prosecuted for injuring a worker, no matter how severely (short of death), no matter how willfully or negligently. You can only be prosecuted for a death caused by a willful violation of a specific standard -- which is considerably more stringent than state criminal negligence statutes. And then, should a federal prosecution clear those hurdles, the maximum penalty is six months in prison. In contrast, the penalties for many environmental crimes are much greater -- for example, the maximum penalty for "harassing a wild burro on federal land" is five years. Federal prosecutors don't even bother with workplace deaths, since the result of a prosecution is so trivial.

Michael J. Wright
Director of Health, Safety and Environment
United Steelworkers

412-562-2580 office
412-370-0105 cell

See us on the web at www.usw.org

-----Original Message-----
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Beth Welmaker
Sent: Wednesday, August 28, 2013 8:14 AM
To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU
Subject: Re: [DCHAS-L] Judge denies three Harran defense motions

I too am concerned about the documentation of training and it was pointed out to me that the student has documentation in her lab notebook of doing this experiment before. I realize this is not the documentation lawyers are looking for but it does cause me to reflect on how would my institute be able to document training on every protocol and procedure? And would one if my PIs feel a researcher in his lab required documented training on an experiment previously performed?

I feel the bigger issue is the flame retardant lab coat but I don't know if the university required them and the PI ignored the requirement? That could be deemed willful.

I think this is a terrible accident and the whole situation saddens me.

Beth Welmaker

On Aug 28, 2013, at 7:56 AM, "James Keating" wrote:

> RE:
> Employer vs. Supervisor according to 29 U.S.C.
>
> In as much as California is an agreement state, the Federal OSH Act. 29 U.S.C. authorizes the State of California to pass additional legislation that at least meets all the criteria established in the Federal statute and permits to add more restrictive requirements and more severe penalties.
>
> In this case the defendant will be prosecuted under state law and the California Criminal Code will apply.
>
> Even absent the statutory authority of 29 U.S.C. - the U. S. Constitution specifies that each state has internal sovereignty. Therefore, California may pass laws that define criminality within their state as long as the law does not violate the individuals rights under the U.S. Constitution.
>
> My assumption is that the State of California considers a manager or supervisor to be the same as the employer, from a legal stand point.
>
> Jim Keating
> EHS Manager/Radiation Safety Officer
>
> -----Original Message-----
> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Dave Einolf
> Sent: Tuesday, August 27, 2013 7:54 PM
> To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU
> Subject: Re: [DCHAS-L] Judge denies three Harran defense motions
>
> Yes. The University settled and the State didn't press charges, after their agreement.
>
> Dave
>
> On Aug 27, 2013, at 3:47 PM, Russell Vernon wrote:
>
>> The statute you cite seems to hold the employer criminally responsible - not the supervisor. Do I read that accurately?
>>
>> Russell Vernon, Ph.D.
>> Director
>> Environmental Health & Safety
>> University of California, Riverside
>> 900 University Ave
>> Riverside, CA 92521
>> www.ehs.ucr.edu
>> russell.vernon**At_Symbol_Here**ucr.edu
>> Direct (951) 827-5119
>> Admin (951) 827-5528
>> Fax (951) 827-5122
>>
>> Taking a trip overseas?
>> Access Location Intelligence: https://ermsp.ucop.edu/uctrip and enter your UC Net ID
>>
>>
>> -----Original Message-----
>> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Dave Einolf
>> Sent: Tuesday, August 27, 2013 2:18 PM
>> To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU
>> Subject: Re: [DCHAS-L] Judge denies three Harran defense motions
>>
>> Russ:
>>
>> Criminal violations of OSHA requirements is part of the federal statute.
>> Every state has criminal OSHA violations:
>>
>> Title 29 U.S.C. ¤ 666(e) provides criminal penalties for any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act, where that violation causes the death of any employee. Four elements must be proved in order to establish a criminal violation of 29 U.S.C. ¤ 666(e). The government must prove that: (1) the defendant is an employer engaged in a business affecting commerce; (2) the employer violated a "standard, rule or order" promulgated pursuant to 29 U.S.C. ¤ 665, or any regulation prescribed under the Act; (3) the violation was willful, and (4) the violation caused the death of an employee.
>>
>> Regards,
>>
>> Dave
>>
>> DAVE EINOLF
>> Managing Director
>> Endeavour EHS, LLC
>> 4207 SE Woodstock Blvd, Suite 321
>> Portland OR 97206-6267
>> www.endeavourehs.com
>>
>> 971.678.8111 (w)
>> 912.717.1533 (fax)
>> dave**At_Symbol_Here**endeavourehs.com
>>
>>
>>
>>
>>
>>
>> -----Original Message-----
>> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Russell Vernon
>> Sent: Tuesday, August 27, 2013 7:41 AM
>> To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU
>> Subject: Re: [DCHAS-L] Judge denies three Harran defense motions
>>
>> Assuming this case ends up with a conviction that stands on appeal, I expect a large brain drain out of California...
>> We have the ONLY state of which I am aware with a law that criminalizes failure to follow occupational health & safety code...
>>
>> -Russ
>>
>> Russell Vernon, Ph.D.
>> Director
>> Environmental Health & Safety
>> University of California, Riverside
>> 900 University Ave
>> Riverside, CA 92521
>> www.ehs.ucr.edu
>> russell.vernon**At_Symbol_Here**ucr.edu
>> Direct (951) 827-5119
>> Admin (951) 827-5528
>> Fax (951) 827-5122
>>
>> Taking a trip overseas?
>> Access Location Intelligence: https://ermsp.ucop.edu/uctrip and enter your UC Net ID
>>
>>
>> -----Original Message-----
>> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Ralph B. Stuart
>> Sent: Tuesday, August 27, 2013 4:27 AM
>> To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU
>> Subject: [DCHAS-L] Judge denies three Harran defense motions
>>
>> http://cenblog.org/the-safety-zone/
>>
>> A Los Angeles County Superior Court judge today denied three defense motions that could have dismissed a criminal case against University of California, Los Angeles, chemistry professor Patrick Harran. With the rulings going against the defense, the case moves closer to trial. The judge set the next court date for Oct. 3. Harran could go to trial within 60 days of that date.
>>
>> Harran faces four felony charges of violating the state labor code. The charges stem from the death of research assistant Sheharbano (Sheri) Sangji after a 2008 fire in Harran's lab. In November and December, 2012, Judge Lisa B. Lench heard testimony in a preliminary hearing on the case. She ruled in April that there was sufficient evidence to send the case to trial.
>> After the preliminary hearing, the case was sent to Judge George G. Lomeli for trial.
>>
>> Before today's hearing, Harran's attorneys submitted three motions: one asking the judge for a so-called Franks hearing, another called a demurrer, and a third to dismiss the charges based on lack of probable cause. The district attorney's office replied to each motion, and the defense then responded in writing to those replies.
>>
>> More at the site above...
>>
>> - Ralph
>>
>> Ralph Stuart CIH
>> Chemical Hygiene Officer
>> Department of Environmental Health and Safety Cornell University
>>
>> rstuart**At_Symbol_Here**cornell.edu

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