When federal officials fined BP PLC a record $87 million last year for more than 700 individual safety violations at its Texas City refinery, Labor Secretary Hilda Solis billed the move as a bold deterrent against hazardous workplace conditions.
"This administration will not tolerate disregard for our laws," Solis said at the time. "Employers have a legal and moral responsibility to protect their workers, who ultimately are America's most important asset."
But eight months after its slap from the Occupational Safety & Health Administration, BP has yet to pay the new penalties or set a deadline to correct problems identified by the agency.
BP's ability to delay while it contests the Texas City fines has not escaped notice on Capitol Hill, where lawmakers yesterday unveiled a mine bill that would force a prompt fix to OSHA-cited hazards at all energy industry workplaces.
In the wake of BP's Gulf of Mexico gusher, however, the charged relationship between petrochemical producers and the party in power could complicate the prospects for passage of broader worker-safety reforms. Fossil fuel companies are wary of a punitive response to the spill, while unions pressing for updated worker protections view the oil leak as proof that BP and other repeat offenders need a firmer government hand.
"Improving safety shouldn't be a battle between adversaries, it should be a campaign of allies," National Petrochemical and Refiners Association President Charlie Drevna said, describing the proposed congressional mandate for an immediate fix after OSHA citations as "a classic presumption of guilt against all employers."
Yet for AFL-CIO health and safety director Peg Seminario, speeding up the process and threatening higher fines for employers like BP, "the kind of company that's been refusing to take action even after it's killed 15 workers" at Texas City, are long-overdue changes. The broader OSHA provisions in the new mine bill stand to test whether lawmakers can bridge the gap between business and labor.
The challenge of shielding workers at refineries and rigs, where toxic materials abound and the potential for harm far exceeds that of the average cubicle, is not easily met. Regulators and businesses that deal with dangerous chemicals use dense but deliberate terms such as "process safety management," or PSM -- which looks at every step of operations to promote a "safety culture" deeper than avoiding slips and falls.
After a blast at BP's Texas City refinery killed 15 workers in 2005, the U.S. Chemical Safety Board, or CSB, issued a cutting indictment of the company's protection strategy, devoting a heading in its 341-page report to the company's "Lack of PSM Focus." The majority of the OSHA fines imposed on BP last year stem from what Solis described as "failures to comply fully" with a 2005 settlement deal inked with the George W. Bush-era OSHA.
But the oil giant is mounting a strong defense before a judge at the Occupational Safety and Health Review Commission, or OSHRC, which mediates clashes between OSHA and penalized companies. BP wrote in an October OSHRC filing that it has spent more than $1 billion since 2005 "improving reliability, safe operation, and environmental performance" at Texas City, where processing capacity is estimated at 460,000 barrels of crude daily, or more than four times the worst-case scenario of today's Gulf leak.
During its dispute with OSHA, BP can hold off on complying with the federal PSM audit that started its latest troubles in Texas City -- a delay termed a "huge deficiency in existing law" by George Washington University assistant professor Celeste Monforton, who spent more than a decade working on occupational health at the Labor Department.
Eric Frumin, health and safety coordinator at the Change to Win labor federation, agreed that the status quo for employers such as BP is a "serious problem" but noted that the newly opened CSB probe of the Deepwater Horizon blast signals that the oil company's two recent disasters could be connected in the eyes of regulators.
"It'd appear that the outcome of the Texas City case could certainly be affected by the federal government's investigation of the lapses, the gross management failures, apparent in the incident in the Gulf," Frumin said. After the refinery explosion, he added, "the new [BP] leadership was supposed to be different. What we're seeing is not different."
BP did not return a request for comment by press time on the new House mine legislation as well as its arguments in the Texas City case.
In addition to requiring a prompt abatement of hazards identified by OSHA, the House bill would also give families of those killed on the job greater rights during the investigation process, strengthen whistleblower protections and increase the maximum civil penalty for individual violations at any workplace. Those provisions were featured in a broader OSHA overhaul, dubbed the "Protecting America's Workers Act," that has won Obama administration backing but remains stalled in the House and Senate.
The proposed immediate fix rule for oil and gas producers drew a due-process complaint from American Petroleum Institute (API) senior policy adviser Ron Chittim. "Sometimes OSHA may be right, sometimes maybe they aren't," he said. "Maybe there are extenuating circumstances and other implications that all need to be looked at holistically."
Monforton raised a different question about the new House bill's potential to prevent dangerous chemical releases at energy facilities of all stripes.
"It doesn't include provisions that would be more progressive in terms of trying to prevent hazards to begin with," she said. "I don't see it as something that goes as far as where we need to go."
Senate Democrats have indicated they plan to court GOP co-sponsors before releasing their version of the new mine bill.
Although similar PSM concerns apply to both refineries and rigs, the Deepwater Horizon platform was beyond OSHA's reach by more than 50 miles. Safety jurisdiction offshore is shared by the newly minted Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the Coast Guard, which are still using a voluntary safety standard based on recommended API practices (Greenwire, June 23).
That arrangement alarmed House Education and Labor Chairman George Miller (D-Calif.), chief author of the new mine bill, and House Natural Resources Chairman Nick Rahall (D-W.Va.). The duo urged the Obama administration last week to connect OSHA with BOEMRE for a less industry-centric perspective on worker safety.
But Bill Hoyle, a CSB veteran who managed the safety board's Texas City investigation, warned that keeping the newly renamed BOEMRE in charge of offshore rig risks "doesn't resolve the fundamental problems that have contributed to" the Gulf catastrophe.
"The U.S. should also assign offshore oil safety to an independent safety agency," Hoyle said. "Either create a new safety agency or ask OSHA."
An OSHA spokesman said its staff "is happy to assist" BOEMRE in crafting its offshore rule, but the agency's chief, David Michaels, has not backed a jurisdictional takeover of coastal drilling. The agency's resources are overtaxed as it is, Michaels told House members last week.
"I was surprised that he didn't ask for the funds needed for OSHA to take on offshore oil worker safety," Hoyle said.
Meanwhile, the prospect of regulations guarding against toxic offshore incidents continues to draw resistance from industry, despite its role in inspiring the structure of BOEMRE's proposed rule and despite the spotlight thrown on the issue by the Gulf leak.
"Let's take a step back and think if we need these prescriptive measures here." said Randy Radford, API's senior policy adviser for offshore issues. Mandating several portions of the 12-part API voluntary safety program, as BOEMRE has suggested, would go against the spirit of "what was sort of a comprehensive document," he added.
API and NPRA are planning a new safety workshop later this year that the industry groups hope will foster a more collaborative approach among businesses, unions and OSHA. Drevna, of NPRA, said he plans to invite representatives from Congress and CSB: "Everyone's egos and preconceived notions are going to be checked at the door."
The multiple legislative and regulatory tracks for safety reforms to move could ultimately create a leadership vacuum, Monforton observed, even after a six-month stretch in which at least 57 energy industry workers died on the job.
"If it's the administration's belief that these workers deserve better protection and an enforcement mechanism that would compel protection against hazards, it needs to evaluate which agency is best positioned to do that," she said.
"Is it the Coast Guard? Could it be the new MMS [also known as BOEMRE]? Could it be the mine safety agency? ... We have plenty of smart technical experts out there for whatever agency to hire."