Outten & Golden: Empowering Employees in the Workplace

Deepwater Horizon: Is the CSB Preparing to Retreat on Worker Participation?

November 7th, 2017 | Jordan Barab

The Chemical Safety Board may be preparing to take a significant step backwards in its advocacy for worker participation in preventing chemical facility incidents, including catastrophes like the Deepwater Horizon oil spill.

In April, 2016 the CSB unanimously approved a 4-volume “Macondo Investigation Report” in response to the catastrophic Deepwater Horizon blowout that killed 11 workers, injured 17 and spilled 5 million barrels of oil into the Gulf of Mexico.  The report contained a number of recommendations, including four recommendations calling for the Bureau of Safety and Environmental Enforcement (BSEE) to significantly enhance its regulations requiring worker participation in the employer’s safety program, and enhanced whistleblower protections for workers participating in safety activities. BSEE, an agency within the Department of Interior,  was created in the aftermath of the Deepwater Horizon (Macondo) disaster and is the lead federal government agency in charge of oversight and enforcement of the offshore energy industry on the U.S. Outer Continental Shelf (OCS).

Last month, however, the CSB’s recommendations staff recommended that these recommendations be withdrawn in the face of opposition from BSEE, which claims that it has no jurisdiction to adopt the CSB recommendations.  A short discussion about withdrawing the recommendations was held at the Board’s October 16 public meeting in Washington DC. Board member Rick Engler waged a spirited defense of the recommendations, but judging from the discussion at the meeting, three of the four members seem to be leaning toward withdrawing the recommendations.

The CSB’s recommendations staff raised seven reasons that the recommendations should be withdrawn. The discussion at the September 16th meeting seemed to focus on two of those: whether the CSB investigation had established that lack of worker participation and fear of retaliation was a causative element in the Deepwater Horizon disaster and whether BSEE is correct in claiming that they do not have jurisdiction.  In addition to those two arguments, the CSB recommendations staff justified its recommendation to withdraw the worker participation recommendations by arguing that the recommendations went beyond full statutory authority and mandate of CSB to issue reports and studies, were redundant with what BSEE was already doing, were a product of the (rejected) “safety case” regime, were prescriptive rather than performance based and that these issues should more appropriately be handled by other agencies.

What Did the CSB Recommend?

Volume 4 of the report described the importance of effective worker involvement:

Worker participation in the offshore oil and gas industry is of critical importance. Workers aboard a rig can contribute keen insights into the daily workings of an operation that upper management might miss. As such, workers should be engaged in a wide range of safety management activities, including project planning, risk analysis, and incident investigations, and thus can play an integral role in preventing accidents. As Volumes 2 and 3 demonstrate, decisions that people on a rig make can impact the potential for a well kick, or strengthen or weaken a barrier. For example, “any problems that did occur during the TA [temporary abandonment] plan would be dealt with by employing the knowledge, experience and skills of the drilling team” Therefore, if workers are not effectively engaged in the management of major hazards in these ways, a duty holder bypasses a key layer of insight and enhanced protection.

Accordingly, the CSB unanimously approved the following recommendations to the Department of Interior, and specifically to BSEE (Recommendations 2010-1-I-OS-15):

  1. Worker-elected safety representatives and safety committees for each staffed offshore facility chosen under procedures overseen by the regulator; these safety representatives will have the authority to interact with employers (such as operators and drillers) and regulators on issues of worker health and safety risks and the development and implementation of the major hazard report documentation;
  2. The elected worker representative has the right to issue an enforceable stop-work order if an operation or task is perceived as unsafe; all efforts should be made to resolve the issue at the workplace level, but if the issue remains unresolved, BSEE shall establish mechanisms such that the worker representative has the right and ability to seek regulator intervention to resolve the issue, and the regulator must respond in a timely fashion;
  3. The regulator will host an annual tripartite forum for workforce representatives, industry management, and the regulator to promote opportunities for interaction by all three entities on safety matters and to advance initiatives for major accident prevention.
  4. Protections for workers participating in safety activities with a specific and effective process that workers can use to seek redress from retaliatory action with the goal to provide a workplace free from fear that encourages discussion and resolution of safety issues and concerns. Protected activities include, but are not limited to reporting unsafe working conditions, near misses, and situations where stop work authority is used.

Why The Recommendations Should Be Maintained

As mentioned above, the CSB’s recommendations staff raised seven reasons that the recommendations should be withdrawn. I want to focus mainly on two of these, both of which were major topics of discussion at the October 16 meeting. I will address the others at the end.

Causation: Was Poor Worker Communication and Fear of Retaliation a Cause of the Blowout?

Board recommendations are guided by “Board Orders,” approved by the Board members. Board Order 22states that “a recommendation is a specific and measurable course of
action directed to a specific party, based on the findings and conclusions of incident investigations, safety studies, or similar products” and that “Recommendations proposed to the Board should describe a clear rationale that links the findings of an investigation, study, or similar product with explicit conclusions that factually support the need and basis for the recommendation.” At the October 26 meeting, Board Chair Vanessa Sutherland indicated that she didn’t believe the report had provided evidence that lack of worker participation and intimidation of workers were possible causes of the blowout and resulting environmental catastrophe.

The CSB’s report, however, actually discusses numerous communications failures, and lists under its “key findings” that  “Active workforce participation supported by the regulator and regulations” are missing or inadequate. Volume 3 later finds that “Transocean [the drilling contractor] did not follow its corporate policies to meaningfully engage the workforce in managing risks posed by an activity through identifying effective barriers.” Workers were only encouraged to focus on “personal safety or relatively minor spills of drilling mud on the rig and overboard” instead of identifying more important process issues that eventually led to the blowout.

Workers also reported being reluctant to participate in the employer’s “Start” observation program where employees were supposed to report “negative work practices” of their co-workers because their co-workers were often disciplined and fired after such reports. Furthermore, the wife of Jason Anderson, a worker who was killed in the explosion, testified at a Congressional hearing that her husband had expressed fears for his safety shortly before the explosion, but told her “I can’t talk about it now. The walls are too thin.”

And the CSB was not alone in identifying worker participation and lack of whistleblower protections as a flaw that needed to be remedied. The 2011 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling” Report to the President identified the same problems, citing a survey done by Transocean discussing poor communication between workers and management about safety conditions, and that over half of the workers reported that “some of the workforce feared reprisals for reporting unsafe situations.” The President’s Commission therefore recommended that Congress pass legislation providing offshore workers with “the same whistleblower protection that workers are guaranteed in other comparable settings.”

Even if the language in President’s Commission Report and the Congressional testimony were not a result of CSB work, the CSB’s legislative authority explicitly states that “The Board may utilize the expertise and experience of other agencies.”

Now, can the CSB prove that the incident wouldn’t have happened if there had there been better communication, less intimidation and functioning labor-management health and safety committees? Of  course not. Unlike determining that a piece of machinery failed, investigative findings and recommendations that focus on inadeuate management systems adn organizational practices can almost never be 100% confirmed as a direct cause of an incident.

Furthermore Board Order 22 does not hold the recommendations to a strict “but for” standard.  In other words, the investigation does not have to prove that the lack of a health and safety committee or the lack of anti-retaliation procedures led directly to the blowout.  Many other CSB reports make recommendations based on causes that likely contributed to incident based on the findings of the investigation, industry best practices and previous experience of similar disasters.

In 2006, an explosion at the Bethune Wastewater Treatment Plant in Daytona, Florida killed two workers. The CSB found that maintenance workers using a cutting torch on a roof above the methanol storage tank accidentally ignited vapors coming from the tank vent.  Public employees in Florida are not covered by OSHA and the CSB issued a recommendation to the Florida state legislature to adopt a public employer OSHA law. Could the CSB prove that such a law would have prevented the explosion? Of course not.  But there is strong evidence that compliance with OSHA regulations prevents such incidents and likely that OSHA coverage of public employees would prevent future similar incidents.

Neither the law creating the CSB, nor Board Order 22 state that the CSB should only investigate and make findings on the technical issues. Engler cites the legislative history of the board, stating that

Moreover, the statute’s legislative history says, and I quote, “The Board should take on an all-cause theory in discharging its investigatory duties.” It is not the single necessary or sufficient cause which is to be the focus of the Board’s inquiry, but all circumstances which contributed to the accident and which may effectively be modified to improve safety are circumstances of concern. Multiple causation is, in fact, the norm and it is expected that the Board will follow many strands of inquiry in response to each accidental release.

Indeed, Volume III of the Macondo report lays out why the CSB must go beyond direct technical causes to examine and address problems with the safety management system and organizational practices:

The broadest learning impact can be achieved when investigations extend beyond the immediate technical causes of an incident. Addressing deficient safety management systems and inadequate organizational practices can result in findings that go beyond the immediate chain events that preceded any one incident. As examples in this chapter show, while the immediate causes of a well control incident might vary, the safety management systems and organizational findings can be similar. Ultimately, BSEE has the opportunity to mandate such a focus and then facilitate the dissemination of lessons across the operator/drilling contractor boundary and geographical regions.

So in order to withdraw these recommendations based on lack of evidence, the Board would not only be contradicting the findings of the report that they unanimously approved, but also violating Congressional intent and past CSB practice.

Does BSEE Have Authority to Regulate Worker Participation?

The CSB Recommendations Staff reported that BSEE did not agree to the recommendations because the agency did not have the authority to adopt them. Now, I’m not a lawyer, but I’ve been around government a long time, and BSEE’s claim sounds suspicious at best.

First, BSEE already requires worker participation as part of its Safety and Environmental Management System (SEMS) issued in October 2010 and amended in 2013, although the CSB concluded that SEMS did not “provide BSEE with an adequate framework for major accident prevention,” particularly in the area of workforce involvement.

For example, in SEMS, BSEE requires drilling operators to have an Employee Participation Plan where operators must consult with employees regarding the program, Stop-Work Authority that would authorize and require all employees and other personnel who witness an activity presenting an imminent risk or danger to the health or safety of an individual, the public, or to the environment to stop the work creating the risk or danger, a person with Ultimate Work Authority (UWA) who can determine “that the imminent risk or danger …. no longer exists,” and operators must provide all personnel with a system for reporting unsafe work conditions.

The CSB did not feel that these provisions were adequate.  You can check out Section 3.4 of Volume IV for the reasons that the CSB thought these provisions need to be improved, but my point is that the existence of these (inadequate) provisions prove that BSEE does, indeed, have authority to address these provisions as the CSB recommended.

It seems hard to argue that on one hand, BSEE has authority to require worker participation and stop work authority, but on the other hand does not have authority to protect workers who actually exercise those rights.

It’s possible that BSEE is primarily claiming that it does not have authority to adopt the CSB’s recommendation that it provide whistleblower protections for workers who have been retaliated against, but that doesn’t make much sense either.  It makes no practical or legal sense to provide rights to employees (e.g. the power to stop work) unless regulations also protect workers who use that power from being retaliated against.  They are effectively the same. It seems hard to argue that, on one hand, BSEE has authority to require worker participation and stop work authority, but on the other hand does not have authority to protect workers who actually exercise those rights.

It is possible, however, that BSEE does not have the authority to provide adequate remedies for workers who are retaliated against, especially if those remedies lie with another agency.  In other words, BSEE’s protection of workers who may be retaliated against is necessary for workers to feel safe exercising their rights, but it may not be sufficient.  In this case Congress may need to pass legislation like the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which was passed by on overwhelming margin in the House of Representatives (and later died in the Senate.) In endorsing the legislation, the White House stated that “There is currently no Federal law adequately protecting offshore workers who blow the whistle on worker health and safety hazards.”

But if the Board determines that a law passed by Congress would provide superior protections for workers, the CSB should add a recommendation to Congress to pass such legislation, rather than removing the recommendation to BSEE.

Other Reasons The CSB Staff  Used To Justify Withdrawal of the Recommendations

As I mentioned before, there are several other reasons that the CSB recommendations staff used to justify withdrawing the recommendations. None of these merited much discussion at the October 16 meeting, but I will review them briefly here in case they come up at the next meeting

The CSB May Not Have the Statutory Authority to Address these Issues

Does the CSB have authority under its law to make this type of recommendation? The answer is clear “yes.”  The CSB is authorized to “investigate (or cause to be investigated), determine and report to the public in writing the facts,  conditions, and circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages, and to issue issue “periodic reports” to OSHA, EPA and others “recommending measures to reduce the likelihood or the consequences of accidental releases and proposing corrective steps to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible.”

The CSB is clearly not limited to just looking at the specific technical causes, or as we used to say “why the widget broke.” In fact, the most important role of the CSB is not just providing techinal answers for uncontrolled chemical releases, but doing “root cause” investigations that look into deeper, systemic reasons that these incidents occur and addressing those root causes through their recommendations. As readers of Confined Space will remember, we have discussed many times the futility of only addressing the direct causes of an incident. Unless the root causes — or systemic problems — of an incident are addressed, the same incident will occur over and over again.

These Recommendations Duplicate BSEE’s current efforts

This allegation is puzzling in the context of the allegation, discussed above, that BSEE doesn’t have the authority to address worker participation and discrimination issues. How can these recommendations be “duplicative,” when the agency allegedly doesn’t have the authority to address them in the first place. And, as we’ve seen, they are already addressing many of these issues, if in an inadequate manner, according to the Macondo report. The CSB’s recommendations, rather than being duplicative, contain important improvements.

It Would be More Appropriate for Other Agencies to Address These Issues

The recommendations staff raise the possibility that either OSHA or the Coast Guard would be more appropriate to address these issues. But as former OSHA head, Dr. David Michaels pointed out in Congressional testimony, OSHA is limited by paragraph 4(b)(1) of the Occupational Safety and Health Act which allows other federal agencies pre-empt OSHA’s authority if they claim to be addressing health and safety for workers under their jurisdiction, which both the Coast Guard and Department of Interior have done. These limitations are not just the opinion of Dr. Michaels, but based decades of case law.

The Coast Guard shares jurisdiction with BSEE over the safety of off-shore facilities, but the Coast Guard’s focus is clearly on oil spill preparedness and response, while BSEE’s is on the overall process safety requirements of the drilling process, including worker participation as part of its Safety and Environmental Management System.

Worker Safety and Health Committees are Part of the “Safety Case” Regime, Which Has Not Been Adopted in the United States

The Safety Case regime, as the CSB describes it is “where the company proposes to conduct its activities and then explains its major accident hazards assessment and control plan to the regulator, typically (but not always) for acceptance before commencing drilling exploration or production operations.”

It’s true that the US had not adopted the Safety Case regime, but safety and health committees are hardly a unique attribute of the Safety Case regime. In fact,  safety and health committees are included in many safety and health programs recommended by safety and health organizations, including ANSI’s Occupational Health and Safety Management Systems. And as Engler points out, 17 states have requirements for safety committees. Most union safety and health contracts contain language about safety and health committees and numerous large companies in the petrochemical industry already have joint labor management safety and health committees.

The CSB Recommendations are “Prescriptive” instead of “Performance-Based”

Prescriptive recommendations describe the exact action to be taken by the recipient, whereas performance-based recommendations set out the goal of the recommendation, and let the recipient figure out how to get there. I’m not sure why the recommendations team has suddenly determined that prescriptive recommendations are forbidden. There is nothing in the law or the CSB’s Board Orders requiring the CSB to only issue performance-based recommendations. And a quick look at past CSB recommendations find both prescriptive and performance-based recommendations.

The CSB’s BP report following the 2005 explosion that killed 15 workers has a variety of recommendation from the most prescriptive (e.g. that OSHA should “Establish the capacity to conduct more comprehensive PSM inspections by hiring or developing a sufficient cadre of highly trained and experienced inspectors,” to more performance-based (e.g. recommending that the BP Refinery that it “Ensure that process startup procedures are updated to reflect actual process conditions.”

Sometimes it is more practical to make performance-based recommendations, but where there is a widespread industry consensus that certain protections are important (like whistleblower protections or safety and health committees),  prescriptive recommendations may be more appropriate.

Conclusion

Withdrawing recommendations addressing worker participation and whistleblower rights — recommendations that are based on findings in the CSB report and confirmed by other Macondo reports — would be a devastating precedent for the Board to present, particularly coming after the Board’s unanimous approval of the report and the accompanying recommendations.  Workers are the eyes and ears of any complex process and in order for a safety program to be success, worker not only have to be listened to, but they should be encouraged to report any problems. And unless there is no fear of retaliation from management, even the most expansive rights, such as the ability to shut down an operation due to safety problems, only exist on paper.

The widely respected Baker Panel report on the 2005 BP Texas City refinery explosion emphasized the importance of a “reporting culture.”

The Panel believes that a good safety culture requires a positive, trusting and open environment with effective lines of communication between management and the workforce, including employee representatives. The single most important factor in creating a good process safety culture is trust. Employees and contractors must trust that they can report incidents,near misses and other concerns — even when it reflects poorly on their own knowledge skills or conduct with out fear of punishment or repercussion.

The panel went on to state that “When workers believe that this information will be used unfairly to blame or punish them, and not to improve safety, reporting will decrease.”

Let the Board members know loud an clear how important the Board’s advocacy is to worker and environmental safety in this country.

In other words, if the Chemical Safety Board is serious about preventing chemical plant disasters, worker participation — a functioning reporting culture — is not just a “good idea” or a nice thing to recommend when comfortable; it is an essential tool needed by any managers or government agencies intent on preventing workplace safety and health disasters, especially in workplaces as complicated as a refinery or offshore drilling.

So come to the meeting next week, or call in if you can’t be there.  Let the Board members know loud and clear how important the Board’s advocacy is to worker and environmental safety in this country.  It is even more important during this time in history when we are seeing worker protections rolled back on every front for the Board to stand strongly by its authority, its history and its obligation to recognize the essential role that effective worker involvement plays in chemical plant safety.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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