Of Birds and Men: DuPont, Corporate Penalties and the Law

Just over 18 years ago, I wrote a post entitled “Of Fish and Men” where I observed that “The penalty for killing fish and crabs is far higher than the penalty for killing a worker.”

That post recounted a 2001 chemical tank explosion at a Motiva refinery in Delaware City, Delaware, where Motiva employee Jeffrey Davis was killed.  Davis’s body was dissolved in sulphuric acid that spilled from the tank. Only the steel shanks of his boots were found.

OSHA issued a $175,000 OSHA fine against Motiva for violations of the Process Safety Management Standard, which at that time was far higher than normal OSHA penalties for killing workers.  EPA, on the other hand, fined Motiva $12 million because spent sulfuric acid from the tank spilled into the Delaware River, resulting in thousands of dead fish and crabs. EPA’s penalty was almost 70 times higher than the OSHA penalty.

Almost two decades later, things aren’t much better.

Yesterday, EPA announced a $23 million fine against DuPont after a toxic release killed four employees in 2015 at the Dupont plant in La Porte, Texas.

In addition, DuPont must also serve two years of probation during which time the company must give the U.S. Probation Office full access to all of its operating locations.

Kenneth Sandel, the unit operations leader of the Insecticide Business Unit (IBU) where the accident occurred, also pleaded guilty and was sentenced to one year of probation.

DuPont’s main crime: violation of the Clean Air Act.

The company and Sandel initially pleaded not guilty to the charges. As part of the pleas, DuPont and Sandel admitted to negligently releasing an extremely hazardous substance into the air and acknowledged negligently placing people in imminent danger of death or injury in violation of the federal Clean Air Act.

Meanwhile, OSHA had fined the company $99,000 (later raised to $106,000) for the four fatalities:  one repeat and several serious violations of the Process Safety Management standard. The repeat violation was assessed for not training employees on using the building’s ventilation system and other safety procedures, such as how to respond if the fans stopped working. In July 2010, DuPont had been cited for a similar violation.  An angry OSHA Assistant Secretary David Michaels stated that “Four people lost their lives and their families lost loved ones because DuPont did not have proper safety procedures in place. Had the company assessed the dangers involved, or trained their employees on what to do if the ventilation system stopped working, they might have had a chance.”

So once again, the killing of animals (in this case birds) results in far higher fines than just killing workers.

So once again, the killing of animals (in this case birds) results in far higher fines than just killing workers. And because OSHA did not issue any willful violation, the agency was not permitted, under the Occupational Safety and Health Act (OSHAct), to pursue criminal action, even though 4 workers were killed.

(Note: Unlike the OSHAct, the Clean Air Act doesn’t require people to be killed for the EPA to pursue criminal prosecutions. An employer must only “negligently/knowingly put another person in imminent danger or death or serious bodily injury.”)

OSHA may be limited by the size of its fines it its limited criminal prosecution ability, but the agency was not done with DuPont. The deaths at the plant led to a more thorough inspection the following year which resulted in three willful, one repeat and four serious violations at the plant with proposed penalties of $273,000. OSHA also added DuPont to OSHA’s Severe Violator Enforcement Program “which concentrates resources on inspecting employers who have demonstrated indifference towards creating a safe and healthy workplace by committing willful or repeated violations, and/or failing to abate known hazards.”

But then the agency employed its most effective weapon — the bully pulpit.  In the OSHA press release following the second citation, an angry Assistant Secretary hit DuPont where it counts by letting the world know that DuPont had no business selling safety and health consulting to other firms if they couldn’t run their own business plant safely:

“DuPont promotes itself as having a ‘world-class safety’ culture and even markets its safety expertise to other employers, but these four preventable workplace deaths and the very serious hazards we uncovered at this facility are evidence of a failed safety program,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Nothing can bring these workers back to their loved ones. I hope that our continued scrutiny into this facility and into working conditions at other DuPont plants will mean no family ever suffers this loss again. We here at OSHA want DuPont and the chemical industry as a whole to hear this message loud and clear.

Lessons Learned

So what have we learned from this almost 9 year saga?

First, my conclusion today is the same as it was 18 years ago: “If you’re a worker who’s going to die on the job, make sure you take a bunch of fish with you.”  Or in this case, birds.

Second. although OSHA penalties have increased significantly over the past several years, they are still far too low — especially compared with the penalties that EPA is able to assess. Legislators who are concerned with worker safety should focus on penalty levels that will have more impact than OSHA’s slap on the wrist.

Third, the bully pulpit and hard-hitting press releases have an effect. With a company as large as DuPont, no agency — even EPA — will ever be able to hit them with fines large enough to affect their bottom line. But Dr. Michaels’ attack on DuPont’s vaunted safety system registered. Soon after the press release was issued, DuPont’s new CEO, Elaine Kullman, called Dr. Michaels to set up a meeting to review what measures they were taking to improve the company’s safety performance.

Side note: Kullman was forced to retire 6 weeks after the OSHA meeting as a result of a battle with Board of Directors members who argued that DuPont needed to cut costs and meet financial targets. Were the two events related? Who knows? But we do know that corporate cost cutting is not generally considered to be compatible with worker safety.

Finally, of course, nothing — neither monetary penalties, nor hard-hitting press releases — can ever be as effective as time behind bars.

The impact of a hard-hitting press release in this case was particularly gratifying as the Chamber of Commerce and other anti-OSHA types attacked OSHA throughout the Obama administration for issuing too many press releases that said unflattering things about companies that killed workers.  According to them, “regulation by shaming” was unfair, inappropriate —  even unconstitutional — bad for the economy, and kills jobs.

Actually, of course, it’s just the opposite. A 2020 study by Matthew Johnson, published in the American Economic Review, found that “publicizing a facility’s violations led other facilities to substantially improve their compliance and experience fewer occupational injuries.”

Finally, of course, nothing — neither monetary penalties, nor hard-hitting press releases — can ever be as effective as time behind bars. Especially time behind bars for high-level officials. In this case Sandel could have gotten up to five years in federal prison.  The judge decided that probation would suffice.  And should officials above Sandel’s level have been indicted as well? Especially corporate leaders who choose cost-cutting over safety?  Meanwhile, the Occupational Safety and Health Act needs to be modified to make it easier for OSHA to pursue criminal convictions.   The Protecting America’s Workers Act would do that, but House Republicans are unlikely to move in that direction.