Last week OSHA announced citations and proposed a $99,000 penalty against DuPont for safety violations related to the November 2014 incident that killed four employees at its LaPorte, TX chemical plant. Wade Baker, 60, Gibby Tisnado, 48, Robert Tisnado, 39, and Crystal Wise, 53 were asphyxiated by methyl mercaptan because of gross failures in DuPont’s systems to manage highly hazardous chemicals. OSHA’s proposed penalty stems from one repeat, nine serious, and one other-than-serious violation.
What baffles me is why OSHA didn’t propose the $70,000 maximum for the repeat violation. OSHA gave DuPont a 50 percent discount, proposing only a $35,000 for the repeat violation. And this was not just any repeat violation. DuPont’s failure at the LaPorte plant was identified by OSHA in 2010 as a contributing factor in the death of another DuPont worker, Carl “Danny” Fish, 58. Fish worked at the company’s facility in Belle, WV. As the Charleston Gazette’s Ken Ward, Jr. reported, Fish was sprayed with phosgene—a compound used as poison gas during World War I—a building block chemical used at the Belle, WV plant. In both the 2010 fatality and the 2014 fatalities, OSHA concluded that DuPont failed to ensure that each employee involved in operating a process be trained on the safety and health hazards of the process, safe work practices, and emergency operations ((1910.119(g)(1)(i)).
When determining a proposed penalty, OSHA is supposed to give “due consideration” to four factors:
- the gravity of the violation
- the employer’s past history of violations
- the employer’s size (i.e., reductions for being a small employer)
- the employer’s good faith.
“Gravity” means the severity of the hazard and the probability that an injury or illness will result.
The maximum OSHA penalty allowed by Congress for a serious violation is $7,000. OSHA proposed that maximum for the nine serious violations related to the four worker deaths at the LaPorte, TX plant. No discounts for gravity, size, good faith, or history.
For violations classified by OSHA as willful or repeat, OSHA is permitted to propose as much as $70,000. So why did OSHA only propose a $35,000 for the repeat violation? OSHA’s citations don’t disclose how the agency calculates a proposed penalty, so I looked for the reason for the 50 percent discount elsewhere.
OSHA’s Field Operations Manual (FOM) says that “history” and “good faith” discounts are not applied to repeat violations. With thousands of employees nationwide, DuPont wouldn’t receive any discount for being a small company. That just leaves “gravity” as the reason for the penalty reduction. It’s difficult for me to understand how a discount would apply given the severity of the hazard (i.e., death) and the probability of injury resulting (i.e., 100 percent—it happened.) I also noted that when DuPont was cited for this same violation at the Belle, WV facility, no discounts were applied for gravity. What’s different about this case in which four workers were killed?
Labor Secretary Tom Perez is on record saying that companies that put profits over safety should face hefty penalties. OSHA chief David Michaels and other OSHA officials complain that Congress has not updated OSHA’s penalty structure since 1991. In testimony before Congress Michaels said:
Swift, certain and meaningful penalties provide an important incentive to “do the right thing.” However, OSHA’s current penalties are not large enough to provide adequate incentives. …Clearly, OSHA can never put a price on a worker’s life and that is not the purpose of penalties — even in fatality cases. OSHA must, however, be empowered to send a stronger message in cases where a life is needlessly lost… We must not forget that a stronger message means stronger deterrence — and can therefore save lives. (emphasis added)
I agree that Congress must pass legislation to update OSHA’s penalties. The maximums currently allowed are chump change to many employers. But OSHA has the responsibility to use its authority to propose the stiffest penalties allowed. It should have made the case for the $70,000 maximum for the repeat violation. If DuPont contests the penalty, and a judge sides with DuPont, so be it. OSHA already is empowered to send a stronger message to DuPont, and it failed to do so.