OSHA Chief: Fine for Deadly Leak in Texas "Petty Cash" for DuPont

_{*Clarification appended} 

More than six months after a toxic gas leak killed four workers at DuPont’s chemical plant in La Porte, a top U.S. labor official blasted the company’s commitment to workplace safety, saying he wished he could hand out a harsher punishment.

“We saw serious hazards, which killed four people,” David Michaels, who heads the Occupational Safety and Health Administration (OSHA), said in an interview with The Texas Tribune. “It’s painful for us, and we know it’s painful for the families of these workers to see that the fine is only $99,000” — a number he called “petty cash” for the multibillion-dollar company. 

OSHA levied that penalty – the maximum for the citations it issued – last week after a six-month investigation of the incident, saying those who died “would be alive today had their employer … taken steps to protect them.”

Investigators found multiple “serious” violations, those that could lead to serious injury or death, at DuPont’s insecticide manufacturing unit in La Porte, a city of 35,000 people outside of Houston on the Gulf Coast. The missteps included a failure to train workers and upgrade faulty equipment. The law caps the fine for each such violation at $7,000. 

DuPont said it is still reviewing OSHA's findings. The company is re-evaluating its procedures and says safety is a priority. 

On Nov. 15, veteran operator Crystal Rae Wise opened a faulty valve on a pipe carrying methyl mercaptan, a chemical used to manufacture DuPont’s popular insecticide called Lannate. More than 20,000 pounds of the foul-smelling gas — deadly in even small doses — spewed out. Wise was found dead on a stairwell in the insecticide unit several hours later.

The gas also killed three workers who rushed in to help her: Wade Baker and brothers Robert and Gilbert Tisnado.

“The fine certainly isn’t anywhere proportionate to the injury,” said attorney Clay Dugas, who is representing Gilbert Tisnado's widow, Michelle Tisnado. “Anybody would say that the fine is meaningless.” The company is facing a lawsuit from Tisnado and several other family members of the victims.

Other federal regulators typically dole out far stiffer penalties for violations that probably won’t kill people. The Federal Communications Commission, for instance, recently slapped a Virginia television station with a $325,000 indecency fine for airing “a video image of a hand stroking an erect penis.” 

The insecticide unit where the workers died last year in La Porte remains shut down, and DuPont won't restart it until it finishes its own investigation, company spokesman Aaron Woods said in an email. Woods did not respond to specific questions about OSHA’s findings. 

"Safety is a core value and constant priority at DuPont," Woods wrote. "Our response to this tragedy reinforces our absolute focus on safety and enables us to learn from it so that we can find ways to be an even better company."

OSHA said DuPont neither properly trained nor provided enough information to workers, citing the company for nine “serious” violations.

Investigators also said the Wilmington, Del.-based company didn’t teach the employees how to use the plant’s ventilation system, which wasn’t working properly the day of the tragedy. OSHA called that a “repeat” violation because it had found a similar problem in a 2011 probe of a DuPont plant in West Virginia, following the death of one worker there after a hose ruptured and exposed him to toxic gas.

For the “serious” citations, OSHA imposed the maximum fine of $7,000 for each, or $63,000 in total. “Repeat” violations could carry a penalty of up to $70,000 each; in this case, the agency proposed $35,000 because it was the first time the company had repeated that particular violation. OSHA also issued one “non-serious” violation worth $1,000, saying DuPont did not provide OSHA with copies of its illness and injuries log for contractors.

Last year the company reported close to $35 billion in revenue. 

Fines Unchanged for Decades

The caps on penalties date back a quarter-century, the last time Congress updated fines in the 45-year-old Occupational Safety and Health Act. And the buying power of those dollars is only a little over half of what it was in 1990. (Unlike at other agencies, OSHA’s cap on penalties does not rise with inflation.)

Since then, campaigns to increase workplace safety penalties, including pushes from OSHA administrators, have gotten nowhere in Washington. 

“We need to raise the cap,” Michaels said. “Even if the fine were 10 times higher, I’m not sure it would impact DuPont very differently. But it would send the message to other employers.”

Industry advocates say increasing penalties won’t help, and that businesses have plenty of other incentives to bolster safety.

“Quite frankly, it’s bad business not to have a safe workplace,” said Nina Stillman, a Chicago lawyer who defends major industrial clients in OSHA cases. “Will an increase in a fine likely change that? Probably not.”

OSHA has made some effort over the past decade to increase penalties without changing the law, like broadening definitions of costlier “repeat” violations.

Until recently, the violation found both at the West Virginia and La Porte plants wouldn’t have been considered “repeat” because those plants sit in different regions. Now, OSHA’s policy allows companies to be cited for repeat violations nationwide.

But labor advocates say those changes are too small to make a difference.  

“The problem is that OSHA is such a small agency, and has such a limited reach, that it makes it hard to have an impact,” said Peg Seminario, health and safety director for the AFL-CIO in Washington, D.C.

OSHA’s size and funding have stayed relatively flat since its creation in 1970, according to an analysis of federal data Seminario’s group released last month. Meanwhile, the number of employers and workers under its jurisdiction have nearly doubled. In Texas, OSHA has just one inspector per 110,000 workers, among the worst ratios in the nation.

For each inspection of a site where a worker died in the 2014 fiscal year, OSHA penalized employers an average of $10,640 — up only slightly from 2007, the AFL-CIO analysis found. In Texas, fines averaged $9,593.

“We’re up against several limitations that are pretty severe,” said Michaels, pointing out that the agency has only six months to investigate incidents and issue fines. The DuPont probe, for example, involved subpoenaing and reviewing 40,000 pages of documents.

A Leader in Safety

Federal officials and industry experts have long considered DuPont a leader in safety, and the company frequently touts that reputation.

“I was surprised in reading that [recent OSHA report], to see those types of allegations. Because that’s not consistent with the experience that I’ve had with the DuPont folks over the years,” said Dennis Caputo, who runs a Bellaire safety and environmental consulting firm that has not done business with DuPont. "I can’t imagine a situation like what occurred in La Porte happening without a company who is as strongly safely-oriented as DuPont re-evaluating those root causes."

But major accidents and a few scares at DuPont facilities in the past five years have made Michaels skeptical about the company's commitment to safety. 

Just a few months before Wise, the Tisnado brothers and Baker died in La Porte, workers at a DuPont plant in Deepwater, N.J., were exposed to toxic chemicals that leaked from a truck. OSHA found 11 violations and fined the company $120,300. (No one was seriously hurt.) 

And in 2011, OSHA proposed a $58,000 penalty for DuPont after 800 pounds of a toxic chemical leaked from a faulty valve at its plant in Beaumont. No one was hurt, but officials ordered employees to temporarily “shelter in place.” To be safe, DuPont scoured nearby cars and buildings after finding traces of the potentially lethal chemical outside the fences of its plant.

DuPont contested that penalty, and an independent review board reduced it to $18,000. OSHA cited DuPont for giving workers too little information about safety and shutdown procedures and allowing heavy steam from a damaged heat system to spew into walkways.

“DuPont markets itself as one of the world’s experts in safety. They sell their services to other employers, telling employers, we can work with you to make your workplaces safe,” Michaels said. “Based on what we saw in our inspection, if I were an employer, I would think twice before hiring DuPont to give me advice on safety.”

That statement might sound familiar to some following the petrochemical industry.

After a string of three accidents in 2010 at DuPont's West Virginia plant, the U.S. Chemical Safety and Hazard Investigation Board (CSB), an independent government watchdog, said a “series of preventable safety shortcomings” ultimately triggered the release of phosgene, a gas used as a chemical weapon in World War I, killing 58-year-old Carl Fish.

“These kinds of findings would cause us great concern in any chemical plant – but particularly in DuPont with its historically strong work and safety culture,” John Bresland, then a CSB board member and former chairman, said in 2011. “In light of this, I would hope that DuPont officials are examining the safety culture company-wide.”

_{*Clarification: This story has been updated to clarify why OSHA didn't fine DuPont the maximum penalty for a repeat violation.}