A worker was killed last Wednesday after falling into the water basin of the primary cooling tower at the Phillips 66 Alliance Refinery in Belle Chasse, Louisiana. The worker, Jerome Matthews, was a contract worker employed by HydroChemPSC. He fell into the 15-foot basin, which prompted a shutdown of the entire refinery after multiple recovery attempts were unsuccessful. His body was recovered on Saturday, after the refinery was shut down.
The refinery is a participant in OSHA’s Voluntary Protection Programs (VPP), OSHA’s program for “employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.”
In response to a number of VPP participants where workers had been killed, or where the facility had received willful OSHA citations, OSHA issued “Memorandum 7” in 2013 to improve OSHA’s response to employee deaths and willful violations at VPP sites. The new policy required the status of the VPP site to be changed to “Inactive Pending Fatality/Catastrophe Inspection” immediately following a fatality (either of the employer’s employee or an employee of a non-VPP contractor at the site.)
Following a citation, if it was determined that the fatality was work-related, or when a site is placed in the Severe Violator Enforcement Program, or when a willful violation(s) was issued, an Intent to Terminate (ITT) Letter was automatically sent to the facility. The facility could then appeal the ITT to the Assistant Secretary with the reasons why it should not be removed from VPP. The Assistant Secretary — in consultation with the Regional Administrator — would then make a determination about whether the facility should be terminated. Facilities were also given the opportunity to voluntarily withdraw from VPP instead of being terminated.
OSHA recently softened Memorandum 7, by removing any reference to willful violations or being placed in OSHA’s Severe Violator Enforcement Program and Secretary of Labor Alex Acosta has stated that he wants to expand the program. This seems to be the first VPP facility to suffer a fatality since the new memorandum was issued.
OSHA has six months to issue citations, after which a determination will be made whether to terminate the site’s participation in VPP.
Within the 6 month statutory limit for the issuance of citations, an awful amount of harm could be done by a VPP employer who perhaps shouldn’t be protectively veiled within the prerogatives afforded by VPP enrollment. Shouldn’t there be some sort of administrative mechanism provided within the relevant agency(s) Policy & Procedures Manual(s),wherein an expedited review is conducted in order to make an unbiased determination as to whether any particular VPP site may continue within the VPP program in the aftermath of a fatality, etc?