It was paltry. It was a pittance. It was pathetic. That’s what I thought of OSHA’s proposed $99,000 penalty to DuPont for safety violations related to the November 2014 death of four of its employees. OSHA dinged the company for one repeat and nine serious violations. 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.
The penalty amount is so insignificant it wouldn’t even appear on a DuPont financial statement. $99,000 is less than 0.0003% of DuPont’s $32.8 billion in annual revenue.
Rather than pay the fine and admit responsibility, DuPont is contesting the OSHA violations. On what grounds? DuPont says the OSHA rules are vague, the rules don’t apply, and worst of all, the violations were the workers’ fault.
In a document submitted for its challenge to the agency’s violations, DuPont claims more than a dozen reasons that OSHA is wrong. The most offensive has to be this one:
“The violations alleged ….are, in whole or in part, due to unpreventable employee misconduct.”
Wait a minute. OSHA inspectors found pressure valves, flanges, and vents not configured consistent with the plant’s piping and instrument diagrams. These pipes and hardware are the freeway carrying volatile and toxic gases. They better be configured correctly. But that wasn't the only problem at the plant. As Lise Olsen in Texas Monthly wrote:
The unit’s pipes often clogged, increasing pressure in the system and forcing workers to make potentially risky repairs to avoid costly production delays. To clear clogs, operators had to physically open pipes and flush out foul-smelling liquids and solids. …There were no external emergency stairs, and the unit’s ventilation fans on the roof weren’t functioning, increasing the risk of harmful exposure.
This was a disaster waiting to happen. Shame on DuPont for blaming its workers, suggesting that the violations were caused by employee misconduct.
Here’s another of DuPont’s defenses:
“Compliance with the standards as set forth in the Citation are, in part or in whole, infeasible, impracticable, and/or impossible.”
Did DuPont ever contact OSHA and say “we are trying to comply with your process safety management standard (PSM) but it is impossible, infeasible or impracticable"?
DuPont has a lucrative business unit that sells PSM consulting services to other firms. Surely its experts could have made the case to OSHA and offered an alternative that would have been at least as effective as the OSHA standard. I’ve not seen any record showing DuPont requested such a variance.
Or how about this DuPont excuse:
“The violations alleged in the Complaint and Citation are inapplicable.”
The company was cited for continuing to process chemicals in a building in which the ventilation fans didn’t work. And not just in any area, but the area where the workers were killed by the toxic gas. A standard requiring companies to fix equipment deficiencies in operations involving highly-hazardous processes is not applicable? Of course it is. Who is DuPont trying to fool?
The company was also cited for failing to provide appropriate training to workers who were involved in doing new tasks. It’s offensive that DuPont is suggesting that this standard doesn’t apply. It’s the same one that the company violated which contributed to the death in January 2010 of Danny Fish, 58, an employee at its operation in Belle, WV. DuPont paid a $7,000 penalty for that specific violation, along with $36,000 in penalties for other violations. After that tragedy, you'd think DuPont would have been hyper vigilant to ensure its employees received the safety training they needed.
When asked for a comment, John Morawetz, H&S Department of the International Chemical Workers Union Council remarked:
"This disaster illustrates the reason that high-hazard facilities need to be thoroughly evaluated and comply completely with OSHA's PSM standard. That's one way that workers and surrounding communities can be protected."
DuPont’s most recent sustainability report lists the company’s “core values”: safety and health, environmental stewardship, respect for people, and highest ethical behavior. The company says they:
"work hard to be a respected corporate citizen in this world and we value our reputation as one of our most important assets. We require compliance with rules and laws, but more so, we expect an ethical mindset when doing business with and on behalf of DuPont.”
It’s hard for me to see how this declaration jives with the company's rebuttal to OSHA’s citations. It sounds to me that they want us to believe that it was his fault, her fault, their fault...anyone but DuPont's fault.
I think Dupont's "Core values" tanked as soon as the lawyers and MBAs (Master of Business Assassination) took over the helm.
I received the document from a confidential source. I accepted it on the condition of keeping it confidential. It should be available at some point in the case file.
The amount that OSHA can fine for violations are a matter of regulation and do not necessarily reflect the outrage of an incident. For instance, a "serious" violation has a minimum/maximum value of $1500/$7000, while "willful" violations have minimum/maximums of $5000/$70000; there are penalty multipliers for repeat violations.
A "serious" violation is one where there is a substantial probability of injury/death, while a "willful" violation is one that an employer intentionally and knowingly commits. Showing intent and knowledge is difficult.
The fact that DuPont is going to contest the charges is separate from the outrage and should be recognized as such.. It''s recognized good business practice to push back on regulators for any oversight/penalties in order to help prevent regulatory over-reach and creep into business practices. Even the smallest of corporations will give some push back at the informal conference that follows every inspection/citation, which will usually result in a penalty reduction if the small company can show swift abatement efforts and good faith at the table.
OOPS - "...does not necessarily reflect..."
That should teach me to write before coffee.