Three years after two of its employees died and a third was injured while cleaning rail tank cars, Nebraska Railcar Cleaning Services (NRCS) and its top executives were hit with a 22-count criminal indictment.
The charges include criminal conspiracy, violating safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act by dumping hazardous waste, and for submitting false documents to a federal agency. In the immediate aftermath of the incident the company received 30 citations from the Occupational Safety and Health Administration (OSHA).
“Protecting the health and safety of American workers at hazardous job sites is of paramount importance,” said Acting Assistant Attorney General Wood. “The defendants in this case failed to live up to that responsibility, even falsifying documents to evade worker safety requirements. Tragically, employees at the defendants’ facility lost their lives while working in these unsafe conditions.”
On April 14, 2015, a check of the air quality inside a tank car indicated a serious risk of an explosion. In spite of that warning, NRCS sent two employees into the railcar to work without further monitoring the air for explosive hazards as required. The employees also were not given emergency retrieval equipment or properly fitted respirators. Both were killed when the tank car then exploded.
Following an investigation by OSHA into practices at three of the company’s worksites that took place in October 2015, NCRS was cited for seven egregious willful, three willful, two repeated, 20 serious and one other-than-serious safety and health violations, with the resulting penalties reaching almost $1 million. The agency also placed the company in its Severe Violator Enforcement Program.
At that time, OSHA’s then-head David Michaels, declared, “This isn’t the first time this employer put its workers’ lives at risk, but OSHA will do everything in our power to ensure it is the last.”
In 2012, another company under the same ownership, Omaha Transloading, was issued serious citations for respiratory protection deficiencies and electrical hazards, and another owned firm, Demolition Contractors Inc., was cited in 2005 for similar hazards, including a willful violation for inadequate respiratory protection.
Making Matters Worse
NRCS’s president and owner Steven Michael Braithwaite and vice president and co-owner Adam Thomas Braithwaite now face charges that they not only failed to implement worker safety standards, but then tried to cover that up during the subsequent OSHA inspection. They also are charged with mishandling hazardous wastes removed from rail tanker cars during the cleaning process.
The indictment alleges that following a 2013 OSHA inspection of NRCS, the company claimed that it had been testing for hazardous wastes, including benzene, since July 2014. After OSHA inspectors returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, NRCS allegedly created and submitted documents to OSHA to falsely show that NRCS had purchased equipment to test the contents of railcars for benzene and had taken other required safety precautions.
In addition, during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency (EPA) in 2013 and 2014, NRCS was informed that it must test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste. The indictment alleges that was not done before April 2015.
Commenting on the indictment, Assistant Administrator Susan Bodine of the EPA’s Office of Enforcement and Compliance Assurance said, “Whenever a company or its employees knowingly fail to comply with environmental laws, both the public and the environment are placed at risk. This case demonstrates the importance of environmental compliance to safeguard public health and safety.”
This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors, warn James Curtis, Kay Bonza and Craig Simonsen, attorneys with the law firm of Seyfarth Shaw.
“First, if the employer represents that it is implementing certain safety measures—do it! Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities. A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.”
The lawyers also point out that the company only made things worse by its behavior after the accident. “As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer,” they said.