A federal judge in Midland recently issued a ruling of first impression in the criminal prosecution of an oil and gas operator and an oilfield services company for conduct that the government says is responsible for the death of a worker and his wife allegedly caused by exposure to hydrogen sulfide gas.
On Oct. 8, U.S. District Judge David Counts became the first federal judge in history to interpret the contours of a multiplicity challenge — that is, an argument that the Department of Justice is impermissibly spreading a single offense over several counts — related to alleged violations of the Occupational Safety and Health Act resulting in an employee’s death.
The government is criminally prosecuting Aghorn Operating Inc., which owns and operates oil wells and leases; Kodiak Roustabout Inc., which performed oilfield services and maintenance for Aghorn; and Trent Day, a chemical engineer who was a vice president for both companies. It indicted all three in March 2022 related to the October 2019 death of Jacob Dean in Odessa.
The case brings charges for violations of the Clean Air Act, the Safe Drinking Water Act and the Occupational Safety and Health Act; allegations of obstructing Occupational Safety and Health Administration proceedings and making false statements to the Environmental Protection Agency; and, in a superseding indictment, prosecutors also allege the parties were engaged in a nearly 15-year conspiracy to “unjustly enrich” themselves by maximizing production and “avoiding expenses necessary to comply with environmental laws and safeguard human health, and to place operational convenience at Aghorn facilities above human health, safety, and the environment.”
Counts three, four and five of the indictment allege violations of the OSH Act that caused the death of an employee under 29 U.S.C. § 666(e). Each count relates to a different OSH Act standard or rule that prosecutors allege Aghorn violated:
- Exposing an employee to hydrogen sulfide in concentrations exceeding 50 parts per million, causing his death;
- Failure to implement administrative and engineering controls to comply with hydrogen sulfide exposure limits;
- And failure to implement a written respiratory protection program.
Aghorn argued that the government was wrongly seeking three convictions for a single death when the “unit of prosecution,” or the act that gives rise to a criminal charge, is the death of an employee, meaning there can only be one conviction in this case. Aghorn argued the government must pick one of those three counts to take to trial.
But prosecutors told the court the actual unit of prosecution in this case is the act of violating an OSHA standard that causes the death of an employee.
Judge Counts wrote that the Fifth Circuit has recognized two types of multiplicity challenges: one where a defendant is charged with violating two different statutes and one where a defendant is charged for multiple violations of the same statute, “predicated on arguably the same criminal conduct.”
This case involves the second type, he wrote, and there’s a two-step analysis to determine “whether separate and distinct prohibited acts, made punishable by law, have been committed:”
- “First, analyze the statute to determine the allowable unit of prosecution while considering whether Congress intended a defendant to be exposed to several prosecutions, and;
- Second, determine “how many distinct criminal acts the defendant committed.”
Aghorn argued that the statute was ambiguous on the unit of prosecution, meaning the unit of prosecution could either be the death of an employee or separate violations of the OSH Act, which, the company argued, means the “rule of lenity,” or resolving ambiguities in favor of the defendant, should apply.
Judge Counts wrote that “the government’s reading” of Section 666(e), which urged the court to agree that the violation of an OSH Act standard is the unit of prosecution in this case “is incomplete.”
“Here, for whatever reason, the government is largely silent on how the resulting death component of § 666(e) functions in multiplicity challenges,” he wrote. “Instead, it poses a policy argument that “[t]o charge wrongdoers only for each employee death instead of for each violation that caused his death . . . would undermine the deterrent value of the OSH Act. … and run counter to the purpose of the OSH Act, which is not merely to prevent employee deaths but ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.’”
“Aghorn points out the flaw in this policy argument — a single OSH Act violation that causes the death of five employees would allow only a single conviction under the Government’s proposed unit of prosecution,” Judge Counts wrote. “Taken to the absurd, one OSH Act violation that kills a hundred employees would expose the employer to only one criminal conviction under § 666(e).”
Judge Counts concluded it was unclear if congress intended to tie the unit of prosecution under this section to the death of an employee or a violation of the OSH Act.
“Intertextual analysis goes only so far here given that § 666(e) adds a new element to establish criminality with little guidance as to how that difference functions. The court finds it chasing an ouroboros tail to its ultimate demise,” he wrote. “The court applies the rule of lenity. ‘[I]f congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.’ This is not a step afield. The government has treated the death of an employee as section 666(e)’s unit of prosecution in other cases, supporting the same treatment here as a reasonable approach. The court therefore grants Aghorn’s request for relief from multiplicity and directs the government to proceed on one count under § 666(e).”
According to a 10-count superseding indictment filed March 6, Aghorn employee Jacob Dean was sent to inspect the pump house at the company’s flood station — where oil well wastewater containing salt, hydrocarbons and hydrogen sulfide was received before being injected into the ground to recover oil — on W. 49th Street in Odessa at 6:51 p.m. on Oct. 26, 2019.
Hydrogen sulfide is a naturally occurring gas found in sewers, manure pits, well water, oil and gas wells and volcanoes, according to the Occupational Safety and Health Administration. It is a colorless, flammable and toxic gas that smells like rotten eggs and is one of the leading causes of workplace gas inhalation deaths in the country, according to the Bureau of Labor Statistics.
It can kill immediately in high concentrations by causing respiratory arrest.
The pump house is an enclosed building with what the government describes as two bay doors.
When Dean didn’t return home and didn’t respond to phone calls, his wife Natalee Dean went to the pump house around 9:30 p.m. to check on him, driving there with their two children, ages nine and six.
According to the indictment, a failed pump in the pump house caused a leak of water that contained hydrogen sulfide gas.
When Natalee Dean entered the pump house, prosecutors allege she was overcome by the toxic gas that had already killed her husband. First responders found both dead at the scene. The children were uninjured.
Eight monitors affixed to the pump house, which were supposed to illuminate a warning light if dangerous levels of hydrogen sulfide gas were detected, were not operable and “did not trigger the light on top of the pump house to warn Jacob or Natalee Dean of the toxic level of H2S in the pump house,” the indictment reads.
Trial is currently slated to begin Feb. 3.
Aghorn is represented by David B. Gerger and Matt Hennessy of Gerger Hennessy Martin & Peterson. Kodiak Roustabout is represented by Brian Carney of Midland and Darrell W. Corzine of Kelly Morgan Corzine & Hansen. Day is represented by Daniel W. Hurley of Hurley, Guinn & Singh, Brian Carney of Midland and Frank Seller of Sellers Law Firm.
Department of Justice attorneys Christopher J. Costantini, Mark Romley, Mark Tindall and Samuel Lord are prosecuting the case.
The case number is 7:22-cr-00049.