FEDS BAN SURFING! Or Why regulatory agencies have image problems.

“So, I hear OSHA has put the surfboard industry out of business. Some new regulation or something,” my father informed me when I got to California last week. Now he’s well-read and relatively liberal (for a retired businessman), so knowing that OSHA can’t legally put anyone out of business and that the agency hasn’t issued a new chemical standard within the lifetime of most people living on earth today and that EPA’s laws are so weak that the agency can’t even ban asbestos, I was curious about what was going on.

Turns out that Gordon “Grubby” Clark has gone out of business and blamed government regulations for his demise. Why does anyone care? Clark Foam has dominated the business of making foam innards for surf boards. Clark, the “Howard Hughes of the surfboard world” blamed a number of factors, “including the cost of complying with federal and state regulations,” according to the NY Times.

Wall St. Journal columnist John Fund argues that Clark’s retirement is an example of how Governor Schwarzenegger has failed to halt California’s slide into a business hostile state.

The article in today's New York Times tried to explain the situation.

In 2003, Mr. Clark received a notice from the Environmental Protection Agency for, among other things, failing to safeguard workers against the accidental release of toluene diisocyanate, or TDI, a liquid catalyst and known carcinogen used in making polyurethane foam.

There was also the cost of workers' compensation, insuring machines of his own design and "a claim being made by the widow of an employee who died from cancer," he wrote.

"For owning and operating Clark Foam," the letter began, "I may be looking at very large fines, civil lawsuits, and even time in prison."

But,

Both the E.P.A. and the Orange County Fire Authority, which monitors factories for hazardous materials, said, however, that Mr. Clark had recently been in compliance.

"We were kind of dumbfounded," said Capt. Stephen Miller of the fire authority.

And making surfboards isn’t all fun and games for the workers:

"Surfers are supposed to be environmentally sensitive, but the boards are questionable," said Steve Pezman, publisher of The Surfer's Journal. "They're a part of the puzzle that doesn't really fit the ethic."

Pete Reich, a specialist with the E.P.A. in San Francisco and an avid surfer, said blank makers and glassers are exposed to toxic fumes, and the people who sand and shape surfboards contend with noxious particulates.

The main thrust of the article was how Clark’s retirement had increase the rate of surf board thefts in California, but also buried waaaaay at the end of the article was this nugget that confirms a not-so-well-known fact about the effects of regulation: it promotes innovation:

Of the possibility of new methods, Yvon Chouinard, a surfer and mountain climber, said, "My attitude is, It's about time."

Mr. Chouinard's company, Patagonia, has developed what Mr. Chouinard says is a less toxic process.

Many surfboards wind up in landfills after six or eight months, said Randy French of Surftech, a Santa Cruz company making boards out of epoxy composite and one of Mr. Clark's few major competitors.

He said that some of the current shortfall will be filled by suppliers in Australia, Brazil and South Africa.

Looking out over The Hook, Boyd Halverson, wearing a wet suit and barefoot on a cold rainy Saturday, braced himself for what he called an "ice cream headache" from frigid waves. Mr. Halverson, 27, who repairs damaged boards, said that the demise of Clark Foam would be good for his business.

Mr. Coletta, the shaper, who was sitting on a three-month inventory of blanks, regarded the situation the way he might a long, glassy right point break. "Before, no one found the need to experiment with new materials, to get the feel right," he said. "I'm really stoked."

Dude!

"Illegal' Immigrants: Culture of Indifference To Suffering?

You know how I’m always complaining about how undocumented immigrant workers aren’t getting health and safety training or being provided, especially down in the Gulf hurricane area?

Well, never mind. I didn’t really mean it. It was all just a joke. Ha ha. No one can accuse me of succumbing to the ‘culture of indifference’ to our nation’s immigration laws. No sireee. These people are all potential felons and assisting them means you’re aiding and abetting criminal and felonious and immoral behavior and you’ll be sent to the pokey. Hell, even blogging about helping undocumented immigrant workers illegal aliens is probably enough to get me a short term in Leavenworth (or at least getting my phone and e-mail bugged)

“He’s finally gone off the deep end, you say. Too little sleep will do that to you.

But no. Legislation that was passed by the House of Representatives earlier this month

would broaden the nation’s immigrant-smuggling law so that people who assist or shield illegal immigrants would be subject to prosecution. Offenders, who could include priests, nurses or social workers could face up to five years in prison.

***

The legislation would make it a federal crime to live in the United States illegally, which would turn millions of illegal immigrants into felons, ineligible to win any legal status

***
Supporters of the border-security bill say they are trying to crack down on a culture of indifference to the nation's immigration laws that has allowed 11 million illegal immigrants to live in this country.

President Bush has announced that he supports the legislation, although he hasn’t commented on this provision. The President, apparently with a straight face, argued that

America is a nation built on the rule of law and this bill will help us secure our borders and crack down on illegal entry into the United States.

So, our mission is clear. In order to secure our borders, fight terrorism, maintain law & order, fight for truth, justice and the American way, we need to let those illegals keep on falling off buildings, getting crushed in trench collapses and poisoned by pesticides. No training, no safety equipment -- don't even stop to give anyone directions unless you check to make sure they're legal.

In fact, instead of penalizing employers for endangering (undocumented) workers, OSHA should be giving 'em medals.

A number of church groups and immigrant advocates are opposing the bill:

"We never ask for documentation," he said. "Our mission is to help anyone in need of service, regardless of their immigration status. We are proud of that."

Speaking for the Conference of Catholic Bishops, Bishop Gerald R. Barnes of San Bernardino, Calif., said the measure threatened church workers and doctors as well as ordinary citizens who provided urgent or life-saving assistance to illegal immigrants.

"Current legislation does not require humanitarian groups to ascertain the legal status of an individual prior to providing assistance," Bishop Barnes wrote this month in a letter to Congress. "The legislation would place parish, diocesan and social service program staff at risk of criminal prosecution simply for performing their jobs."

Personally, I agree there's a 'culture of indifference,' but it's the bill's supporters who are indifferent to the reality of the 'global marketplace,' as well as to human suffering.

Anything Important Happen In 2005?

Here are a few important developments from 2005, in case you blinked and missed last year, according to The Week magazine editor William Falk writing in the NY Times: burning fossil fuels really is altering our atmosphere and disrupting the flow of the Gulf Stream, the most deadly pathogen in human history has been re-created in the laboratory, right wing religious types think women who have sex before marriage should die horrible deaths from cervical cancer, American web giants Microsoft, Yahoo and Google have been aiding and abetting censorship and political persecution in China, the U.S. Government doesn’t really want to capture Osama bin Laden all that much, your mother was right that you’ll get sick if you don’t bundle up and true, and passionate love is fleeting.

Believe it.

School For Corporate Criminals

Sometimes you see some interesting -- and nauseating -- things in other people's blogs. This is from blogger Roger Ailes (via Suburban Guerrilla) where he trashes conservative columnist Kitty Parker, partly for her writings about bloggers and other items, but also for her affiliation with Reid Buckley's Buckley School of Public Speaking which seeks to train corporate criminals executives about how to make make lemonade out of the lemons of catastrophies. (Reid is William F. Buckley's little brother and a conservative columnist himself.)

And what was the inspiration for The Buckley Method?

Have you ever grieved to see decent, gifted, hard-working people humiliated in public by jackasses? Have you been one of them?

In 1984, a toxic gas leak in Bhopal, India killed nearly 3000 [sic] people. The tragedy was terrible. So was the seeming incompetence of so many high Union Carbide functionaries, who where [sic] paraded before the camera. They appeared never to be able to get their stories straight.

As Reid Buckley watched these decent men squirm and fumble, he thought how unnecessary that humiliation was. He began testing a workshop to teach executives how to express themselves with poise under duress. The result four years later was the opening of the Buckley School.

We wrote quite a bit about Bhopal on the 20th anniversary last year, but Roger ably sums up all that is wrong at the Buckley School:

Pity the poor executives, whose humiliation was at least as tragic to Reid as the asphyxiation, blindness and sudden death of thousands of Indians exposed to clouds of deadly poison in their own homes. And to be humiliated by poor, non-Anglo, non-Christian corpses, no less. I guess Kitty considers helping corporate killers get their stories straight to be of more value to society than blogging.

Toxic Chemical Poisoning: Take Two Alka-Seltzers and Call Me In The Morning

SEIU is using health and safety issues in compaign to organize janitorial employees who work for Unicco Service Co., a contractor at the University of Miami's medical complex.

Chemicals are at the heart of the alleged safety issues, according to the report. One dangerous substance used was called Big K, made by Tampa-based Theochem. According to information provided by Theochem, Big K has three dangerous acids in it: oxalic acid, phosphoric acid, and hydrochloric acid.

Ochoa says she routinely used the chemical, as well as others, in enclosed spaces and without gloves. "I thought this is how I was supposed to clean," she says. Theochem recommends the use of rubber gloves and goggles with Big K.

On Thursday, November 18, Ochoa was cleaning a bathroom in the hospital complex with chemicals including Big K and Clorox, when she says she began to convulse and vomit uncontrollably. "I was by myself and I got scared. Then I got a really bad headache and I started sweating. I ... called my supervisor.... After a while, they gave me two Alka-Seltzers. Then another supervisor came and asked if I was still feeling bad. I said yes. He said, "Well, because you're feeling bad, we'll let you go home as soon as you finish cleaning the bathrooms.'"

Ochoa says she has felt sick since the incident.

OK, Unicco....Unicco, now where have I heard that name before? Oh yeah, that would be the same Unicco who employed window washer Jose Camara, who was killed May 8 after falling 90 feet. OSHA fined the company $152,500 for alleged willful and repeat violations of safety standards. Following the announcement of the OSHA citation, SEIU Local 615 and the Massachusetts Coalition for Occupational Safety and Health (MassCOSH) recently called for a criminal investigation of Camara's death, citing UNICCO's failure to implement safety measures ordered in 2003 after a fatal accident involving two window cleaners.

The Florida report, written by industrial hygienist Peter Dooley, alleges eight violations of federal safety regulations.

As usual when health and safety issues are raised during a union organizing campaign, the company dismissed the report as a fabricated orgainizing issue.

UNICCO spokesman Doug Bailey acknowledges noxious chemicals have been used, but asserts all employees have been instructed in their use and given goggles and gloves. "This is a report the union came up with and paid for, so what do you expect it to say?" he asks. "If the union wants to, they can report [the problems] to OSHA and have an investigation."

The union did, in fact, want to report to OSHA and filed a complaint, signed by 34 workers, last week alledging violation of the Hazard Communication Standard (CFR 1910.1200) which requires employers to train employees about the chemicals they are exposed to on the job.

In response to the report, Unicco issued a statement claiming that the report, "bought and paid for by union activists" -- a true statement that would seem more likel to win union support than lose it -- and that the report was "both factually inaccurate and without merit" because they hardly ever use the really dangerous materials and have never had any health problems.

Unicco employees at the University of Miami earn as little as $6.33 an hour, and are not provided with health insurance for themselves or their families. Although the workers are employed by Unicco, the union is trying to put pressure on the University to force Unicco to recognize the union. UNICCO staff at schools such as Harvard earn between $13 and $14 an hour and have fully paid health insurance.

Itty Bitty Steps Forward On Chemical Plant Security?

The NY Times praises Senator Susan Collins (R-ME) and Joe Lieberman (D-CT) for introducing some decent legislation to tackle the chemical plant security issue. That's the little problem that the Times describes:

If terrorists attacked a chemical plant, the death toll could be enormous. A single breached chlorine tank could, according to the Department of Homeland Security, lead to 17,500 deaths, 10,000 severe injuries and 100,000 hospitalizations. Many chemical plants have shockingly little security to defend against such attacks.

The problem of securing chemical plants from terrorism has allegedly been at the top of the homeland security agenda since 9/11, but after the chemical industry succeeded in crushing the original bill introduced by NJ Senator Jon Corzine, no progress has been made.

The disputed issues were who would have authority -- the logical choice being the Environmental Protection Agency. The chemical industry feared that the EPA may end up being too hard to control (in future administrations, not this one) and advocated placing authority at Homeland Security.

The other issue is how to make chemical plants secure. The favored solutions of the chemical industry and Congressional Republicans are more guns, higher gates and tougher guards. Corzine, the Dems, labor and the environmental community advocate adding inherently safer technologies to the "Three G's" -- safer substitutes for highly hazardous chemicals, and where they can't be replaced, storing them in small quantities. The advantage there is that you're reducing or eliminating the terrorist's target, as well as reducing the chance of a "home-grown" chemical catastropher like Bhopal.

Since Congress has refused to act for so long, states, such as New Jersey, have begun passing their own legislation. So now we have a new problem -- the right of states to have stronger regulations than the (eventual) federal regs.

The Times notes that the proposed Collins/Lieberman bill addresses one of those problems (pre-emption), ignores another (inherently safer technologies), and apparently admits defeat on the third (Homeland Security vs. EPA).

Until recently, it appeared that the bill might include pre-emption language, which would block states from coming up with their own chemical security rules. That would have made the bill worse than no bill at all. New Jersey has just imposed its own chemical plant security rules, and other states may follow. These states should be free to protect their citizens more vigorously than the federal government does, if they choose. To Senator Collins's and Senator Lieberman's credit, the bill now expressly declares that it does not prevent states from doing more.

The bill's biggest weakness is that it does not address the issue of alternative chemicals. In many cases, chemical plants in highly populated areas are using dangerous chemicals when there are safer, cost-effective substitutes. A strong bill would require chemical companies to investigate alternatives, and to use them when the cost is not prohibitive. Senator Lieberman has said that he hopes to strengthen the bill's approach to alternative chemicals, which would be an important improvement.

In Washington one measures progress in steps forward that are always accompanied by steps backward. Where will we end up on this?

Stay tuned.

Tag! They Finally Got me: The Dreaded Meme of Fours

I've escaped up until now, but Susie over at Suburban Guerrilla finally tagged me with the dreaded "Meme of Fours." (In the blogosphere, you actually have to respond to these or it's eternal bad luck -- all your readers drift way, your get blogger's block, your fingers forget QWERTY...)

Four jobs you’ve had in your life: Plumber's assistant, supermarket bagger, Assistant Director of Research fo rSafety and Health, Special Assistant to the Assistant Secretary of Labor for Occupational Safety and Health.

Four movies you could watch over and over: Who'll Stop the Rain, Off The Map, Lion in Winter, "Z"

Four places you’ve lived: Bologna (Italy), Bonn (Germany), Palos Verdes Estates, CA, Takoma Park, MD

Four TV shows you love to watch: ER, West Wing, Alias, Lost

Four places you’ve been on vacation: Balkans, Outer Banks (NC), Italy, New Mexico

Four websites you visit daily: Suburban Guerrilla, Effect Measure, Political Animal, SirotaBlog

Four of your favorite foods: barbecued ribs, calimari, goose, grapes

Four Places You'd Rather Be: West Virginia, Italy, Costa Rica, In a Democratic administration

And now it's my turn. I'm tagging the recently-returned-honeymooner, Nathan Newman, the blogger most likely to get a pair of cement overshoes from his old friends, David Sirota, blogger and Senate candidate Jonathan Tasini, and for a view from the dark side, Pat Cleary at Manufacturers (NAM) Blog.

You all are IT. Ignore this at your peril.

Pensions:NY Transit Strikers Show Value Of Unions

Labor reporter Steven Greenhouse has an article in the NY Times today about the nation-wide battles that workers are fighting (and generally losing) to preserve their promised pension benefits. The MTA's attempt to raise the pension contributions of new New York transit workers was a major cause of the recently ended strike.

Many officials and fiscal experts assert that across the nation government pension plans face a shortfall of hundreds of billions of dollars. From New Jersey to California, government officials say that attempts - either through contract fights, legislation or public referendums - to limit the amount of money that states and cities contribute to pensions are inevitable and overdue. Labor unions, for their part, say that the worries are overblown.

"Every level of government in New York City, New York State and in states across the country face large and growing pension obligations," said E. J. McMahon, a budget expert at the Manhattan Institute, a conservative research group. "If nothing is done to bring pensions under control, all the other headaches that state governments will be facing in the next 20 years on needs like education and health will be enormously worse."

You hear a lot of that, but as Greenhouse points out, that's not the only story:

Many government employees and their unions assert that the campaign to trim pensions threatens America's social contract for the middle class: a respectable pension.

Saying that in recent contracts they had sacrificed wage increases or better health benefits for solid pensions, many public employees and their unions assert that governments are betraying their commitments by seeking to now cut pensions. Further, they argue that much of the shortfall in pension financing could be erased by a strong stock market in the next several years.

"A lot of people are exaggerating the size of the problem," said Gerald McEntee of the American Federation of State, County and Municipal Employees, which represents 1.4 million government workers. "Right-wing think tanks and conservative Republicans want to do away with traditional pension plans and replace them with much-cheaper 401(k)'s at the same time they want to give all these tax cuts to the rich."

Now, over the past week I've been communicating about the strike and expressing my extreme disappointment with those who think that the "greedy" transit workers should be happy to give up benefits because they're already much better off than many other workers.

NY Mayor Michael Bloomberg exploited that sentiment during the strike:

Mayor Bloomberg repeatedly called the strikers greedy. "The public says, 'I don't want to pay more taxes and I don't get these kind of benefits,' " he said yesterday. "You have no idea how many e-mails I got, 'I don't make that kind of money. I don't have those kinds of pension benefits. Why are people striking?' "

But read further. Greenhouse goes on to analyze the reasons that some workers are better off than others:

Nationwide, 90 percent of public-sector workers have traditional benefit plans - known as defined-benefit plans because retirees receive a defined amount each month- while just 20 percent of private-sector workers do. In 1960, 40 percent of private-sector workers were in traditional pension plans. One reason for the disparity: 36.4 percent of government employees belong to unions while just 7.9 percent of private-sector workers do.

So, in other words:

Union = Defined-benefit pensions: good.

No Union=Defined contribution pensions (where you contribute a defined amount, but what you get back depends on how your investments behave): bad.

Now, there are two possible conclusions to these equations:

1. Damn unions are greedy. They're ruining America. Why should those transit workers have a right to better pay and benefits than I have? (And why, or why do they have a right to inconvenience me to keep those outrageous benefits?) They should face reality and be satisified with what I and everyone else I know has submitted to.
   
   OR
   
   
2. Hmm, looks like belonging to a union means better pay and benefits. Maybe I should organize a union that would help me fight for better pay and benefits.

As I've written before, in a race to the bottom, there's no finish line. Who's to say, following Option No. 1 to its logical conclusion, that someone else doesn't come along a bit later and say Unreliable pensions with high employee contributions? Look at all the workers in this country that don't have any pensions. How dare you protest when I take the entire pension away, you greedy bastards!"

Health and safety protections? Look at the workers in Mexico and China who are dying by the thousands. How dare you object to abolishing OSHA!

But looking back at history, is that the way human progress has been made? What if people who were working 60 hour weeks with lousy pay, and no vacation days or holidays or sick days or health and safety protections had said, "Gosh, look around, there are people even worse off than I am, making even less money and working even more hours. Maybe I should just be happy with my lot in life, put my head down and get back to work."

That logic would undoubtedly make perfect sense to billionaire Mayor Michael Bloomberg. Luckily for all of us, that's not the way that workers thought throughout history. Those who advocate that mindset today are basically in favor of reversing the course of human progress.

Not a world I'd want to live in.

Related Stories

• Strike Postscript: In Appreciation of Public Employees
• Lives And Deaths Of NY Transit Workers
• Blogging The Transit Strike
• NY Transit Strike: More Than Just Money

To Cause Cancer, Or Not To Cause Cancer: (Hint: Wall St. Journal says it depends on who's funding the study)

Here I am, trying to have a nice vacation, read a novel or two, keep blogging to a minimum and what do I see in the Airport store (after missing our flight to California due to gargantuan lines and too few workers - -thanks United), but headline in that pinko radical, anti-busines publication, the Wall St. Journal, entitled: “Study Tied Pollutant to Cancer; Then Consultants Got Hold of It.”

How could I resist?

Now, I wonder what the American people would say if you did a poll of the American people, asking them whether they thought that regulatory protections addressing chemical pollution of our water, air and workplaces was based only on objective scientific studies by scientists sincerely interested in the truth.

I honestly don’t know, but if the answer to that question was “yes,” they’d be WRONG, WRONG, WRONG, according the Journal.

This is a story about a Chinese scientist, Dr. Zhang JianDong who did a groundbreaking study showing that Chinese villagers who drank water contaminated with chromium 6 were dying at a significantly higher rate of cancer than unexposed people. But ten years later, and article published under Zhang’s name reversed that finding, concluding that the cancers were not caused by chromium, but by the villagers’ “lifestyles” and other factors.

Chromium-6 is well-known to cause lung cancer when inhaled, but its role in causing cancer when swallowed is more controversial.

How can we explain this turnaround? New data? Better analysis? No, the main factor seems to be that the second article was written by a company called ChemRisk, at the request PG&E Corp, the utility that had been forced to pay $33 million to a California town, after residents, assisted by “feisty paralegal” Erin Brockovich, for leaking chromium into their water. PG&E is again facing litigation by residents who accuse the utility of polluting their water with chromium.

Although the second Zhang article was written by ChemRisk, it was “signed” by Zhang after his death, even though evidence shows that he never agreed with ChemRisk’s conclusions. Then the “new” study was submitted to (and later published by) the Journal of Occupational and Environmental Medicine signed by a ChemRisk scientist who did not reveal that he worked for ChemRisk.

The implications of this scientific fraud, as the Journal points out, are not limited to a single lawsuit – it affects the strength of numerous state and federal regulations designed to protect people against chemical contamination. For example, after the updated 1997 study, the U.S.Agency for Toxic Substances and Disease Registry concluded that the Chinese cancers reflect lifestyle factors, an assertion that was rejected by Zhang.

Then in 2001 a special panel of the California Department of Health Services concluded, based on the 1997 study, that there was no need to tighten chromium-6 standards. One of the members of that panel was Dr. Dennis Paustenbach, who founded ChemRisk. He resigned from the panel before the report was issued due to a “perceived” conflict of interest.

But then the California Office of Environmental Health Hazard Assessment assigned an epidemiologist to look at both studies again. He concluded that chromium exposure was in fact correlated with higer cancer rates, causing the state to set aside the 2001 California DHS report that blamed lifestyle. And based on those new findings and other studies, California is soon expected to propose a safe limit for chromium-6 in drinking water, the nation’s first such limit on chromium 6.

The implications: the new standard could compel widespread cleanup. According to the Journal, 1,200 water sources in California have chromium-6 levels that are higher than the expected standard. Paustenbach has also been instrumental (and richly rewarded) in convincing New Jersey regulatory authorities to ease chromium-6 cleanup standards – based on the 1997 “lifestyle” study.

Stay tuned for more.

One ironic sidenote. You may recall my post a couple of weeks ago about the Wall St. Journal editorial page attack on Dr. Barry Levy. A letter to the editor of the Journal by Elizabeth M. Whelan, M.D., President of the corporate-supported American Council on Science and Health, mentioned that Erin Brockovich is "widely viewed as the poster child for junk science." I'm sure the Journal will now want to write a letter to Dr. Whelan, requesting an official retraction. I'd also like to suggeset that Wall St. Journal editorial page writers actually take the time to read their own newspaper. They might learn something.

But I'm not holding my breath.

Update: The documents behind the Wall Street Journal's story on chemRisk and chromium are posted on the Environmental Working Group website at http://www.ewg.org/reports/chromium. The EWG obtained the documnents and gave them to Wall St. Journal reporter Peter Waldman.

Off To Celebrate The Winter Solstice

Blogging will undoubtedly be lite over the next week, although I doubt I'll be successful resisting the lure of the computer for the entire time I'm in L.A. with the parents and inlaws.

I want to end the year with some thank you's to some special people:

• All of the people who send me stories to write about so that I can spend my time ranting and spewing, instead of searching. Particular thanks to Jonathan Bennett at NYCOSH, and a few others who need to remain nameless
• All of the people who send me money. I'm not getting rich on it, but I was able to buy a new computer (for which I am profoundly thankful every crashless day since), and the little bit of extra cash allows me to justify taking vacation days to speak at health and safety conferences.
• All the people who invite me to come and speak. I can't make them all (not enough vacation), but I do enjoy getting away from Washington to talk with you all.
• Other bloggers who inspire me with your insight, analysis, wit, wisdom and energy.
• Everyone who takes the time to submit a comment -- even critical comments -- and e-mails. I read them all, even if I don't always respond.
• Family members of workers killed on the job who inspire the rest of us by putting their lives into making sure it doesn't happen to anyone else.
• Tammy, without whom the Weekly Toll would not be possible.
• Everyone who sends out a group e-mail and forgets to put the addresses in the bcc box (allowing me to scarf up the addresses and send them all a free copy of Confined Space).
• All of you readers out there who grow more numerous every day. Keep passing it on. There are still several million people who haven't read Confined Space yet.
• My family, who still has a dim, distant memory of a father and husband who doesn't get sucked down to the basement every night.

So have a happy holiday, with family, friends or whomever makes you feel good. And finally, as you look forward to promise of the New Year, remember...

IT'S AN ELECTION YEAR. Let's make it a good one.

Strike Postscript: In Appreciation of Public Employees

Well, the NY transit strike seems to be over. I'm not sure of the outcome yet, but I'm left with a rather sour taste in my mouth about a few things.

David Sirota had the exact same feelings about many people's "support" for the NYC transit strikers that I did: they fully support labor unions and workers in principle, but get pretty damn pissed off at all the messiness and inconvenience that it causes when people are forced to take some action to preserve their wages, benefits and working conditions. And then there's the silent (or not so silent) resentment that public employees often have better pay and benefits that many private sector employees who are "better educated."

As Sirota wrote:

And there, really, is the ultimate contradiction of the argument against the transit workers. You can't simultaneously argue that the workers are absolutely essential to the city's way of life, while also arguing that they should accept pension/benefit cuts. Because if something is that valuable to you, then you need to actually pay a premium for it.

"Friends" like that are only a shade better than types like Steven Malanga conjuring up the ghost of Ronald Reagan in the Wall St. Journal (subscription required). Malanga's upset about the "porcine" benefits earned by NY public employees -- outrages like fully paid health care, pensions and decent wages -- the same benefits that most American manufacturing and industrial workers earned until relatively recently:

Public unions rarely have to strike to win such benefits. The vast and growing political power they wield in state legislatures and city halls is usually enough to swing contract negotiations in their favor. But the TWU has always been a militant organization, whose leaders, egged on by the membership, seem engaged in a game of one-upmanship even with other unions.

But now New York officials should take a page from President Reagan's playbook: The MTA should start sending out termination letters to striking workers for breaking the law, and hiring a new work force -- including offering jobs to current workers, but on terms set down by the MTA.

While rebuilding the work force, transit officials could unleash the privately owned van services and bus lines, which they currently prohibit from operating along public bus lines, to protect the MTA's and the TWU's monopoly. The MTA should begin handing out long-term contracts for these operators to provide alternate, competitive services on a permanent basis.

Between the "friends of labor" who don't want to be inconvenienced, and the Malanga types who want to just fire the lazy bastards, does anyone really understand who provides the services that are essential to the life of New York city -- and the country?

Think about it. Let me take you to a world without public employees....

Don't bother flushing your toilet. It just empties into the back yard because there are no wastewater treatment plant or sewer workers to fix the lines and treat the waste on the other end.

Need a trip to the store? Get out the horse because there's no one out there fixing the roads.. And make sure you drive extra carefully with no working traffic signals, no traffic cops and lots of people driving without licenses. Better take the gun along with the horse, because there's no law enforcement and no corrections officers to guard the criminals that had been apprehended.

Oh, and if you're water still works, save it up. Because if your house catches on fire, there are no fire figters to put it out. Don't try actually drinking the water though, because without EPA enforcers, it's too polluted to even give to your horse.

Of course, you can always put the kids to work, because there's no school or teachers for them to go to anyway. But they might as well stay home and inside anyway, because the air's become too polluted for them to play outside. Anyway, there's no time to play, because they'll be tending the garden you planted when you realized that there are no FDA inspectors to check the meat you used to buy and ensure that your veggies aren't full of carcinogenic pesticides. And, come to think of it, I'm not so sure about that garden either, because the soil's no so good anymore. Without those feared regulators, we've got lead back in gasoline and house paint. Turns out it was good for you.

Hopefully you still have a job, but good luck getting there without public transportation. Anyway, you'll be climbing over the garbage just to get to your car because no one's picking up the trash. And you better have a pretty nice insurance policy, because without anyone out there enforcing workplace safety laws, you've got a much lower chance of coming home alive and healthy.

True, you can always fly off to somewhere where life is better, but would you get on an airplane with no government authority making sure maintenance is done correctly? Are all those airplanes falling out of the air due to faulty maintenance done by underpaid, untrained workers? Who knows, because there's no NTSB inspectors left to investigate plane crashes? If you do manage to get away from it all, don't forget to take grandma with you. She'll need you more than ever without Medicare, Medicaid and public hospitals.

Sure, you could just privatize everything as the Wall Street Journal recommends. I'm sure all those minimum wage, untrained workers with no benefits would be motivated to provide quality service -- even if you could afford it. But you may have to spend an extra night a week paying your school, road, private police, private fire, road repair and garbage collection bills, in addition to the water, electricity and gas bills you already pay. (That is, unless Halliburton is hired to run the entire country.)

Of course, you could complain to your political representatives, but who are they going to listen to? You, or the companies who make the voting machines and run the elections now that elections have been privatized?

There are a couple of bright sides though: Lower taxes and no public employee strikes.

Among all of my white collar acquaintances are several who worked at some point in their lives as construction workers, dish washers, and factory workers -- they look back kind of fondly and some even wish they could do it again. But I rarely find anyone who expresses any desire to do many of the unpleasant, dirty and dangerous jobs of the public employees I used to represent: wastewater treatment plant worker, corrections officer, mental health aides, sanitation workers, etc. These are mostly jobs that people don't even want to think about in any detail, even though they're essential to our lives.

What we're seeing here are public employees who, because of the work they do and the unions they belong to, are finally earning some decent wages and benefits and the opportunity to retire at a reasonable age. So instead of complaining about the inconvenience they've caused by fighting to keep those benefits, maybe people -- especially good, labor-friendly liberals -- would be better putting their energy into actively supporting the strikers and then going out and organizing unions and striving to attain those same benefits and privileges for themselves and others in this society.

We'll give Sirota the final thought:

The lesson for New Yorkers in all of this should be very simple: you really value transit workers, way more than you ever thought. They ARE "essential" as you say - and maybe instead of applauding your politicians when they give away billions to swimming-in-cash companies like Goldman Sachs, you should be angry that they aren't focused on what you now realize is the most "essential" thing that your taxpayer money needs to be going to: keeping your city's basic services running, and responding to the modest demands of workers who do that.

Luckily, polls say most New Yorkers innately understand this and side with workers. But as the strike ends, those who don't understand this basic reality and who still blame workers for having the nerve to fight for their rights need to take a real hard look at themselves in the mirror and ask whether deep down in that place they don't talk about at parties, they really hold a deep hatred for working class people in general.

Indeed.

Related Stories

• Lives And Deaths Of NY Transit Workers
• Blogging The Transit Strike
• NY Transit Strike: More Than Just Money

Lives And Deaths Of NY Transit Workers

Lots of trees being killed and electrons being wasted talking about the hardships of those trying to get to work during the strike.

Very little written about the hardships of being a NY transit employee.

For a little enlightenment, I searched the Confined Space archives and came up with a number of posts about the lives and deaths of NY transit workers.

First, for those who think that unions no longer serve a useful purpose, read this post from earlier this year about a Wall St. Journal article describing how unions like TWU Local 100 contributed to creating the middle class in New York, and are trying to preserve it now.

New York's MTA, with an annual operating budget of $8 billion, has been a haven for African-Americans seeking upward mobility since the 1940s, when Adam Clayton Powell Jr. joined other Harlem activists in pressing city-owned and private transit lines to hire more blacks. The Transport Workers Union's legendary president, Michael Quill (1905-66), was active in the civil-rights movement and once brought Martin Luther King Jr. to address workers, then mostly white, on the subject. Today, about half of the membership of the union's Local 100 are either African-Americans or West Indians. The local's president, Roger Toussaint, arrived in New York from Trinidad in 1974 and started at the MTA as a subway cleaner, as did several of the top MTA managers with whom he negotiates.

Then there's this post about the hazards to workers and passengers in the New York subway tunnels. The TWU is fighting for better marked exits, brighter tunnels, improved evacuation procedures and more employee training on helping passengers escape underground dangers.

And here's how the MTA treats you if you're unlucky enough to be killed on the job:

Sometimes you gotta wonder…..Last January, NY subway conductor Janell Bennerson was killed when her head slammed into a fence as she leaned out of the cab. The New York Transit Authority has now determined that her death was her own fault because she leaned out too far and kept her head out longer than the TA requires to watch the platform.

And here's a post about howTWU Local 100 came to the defense of a New York City Transit (NYCT) supervisor who was charged with responsibility for the 2003 death of a transit worker, when it was actually due to inadequate staffing levels.

Finally, there's this death of a subway motorman a few weeks ago that "highlights the need for transit workers, including motorman and conductors, to have CPR training and ready access to defibrillators, which can save the lives of heart-attack victims if administered quickly."

Rubbing The Union's Noses In The Mud

I also ran across this article today by long-time labor activist, Bill Fletcher, Jr., former Assistant to the President of the AFL-CIO. He currently serves as President of TransAfrica Forum.

The strike that truly commenced on Tuesday, December 20, 2005, is a strike against the notion of New York being the Emerald City. It is a strike of workers who are insisting that they, as working people, have the right to work AND live in the City of New York. That means that they must have wages and benefits that make it possible to live stable lives. It must mean that the conditions of their employ are safe and secure and that they are treated like human beings rather than as trained animals.

Yet the strike is about something else as well. The Metropolitan Transportation Authority is trying to sneak in something very familiar to workers around the USA. They want a two tier situation, that is, a differential in the treatment between newer workers and older workers. In this case, newer employees would need to pay more in healthcare than older employees. Two-tier situations are toxic. The newer employees come to resent the older employees, feeling that they have been sold out or sacrificed. It completely undermines the morale of a workplace, and thereby has a detrimental impact on the ability to get the job done. Thus, TWU Local 100 is right to stand up to this.

What makes this entire situation so completely bizarre is that the MTA has been running a substantial surplus. In this situation, the demand for givebacks is completely absurd. The only reason that givebacks could be demanded under these circumstances is to simply weaken the union and rub their noses in the mud.

Related

• Blogging The Transit Strike
• NY Transit Strike: More Than Just Money
  

"Democracy" In Action; Or "Why Washington Drives Me Crazy"

Even though I blog almost exclusively about workplace safety and labor issues, I follow all Washington politics very carefully. I manage to get most of my frustration out by writing Confined Space, but occasionally life in DC gets so overwhelming that I even have to write about general politics.

This is what's making me rip up the newspapers and throw things at the radio lately.

Example 1: You may have heard that the Republicans lost a vote today on approving oil drilling in Alaska National Wildlife Refuge (ANWR). Now, if you're not following this issue carefully, you might assume this was a regular up and down vote. Not even close. First, most controversial legislation needs 60 votes to pass in the Senate because Senators can filibuster (talk indefinitely), and 60 votes are needed to shut it down for a vote. But the Republicans couldn't muster 60 votes, so they came up with something else: attach it to the budget bill whcih can't be filibustered. But they couldn't even get 50 votes for that, so they tried tactic number 3 (courtesy of Alaska Senator Ted Stevens): Put it on the Defense appropriations bill -- and add Katrina relief to that. No one would dare vote that down, leaving our boys defenseless and Katrina victims rotting in the mold, right?

Wrong again.

The Senate today failed to pass a major defense appropriations bill after a Democratic-led bloc stymied it with a filibuster in an effort to force removal of a controversial provision on oil drilling in an Alaskan wildlife refuge.

With 60 votes needed to overcome the filibuster and cut off debate on the bill, its backers fell short by four votes. The tally on a motion to invoke cloture so the Senate could move to a vote on the bill itself was 56-44.

***

Voting to block the bill were 40 Democrats, one independent and three Republicans -- Lincoln Chafee of Rhode Island, Mike DeWine of Ohio and Bill Frist of Tennessee. Frist, the Senate majority leader, had supported passage, but once the voting numbers became clear, he cast a "no" vote for procedural reasons so that he could bring up the drilling issue for another vote.

I'll be interested to see what they come up with next....

Example 2: The Republicans did have one victory today. Vice PresidentDarth Vader Dick Cheney flew back from his trip abroad just in time to cast the deciding vote to give the Republicans victory by a nose on the budget bill. The bill included $40 billion in budget cuts that would

allow states to impose new fees on Medicaid recipients, cut federal child-support enforcement funds, impose new work requirements on state welfare programs and squeeze student lenders

President Bush hailed the vote as "a victory for taxpayers, fiscal restraint and responsible budgeting."

Responsible budgeting? Perhaps the President is so worried about getting impeached that he's forgotten about the $56 billion tax cut last week -- conveniently separated from the budget bill so that it would be harder to do the math.

But let's do the math anyway. Let's see. You cut $40 billion in spending, but then take away $56 billion in revenues -- according to my childrens' first grade math book -- that would put the budget $16 billion further in debt. I don't think even a first grader would call that "responsible budgeting."

And it wasn't just any budget-increasing tax cut, it was your characteristically typical Republican budget-increasing tax cut:

The Tax Policy Center, run jointly by the Brookings Institution and the Urban Institute, has concluded that the bottom 80 percent of households would receive 15.8 percent of the House tax cuts' benefit. The top 20 percent would receive 84.2 percent of the benefit. Households earning more than $1 million a year would get 40 percent of the tax cuts, or an average reduction of nearly $51,000.

In other words, it's your basic take 'from the poor and give to the rich.'

Example 3: When both the House of Representatives and the Senate pass similar bills, they go to a "Conference" of leaders of both Houses to iron out the differences. Then the bill is sent back to the House and Senate for final votes. Republicans and Democrats sit on the Conference committees.

But the Republicans just invented something new. The pharmaceutical companies have been trying to pass a bill that protects vaccine manufacturers from product liability claims in the event of an Avian flu pandemic. But there wasn't enough support. So the Republicans added it to the fiscal year 2006 Defense Department spending conference report -- after after House and Senate negotiators had already signed the conference report and announced its details to the public (more here).


That's it for you "Democracy In Action" lesson for today.

And yes, this will all be on the final exam, November 7, 2006.

Difference Between Republicans and Democrats

When my children were little, I used to sit them on my lap during the Republican and Democratic political conventions. I wanted to teach them the difference between the two parties as clearly as I could, and in a manner that they could understand at such early ages.

"Children," I said while watching the Republican convention. "Look at how angry and ugly those people are..."

Particularly after they lose a vote.





Sens. Mitch McConnell, left, and Ted Stevens
leave the floor after showdown over drilling in ANWR

It's Blog Award Time Again. Vote Early and Vote Often

Coming down with my annual case of shameless self-promotion.

Check my earlier post for the announcement of the annual Koufax blog awards, as well as LabourStart's Labor Website of the Year.

This is not only a chance to vote for your favorite blog (can't imagine which that would be...), but also to check out the other amazing blogs out there. But be careful, they can be addicting.

Blogging The Transit Strike

Most of the major blogs seem to be ignoring one of the biggest news stories of the year: The New York City transit strike. (It's not every day that 34,000 workers put their jobs and livelihoods on the line to preserve their pay, benefits and rights despite draconian penalties by the courts and a generally unfriendly public.) Some of the "big" blogs that covered the strike are listed below. Read them. Read the comments too for a sometimes inspiring, sometimes depressing taste of what blog readers think about the strike.

One presumes that most of these blog readers are liberals, yet in many cases support for the strike is surprisingly shallow or even hostile. The strikers' issues aren't well understood (fault of the new media or the union?), people assume the strikers are lazy, greedy slugs, people don't understand that strikes are not vacation days for the strikers -- especially when they're ruled illegal by the courts and strikers are being fined.

People fall into the trap of assuming that because most workers these days get less than the transit workers in terms of pay and benefits (thanks Wal-Mart), that the transit workers should face reality, settle for less and be happy about it. They forget the important lesson that in a race to the bottom, there's no finish line.

People assume that struggles like these should somehow come without any kind of hardship for the public. I feel bad for people walking to work in frigid New York, and worse for those low income folks who can't even get to work. But ultimately, the strikers are sacrificing not just for themselves, but for all of us. Workers in this country didn't get where they are today (in terms of decent pay, vacations, 8-hour work days, pensions, health care benefits, etc) without struggle, often bloody, illegal struggles that may have inconvenienced or even hurt "innocent" bystanders. And much of the reason that all of those hard-won benefits are being lost today is that more people aren't in unions and willing to put their jobs on the line to maintain those hard-won benefits.

Finally, people complain that the bad strikers are breaking the law because the "Taylor Law" makes public employee strikes illegal in New York. What people need to understand is that the Taylor law is a shameful example of how this country treats public employees like second-class citizens. Unlike private sector employees, public employees have no federal right to even form unions, much less strike, unless the state gives them that "privilege." To this day, only about half the states in this country provide public employees with the right to form unions and bargain collectively.

To make matters worse, public employees are not covered by OSHA unless the state chooses to cover them. Only 24 states provide their public employees with the right to a safe workplace (NY is one of those, although the law has suffered under Pataki.)

The rights that public employees do enjoy were earned through strikes and militant actions in the 1960's and 1970's, and political action after that time. Now, Republican governors are starting to take some of those rights back and we just saw CA Gov. Schwarzenegger attempt (unsuccessfully) to eviscerate the political power of public employee unions.

So what we're seeing in NY is just more of the same discrimination of those who make life in this country livable.

OK, enough of my blathering. Read what others have to say:

• Jonathan Tasini's Daily Blog: Everyone's Strike

  So, if the riding public is looking for a reason to rally behind the workers, it's this: the workers are willing to endure hardship and lost wages so they can protect the economic futures of those people who aren't even working in the transit system. That's an admirable step, even if a billionaire mayor can't grasp the concept.

  And that stand is one that will have an effect on the tens of thousands of other public employees who will be targets down the road for the same negotiating ploy--undermine the livelihood of future workers by assuming that current workers won't put their own livelihood on the line for people they don't even know. In preparing his members for a strike, and making it clear what's at stake, Touissant has shown, in my opinion, remarkable leadership.

• My DD: On the NYC Transit Strike

  Now, I can understand that many city commuters can't bring themselves to support this strike. Taking away public transportation from a city that relies on it, especially at the holidays, is incredibly hard to swallow. I'm sure the commuters feel that everything can be negotiated to a compromise settlement that works out in everyone's best interests and that a full strike wasn't necessary. But I'd challenge each and every one of them to find a job that's as dirty, tough, and dangerous as one being done by a city transit worker.

  We'd all do well to keep in mind that, at the end of the day, this strike is about nothing short of the dignity of workers.

• Steve Gilliard: On Strike

  Anyone who thinks these people make too much ought to consider why much of New York is thriving and not a ghetto wasteland. Those salaries build homes, pay taxes, buy cars. In short, while you tour Harlem and live in Billysburg ii is because people with stable jobs and good salaries buy homes and live there. The dollars paid by the MTA to the TWU's members go to the city, support the city, unlike the suburban based police and firefighters.
  
  Yet, Bloomberg and Pataki disregarded that and the effect on business and backed the union into a corner. And they deserve the blame as much as the union or MTA for this. They tried to bully these people like Giuliani did, but that leadership lost their jobs because they buckled.

• David Sirota: The Superlaws That Undermine Working Americans

  But whether the unions demands are "fair" or not is not the real point here – the point is that superlaws like the 1967 statute being used to break the workers' strike undermine the entire concept of unions and workers' rights. Ask yourself a question: what is the one tool that ordinary, blue-collar workers have that can really help them assert economic power in a way that can minimally compete with the massive economic institutions (corporate/government) that run our society? The answer is ultimately through the threat of a strike – whether a strike happens or not. Without a union having the power to strike, they cannot threaten to strike and that means there is no real reason an employer should listen to any union requests, because the employer knows the union can't back up its requests with any consequences.

• And, of course, my Confined Space piece yesterday: NY Transit Strike: More Than Just Money

McWane's Latest High Crimes

When Santa sits down to decide who's been naughty and who's been nice, McWane and its subsidiary Atlantic States Cast Iron Pipe Co. will be in for a major lump of coal.

Atlantic States is on trial in New Jersey for a variety of environmental and workplace crimes. McWane, you may remember, is the company made notorious for its workpace safety and environmental crimes, first publicized in a 2003 New York Times/Frontline series. The most disturbing thing about this story and all the other McWane stories (see the list at the end of this post) is not so much what we know about McWane's crimes, but all that we don't know about what is going on in other workplaces across the country that OSHA (or the New York Times) never has a chance to get to.

Tom Quigley of the Easton, PA Express-Times is covering the trial. You really need to read all the articles to get the full flavor, but here's a taste of Atlantic States' high crimes and misdemeanors.

• Federal prosecutors allege a March 19, 1998, oil slick on the Delaware River stemmed from large oil puddles and other sources within the Atlantic States plant.

• Atlantic States plant managers intimidated workers. :

Isabel Mendoza said he suffered serious burns on one hand while working near the foundry's' huge production oven. He said he later hired an attorney to help him file a worker's compensation claim.

But Mendoza said Prisque told him he would only get $700 or $800 in the settlement.

"He said 'What are you going to do with that money if you don't have a job,'" Mendoza testified.

Mendoza said he understood Prisque's words to mean he'd be fired if he pursued his claim. Mendoza told jurors he called his attorney and canceled the claim.

• Plant managers ordered workers to lie to OSHA inspectors:

Mendoza said the former plant manager also ordered him to lie to a federal Occupational Safety and Health Administration investigator after a co-worker was injured on June 25, 1999, while operating a saw used to cut the big pipes.

After the injury occurred, Mendoza was told to wear a hardhat with a face shield, goggles, safety glasses and gloves while operating the saw, he testified. He said after the injury, a wire mesh was added to a safety shield between the operator and the saw.

Prisque told Mendoza to tell the OSHA inspector that operators always wore the protective safety equipment and that the wire mesh on the shield was in place at the time of the accident, Mendoza said.

He told jurors he lied to the investigator as ordered. "I wanted to keep my job and put food on the table," he said.

***
Defense attorneys on Thursday cited reprimands issued against Mendoza for failing to abide by the safety rules in place at the foundry. Mendoza admitted he did not wear safety equipment and said the equipment made if difficult to see.
He said everyone at the plant did it and workers would quickly put the gear on when they saw a manager come by. Then they simply removed it.

"It was a joke," he said.

Donning safety goggles and a hard hat with a safety shield, O'Reilly strolled in front of jurors as he questioned Mendoza about the company's rules requiring workers to wear the equipment.

"You can wear it," Mendoza said, "but then you can't work."

(Note: Reread the above paragraph and then think about Senator Michael Enzi's (R-UT) newly introduced OSHA deform legislation that would penalize workers for not wearing personal protective equipment like goggles.)

• To save money on equipment maintenance, Atlantic States managers forced employees to work in unsafe conditions:

Robert Owens described the day a blade from a cutoff saw broke off and struck him on the head while working at the Atlantic States Cast Iron Pipe Co. in Phillipsburg.

Owens told jurors Monday during the ongoing Atlantic States trial that he was cutting pipe when the injury occurred. He said the next thing he remembers is regaining consciousness as workers picked him up off the floor with blood running down his face and a throbbing sensation in his head.

"I couldn't see out of the left eye," he said. He now has a prosthetic eyeball that replaces the eye he lost in the June 25, 1999, accident at the foundry.

"I always say if I got a million dollars tomorrow I still wouldn't get my sight back," the 57-year-old Stroudsburg resident said after testifying. Owens said another plant employee walked him outside and then drove him to Easton Hospital in a pickup truck.

Owens said he lost his eye in the accident and also suffered nerve damage and a head injury that led surgeons to put two plates in his head. Owens testified that he was working as a relief man in the foundry's finishing department when the accident occurred.

The job required him to fill in at various work stations as employees took their breaks. One of those stations involved operating the cutoff saw.

He said a safety shield designed to protect workers from flying debris was always too dirty to see through and he had to bend and extend his head beyond the shield to see. Owens said he also couldn't wear the safety goggles supplied by the foundry because they always fogged up. He told jurors he often had to dodge flying blade parts when operating the saw.

"I would basically have to step to the side or get out of the way the best way I could," he testified.

He said the saw's 24-inch blades would gradually get smaller as a result of cutting the pipes and often shatter. Owens said he noticed the blade was small when he stepped in to relieve the cutoff saw operator about noon the day of his accident.

Defendant Craig Davidson, the finishing department superintendent at the time, discouraged workers from using too many saw blades, Owens told jurors. He said Davidson told him the blades cost $100 apiece.

• Atlantic States let oil, water and other material raining down from the casting machines wash into a storm drain that leads to the Delaware River. Some of the liquid was emptied into holding tanks that would overflow and spill onto the ground, then run into a stormwater drain leading to the Delaware River. In addition, plant managers would order employees to empty a pit full of oil and water by running a hose out to an area near a railroad bed by the foundry and pumping it onto the ground.


• Atlantic States employees were regularly ordered to take steps to skew the results of smokestack emissions testsconducted by state and federal environmental inspectors. When the inspectors were doing air monitoring, cleaner plate and structural steel was melted in the furnaces instead of the dirtier scrap iron and old cars that were normally melted in the furnaces.

McWane Inc., Atlantic States' Alabama-based parent company, sent a representative to the Phillipsburg foundry tell the foundry's foremen and supervisors exactly what to do when an inspector from the federal Occupational Safety and Health Administration paid a visit to the plant.

"Take them to a secluded room away from the facility and call a supervisor," is the instruction Houston said he and others who attended an hour-long meeting received from the McWane official.

Houston told jurors the goal was to "hold them off until a supervisor arrived." Then it would be left to the supervisor to "handle" the OSHA inspectors, he said.

Over the past year: McWane attorneys reached an out-of-court settlement with the widow of a Northampton County man killed in a forklift accident at the Atlantic States plant, was ordered to pay a $5 million fine and complete a $2.7 million environmental project for violating the Clean Water Act and discharging polluted wastewater into a creek from its Birmingham, Ala., plant. Three McWane executives were sentenced to probation and fines and two of the executives were also sentenced to home detention. Meanwhile, McWane's Tyler, Texas, Tyler Pipe pleaded guilty to two felonies and agreed to pay a $4.5 million fine, Pacific States Cast Iron Pipe Co., a McWane division in Provo, Utah, and two executives were charged with conspiracy, violating the Clean Water Act and submitting false statements to the government, and finally, Union Foundry Co. in Alabama, also a McWane division, drew $4.25 million in criminal fines, community service and probation after a guilty plea was entered on the plant's behalf to illegal treatment of hazardous waste and worker safety violations that resulted in an employee's death.

Related Stories

• McWane Indicted Again; Wins Safety Award, November 4, 2005
• Jury To McWane: It's Not Nice To Pollute Mother Nature, June 12, 2005
• McWane Admits to "Environmental Crimes": $4.5 million Fine, March 23, 2005
• Of Fish and Men: Corporate Penalties And The Law
, March 19, 2005
• Another McWane Death
, January 25, 2005
• McWane Employee Admits Illegal Dumping
, May 31, 2004
• More Charges Against McWane, May 26, 2004
• McWane a "Model Corporate Citizen?"....God Help Us All!, December 16, 2003
• McWane/Tyler Pipe: Getting better or Same Old, Same Old?, September 28, 2003
• McWane Fined Again, September 8, 2003
• Oops, McWane Does it Again: Mistakes Are Made, July 24, 2003
• Three Finger Defense: McWane/Atlantic Pipe Talks to the Press, July 24, 2003
• McWane Fingered in Workplace AccidentThe NY Times ..., June 5, 2003
• More McWane Violations: High Crimes, Low Fines, April 15, 2003

OSHA "Guidance" Sows Confusion

As you've read here and in almost every paper in the United States, workers cleaning up New Orleans and the Gulf area are exposed to a large number of hazards. Many of these are "traditional" -- falls, electrocutions, power tools, confined spaces, slips & trips. But others are "new," not clearly identified and not covered by any specific OSHA standards: mold, toxic dust (impregnated with chemical wastes) and chemical spills of unknown origin. In other words, it's a toxic mess down there.

Luckily, one might think, OSHA has the perfect standard: the Hazardous Waste Operations and Emergency Response or "HAZWOPER" standard (29 CFR 1910.120 and 1926.65), which covers workers working at hazardous waste sites or workers engaged in "emergency response" to emergencies involving hazardous substances. Although the standard was originally intended to address Superfund cleanups and chemical emergency responses, it sounds like a perfect fit for Katrina workers, right?

Not so fast. Coverage under OSHA standards is much more complicated than you think. So, to clear things up, OSHA has helpfully issued guidance that is intended to clarify and explain "the conditions in which a response or cleanup activity may fall under the requirements of HAZWOPER."

Sounds good.

Not so fast. I used to work at OSHA, plus I've been in this field going on 25 years -- interpreting OSHA standards, writing OSHA standards, writing fact sheets about OSHA standards -- so you'd think I'd understand what this guidance was saying.

I didn't. So I hung back for a few days, waiting for journalists or some of my colleagues to explain it to me.

They couldn't.

The good news is that I'm not crazy. The bad news is that OSHA is.

For example, on one hand, according to this "guidance":

When the following conditions, or similar conditions, may develop as a consequence of a release of hazardous substances or threat of release, such situations would be considered emergency situations requiring an emergency response effort:

• High concentrations of toxic substances.
• Immediately Dangerous to Life and Health (IDLH) environments.
• Situations that present an oxygen deficient atmosphere.
• Conditions that pose a fire or explosion hazard.
• Situations that require an evacuation of the area.
• Situations that require immediate attention because of the danger posed to employees in the area.

On the other hand:

The HAZWOPER standard does not cover the inevitable release of a hazardous substance that is limited in quantity, exposure potential, or toxicity, and poses no emergency or significant threat to the safety and health of employees in the immediate vicinity or to the employee cleaning it up. These incidental releases also do not have the potential to become emergencies within a short time frame.

You're covered under HAZWOPER's emergency response section if your response involves a hazardous substance. Sounds easy? That would include mold, contaminated soil and other icky looking stuff. Right?

Not exactly:

Hazardous substance means any substance designated or listed under (A) through (d) of this definition, exposure to which results or may result in adverse effects on the health or safety of employees.

[A] Any substance defined under section 101(14) of CERCLA.
[B] Any biologic agent and other disease causing agent which after release into the environment and upon exposure., ingestion, inhalation, or assimilation into any person, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunction in reproduction) or physical deformation in such person or their offspring.
[C] Any substance listed by the U.S. Department of Transportation as hazardous materials under 49 CFT 172.101 and appendices; and
[D] Hazardous waste as herein defined. Hazardous waste means --
[A] A waste or combination of wastes as defined in 40 CFR 261.3, or
[B] Those substances defined as hazardous wastes in 49 CFR 171.8.

And if you're not confused now, check out the charts in the document.

Now, it's possible, (although I doubt it) that this might mean something to an OSHA inspector or attorney in the context of what's going on in the Gulf, but this was released as a document that

will assist workers and employers in determining whether an activity is, or would be considered, an "emergency response" activity under OSHA's Hazardous Waste Operations and Emergency Response (HAZWOPER) standard.

Fat chance.

This is a perfect example of a document that should not be written by attorneys or by Public Affairs people in Washington D.C. It should be written -- or at least tested -- by those in the field, perhaps even by some real employers or workers.

And, although I hate to beat a dead horse (although as someone recently told me, sometimes there's no horse too dead for me to keep beating it), this is also an example of what happens when a government agency that is supposed to address the concerns of workers never talks to any real workers.

The sign outside says "Department of Labor" -- but that's apparently just for show.


Update for Government bashers: This is not an inherent problem of government. Some agencies actually manage to put out materials that are helpful and understandable. Check out the NIEHS Katrina site for example. Now check out OSHA's materials.

Compare.

Discuss.