Commentary: Workplace Safety Regulation in Wyoming too Lax

This article is by Dustin Bleizeffer and is republished with permission from WyoFile.

There were nine workplace fatalities in Wyoming over a five-week period in August and September, underscoring a grim truth about the state’s drilling and mining-based economy; “When the economy picks back up, so too will the [workplace] fatalities,” said Wyoming State occupational epidemiologist Timothy Ryan.

Ryan delivered his most recent analysis of Wyoming’s workplace fatality problem — Wyoming’s workplace fatality rate has been either the worst or close to the worst in the nation for the past ten years — during the third-annual Safety Summit & Exposition in Casper Oct. 12. The event was organized by the Wyoming Oil & Gas Industry Safety Alliance (WOGISA). The group formed recently to promote “best practices” and to work more closely with the Wyoming Occupational Safety & Health Administration.

Ryan said that after more than a year of data collection and analysis, he will submit his recommendations for curbing on-the-job fatalities to the governor’s office this month. Yet in a state where it costs more to poach a deer than it costs a company (even one proven negligent) to kill an employee, Gov. Matt Mead has already promised to maintain the state’s long-standing approach of more carrot than stick.

At the same Safety Summit on Wednesday, a letter by Gov. Mead was read by one of his staffers.

“There are many ways to approach the problem: laws can be passed, rules can be written, fines can be levied. I remain unconvinced that these are the best ways to enhance a culture of leadership and safety. I say this because we don’t yet fully understand the problem,” Mead wrote. “I believe we should focus on the prevention and awareness side before we get heavy handed.”

This is not a call to action in proportion to the problem; too many people are dying on the job in Wyoming.

A united effort among industry and safety officials is crucial to identifying and implementing a smart strategy to make sure more Wyoming’s workers return home safe each night. But it’s troubling that Mead — and many Wyoming lawmakers — remain decidedly “unconvinced” that higher fines and stepped-up enforcement measures can be part of that strategy. There are just eight OSHA inspectors in Wyoming. That’s an inspection rate capability of one on-site inspection every 60 years for each Wyoming workplace.

Stiffer penalties for proven safety violations in the death of a worker is not the only tool at Wyoming’s disposal. But as I’ve stated before; it would be a mistake to forgive bad actors based on an industry’s voluntary efforts to do the right thing.

And here’s something that state and industry officials won’t mention when trying to recruit workers to Wyoming’s oil and gas fields; The four workplace fatalities that Wyoming OSHA investigated in 2010 resulted in a total $9,125 in penalties, according to federal OSHA documents. That’s an average $2,281 for violations contributing to the death of a worker. In April, an 18-year-old Worland man was fined more than $9,000 for illegally killing a trophy mule deer.

Shouldn’t the hide of a rig worker be worth more than the hide of a deer?

Employer or Employee?

Kudos to Wyoming OSHA for its current effort to update its oil and gas safety rules to align with what some in the industry are already instituting as best practices. The proposed rule changes opened for public comment October 24, and the OSHA commission will hold a public hearing December 2 at the Wyoming Oil and Gas Conservation Commission building in Casper to vote on the rules.

There’s a notion — and perhaps some resentment — among some industry officials and state lawmakers that Wyoming’s high fatality rate is mostly the fault of the employee rather than the employer. It’s true; fatalities are often the result of a worker not adhering to company or government safety regulations.

“A lot of these fatalities,” Ryan said referring to the oil and gas industry from 2001 to 2008, “were basically (the result of) not following safety standards and safety protocol.”

And this is where Wyoming’s policymakers have drawn a line of protection around employers. Not only have they not increased penalties for serious, proven safety violations, or invested in more Wyoming OSHA inspectors (the agency is admittedly short-staffed), but some people close to the issue have even contemplated shifting more liability onto the workers’ shoulders. At one workplace task force meeting, a state staffer hauled out this 1988 case study of the so-called “Smith Rule” which was used to deny workers’ compensation coverage to an employee who was injured as a result of not following safety procedures. Yet an employer guilty of a safety violation still enjoys legal immunity under our no-fault workers’ compensation law.

OSHA officials readily admit they have, and use, discretion to consider employee vs. employer fault when imposing a fine.

Anybody who has worked a week in Wyoming construction, oil, natural gas or mining understands that it’s the supervisor who determines whether the crew works in bad weather, or if a backhoe or major piece of equipment is sidelined for repairs. Employees can make a lot of poor choices, but many workplace conditions are out of the employee’s control. Employers should be held to the highest federal and state safety penalties in a fatality, because even when they get caught breaking OSHA rules, they still enjoy immunity from being sued by the employee or his family.

Part of the reason Wyoming policymakers have been reluctant to impose stiff fines or send more inspectors into the field is the fact that big operators — EnCana Oil & Gas USA, BP America, for example — have dazzled with their modern safety programs. And it’s something that both industry and Wyoming OSHA recognize; small companies (20 employees and less — those dozens of small contractors that the big operators employ) are much more likely to have a workplace fatality than larger companies that have more resources to implement strong safety programs, according to Ryan and other state safety officials.

The overriding strategy of WOGISA is for those larger companies to share their safety knowledge and resources with smaller companies in the industry. WOGISA’s approximate membership of 200 members is a mix of both large and small companies, but organization officials admit they still need to bring many more small companies into the “culture of safety.”

It remains to be seen how successful WOGISA’s mentoring strategy will be in instituting “best practices” throughout the field of large, medium and small oil and gas companies. And if it takes a bigger stick to help convince a few stragglers that Wyoming is serious about rewarding hard-working employees and their families with a true “culture of safety,” how could that degrade the cooperative effort that’s already in the works?

It would serve Gov. Mead and Wyoming’s working families well to not “remain unconvinced” of any potential measure in making sure our workers are not killed on the job. It’s unlikely Ryan will hinge his recommendations on fines or more workplace inspections. But if a company cannot withstand the scrutiny of best practices with the consequence of stiff penalties for proven violations, then it would be a gain for our working families if those employers left the work to those who can.

Sidebar: What We Know

Wyoming’s fatality rate peaked at 17 on-the-job deaths per 100,000 workers in 2007, according to an AFL-CIO report. Wyoming improved to fourth-worst in the nation as it shed 16,000 jobs (mostly in oil and gas, construction and mining) in 2008 and 2009, passing the “worst” distinction to Montana, Louisiana and North Dakota where many drilling rigs migrated during the same period.

During much of the past decade, Wyoming policymakers were at a loss as to exactly why so many workers were dying on the job. That’s because details of a work-related fatality are scattered across a state and federal bureaucracy; some of the details remain with local county sheriff’s departments, while other information resides with OSHA, the Wyoming Department of Transportation and myriad other agencies.

Although labor statistics (including those related to on-the-job deaths) are gathered by state-level workers in Wyoming, the information becomes the property of the U.S. Bureau of Labor Statistics, and that agency doesn’t feed the information back to the state in the kind of detail needed to perform helpful analysis. So in 2009, former Gov. Dave Freudenthal formed a workplace fatality prevention task force to research the problem.

One recommendation was to hire a state level occupational epidemiologist, and modeled the position after one employed by Alaska to seek remedies to that state’s high workplace fatality problem. Ryan was hired in 2010, and since, he’s worked to tease more detailed information from both federal and local agencies.

Here’s some of what he’s found: From 2001 to 2008, there were 62 workplace fatalities in Wyoming’s oil and gas industry alone, plus three more fatalities specifically related to highway transportation in the industry. That’s an average of one worker killed every 45 days — just in oil and gas.

Ryan said 52% of those fatalities occurred on drilling rig locations (most the result of a worker falling, or being hit, crushed or entangled). In 98% of the falls, there was no fall safety equipment in use. Driver fatigue and not wearing seatbelts was prevalent and deadly in Wyoming’s oil and gas industry during the 2001–2008 period — the most recent data available. Fatigue was specifically cited as the cause for deadly vehicle accidents in the oil and gas industry in more than 70 percent of the cases.

Only 4% of deadly oil and gas vehicle accidents were attributed to weather. “Weather is not a major issue in the (on-the-job) motor vehicle fatalities,” said Ryan.

— Dustin Bleizeffer, WyoFile editor-in-chief, has covered Wyoming’s energy industry for 13 years. He can be reached at 307-577-6069 or dustin@wyofile.com.

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