Nalco Champion, an Ecolab Company, has had a third and final Occupational Health and Safety (OH&S) charge under the Saskatchewan Employment Act dismissed in connection with the death of one of its workers, Michael Bunz.
Bunz died on May 22, 2014, due to exposure to hydrogen sulphide (H2S) at an oilfield separator site near Kipling, owned and operated by Harvest Energy Corporation.
A ball valve had failed while Bunz was preparing to take a fluid sample, causing a release of high, and lethal, levels of H2S, killing him.
The dismissal on Nov. 2 in Estevan Provincial Court was the conclusion of a long and drawn-out court process which began with the filing of three different charges against Nalco on Dec. 9, 2015, nearly three years ago, and a year-and-a-half after the fatal incident.
Halfway through this trial process, two counts were dismissed. One was a charge of failing to ensure a worker was provided with and used an approved atmosphere-supplying respirator, and the second was a charge of failing to ensure a second worker, suitably equipped and trained, was present and in communication with the worker at all times.
The remaining charge was dismissed by Judge Lane Wiegers. That charge was that Nalco, being an employer, failed to take all practicable steps to prevent exposure of a worker to an extent that it is likely to be harmful to the worker to a chemical substance or biological substance that may be hazardous.
Wiegers took over an hour to read out his 29-page written decision to a nearly empty courtroom. There were roughly a half-dozen people in the gallery, including members of the Bunz family, as was the Crown prosecutor, Buffy Rodgers. The defence attorney, David Myrol, and several representatives of Nalco Champion, took party by way of a conference call from Edmonton.
In his conclusion, Wiegers said, “… Nalco was required to take all practical steps to prevent Mr. Bunz from being exposed to H2S levels beyond the contamination limit. Although the use of a respirator may have spared Mr. Bunz, the nature of the H2S release that took Mr. Bunz’s life was not reasonably expected.
“Much smaller, short-term H2S exposures were reasonably foreseeable and Nalco had appropriate equipment and procedures in place to ensure such exposures would not exceed the contamination limit. Having regard to the whole of the evidence, I am satisfied on a balance of probabilities there was no better practical means than was used by Nalco to prevent and H2S exposure beyond the contamination limit. As a result, I dismiss the charge.”
Wiegers began by explaining what had happened. Bunz, 38 years old, was a sales representative for Nalco. He said, “That morning, Mr. Bunz was working alone inside a building at an oilfield facility when he was exposed to an uncontrolled, pressurized released of fluid and gases. The emitted gases included lethal amounts of hydrogen sulphide and Mr. Bunz quickly fell unconscious and died.
“The task Mr. Bunz had been engaged in was one he had performed successfully on thousands of occasions.”
The separator building Bunz was working in was a gathering point for produced water piped in from several oil wells. The piping is subject to corrosion, and Nalco’s business was to seize and analyze samples of produced water from the pipelines and piping systems with a view of recommending blends of chemical additives that would inhibit corrosion, Wiegers noted. They provided the service to as many as 50 oilfield companies in the region. Bunz was Nalco’s sales representative assigned to Harvest.
The sample point Bunz was working on was inside a one-story metal building approximately 600 square feet in size. The procedure involved using a crescent wrench to remove a pressure gauge connected to a header, and replace it with a spigot to draw a sample into a container which would be sealed (a small amount of fluid would flow first).
“Minor amounts of fluid sample can be safely drawn because of the presence of a small metal ball in the sampling valve that restrains the produced water behind it and a retaining ring that ensures the ball remains in place,” the judge noted.
Then the procedure would be reversed after the sample was drawn. Doing so would normally take an experienced sampler like Bunz no more than five minutes.
And herein lies the cause of the release, according to expert witness testimony as provided by Walter Tersmette, a civil engineer with extensive experience in oilfield equipment design. He appeared for the defence, Nalco.
While he noted there were no witnesses to the incident, Wiegers said, “Tragically the ball valve failed in two stages described below.
“First, as Mr. Bunz removed the pressure gauge, he unwittingly removed the retainer ring that held the ball inside the ball valve. Mr. Bunz did not notice he had removed the retainer ring because it and the pressure gauge fastener were well worn and were difficult to distinguish from each other without close inspection. The retainer ring was later found attached to the pressure gauge fastener.
“As he removed the pressure gauge, Mr. Bunz detected a small leak. Mr. Bunz perceived the leak as a small problem and being a diligent, dedicated employee, his first instinct was to solve the problem. What Mr. Bunz did not realize was that he was in peril; the only barrier between him and the full force of the production stream was a small metal ball that – absent its retainer ring – was held in place temporarily by a thin, hard waxy substance that over time had built up in the throat of the ball valve.
“In an attempt to stop the leak, Mr. Bunz decided to turn off the inlet valve at the rear of the header apparatus. To do so, he had to insert himself in the small opening between the header apparatus and an interior wall. As he did, the firm waxy substance surrendered to the pressure of the production stream and the ball was ejected from the ball valve. A deadly, uncontrolled high-pressure stream followed the ball to the building’s ceiling. Mr. Bunz was quickly overwhelmed,” Wiegers said.
Bunz’s last interaction with the Harvest facility operator of the site was at 7:30 a.m. with Dave Dovell via a phone call or text. At about 10:15 a.m., Dowell came to the site, and saw Bunz’s truck parked there, running, and he was not in it. The facility’s functional H2S alarms were going off and lights flashing (although its messaging function of an alarm was nonfictional at the time).
Dowell went to the door and smelled H2S. He looked inside and “saw liquid streaming upward and careening off the ceiling. Visibility was poor; he could not see Mr. Bunz.”
Dovell did not have an air pack with him. About 20 minutes later, a colleague arrived and they entered the building with respirators. The found Bunz “wedged in a 10-inch wide opening between the back of the header apparatus and the interior building wall.” They were unsuccessful in retrieving Bunz. It took the arrival of a six-person emergency team to finally extricate him.
Bunz’s functional personal H2S monitor was found inside his truck. “Observations of Mr. Bunz’s truck and items around it offer some support for a conclusion Mr. Bunz may have left the building at the first stage of the ball valve failure and returned before the second, catastrophic ball valve failure,” Wiegers wrote, saying that he found Bunz was inside the building for both stages of the ball failure, and the second occurred soon after the first.”
While the ball valve manufacturer was not identifiable, the judge noted, “I do accept (Tersmette’s) opinion, however, that if the retainer ring was properly installed and maintained, then Mr. Bunz would have lacked the strength necessary to remove it with a crescent wrench.”
The site dealt with 99.6 per cent fluid and 0.4 per cent gas. It had an H2S level in the gas of 2.5 per cent, or 25,000 parts per million (ppm). The facility’s detection equipment was set to go off at 10 ppm.
To prove the charge, the Crown put forward eight different particulars, alleging:
1. Nalco failed to ensure the worker was provided with and used an approved atmosphere supplying respirator;
2. Nalco failed to ensure a second worker, suitably equipped and trained was present and in communication with the worker at all times;
3. Nalco failed to ensure a worker was wearing his personal H2S monitor when taking samples;
4. Nalco failed to ensure a worker did not work alone in a remote location with limited to non-existent communications access when tasked with taking samples from a pressurized piping system with known concentrations of H2S in excess of one per cent or 10,000 parts per million;
5. Nalco failed to ensure a worker conducted a hazard assessment prior to commencing the task of obtaining residual chemical samples;
6. Nalco failed to ensure a worker followed the Nalco and/or Harvest codes of practice;
7. Nalco failed to ensure the worker followed Nalco and/or Harvest’s personal protective equipment procedures, practices and policies; and
8. Nalco failed to ensure the worker followed Nalco and/or Harvest’s personal procedures, policies and practices intended to address hazards, risks and controls.
The Crown must prove actus reus (the guilty act) beyond a reasonable doubt, and if it does that, “The accused must prove on a balance of probabilities it took all reasonable care to prevent the occurrence of the incident or that it held an honest, reasonable belief in a set of fact that if true would render its act or omission innocent,” the judge wrote, referring to it as the defence of due diligence.
In other words, if the Crown proved Nalco had failed, the defence had to prove Nalco had done all they could have to prevent it.
The judge found that the Crown must have proof of one of those particular points, and proof of the omission was “causally connected” to Bunz’s death.
To that end, Wiegers went point-by-point through those eight particulars.
He found that Bunz had training in the usage of a respirator, and that Nalco provided them when the client insisted on it for sampling, however, “In the vast majority of cases, the client, including Harvest, did not.”
Nalco argued that even if he had a respirator, he would not have survived because he had become stuck between the header and the wall. The judge said, “It’ is also impossible to know for certain he would be alive today if he had been wearing a respirator.”
But he added that Bunz would have done all he could to leave the building immediately, and that he would have had perhaps as much as 30 minutes to defend himself if he had a respirator. Thus on the first point, the Crown had proven actus reus.
On the second point, since Bunz was working alone with Nalco’s approval. But as to whether a second worker would have been able to rescue Bunz, who did not have a respirator on, the Crown didn’t prove this was the cause of Bunz’s demise, as two well-equipped workers still couldn’t get him out later. Thus, a single worker couldn’t have saved him.
Regarding wearing a personal H2S monitor, while Nalco employees, including Bunz, wore them regularly, it was proven he did not wear it inside the building. However, “The absence of the personal monitor, however, would not have affected the tragic result.”
He noted the building had a fixed monitor, which did not sound after the first valve failure, but did after the second. If it had detected H2S, it would have gone off and Bunz would have evacuated after the first failure. Even if he had a monitor on him, and it sounded along with the fixed monitor, “Unfortunately, both alarms would have sounded too late to assist Mr. Bunz who was overcome almost immediately after the second ball valve failure,” Wiegers said.
When it came to communications, while cell coverage was limited without at booster, Bunz’s truck had a booster, and thus the judge did not find issue with communications.
A software app was discussed at length at trial which would sound an alarm if a timer was not reset, but Wiegers said it would have been unlikely to have assisted.
As for a job hazard assessment, Bunz had not prepared a written one before his last task, but the judge found it would be impossible to conclude he had not done it in some other manner. In particularly, he noted that such a written assessment may be done to cover an entire week if the job to be done was the same.
Tersmette, the expert engineer witness, warned that having workers do assessments for frequent, highly repetitive task might prove counterproductive.
Even so, a job hazard assessment would not have affected the outcome.
The judge found Nalco’s and Harvest’s codes of practice were almost identical, except that Harvest’s required personal H2S monitors be worn even if fixed monitors are present. As Nalco did not ensure Bunz wore his, this was a breach of Harvest’s requirements. Even so, it would not have affected the outcome in the end.
He was not satisfied that Nalco failed to abide by its self-imposed respiratory requirements, and came to the same conclusion with Harvest’s requirements, as each code was “less than clear.”
With respect to protective personal equipment, procedures and policies, Nalco’s “H2S code of practice did not clearly require respiratory protection for workers engaged in liquid sampling.”
As for Harvest’s code, which requires workers to walk away if H2S exceeded 10 ppm, that stated did not exist until the ball valve failed.
The eighth point, addressing hazards, saw the judge come to same conclusion as the risk assessments.
“Following Mr. Bunz’s death, Nalco requires all of its sales representatives to wear oxygen supplying respirators when drawing liquid samples. Clearly, the provision of a respirator is a measure both practicable and reasonably practicable within the meaning … of the Act,” Wiegers said.
But whether Nalco had done its due diligence came down to whether the exposure was “reasonably foreseeable.”
“The exact mechanism that caused the release is not significant. The question is simply whether the type of H2S release that overwhelmed Mr. Bunz was reasonably foreseeable,” the judge said.
He cited case law where “‘Foreseeable’ is not the equivalent of ‘imaginable.’”
He also noted releases over 10 ppm were rare when liquid sampling.
“Only one of Nalco’s clients insisted that Nalco’s sales representatives wear respirators when liquid sampling at their facilities. Of occurs, this does not mean that the 49 or so other companies were correct in not requiring respirators, but it does support the inference that lethal exposures to liquid samplers was extremely rare if not unprecedented,” Wiegers said.
“Having weighed all this evidence carefully, I conclude that the potential danger that became a tragic reality in this case was imaginable, but not reasonably foreseeable,” Wiegers said.
Outside of the courtroom, Bunz’s father, Al Bunz, said, “OH&S has policies, and I thought they were law. But according to what happened today, it means nothing, because it all goes onto the oil company, depending on what they want. OH&S means nothing, as far as I’m concerned.
“It just blows me away. It blows me away. I worked in the oilpatch many, many years. And we had OH&S policies we had to follow strictly. And today we found out, because Nalco figured their men don’t need respirators, in that type of situation, they don’t have to wear them. It doesn’t matter what OH&S says.”
Crown prosecutor Buffy Rodgers said, “We have to review the judge’s decision before we take any other steps.”
The defence attorney, being in Edmonton, was not available for comment.