Cross-posted from Sustained Outrage: a Gazette Watchdog Blog  

by Ken Ward, Jr.

Bayer CropScience hasn’t said yet if it will challenge $143,000 in fines issued by the U.S. Occupational Safety and Health Administration for 13 serious and 2 repeat violations related to the August 2008 explosion and fire that killed two Institute plant workers.  But a vigorous court fight seems likely, given who Bayer has hired as its lawyer in the matter. 

Robert C. Gombar is well known for his efforts to help companies that butt heads with OSHA over allegations that they weren’t complying with workplace health and safety rules.  Gombar is head of the OSHA, MSHA & Catastrophe Response Group at the Washington, D.C., offices of the law firm of McDermott, Will & Emery. The firm’s Web site says Gombar has been “primary outside counsel to companies in over 30 industrial disaster situations.”

Gombar is listed on the “revolving door” section of the Center for Responsive Politics’ Open Secrets Web site, because he’s been back-an-forth between working for OSHA and representing companies that OSHA inspects. 

The law firm’s list of Gombar’s major cases is interesting reading:

– CH2M Hill Inc. v. Herman, where Gombar was trial and appellate counsel for CH2M Hill. During a massive construction project on the Milwaukee sewer system, three men died when methane gas located in the tunnel in which they had been working exploded. OSHA cited CH2M Hill, the engineering firm contracted by the city as a consulting firm. Gombar’s work led to a ruling that, according to his law firm “substantially narrowed the potential liability of al engineers and architects under the Occupational Safety and Health Act.

– IBP Inc. v. Herman, where he was counsel of record of industry groups that filed a friend of the court brief. The case involved the 1993 death of a contract clean-up worker at a meat processing plant in Madison, Nebraska. OSHA cited the company for not enforcing a rule that requires dangerous machinery to be secured when not in use. According to Gombar’s firm, the court’s decision “limited the liability of facility owners for OSHA violations committed by independent contractors whle working at the facility.”

– Reich v. General Motors, in which Gombar was appellate counsel of record and did the oral argument for General Motors. OSHA had cited GM because, during three separate inspections, employees were observed performing maintenance on equipment that was still connected to a live power supply. Gombar’s firm said the court ruling “struck down a major interpretation by OSHA involving the lockout/tagout standard that would have adversely affected automotive assembly lines throughout the U.S.”

– Secretary of Labor v. Motiva Enterprises, in which Gombar was litigation team leader for the company. Motiva’s oil refinery in Delaware City, Delaware, had been the cited of a July 2001 storage tank explosion that killed one worker and injured six others. This case involved separate violations cited by OSHA of the agency’s chemical process management rules at an adjacent distribution terminal. The Occupational Safety and Health Review Commission threw out the citations, and Gombar’s firm said the ruling “rejected OSHA’s interpretation that mere proximity of equipment is enough to bring a facility under the coverage of the Process Safety Management Standard.

By the way, that’s the same standard the Bayer is alleged to have violated at the Institute plant. When OSHA wrote the standard, the agency’s preamble to the rule explained:

After the 1984 Bhopal, India incident involving an accidental release of methyl isocyanate which resulted in more than 2000 deaths, OSHA determined that it was necessary to immediately investigate U.S. producers and users of methyl isocyanate.

This investigation indicated that while the chemical industry is subject to OSHA’s general industry standards, these standards do not presently contain specific coverage for chemical industry process hazards, nor do they specifically address employee protection from large releases of hazardous chemicals.

OSHA standards do exist for employee exposure to certain specific toxic substances …, and hazardous chemicals are covered generally by other OSHA standards such as the Hazard Communication Standard, § 1910.1200. While these standards do address hazardous chemicals, they focus on routine or daily exposures and while in many cases they also address emergencies such as spills, OSHA believes that they do not address the precautions necessary to prevent large accidental releases that could result in catastrophes.

Gombar hasn’t returned phone calls.  But he’s representing Bayer in the OSHA proceeding and in a separate effort by Bayer to keep confidential key findings of the federal Chemical Safety Board’s investigation of the August 2008 explosion.

It will be interesting to see how this plays out with OSHA. The agency has a longtime reputation for settling workplace safety cases for far too little in fines.  Last year, a Senate Committee report found that OSHA consistently reduced penalties in death cases by 40 percent.

But last week, the OSHA Underground Blog commented that “OSHA comes out swinging” — with $1.2 million in fines against St. Louis, Mo.-based G.S. Robins & Co. in an investigation involving eight workers who were hospitalized for treatment after exposure to para-nitroaniline (PNA) dust. The organic chemical can cause methemoglobinemia, which reduces the blood’s ability to transport oxygen. OSHA Underground said:

When the last time you saw a million dollar penalty by OSHA and no one died? This is the warning notice to employers that OSHA is done being chummy with the Chamber of Commerce and their ilk.

Ken Ward, Jr. is an award-winning reporter with the Charleston (WV) Gazette.  He also writes for the paper’s blogs, including his own Coal Tattoo: Minings mark on our world, and chair of the Society of Environmental Journalists’ First Amendment Taskforce.