OSHA no match for workplace dangers that kill thousands

By Randy Lee Loftis
Staff Writer
Published: 23 November 2013 11:26 PM
Updated: 24 November 2013 12:41 AM

One day El Campeón took on his last challenge.

The Champion — that’s what people at work called Adan Juan Padron. In good shape at 41, he seemed willing to face any danger to feed his family.

Dangers were plentiful. Southeast Texas is refinery and chemical-plant territory, with fuming, square-mile mazes of pipes and towers and flares blazing through humid nights. Their output fuels the nation.

Their thousands of tanks hold contents that can and often do burn, corrode, poison or explode. Somebody has to clean them, from the inside, by hand.

An oxygen line might fail with no escape. A high-pressure hose might turn on its user. Stuff might crush a skull. A faulty work light might fill a tank with fire.

But Padron and his wife, Herlinda, had three children and another on the way.

So on Feb. 22, 2005, at a Houston methane plant, he crawled through an 18-inch hatch into the bottom of V321B, an empty, waste-encrusted, vertical tank.

For days the crust had resisted hydroblasting. Padron swung his brass pick.

Seconds later, Padron became one of 5,734 U.S. workers killed on the job that year. Hidden in cases like his — and the April 17 fertilizer explosion in West — is a neglected reality of work in America.

Many workers climb, rappel or reach into daily dangers but draw federal notice only by dying. Given limited budgets and frequent political attempts at reducing enforcement even more, inspectors might be absent until a calamity occurs.

The case in West

At West Fertilizer Co., no federal workplace safety inspector had shown up for 28 years before tons of ammonium nitrate blew up and killed 15 people, including a dozen volunteer firefighters.

Among them was company foreman Cody Dragoo, 50. He had rushed back to the plant that evening to battle the blaze just before the explosion.

Padron never saw a federal inspector while he worked for CES Environmental Services in Houston. The Occupational Safety and Health Administration opened its first inspection of the Houston company the day after he died. It was an investigation into his death.

CES had been in business for six years, cleaning tanks for some of the biggest corporate names on the chemical coast.

A slab of waste broke loose from 18 feet above Padron. A “hangman’s fracture” his injury is called, in grim homage to the snap of the executioner’s rope. In modern times, trauma crews know it mostly from head-on collisions.

CES and sister company Port Arthur Chemical and Environmental Services eventually became symbols of criminal risk to workers. Within four years, three more men died — two poisoned and one burned and blasted. OSHA and other enforcers cracked down.

The companies are now bankrupt and shuttered. On Dec. 12, their former president is to report to a federal prison.

A plea bargain on workplace safety and hazardous chemicals charges got Matthew L. Bowman a one-year sentence and a $5,000 fine — coincidentally, the same amount as the OSHA fine for Padron’s death.

His criminal defense attorney, Dan Cogdell, said Bowman pleaded guilty to put it all behind him.

“He does certainly regret that some lives were lost,” Cogdell said, but is not convinced that his companies were wholly to blame.

“He thinks that the sentence, under the circumstances, is a bit excessive.”

Bowman did not respond to an interview request mailed to his last available address in Houston.

Families of the men who died working for his companies either chose not to comment or could not be located.

Houston personal-injury lawyer Donald H. Kidd, who represented Padron’s family after his death, found in the case both private tragedy and a public problem. Big companies tend to get safety scrutiny, he said.

“But what about the CES’s of the world and the Bowmans of the world? They’re under the radar until they kill someone,” Kidd said.

Deaths from big industrial accidents like West Fertilizer or the 2005 BP Texas City explosion, which also killed 15, generate headlines and sympathetic profiles of the dead.

But most workplace victims die in the way of CES-PACES employees Padron, Joey Wayne Sutter, Charles Brent Sittig and Bruce Clayton Howard: mutilated, poisoned, burned, severed or suffocated one at a time.

They rarely make the front page. Some do not make the news at all, and if they do, might not receive even the dignity of a name — just “a worker,” “an employee.”

Still, a common factor links many visible and hidden catastrophes: Inspections to catch a wobbly walkway, a malfunctioning air tank or an exposed electrical panel might never happen.

Just in Padron’s line of work, tank and spill cleanup, the list of dead is long.

David Lee Ingram, 53, of Charlotte, N.C., lost his oxygen hood inside a tanker in South Carolina in 2007.

Dannye R. Allen, 53, was hit by a truck at a highway spill near Warsaw, Ky., in 2011. A volunteer firefighter, he left behind his father, sons, brothers, sisters and grandson.

Alton Charles Washington, 46, inhaled hydrogen sulfide gas at a Louisiana refinery in 2007.

Henry Arnoldo Flores, 28, was in a rail tank car in Commerce City, Colo., in 2010. A flash fire started. It took him 85 days to die.

Jose Francisco Fuentes, 21, was cleaning a polymer tank in Odessa in 2002. An 8,000-psi water jet cut a 4-inch-wide, V-shaped channel through his chest, his right lung and his left ventricle. He left behind a wife and daughter, parents, sisters and grandparents.

OSHA investigates

OSHA investigated each death. But before the accidents, records show, each company had been in business for at least three years with no checks of conditions, training or equipment.

Fuentes’ employer, Total Jetting Inc., had been operating the longest with no inspections, nine years and eight months.

Many companies willingly spend time and money to protect their people. But OSHA, labor organizations and safety advocates say workers cannot count on government inspections to make up for private negligence or greed.

“We’re a small agency with a big job,” OSHA spokesman Jesse Lawder said. “We can’t be in every company every day.”

Some administrations have stressed workplace enforcement, and others have pulled back. But presidents and Congresses of both parties have consistently kept OSHA as one of the smallest of the regulatory agencies with broad responsibilities.

OSHA standards cover about 100 million people in as many as 8 million workplaces. Its entire staff in fiscal 2014 is 2,258 — smaller than the enrollment of a typical suburban high school. Of those, 1,539 are designated for enforcement.

The Dallas Police Department, by comparison, has about 3,500 officers.

In 22 states, state agencies cover OSHA’s duties as partners. Their inspectors plus OSHA put the national enforcement force at 2,000 to 2,200.

Grants to states take up about 20 percent of OSHA’s budget. In April, the Government Accountability Office called for better OSHA oversight of state programs.

Texas is not an OSHA partner. The Texas Department of Insurance’s voluntary inspection program is designed to educate employers and has no enforcement powers.

By longstanding state law, the Texas Commission on Environmental Quality cannot regulate anything, including air contaminants, inside a workplace.

OSHA’s 2014 budget request, $571 million, would run the Environmental Protection Agency ($8.2 billion) for about 25 days. The government spends less on OSHA than on the House of Representatives ($1.2 billion), federally funded broadcasting such as the Voice of America ($723 million) and payments to tobacco farmers ($960 million).

Lean budgets force OSHA to focus on some industries to protect the largest number of the most at-risk workers. Others might wait for a death, catastrophic injury or complaint.

OSHA picks national and local priorities based on history and known dangers and targets severe or repeat violators, spokesman Lawder said. It adjusts the focus as conditions change.

The approach makes sense for a tiny agency, said Peg Seminario, longtime director of safety and health for the AFL-CIO. But enforcement can still seem like Whac-A-Mole: a response only after problems arise.

“You want them to be more preventive,” Seminario said. “How do they do this with this minimum number of people they have?”

The emphasis on a handful of industries and the shortage of prevention were in view when tons of ammonium nitrate fertilizer detonated in West.

OSHA never checked to see if West Fertilizer was protecting its workers or the surrounding town despite ammonium nitrate’s well-known explosion risk from fire and shock.

The agency said it had not chosen ammonium nitrate dealers as one of its inspection priorities. It’s a small industry. Current focuses include refineries, chemical plants and the most dangerous work, construction.

Still, the blast echoed in Washington. Under President Barack Obama’s post-West executive order, agencies must deliver new chemical-safety plans.

And in October, on the eve of a six-month enforcement deadline, OSHA fined Adair Grain, dba West Fertilizer, $118,300 for alleged violations unrelated to the blast. A federal and state investigation of the explosion continues.

Another major Texas case — CES, PACES and Bowman — is officially closed but still resonates.

Matt Bowman, with a 1993 bachelor’s degree in environmental sciences from Texas A&M University, worked in waste management and sales before starting CES in 1999. He was 28.

Fights soon broke out with CES’s neighbors. Residents complained of environmental and health problems. Bowman accused them of unfairly targeting the company. In legal papers, he said the city of Houston faked violations to steal CES’s land.

Opening PACES in Port Arthur in 2008 brought that city into conflict with Bowman. Eventually, the TCEQ, the state attorney general, the cities and other companies were all targeting his operations.

But work went on. Often after tough times and other tough jobs, people ended up in Bowman’s small circle.

Hard life

At 36, Joey Wayne Sutter appeared to have had a hard time finding his path. Family photos over the years show him fishing, standing with relatives and holding a baby, but rarely smiling. He was married with two children.

Texas records reflect a burglary as a teenager, a domestic assault case in 2003 and a probation revocation in March 2007, 21 months before he died on Dec. 18, 2008.

PACES lab technician Suzi Ann Mock told criminal investigators with the EPA and TCEQ that Sutter seemed all right as they took samples with a tool called a sludge judge.

At his direction, she opened a valve, heard a hissing noise, then closed it.

Mock, then 38, told the investigators she was promoted into the lab job with no real training. She mentioned fresh-air safety packs repossessed by a vendor. Hydrogen sulfide detectors didn’t work. OSHA later found only one of five detectors operating.

Atop the tanker, Sutter reached across a hatch to tighten a nut, then collapsed. “Blood came from his nose and his eyes rolled back,” investigators wrote. Mock grabbed his shirt and called for help.

Firefighters found Sutter in full cardiac arrest atop the tanker, according to an incident report. En route to Christus-St. Mary Hospital, a strong chemical odor from his clothes assaulted paramedics. Emergency room staff put the clothes in a biohazard bag.

The medical examiner said hydrogen sulfide fumes killed Sutter. Mock told investigators she later asked for safety harnesses and breathing equipment for unloading tankers. Three supervisors told her “she was overreacting,” investigators wrote.

Charles Brent Sittig’s death four months later was similar: He breathed hydrogen sulfide. The medical examiner said the poison contributed to a heart-related death at age 48.

A truck driver for PACES, Sittig was a Louisianan. The family photo album depicts a smiling man surrounded by relatives and friends.

On April 14, 2009, he drove to PACES from Lake Charles, La., with a load of naphthenic acid, a product of refining crude oil, manager Ryan Thomas told Port Arthur police.

He arrived around 12:45 p.m. Mock told investigators Sittig entered the lab for paperwork and went back outside. Thomas told police Sittig climbed the tanker to offload the chemical.

Mock said she waited in the lab for a load sample. An OSHA report said the company never produced test results.

Sittig spoke briefly in Thomas’ office, went to mechanic Glen Olsen’s office, took a cellphone and went outside, reports show. Olsen told police that he heard Sitting sit down in a folding chair.

Then he heard an exclamation from Sittig and a thump.

Sittig fell face first from the chair, Mock told investigators. OSHA inspectors later questioned whether such a short fall could have caused his injuries and blood loss.

Sittig was face down on the ground, gasping for breath. Mock said she ran back to the lab and told Thomas to call 911. Olsen said co-workers put Sittig on oxygen and tried to start CPR.

Some time later, Mock told investigators, a CES manager gave her Sutter’s and Sittig’s autopsy reports and told her the evidence proved that both men died of natural causes — an assertion that Bowman also made in court papers. Mock said she did not agree.

“Mock said that in her opinion CES has committed homicide,” the EPA investigator wrote.

For Bruce Clayton Howard, life was hard and death was fast and horrible. He had convictions for burglary and selling cocaine. By age 45, he was cleaning tanks at CES.

About 4 p.m. on July 7, 2009, a co-worker was inside a tank with some leftover sludge in it. Howard, above on a catwalk, lowered an electric light into the tank for the other man.

The type of light was approved for use with flammable or explosive gases, but this one was unsafe. “It had a disconnected ground and was missing the explosion-proof cable grip bushing,” OSHA inspectors wrote.

Ignition, flash fire and explosion came almost as one. Flames engulfed Howard. He either fell or was blasted 11 feet to the ground. He had third-degree burns all over and blunt-force head trauma.

Penalties multiply

With each death, OSHA stepped up penalties: Padron, two violations, $5,000. Sutter, seven violations, $16,600. Sittig, 40 violations, $207,800. Howard, 71 violations, $1.48 million. Of the 71, 17 were “willful” — with “intentional disregard or plain indifference.”

Bowman contested the violations, but pressure was mounting. The Texas attorney general’s office sued at the TCEQ’s request and settled for $841,000. Dead workers’ families, angry neighbors and other firms were also suing — 21 lawsuits at one point.

In 2010, both companies filed for bankruptcy reorganization, but the judge changed it to liquidation. Bowman claimed persecution. The multiple investigations, the companies’ bankruptcy lawyers wrote in filings, “resulted from a kind of perfect storm” of unjust claims.

The city of Houston, they wrote, pressured an odd collection of parties into a conspiracy to destroy CES, including the “TCEQ, EPA, OSHA, the city of Port Arthur, Jefferson County, the United Black Front, the New Black Panther Party, private plaintiffs, and the news media.”

When Houston cut off CES’s wastewater service, the lawyers wrote, it “effectively sentenced CES to corporate death.” As for the actual deaths, they were “unfortunate but accidental.”

And the Sutter and Sittig autopsies, they wrote, were falsified through a conspiracy of the medical examiner, lab companies and Jefferson County officials. The company had “strong evidence” that the deaths were natural and was finding more.

The protests were for naught. Investigators and federal prosecutors were developing a case. Last year, a federal grand jury in Beaumont returned a 13-count indictment alleging violations involving hazardous waste, hazardous materials transport, workplace safety, false statements and conspiracy.

If convicted on all counts and sentenced consecutively to the maximums, Bowman faced a theoretical 56 years in prison and $2.57 million in fines. But a plea deal was in the works.

Plea deal

In May, Bowman pleaded guilty to one count each of willingly violating OSHA safety rules, leading to Sutter’s death, and faking documents describing chemical shipments.

Last month, Bowman received his sentence, as agreed: one year and $5,000. The plea deal recommends a low- to medium-security federal prison in Bastrop, near Austin.

Bowman asserts that he has suffered, said Cogdell, his criminal defense lawyer.

“He’s lost everything, from a financial standpoint, companies he built,” Cogdell said. “He’s lost his reputation — most of it.”

Kidd, the Padron family’s lawyer, saw it differently.

“Bowman’s family has the comfort of knowing that his separation from them is temporary,” he said. “Herlinda Padron and her sons are in the eighth year of a lifetime sentence without Juan because of Bowman’s misconduct.

“Bowman is the least of the victims of his misconduct.”

Staff writer Eric Holmberg contributed to this report.

The men who died

Over four years, four men died while working for now-defunct companies founded by Houston businessman Matthew L. Bowman: CES Environmental Services of Houston and Port Arthur Chemical and Environmental Services of Port Arthur.

Feb. 22, 2005
Adan Juan Padron, 41
Worked for CES Environmental Services, Houston; died at GSF Energy, Houston, while on a job for CES
Crushed by falling debris inside a tank
OSHA fines: $5,000

Dec. 18, 2008
Joey Wayne Sutter, 36
Worked and died at Port Arthur Chemical and Environmental Services, Port Arthur
Poisoned by hydrogen-sulfide gas
OSHA fines: $16,600

April 14, 2009
Charles Brent Sittig, 48
Worked and died at PACES
Poisoned by hydrogen-sulfide gas; medical examiner said it contributed to a heart-related death
OSHA fines: $207,800

July 7, 2009
Bruce Clayton Howard, 45
Worked and died at CES
Burned and blasted in a tank explosion
OSHA fines: $1.48 million

About OSHA

The Occupational Safety and Health Administration is a federal agency that sets and enforces workplace safety rules. Some states, but not Texas, also have their own worker-safety agencies.

OSHA must be notified when workers are killed or seriously injured on the job. The agency recently proposed requiring companies with at least 250 employees to report all workplace injuries, regardless of severity. Even small companies in certain dangerous industries would be required to report all injuries under the draft proposal.

By The Numbers

2,000-2,200: Inspectors working directly, or indirectly through the states, for OSHA

8 million: Workplaces regulated by OSHA

40,961: Inspections by OSHA in 2012

4,383: People killed on the job in 2012

Eric Holmberg and Daniel Lathrop


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