Monday, October 14, 2013

OSHA Fine for West Explosion: What's the Point?

Last April 17, when the West Fertilizer Company's facility in the Texas town of the same name exploded, killing 15 and laying waste not only to the plant but to a good chunk of the town as well, it had been more than 25 years since a federal Occupational Safety and Health (OSHA) inspector personally appeared at the plant.  But that did not stop OSHA from issuing a $118,300 fine against the company last week, on October 9, for a list of 24 safety violations.  This news came out despite the federal government's shutdown because Sen. Barbara Boxer's office found out about it and notified news media.  The company has fifteen days to either pay the fine or file an administrative appeal with OSHA, and company representatives said they were conferring with lawyers about their next step.

Depending on how you view the idea of punishment, OSHA's fine either looks pretty silly or seems like a sound and reasonable step for such an agency to take.  Let's examine the case for silly first.

Suppose you run a small fertilizer company that has gone through bankruptcy in the last few years and probably has total assets, land and facilities included, of at most a few million dollars, with a one-million-dollar liability insurance policy on the property.  Due to causes that even combined federal and state investigations cannot precisely determine, your plant blows up, killing fifteen of your fellow citizens, causing over a hundred million dollars' worth of damage to your town, and by the way, completely demolishing the physical assets of your business.  Half a year later, along comes OSHA and lays a fine of over $100,000 on you for various historical violations based on testimony of how the fertilizer that exploded was stored and for not having an emergency response plan.  How do you respond?

I am not running the West Fertilizer Company, but at the moment, hiring lawyers to file an administrative appeal will be a lot cheaper than paying the fine up front, which would probably suck up most of any remaining cash and possibly make the company go out of business altogether.  Not that they haven't had time to do anything more than deal with lawyers and lawsuits since April anyway.  Obviously, the better time for OSHA to have levied such a fine would have been before the April explosion, when the changes possibly stimulated by such a large penalty might have had the positive effect of preventing the explosion. At this point, the fine brings to mind a scene in the animated film Wallace & Gromit:  The Curse of the Were-Rabbit.  At one point, the brilliant but silent canine character Gromit, a skilled driver, goes on a wild car chase that winds up with his vehicle stalled out after a minor collision.  Sitting there silently on a dark road, Gromit seems lost in the depths of despair, thinking that things cannot possibly get worse.  And then they do:  the car's airbag deploys in his face.  OSHA's fine is timed as well as Gromit's airbag.

Whether the fine makes any sense depends on one's theory of punishment.  In How to Think About the Great Ideas, philosopher Mortimer Adler points out that there are two main opposing theories of punishment:  retribution and prevention.  As retribution, OSHA's fine would be laughable, were it not for the somber circumstances.  It is hard to imagine a retributive penalty for the West Fertilizer Company, which after all is a business firm, not an individual.  It has already been reduced to smithereens, and unless you contemplate something primitive like blowing up the houses of the owners in retribution for the explosion of their plant, it is hard to conceive of a punishment that would be purely retributive in character. 

OSHA fines appear to be based on the preventive theory of punishment, as are most administrative fines levied on corporations in general.  While it is clear that it is way too late for this fine to prevent what happened in West, it is by no means too late for other operators of fertilizer manufacturing and storage facilities to take note of the fine and the reasons why it was levied.  There are over a dozen similar fertilizer plants just in Texas alone, and it is a good bet that many of these are lacking in the same safety features that would have prevented or mitigated the accident in West.  One hopes that insurance companies will take the initiative to motivate their fertilizer-plant customers to upgrade their facilities and procedures to make it less likely that something like the West explosion will happen.  And there is always the chance that enlightened managers and owners will take it upon themselves to make the needed changes:  following existing federal guidelines about how ammonium nitrate should be stored, putting emergency procedures in place and even practicing fire drills, and taking other sensible precautions that are not rocket science but often get neglected when an organization skids by for years and avoids the very unlikely but disastrous chance that a normally well-behaved chemical like ammonium nitrate will explode. 

While it's true that the horse named the West fertilizer explosion has long since left the barn, there are many other horses of a similar nature who can be kept in place if fertilizer plants and facilities across the country learn from the sad experience of the Texas town that got famous for a reason nobody wanted.  I hope that OSHA's actions, however tardy, serve as a warning to prevent another tragedy like the one we saw last spring.

Sources:  The OSHA fine was described in a news article in the Waco Tribune that appeared in the online edition of Oct. 11 at  Mortimer Adler's How to Think About the Great Ideas (Chicago:  Carus Publishing, 2000) describes the great idea of Punishment on pp. 274-283.

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