Criminal Prosecution After Willful OSHA Citations for 5 Deaths at Tampa Electric?

OSHA Fines Tampa ElectricOn June 29, 2017, five workers were burned to death at Tampa Electric’s Big Bend Power Station —  Michael McCort, 60, Christopher Irvin, 40; Frank Lee Jones, 55, Antonio Navarrete, 21, and Amando J. Perez, 56 — after management forced them to do a procedure that they knew was hazardous, probably just to save a few bucks. One other employee, Gary Marine Jr, suffered serious burns.

The workers were killed when they tried to clear hardened coal slag accumulating at the bottom of a 12-story tall boiler without shutting the boiler down first. Thousands of gallons of molten slag gushed from the boiler, shooting out of the tank and covering the workers. Shutting down and restarting a boiler can cost utilities up to a quarter-million dollars.

A similar incident had occurred two decades earlier, in 1997. No one was killed in that incident, but the utility changed its written procedures to prohibit clearing blockages while the boiler was operating.

The Tampa Bay Times wrote an excellent investigative piece on the tragedy last August, and I provided some additional analysis in a Confined Space post shortly thereafter.

Yesterday, OSHA issued citations related to the incident. Tampa Electric (TECO) was fined $139,424 which included two willful violations that were grouped together for one penalty, and two serious Personal Protective Equipment violations that were also grouped together. Gaffin Industrial Services, which employed Irvin and Jones, received two serious citations and a $21,548 penalty for five violations for failure to provide personal protective equipment that would have protected workers against burns.

TECO spokeswoman Cherie Jacobs, quoted in the Tampa Times, said they “respectfully disagree with the suggestion we were willful or deliberately indifferent to the safety of workers” and had not yet decided whether to contest the citations. The company has 15 days to decide whether to contest.

TECO’s Terrible Workplace Safety History

Despite TECO’s objection to the “willful” citation, the Times has documented the utility’s sorry workplace safety history:

In August, a Times investigation found that Tampa Electric had experienced a near-identical accident at a different plant in 1997, and wrote guidelines banning the procedure that caused it. But those rules were abandoned sometime before the June accident, allowing the dangerous maintenance job to proceed.

Over the last 20 years, more workers have died in Tampa Electric’s power plants than in those run by any other Florida electric utility, the Times found. Tampa Electric has had 10 deaths; the next-highest company has had 3.

Nevertheless, TECO now states that it has permanently discontinued the practice that killed the workers, and Jacobs maintains that “We are more focused on safety than ever before.”

One would hope that’s true, but there’s not much evidence yet:

After the accident, Tampa Electric’s then CEO Gordon Gillette told the Times the company would not allow maintenance work with the boiler running until the OSHA investigation was finished.

In late August, however, Tampa Electric’s union said workers at Big Bend had drained water and hardened slag out of a tank onto the plant’s floor while the boiler was still running. Tampa Electric acknowledged the work violated its policy, and said it planned to clarify its rules. Gillette retired Nov. 30.

On Thursday, Jacobs said the company had made the policy permanent.

“Permanent.” For the third time.

Criminal Prosecution?

Needless to say, relatives and union representatives were not happy with the size of the fine.

Navarrete’s sister-in-law, Delfina Ramirez, said she hoped for a harsher penalty against the power company. “I think TECO should face criminal charges,” she said. “They are responsible for killing Marro and these other people.”

Retired union leader Rick Coronado said OSHA’s punishment wasn’t enough. “It amounts to about $30,000 a life,” he said. “Now we’ve put a price on workers. I guess that’s the going rate.”

Unfortunately, OSHA’s fines are based primarily on standards that were violated, not the number of workers injured or killed. In this case, however, it is not clear why the two willful violations against TECO were grouped into one citation, although OSHA’s decisions in these cases can often be based on perceived legal vulnerabilities.

Of course, even if OSHA had issued two willful citations instead of one — essentially doubling the size of the citations against TECO — it still wouldn’t have made up for the loss of five lives in this preventable tragedy.

“Where you have a culture that is not compliant and that disregards safety matters, that can be a criminal violation.” — Secretary of Labor Alex Acosta

What can make a difference, however, is criminal prosecution. The Occupational Safety and Health Act allows for criminal prosecution if there there is a willful violation that led to the death of a worker — a situation that occurred here. OSHA must refer the case to the Department of Justice, which decides whether to pursue the case.

I will expect Secretary of Labor Alex Acosta to aggressively support a criminal prosecution and strongly advocate at the Department of Justice given that this incident occurred in Acosta’s home state of Florida, and that he strongly supported criminal prosecutions at a recent Senate hearing.

At that hearing, Acosta claimed to be “very much aware of the importance of vigorous prosecution when violations are willful or repeat” and stated that “Where you have a culture that is not compliant and that disregards safety matters, that can be a criminal violation.”

Secretary Acosta, the families of these five workers, and employees working in similar hazardous conditions across the country are waiting to see if you follow through on your commitment.

Don’t disappoint them.

Alex Acosta Criminal Prosecution Enforcement OSHA Penalties

4 Comments

  1. Were the willful violations based on Section 5(a)(1) of the OSHA Act or specific standards? My cursory review of OSHA Lock Out/ TagOut requirements (29CFR 1910.147) for the unexpected release of hazardous energy appear to exempt power generation facilites. Criminal prosecution under the OSHA act requires a nexus between an employee death and a willfully violated OSHA standard; general duty vioations citied under Section 5(a)(1) of the act do qualify for criminal referral to the Justice Department. Providing the actual verbiage of the citations and referencing their numbers would be helpful.

    Instead of eliminating OSHA standards we may in be need of strenghening the 1910.147 or 1910.269(Power Generation) regulations. Why does the current Lock out/Tag Out standard for general industry exempt power plants?

  2. Correction. General Duty violations which result in employee death(s) do Not qualify for criminal referral to the Justice Department even when such violations are classified as willful. Sorry for the oversight.

    1. Federal regulations exempting power generation facilities, how convenient!
      Meanwhile the cost of the citation is still less than half the projected cost of the plant shutdown resulting in NO incentive to comply with safety regs. They could have killed 50 people and the citation would still have been less than the cost of the shutdown. Just disgusting.

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