OSHA Cites Two Multiple Death Cases Very Differently

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

OSHA has issued citations in two multiple fatality cases, one with a appropriately large penalty (for OSHA) and one not so much. What’s going on?

Gavilon Grain

 Gavilon Grain LLC faces a half million dollar penalty for the suffocation deaths of two men, Joshua Rasbold, 28, and Marcus Tice, 32, who died after they were buried under 20 to 25 feet of grain on Jan. 2 at Gavilon’s grain elevator near Wichita, Kansas.  Gavilon, formerly known as DeBruce Grain, “has faced 24 cases of safety and health violations by federal regulators over the past seven years.”

According to OSHA’s Press Release,

“OSHA cited Gavilon Grain LLC for failing to provide employees with lifelines and fall protection; lockout equipment; provide rescue equipment; and allowing employees to enter a bin in which bridged and/or hung-up grain was present.

“Moving grain acts like quick sand, and can bury a worker in seconds,” said OSHA Regional Administrator Kimberly Stille. “This tragedy could have been prevented if the employer had provided workers with proper safety equipment, and followed required safety procedures to protect workers from grain bin hazards.”

The $507,374 citation, which included four willful, one repeat and two serious citation also resulted in Gavilon being put on OSHA’s Severe Violator Enforcement Program.

The penalty was issued by OSHA Region 7 which I criticized a couple of weeks ago for issuing a rather mealy-mouthed press release following a spike in fatalities in the region. Happy to see they’re still serious about significant enforcement actions for employers who kill.

Patterson-UTI Drilling

Meanwhile, down the road in Oklahoma, OSHA has issued much smaller penalties for a higher number of fatalities involving a company with a problematic history.

Today, OSHA issued citations with penalties totaling $118,643 against three companies — Patterson-UTI Drilling, Crescent Consulting LLC, and Skyline Directional Drilling LLC — in response to the deaths of five workers who were killed in an gas well explosion last January. Matt Smith, Parker Waldridge, Roger Cunningham, Josh Ray and Cody Risk died in the explosion.

Three of the five dead workers were employees of Patterson-UTI, a large oil and gas drilling company, an OSHA “frequent flyer” which has received more than $900,000 in OSHA penalties over the last decade for repeated safety violations.

The OSHA Press Release stated that the companies were cited for

failing to maintain proper controls while drilling a well, inspect slow descent devices, and implement emergency response plans. OSHA cited all three companies for failing to ensure that heat lamps in use were approved for hazardous locations. The three companies face penalties totaling $118,643, the maximum allowed for violation of the OSHA standards.

OSHA issued 7 serious citations against Patterson for a total of $73,909, four serious citations against Crescent for $34,923 and one serious citation against Skyline for $8,148.

Why So Low?

Why were the fines for the 5 deaths in the gas well explosion only $118,000 while the penalty for two grain engulfment deaths were over 4 times that much?  We don’t really know at this point, but there are a few things to consider about how OSHA is able — and not able — to issue high penalties:

  • OSHA citations are based on the standards that are violated, not on the number of workers who are killed. While there are ways to increase the penalties for particularly egregious incidents (see below), the evidence is often not adequate to surmount the legal hurdles.
  • There were no willful or repeat citations issued in the Patterson et. al case.  Being as a willful violation carries a maximum $129,336 penalty and a serious violation only $12,934, lack of any willfuls will inevitably mean a significantly lower total penalty.  We’re not sure why there were no willful violations in this case, but in order for OSHA to issue a willful violation, the agency has to show that “an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.”  Given Patterson’s history and expertise in oil drilling, it’s hard to see how there were no willful violations, but I haven’t seen the evidence that OSHA investigators were able to compile.

It is also significant that no willful violations were issued because the Occupational Safety and Health Act only allows OSHA to pursue a criminal prosecution where a fatality was the result of a willful violation.

  • There were also no Repeat violations issued, which also seems odd considering Patterson UTI’s history. Repeat violations can only be issued by OSHA where “An employer … has been cited previously for the same or a substantially similar condition or hazard,” — generally within the past five years — according to OSHA’s Field Operations Manual.  Note that it has to be more than just violation of the same standard. There also has to be “a substantially similar condition or hazard.”
  • OSHA doesn’t have a gas drilling standard and gas drilling is not covered under OSHA’s Process Safety Management Standard. That’s why several of the violations were issued under OSHA’s General Duty Clause which allows OSHA to cite for hazards where there are not standards. Again, the legal burden for issuing General Duty Clause violations is higher than the criteria for violating a standard.
  • This was not an “Egregious Case.” OSHA has the option, in certain situations, of issuing “egregious,” or “instance-by-instance” penalties.  That means instead of issuing just one violation (and penalty) for inadequate emergency response, the agency could issue a separate violation for each worker exposed to that hazard that violates a standard. Egregious penalties are only issued when there are willful violations and other “egregious” factors.

Egregious cases contradict somewhat my statement in the first bullet that OSHA citations are based on the standards that are violated, not on the number of workers who are killed. The egregious citation directive states that these cases “are not…primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”

One other thing. These violations didn’t reach the level where Patterson UTI will be placed in OSHA’s Severe Violator Enforcement Program (SVEP).  OSHA came under some justified criticism in 2014 by Lise Olsen at the Houston Chronicle because SVEP did not include “any of the Texas oil and gas companies that had reported multiple fatalities and none of six that had reported 10 or more fatal accidents to OSHA nationwide from 2007-2012, either through a single company or interrelated subsidiaries.”

Oil and gas sector fatalities peaked in 2014 with 141 workers killed across the nation.  As a result of those figures and the Chronicle investigation, OSHA added oil and gas to the SVEP criteria in 2015. Under SVEP, “a fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.”  In addition, “two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to upstream oil and gas activities, will now be considered a severe violator enforcement case.” Again, without any willful violations, Patterson UTI still doesn’t make the grade for SVEP.

So, in conclusion, this seems like a very low penalty given the number of fatalities and the history of Patterson UTI. But having personally experienced the frustration of many citations that I considered to be too small because the evidence to justify for higher penalties wasn’t sufficient, I will give OSHA the benefit of the doubt for now.  Sometimes “it is what it is,” as they say.

On the other hand, inquiring minds want to know what’s really behind the low penalties in this case.

***

Reposted from Confined Space

Posted In: Allied Approaches

Union Matters

Get to Know AFL-CIO's Affiliates: National Association of Letter Carriers

From the AFL-CIO

Next up in our series that takes a deeper look at each of our affiliates is the National Association of Letter Carriers.

Name of Union: National Association of Letter Carriers (NALC)

Mission: To unite fraternally all city letter carriers employed by the U.S. Postal Service for their mutual benefit; to obtain and secure rights as employees of the USPS and to strive at all times to promote the safety and the welfare of every member; to strive for the constant improvement of the Postal Service; and for other purposes. NALC is a single-craft union and is the sole collective-bargaining agent for city letter carriers.

Current Leadership of Union: Fredric V. Rolando serves as president of NALC, after being sworn in as the union's 18th president in 2009. Rolando began his career as a letter carrier in 1978 in South Miami before moving to Sarasota in 1984. He was elected president of Branch 2148 in 1988 and served in that role until 1999. In the ensuing years, he worked in various roles for NALC before winning his election as a national officer in 2002, when he was elected director of city delivery. In 2006, he won election as executive vice president. Rolando was re-elected as NALC president in 2010, 2014 and 2018.

Brian Renfroe serves as executive vice president, Lew Drass as vice president, Nicole Rhine as secretary-treasurer, Paul Barner as assistant secretary-treasurer, Christopher Jackson as director of city delivery, Manuel L. Peralta Jr. as director of safety and health, Dan Toth as director of retired members, Stephanie Stewart as director of the Health Benefit Plan and James W. “Jim” Yates as director of life insurance.

Number of Members: 291,000 active and retired letter carriers.

Members Work As: City letter carriers.

Industries Represented: The United States Postal Service.

History: In 1794, the first letter carriers were appointed by Congress as the implementation of the new U.S. Constitution was being put into effect. By the time of the Civil War, free delivery of city mail was established and letter carriers successfully concluded a campaign for the eight-hour workday in 1888. The next year, letter carriers came together in Milwaukee and the National Association of Letter Carriers was formed.

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