Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

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.