Litgiation Articles


May 14, 2015, 6:14 pm

OSHA released a long battery of findings hammering the DuPont Chemical Plant in LaPorte Texas today, concluding a six month investigation into a chemical release of toxic methyl mercaptan that killed four workers last November.  The U.S. Government agency charged with oversight of safety and health practices in the workplace found multiple infractions of  what are generally known as Process Safety Management Rules which govern general compliance with industry standards.  In this case, the OSHA team found dozens of wide-ranging offenses,  from failure to track and document unit operation systems properly, poor training of personnel, poor oversight of personnel, poor systems of leak detection and warnings and poor maintenance of risk reduction equipment.   All of these were deemed “serious” offenses of the process safety management guidelines utilized  by the petrochemical  industry and by the federal government.
Exacerbating these findings was an additional finding that this incident was similar enough in nature to merit a “repeat offense” as a result of yet another fatality incident occurring only a few years prior in a West Virginia facility owned by DuPont.
Brent Coon, who represents the family of one of the workers killed last year, weighed in on the findings.
“We are pleased to see that the OSHA team conducted a solid and deliberative investigation into this incident in spite of questionable cooperation from DuPont, and was able to readily ascertain a broad pattern of unconscionable health and safety practices emanating from this facility.  We conducted an on- site inspection with professional process safety management experts shortly after the incident and the condition of the unit in question and how it had been in operation was frankly appalling.  The overall unit condition sucked. The employee training sucked.  The employee instructions and oversight sucked. The warning systems sucked.  Ironically, the only thing that didn’t suck at the time of the incident was the vacuum system, which was supposed to pull toxic air from a leak or release out of the building. Inexplicably, DuPont had their crews working in this high risk area with those vacuum or fan systems COMPLETELY out of commission.   These safety features are generally considered “system critical equipment”, and the unit should not have been in operation at all while they were down.  As has almost always been the case every time there has been a fatality at one of our refineries or chemical plants, management made a bad decision in knowingly putting workers in harm’s way so that they would continue to maximize the profitability of their facility.”
Although these 11 citations include multiple additional itemized violations, the total fine for all of them is less than $100,000.00.     $35,000 attaches just to the “same or similar” repeat offense.
“Unfortunately, OSHA was not designed as an agency to “punish” wrongdoers who violate the law.  Rather, it is an oversight agency with more involvement on the occasional “inspections” and walkthroughs with facility owners to point out areas of safety concern and improvement.  The agency has practically no capability from a staffing standpoint to conduct comprehensive plant inspections for process safety management or infrastructure issues. Instead, the agency allows most major facilities to “self-report” through a program they call the Voluntary Protection Program, VPP.  This, in essence, puts the fox in charge of the hen house and is really no different than if the state got rid of the highway patrol and just asked citizens to send a check in whenever they decided to speed or run a red light”,  says Coon. 
 Even a big handful of serious violation citations to a company like DuPont, totaling less than $100,000,  is scarcely   enough to result in an epiphany and sudden change in the way DuPont operates.
“Management will always make shortsighted and high risk decisions to keep everything running, even if safety systems are not operating, so that they look good on paper at bonus and promotion time”.  The worst thing that can happen is that something blows up and kills people who they rarely personally know or consider “friends”.   There is little respect for the rule of law, the rule of man, the regulations set by the industry, the government or even the companies themselves.   Until the rules of engagement change, and companies are subject to fines that truly hurt their pocketbook, and until managers who make these decisions are PERSONALLY AND CRIMINALLY accountable, little will change”.  
DuPont is yet another of the big talkers who spend an inordinate amount of their time and marketing speed on false promotion that they are “safety first”.   DuPont is really no different than most of their competitors in this business.  They are highly adverse to appropriate levels of reinvestment in the infrastructure of the facilities or assets, and the same goes for adequate manpower, training, and re-training.   All of that expense cuts into the ROI measurements and industry barometers for rankings in the Solomon Indices.   Everyone these days is pushing every unit as hard as they can to maximize profits and stay at the top of the rankings. What it is in reality doing is pushing the units to failure.  Unless something changes, and changes drastically, the band aid approach to keeping many of these old units running will continue to result in needless fatalities to workers, and potentially to others in the zone of danger, including adjacent residential and commercial neighbors.  

About Brent Coon & Associates:
Brent Coon & Associates was founded in 2001.  Today, with offices around the country, it is one of the largest trial law firms in the nation and the epitome of the 21st century law practice. Brent Coon & Associates employs a full complement of aggressive litigators with solid experience in individual and complex multi-party, occupational/environmental, health and personal injury cases. Staff resources include in house software programmers and Information Technology teams necessary in this age of high end litigation. The majority of the firm’s cases are referred from attorneys who have confidence in the firm’s integrity, expertise, success rate and solid work ethic. BCA has a well proven track record for handling complex, multi-party cases, with an emphasis on occupational and environmental law, business litigation and personal injury practice. In only the first decade of operations, the firm has been retained by tens of thousands of Plaintiffs and has recovered over a billion dollars in settlements and trials.
BCA is a public policy firm and has worked with numerous state and federal investigative agencies, most notably in the 2005 Texas City Refinery explosion which resulted in the successful resolution of hundreds of civil cases, a criminal plea agreement in working with the Department of Justice, numerous safety related reforms across the petrochemical industry and over $40,000,000.00 dollars dedicated to landmark safety programs and advancements in industrial health care.
The firm and founder have been repeatedly recognized by most leading journals and legal associations including Texas Lawyer Litigation Department of the Year (2013); Forbes "Lawyer of the Month"; MTMP "Clarence Darrow Award"; Texas Monthly Magazine "Texas Super Lawyers" (2007-2013); “Best Lawyers in America"; Lawdragon "; "500 Leading Plaintiff Lawyers in America"; American Association of Justice "Stephen Sharp Public Service Award" and many others.
BCA also has broad media credentials including appearances and interviews with CBS 60 Minutes, BBC, National Geographic, CNN, Reuters, Bloomberg, Dow Jones, USA Today, Business Week, The Washington Post, The London Times, The Houston Chronicle, The Guardian, The Los Angeles Times, U.S. News and World Reports, Agence France Presse, The Associated Press, Newsweek, The National Law Journal, Texas Monthly, Esquire Magazine, Anderson Cooper, CBS Evening News, ABC News, NBC Evening News, Fox News, PBS, MSNBC, The Ed Shultz Show, The Huffington Post, The American Lawyer and numerous others.


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