July 02, 2020

Irving fined $183,200 for violations

BANGOR – Irving Oil Corp. was fined $183,200 Thursday for 458 violations of the state’s maximum driving time limit for commercial drivers during a sentencing hearing at Penobscot County Superior Court. Surcharges assessed in connection with the sentence pushed the fuel corporation’s total penalty to $209,764.

Though a state police investigation found 565 violations of the rule, which limits commercial vehicle drivers to 60 hours behind the wheel a week, the state ultimately prosecuted 458 of the violations, all of which occurred from December 1998 through February 1999, court documents indicate.

Though Penobscot County District Attorney R. Christopher Almy recommended fines totaling $256,000, he said the fine imposed by Mead was reasonable, given the steps the company has taken to ensure such violations do not occur in the future.

Almy, however, expressed concern that the company “still doesn’t get it. Their [testimony focused] on meeting customer demand. It had nothing to do with working safely, and it had nothing to do with safety on the highway,” Almy said after the hearing.

The district attorney further said the violations would not have occurred in the first place had Irving’s delivery drivers been represented by a union, which would have given them a grievance procedure to follow in instances where they were required to work excessively long days.

Daphne and Steve Izer of Parents Against Tired Truckers, a Lisbon Falls-based highway safety advocacy group, agreed. The couple, who attended Thursday’s proceedings, said they were disappointed by the relatively small fine.

“Safety regulations are in place for a reason and for a big corporation like Irving to get off so lightly is troubling,” Daphne Izer said. Though the Izers acknowledged that local fuel delivery drivers weren’t necessarily driving long distances, the drivers at issue had been working well over the state time limit.

“Fatigue is fatigue,” Steve Izer said.

Irving’s James Dufour, a legal counselor who also serves in a public relations capacity, said while the company considered the amount of its fines high, given the fact that the violations were not intentional, Irving did not plan to appeal Mead’s decision.

During a hearing before Superior Court Justice Andrew Mead, Irving attorney John Rich noted that the company, which pleaded guilty to all counts, took full responsibility for the violations. He argued, however, that the violations were the result of poor planning, and not an attempt to reap profit from the ice storm of that period.

Rich said the company bases its labor force projections on its experience in previous seasons. After two years of mild winters, the company did not foresee the havoc the severe ice storm of 1998 would wreak in the industry.

Once the storm hit, he said, Irving and other dealers were faced with a shortage of qualified delivery drivers, one of the three factors that triggered the Maine Legislature’s emergency waiver of the 60-hour limit. The temporary waiver allowed fuel delivery drivers to work an additional 12 hours a week.

Rich also testified that the company did not reap any financial gain as a result of the storm, in fact overtime amounted to nearly $80,000 during the period at issue. He said the company actually would have saved money had it hired extra part-time drivers because it would have been cheaper than paying its full-timers overtime, which at Irving amounts to time and a half for every hour worked beyond their 40-hour work week.

“This is not a tired trucker case,” he argued. Local delivery drivers, he said, spend more than 75 percent of the workweek off the road. The bulk of their time was spent out of their trucks, on such tasks as truck safety inspections and preparations and various record-keeping chores, as well as on work involved with filling tanks once they reached the various stops on their routes.

Among the state’s concerns were that Irving, a “profitable and well-run company with large resources,” had enough money to hire additional workers and train supervisors properly to avoid the violations.

Also troubling to Almy was that it took the company 43 days – well over the law’s 48-hour deadline – to turn over the documents the state police asked for as part of their investigation. Also, the violations took place during a period when the Maine Legislature had enacted emergency legislation temporarily extending the 60-hour driving limit for drivers because of high demand.

According to court documents, of the 458 violations that ultimately were prosecuted, 257 involved exceeding the 60-hour limit by 10 hours or fewer, 41 were for exceeding the cap by 10 hours to 20 hours, and 126 were for exceeding the limit by more than 20 hours. Each violation is punishable by a fine of between $250 and $10,000, according to state law.

The violations occurred in Brewer, Calais, Fort Kent, Houlton, Machias, Millinocket, Portland, Presque Isle, Searsport, Waterville and Wiscasset.

Though Irving potentially faced as much as $4.6 million in penalties, Almy recommended that the company be fined $256,000 due to steps it took to improve safety and prevent further violations.

After the violations came to light, Irving hired Carl E. Buchanan Associates, one of New England’s most respected investigative agencies, to examine its workplace environment. The company reportedly implemented the resulting recommendations, which were aimed at improving workplace safety.

Irving also has added Malcolm Dow, a now-retired state police colonel, to its staff. Dow, who was among the Irving officials in the Bangor courtroom Thursday, said his role involves keeping workers informed of the regulations they are required to follow.

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