Senate Returns Stickler To White House For Second Time

Like a tennis game from Hell, the US Senate today lobbed mine safety nominee Richard Stickler back over the White House fence for the second time.

Senate Majority Leader Bill Frist was forced to cancel a vote on Stickler's confirmation in June due the lack of Senate support for Stickler's nomination. Last month, in an unprecedented action, the Senate returned Stickler's nomination to the White House before it went on break. But refusing to take the hint, the President renominated Sticker at the beginning of September. The Senate was obviously not amused and back he goes. Senators Ted Kennedy and Robert Byrd have led the opposition to Stickler, citing his industry background and the lack of commitment to MSHA reform that he displayed at his confirmation hearing.

Byrd and Kennedy made statements today:

Sen. Robert C. Byrd, D-W.Va., said, “Last month, the Senate took a stand for mine safety by sending back to the White House an unacceptable nomination to lead MSHA, and we are as resolute in our stand today.

“We’re again sending a message to the administration that America’s miners deserve better, and we hope that this time it will listen.”

Byrd criticized the White House for nominating a man with a “weak safety record” and for “playing political games with mine safety.

Bush now has three choices. He can renominate Stickler yet again, make a recess appointment while Congress is on vacation, or show that he's taking mine safety seriously and nominate someone who's actually qualified for the job.

Kennedy called for a new nominee:

“We are in the midst of a mine safety crisis — 58 miners have already died this year, more than any year since 2002.

“At this critical time, miners and their families need a strong leader at MSHA. Mr. Stickler does not have the record or the vision to meet this challenge. The president should send the Senate a new nominee.”

MSHA has been operating without a permanent Assistant Secretary for almost two years since David Lauriski resigned in November 2004. Thirty-eight coal miners and 20 metal/non-metal miners have died in the workplace this year which began with the tragic January 2 Sago Mine disaster in which 12 coal miners died.

The Devil And Mr. Fitch Sell Miners Out

Those of us active in workplace safety issues are well aware that some of the most virulently anti-OSHA, anti-union, anti-worker corporate attorney's once worked for the Department of Labor. Were they always evil spawns of Satan, or did they just decide at some point to sell their souls to the Devil for the big bucks? Who knows?

Anyway, it seems that our friend Beelzebub has bagged another one.

Raising safety-violation fines for U.S. mine operators will be time-consuming as well as costly without making miners safer, witnesses told federal officials yesterday.

"It is simply a new tax on the mining industry as a whole," said Edward "Ned" Fitch, recently retired as a litigation attorney for the U.S. Mine Safety and Health Administration, or MSHA. "It is punishing the entire mining industry for the conduct of a few bad apples."

In June, the Mine Improvement and New Emergency Response Act established a new maximum fine of $220,000 for flagrant safety violations, up from the previous $60,000 maximum.

Mr. Fitch was one of three witnesses at yesterday's public hearing at MSHA headquarters, the first of six regional hearings on the act. About 30 people attended.

Fitch has not only taken off his sheep's clothing, but he's also just plain wrong about the "entire mining industry" being punished, according to Ellen Smith, Managing Editor of Mine Safety and Health News:

Mine operators refuse to recognize the fact that if they run a safe and clean operation, they won't get fined!

I recently read an email sent to me written an Oregon stone operator who was complaining about his number of citations and fines going up in the last three years. He too was upset over the proposed civil penalty structure.

My response is this: "if you don't have a violation, then you won't get cited. If you have been improperly cited, then you need to contest the citation, which can be done without an attorney."

Smith points out that not only is it possible to run a mine without getting "punished" by MSHA, but there's actually a website (http://www.safeproinc.com/) that posts mining companies that completed an MSHA inspection with zero citations. She points out that "There are many, many companies that have inspections, and no citations. "

One other little quibble with Fitch's statement. Industry attorneys always argue that there's really no need citations and fines and enforcement, because all companies really want to do the right thing and all you have to do is give them more information about how to do it. Then, when disaster strikes and workers are killed because of a company's flagrant neglect of safety standards, they're dismissed as "a few bad apples" in a barrel filled with law-abiding good citizens. No need to issue more standards or raise fines. Just weed out the bad apples and all is well.

But how do we know if the companies where disaster strikes are really "a few bad apples," or actually "the tip of the iceberg?"

What's another word for "bad apple?"

Unlucky.

Legislative Alert: Chemical Security Bill To Come Up In The House

Yesterday I described the industry-friendly travesty masquerading as a real Chemical Plant Security bill that the House-Senate Conference Committee tacked onto the Department of Homeland Security's appropriations bill last night.

The bill exempts thousands of plants from coverage, pre-empts stronger state protections, exempts water and wastewater treatment plants (even though they often use rail tankers full enough chlorine to wipe out a medium sized city) and has no requirement for plants to even consider inherently safer technologies.

The House may vote on the bill tomorrow, Friday or Saturday. Most of the Democrats will probably vote correctly, so we need a few Republicans. They all have close races, so they may be willing to listen to one of their constituents.

If you're in any of these Republicans' districts, give them a call at (202) 224-3121.

J.D. Hayworth AZ
Richard Pombo CA
Rob Simmons CT
Chris Shays CT
Nancy Johnson CT
Clay Shaw FL
Chris Choclola IN
John Hostettler IN
Mike Sodrel IN
Geoff Davis KY
Anne Northup KY
Charlie Bass NH
Mike Ferguson NJ
Heather Wilson NM
Charles Taylor NC
Peter King NY
John Sweeney NY
Randy Kuhl NY
Jon Porter NV
Steve Chabot OH
Deborah Pryce OH
Jim Gerlach PA
Curt Weldon PA
Mike Fitzpatrick PA
Don Sherwood PA
Henry Bonilla TX
Dave Reichert WA
Frank Wolf VA
Thelma Drake VA

The message is that they should vote to pass the much stronger H.R. 5695, which was passed by House and Senate Homeland Security Committees to replace the industry supported rider in the Homeland Security Funding Bill.

HR 5695 allows states to set stronger standards and gives the Deparatment of Homeland Security the authority to require the use of less dangerous chemicals at high risk facilities as long as it wouldn't impair the business of the facility.

Meanwhile, Senators Barack Obama (D-IL) and Frank Lautenberg (D-IL) issued a press release today blasting yesterday's closed door vote on the bill:

"The sad truth is that this legislation does far more to protect chemical industry interests than it does to protect the millions of Americans who would be at risk if terrorists were to attack a chemical plant," said Senator Obama. "Our inability to secure these sites is one of our greatest security failures since the September 11th attacks."

"We're five years out from September 11th and America still hasn't secured its chemical facilities from terrorists. Instead of adopting the House and Senate plans to protect the nation's chemical plants, the Republicans and the White House went behind closed doors and cut a deal with the chemical industry," said Senator Lautenberg.

***

"This bill explicitly bars DHS from replacing dangerous chemicals with safer alternatives, and it weakens this Administration's ability to better secure these plants," Obama said. "There are serious gaps in our nation's chemical plant security, but this legislation falls well short of fixing the problems."

OK, enough reading. Time to pick up the phone.

Apology Of The Week

Following up on yesterday's Quote of the Week, I'd like to issue the official Confined Space Apology of the Week. Sometimes in order to criticize government agency policies, programs or actions, we use quotes by the people involved -- without necessarily meaning to criticize the people themselves.

You may recall yesterday's "Quote of the Week" went to OSHA Philadelphia spokesperson Kate Dugan who was quoted a explaining that

"Our mission isn't to find a cause for an accident, our mission is to find if there were any violations of safety and health standards."

I worked with Kate when I was at OSHA and always found her to be a dedicated OSHA employee and a staunch advocate of workplace safety and health. She wrote me today to explain that the quote came from a reporter's question about whether OSHA always finds the cause of work-related incidents like the fall that killed Jeffrey Martin. Her answer was that they don't, but they do look for violations of OSHA standards.

Makes some sense in that context. The immediate cause of what made someone fall may remain a mystery, even if the lack of protections are clear.

But the reason her quote (or misquote) was so appealing to the distinguished panel of "Quote of the Week" judges was the essence of truth that it contained. First, the quote might sound to those who don't like the agency, like they don't know what they're doing, but they'll go ahead and cite something, anything anyway.

It's not uncommon to have a major incident, along with injuries, fatalities, etc, and there will always be an OSHA citation, but that citation may have nothing to do with the cause of the incident because the circumstances and evidence don't quite fit into any existing standards because of the way the coverage was defined or some other legal technicality.

A familiar example is the Process Safety Management Standard, an extremely effective regulation designed to prevent explosions and other major incidents in chemical plants and refineries. Unfortunately, it's often hard to use because the amount of chemical involved in an explosion may come in below the threshold amount defined in the standard. So OSHA comes in and cites for faulty extension cords, chemical storage violations or slippery floors-- all real hazars, but maybe having nothing to do with the real cause of the explosion. It's extremely frustrating for workers and for OSHA inspectors.

And then there's the issue of OSHA not being able to look fo rthe more systemic causes of incidents. For example, inspectors may cite for a guard left off a machine that lead to an amputation, but the root cause of the incident (as well as many others incidents and close calls) may be the accelerated production pace and intimidation that leads workers to cut corners.

Those are some of the reasons that we have agencies like the National Transportation Safety Board and the US Chemical Safety Board which were created by Congress to look beyond the regulatory framework into the root causes of airplane or train crashes and chemical plant explosions. They're not bound by Federal Aviation Administration or OSHA regulations. On the other hand, they have no enforcement ability and no way to ensure that their recommendations are enacted.

Finally, as I've written before, after working for a labor union for 16 years and spending much of that time criticizing OSHA, I was pleasantly surprised when I went over there by the intelligence and dedication of most of the career employees I worked with in headquarters and in the field. And the more dedicated they were, the more frustrated with the political or legal barriers to just doing their jobs to make workplaces safer -- jobs that were often made much harder than they needed to be by the political agendas of those in the Assistant Secretary's Office, the Secretary of Labor's office, on Capitol Hill and others who live and work down the street at the White House.

Anyway, this is a rather circuitous way of saying to Kate Dugan and any other career employees I've criticized over the past few years: I'm sorry. But don't take it personally. It's the institution and the politics I'm really going after.

And Kate, you can still have the Confined Space T-Shirt (if such a thing existed).

Sago Counseling Funding Gets Lost In The Bureacracy

In the wake of two recent suicides of Sago employees, comes news from Ken Ward at the Charleston Gazette that the West Virginia Governor has not yet provided to the local community $35,000 of federal funding for counseling services approved 6 months ago.

Over the past three week, Sago mine dispatcher William Chisolm and John Nelson Boni, a fireboss, shot themselves in separate incidents.

Federal officials approved the $35,000 grant in April, but the state has not released the funding to the Appalachian Community Mental Health Center in Elkins.

“We’re not sure where it is,” said Richard Kiley, a licensed psychologist and director of the Elkins center.

Lara Ramsburg, communications director for Gov. Joe Manchin, said the governor has bordered an investigation to find out what went wrong.

The state had originally requested $180.000 from the federal Substance Abuse & Mental Health Services Administration, or SAMHSA.

On Tuesday, Kiley said his center and other facilities are continuing to provide counseling and other services to those affected by the Sago disaster.

But Kiley said the idea behind the grant was to do outreach and education to help residents understand their emotional reactions, recognize serious problems and seek professional help if needed.

Residents need to understand, Kiley said, that various emotional reactions from guilt to anger are “normal reactions to an abnormal situation.

“Our goal would be to help people cope,” Kiley said. “It’s partly to let people know how they might react, and also to let them know what to expect and where to go if they need help.”

But Law said that the Center was "not going to be doing a 'large-scale' outreach project with just $35,000 in federal money."

Workers Comp: A Colossal Failure

Guess what? Workers Comp doesn't work. And if you don't believe me, go read this:

A new report released today by the consumer rights group, Center for Justice & Democracy (CJ&D), finds that workers’ compensation programs throughout the country have been devastating for injured workers, leaving them to contend with an adversarial bureaucracy and inadequate benefits that render many destitute. The report, “Workers’ Compensation – A Cautionary Tale,” calls the workers’ compensation program a “colossal failure.” It also notes, “[t]he real winners are insurance companies, which continue to boast record profits as workers’ benefits are declining.”

Full report(s) are here:

News Release: Workers Compensation - A Cautionary Tale (September 20, 2006)(PDF)Click here for national report (PDF)

State Reports (PDF):

• CALIFORNIA (co-release with WorkSafe CONNECTICUT (co-release with membes of Labor and Public Employees Comm.)
• GEORGIA (co-release with Georgia Watch)
• KANSAS (co-release with Kansas Coalition for Workplace Safety)
• MISSOURI (co-release with Missouri Watch)
• NEW YORK (co-release with New York Committee for Occupational Safety and Health (NYCOSH)

Quote of the Week

This week's winner is Philadelphia OSHA's Kate Dugan. In the Philadelphia Inquirer article about the death of Jeffrey Martin that I just reviewed below, she was quoted as follows:

"Our mission isn't to find a cause for an accident," spokeswoman Kate Dugan said. "Our mission is to find if there were any violations of safety and health standards.

One can only hope that there's generally a relationship between causes and violations. Otherwise, what's the point?

Congratulations Kate. If we had Confined Space T-shirts, I'd send you one. As it is, you'll just have to be satisfied with the thanks of a greatful readerhip.

OSHA Had Visited Philadelphia Fatality Site Twice

OSHA had inspected the Symphony House construction, where construction worker Jeffrey Martin fell to his death last week, two times this summer, according to the Philadelphia Inquirer. Both complaints that led to the inspections were about fall protection. One of the inspections led to a 2,500 fine against Fabi Construction of Egg Harbor Township, N.J. , although the company is contesting the citation.

Meanwhile, more clues are coming in about the cause of Martin's death:

Attorneys representing Martin's family said the cables intended to prevent falls were cut on at least three floors apparently to make way for duct work. The cables were reattached, they said, but were improperly secured.

"What is clear is that the top cable, which would be the critical component of the safety barricade, had been cut at multiple levels," Center City attorney Robert J. Mongeluzzi said.

"The barricade has to withstand the weight of a person who might fall against it," he said. "In this case it didn't. Whoever cut that cable cut this guy's chance of living."

Mongeluzzi said someone on the site should have noticed the cable had been jury-rigged. He was on site Thursday along with attorney Dan Schwarz and a team of experts.

Fabi Construction, the same company that killed four workers and injured 21 when five stories of parking garage collapsed at the Tropicana Casino & Resort in Atlantic City in October 2003.

Two Sago Employees Kill Themselves

There's an old joke. If a plane crashes on the border between Tennessee and Virginia, where do they bury the survivors? The answer, of course, is that they don't bury survivors.

Unfortunately, that joke isn't so funny today. From the Charleston Gazette comes the depressing news that two workers at the Sago mine who were involved in the January mine disaster that killed 12 miners, have shot themselves to death.

Mine dispatcher William Chisolm and John Nelson Boni, a fireboss, shot themselves in separate incidents, authorities said.

Chisolm, 47, of Belington, died on Aug. 29, and Boni, 63, of Volga, died Saturday evening.

Chisolm was the dispatcher on duty the morning of the explosion and Boni had discovered a buildup of methane five days earlier in the sealed part of the mine where the blast occurred.

Those close to the investigation blame the deaths on emotional toll from the January 2 disaster

“We need to recognize that this is a serious problem,” said Davitt McAteer, Gov. Joe Manchin’s special adviser on mine safety and the state’s top Sago investigator....“I am very concerned about people at the mine, and in the agencies,” McAteer said Monday. “These tragic events have a long-term impact on members of the community, be they co-workers, as these were, or just members of the greater community.

“There really is a need to provide services to families and fellow workers long after the media and the public have turned their attention elsewhere,” McAteer said.

The problem is well recognized by experts:

The American Psychiatric Association cautions that “survivors of trauma have reported a wide range of psychiatric problems, including depression, alcohol and drug abuse, lingering symptoms of fear and anxiety that make it hard to go to work or go to school, family stress, and marital conflicts.”

The group adds: “The effects of trauma are not limited to those affected directly by the events. Others may also suffer indirect effects from trauma — referred to as ‘vicarious’ or ‘secondary’ traumatization.

“Those at risk include spouses and loved ones of trauma victims, people who try to help victims, such as police or firemen, and health-care professionals who treat trauma victims, such as therapists and emergency room personnel, as well as journalists,” the group says.

The International Coal Group, which owns the Sago Mine, offered counseling after the incident and says that it's still available if workers need it.

With 5700 workers killed in the workplace every year, many violent, traumatic circumstances, one wonders how many co-workers and family members are suffering from the effects of that trauma. You sure don't see it talked about much, and I'm fairly certain that few if any co-workers of job-related fatalities have ever successfully filed for workers compensation based on the psychological trauma of experiencing a co-worker's death.

They deserve it though.

Congress Gives Chemical Plant Security To The Chemical Industry

After five long years with millions of Americans living in the shadow of real chemical weapons of mass destruction, the US Congress seems poised to finally pass chemical plant security legislation.

But unless you're a chemical industry executive, it couldn't be worse.

The New York Times issued a blistering editorial today, blasting Republicans and the chemical industry for proposed chemical plant security bill that undermines homeland security:

Congress still has done nothing to protect Americans from a terrorist attack on chemical plants. Republican leaders want to give the impression that that has changed. But voters should not fall for the spin. If the leadership goes through with the strategy it seems to have adopted last week to secure these highly vulnerable targets, national security will be the loser.

Well, the Republican leadership did go through with the strategy in the Conference committee today, hoping to have something to show off on the campaign trail. Congressional Republicans caved in to the chemical industry behind closed doors, attaching industry's language to a rider in the Homeland Security appropriations bill. The result is that we're all the losers -- especially those of us who live near chemical plants, refineries or wastewater treatment plants.

But, of course, not everyone was unhappy with today's vote:

The U.S. chemical industry embraced the Republican measure as a "fair compromise that will give DHS strong authority to secure America's chemical facilities," according to Jack Gerard, head of the American Chemical Council, who said his industry has already spent $3 billion enhancing security.

Dow Chemical, the largest U.S. chemical maker, also praised the bill.

Background

There are 3,400 high-priority chemical facilities in this country where a worst-case release of toxic chemicals could sicken or kill more than 1,000 people, and 272 sites that could affect more than 50,000 people. Yet despite reports from government agencies and independent journalists since 9/11 that chemical plant security is seriously flawed, the Bush administration has refused to address the issue.

Shortly after 9/11, New Jersey Senator Jon Corzine introduced legislation that would have forced the chemical industry to implement, where possible, inherently safer technologies (e.g. substituting safer chemicals, storing smaller amounts of hazardous chemicals, etc.), along with increased traditional security measures.

The bill was passed unanimously by the committee. But then the American Chemistry Council (formerly the Chemical Manufacturers Association) woke up and along with their clients in Congress kill Corzine's bill, suggesting instead an legislation that focusee almost entirely on traditional security (guns, guards and gates), and relies on compliance with voluntary guidelines -- developed by the American Chemistry Council.

And that's were things stayed (and stayed and stayed) until last December when the state of New Jersey decided not to wait around for the feds to act and passed its own Chemical Plant security bill that required all chemical plants to take measures to reduce their vulnerability to catastrophes resulting from terrorist attacks and required 43 (of the state's 140 plants) using the most hazardous chemicals are required to review the potential for adopting inherently safer technologies.

Suddenly the chemical industry -- facing the prospect of being forced to comply with multiple different state regulations -- saw the light, seeing the immediate need for a (weak) federal law (that would pre-empt state laws). A couple of months later, right on schedule, after years of not paying much attention to the issue, the Bush administration finally decided to weigh in with a statement from Homeland Security chief Michael Chertoff announcing that he would propose turning chemical plant security over the to chemical industry.

Chertoff's plan would prohibit states (like New Jersey) from issuing their own plans, fearing that they would expose businesses to "ruinous liability" and would create "a regulatory regime that is doomed to failure." And any requirements for inherently safer technologies would present an "interference with business."

Senator Susan Collins (R-ME) and Joe Lieberman (D-CT) had introduced a bipartisan bill that did not pre-empt states like New Jersey from passing their own laws, but also did not require inherently safery technologies, although it did leave it to the the discretion of Homeland Security to decide whether there is any role for specific technologies. Because of the lack of pre-emption and the slight possiblity that Homeland Security might consider inherently safer technologies, the Collins-Lieberman bill was deemed unacceptable to the chemical industry -- and therefore to the Bush Administration and the Republican leaderhip in Congress as well.

What Happened Today?

Which brings us to today. Unable to pass a separate chemical security bill, the Republicans are up to their old tricks -- writing the chemical industry's bill in the conference committee as part of the Homeland Security appropriations bill.

As the today's Times editorial says:

It is outrageous that something as important as chemical plant security is being decided in a backroom deal. It is regrettable that Susan Collins, Republican of Maine, the chairwoman of the committee that produced the Senate bill, does not carry enough influence with her own party's leadership to get a strong chemical plant security bill passed. The deal itself, the likely details of which have emerged in recent days, is a near-complete cave-in to industry, and yet more proof that when it comes to a choice between homeland security and the desires of corporate America, the Republican leadership always goes with big business.

The bill

• Exempts thousands of chemical plants from any regulations unless the DHS considers them high risk.
  
• Specifically exempts approximately 3,000 drinking water and waste water facilities.
  
• Keeps DHS from requiring safer technologies or any other "particular security measure" that could enhance security and eliminate the consequence of an attack.
  
• Fails to preserve state and local government's authority to set stronger security standards than the federal government as New Jersey now does.
• Gives the DHS no criteria for choosing high-risk plants. DHS has complete discretion to ignore plants where thousands of people are at risk while relying on dubious intelligence to select so-called “high risk” facilities.
  
• Fails to require chemical plants to ever submit security plans by any date certain to the DHS for approval.
  
• Sets no deadlines by which DHS must approve or disapprove plant security plans.
  
• Fails to require “red team” security exercises or involve plant workers in the development of security plans. All of the above are contained in H.R. 5695 adopted by the House Homeland Security Committee on July 28th.
  
• Contains “shutdown” authority that is more about public relations than enforcement. If the shutdown authority were ever used it would more likely be for a day or so and masks the light civil penalties for violators contained in their bill, (only $25,000).

According to Greanpeace Legislative Director Rick Hind:

“The most well known example of proven solutions that were rejected by the Conferees is the 2001 conversion of the Washington, D.C. sewage treatment plant. Eight weeks after the 9/11 attacks that plant ceased its use of chlorine gas and no longer poses a threat to millions of DC area residents.

EPA data show that 225 plants have taken similar actions since 9/11. However, nearly 100 water treatment plants each put 100,000 or more people at risk.This bill exempts all (approximately 3,000) U.S. water treatment plants from new security measures.

One of the major problems with the bill is lack of any requirement for high risk plants to consider inherently safer technologies. One of the main advantages to inherently safer technologies is that they not only protect against a terrorist attack, but also against the every-day run-of-the-mill domestic chemical accident. But even if the only threat we had to worry about was terrorism, how much sense does it make to only commit resources to guard a target (with questionable effectiveness) when in most cases it’s entirely possible to shrink or even remove the target completely?

As outlaw Willie Sutton explained, they robbed banks because that’s where the money was. Terrorists would be tempted to attack chemical plants because that’s where the greatest potential for terror is. Take the money out of the banks -- or the catastrophic potential out of chemical plants -- and no one cares.

Chertoff and the Bush clearly don't get it (or don't want to get it):

Clearly a lot of chemical companies on their own, in meeting performance standards, will want to look at inherently safer technology as a means to reduce the risk, and therefore achieve what they need to achieve. But we have to be careful not to move from what is a security-based focus, as part of the type of regulation I'm describing, into one that tries to broaden into achieving environmental ends that are unrelated to security. There is an Environmental Protection Administration. They deal with environmental matters that are distinct from security. And I want to make sure that we don't allow our focus on security to become a surrogate for achieving ends that may very well be worthwhile but ought to be pursued in a debate in another forum. (emphasis added)

As the New York Times said last summer when an inherently safer technology amendment was being voted on:

The industry is fighting for its right to use whatever chemicals it deems best, or most profitable, no matter how much risk that poses to people who live, work and attend school nearby

What Can Be Done Now

Right now, we're the bottom of the ninth in the great Chemical Plant Security Debate, the score today stands: Chemical Industry - 1, National Security - 0. But the game isn't over yet

The entire Homeland Security appropriations bill must still be voted on by both Houses of Congress. House Minority Leader Nancy Pelosi is reportedly planning to force a House vote on the chemical security rider later this week and hopefully there will also be a separate vote in the Senate.

So get your dialing and faxing and e-mailing finger ready. There will be some lobbying to do.

Details to follow

Related Articles

(Everything you ever wanted to know about the last four years of the chemical plant security debate)

• House Set To Do Harm To Chemical Plant Security, July 27, 2006
• Chemical Plant Security: The Plot Sickens, April 17, 2006
  
• Homeland Security To Turn Chemical Plant Security Over To Industry, March 23, 2006
• Ho, Hum. Yet More Chem Plant Security Stuff, January 23, 2006
• NY Times Says It's Time To Take Chem Plant Security Seriously, May 22, 2005
• Itty Bitty Steps Forward On Chemical Plant Security?, December 27, 2005
• NJ Issues Chem Plant Safety Regs; Including Safer Technologies, December 1, 2005
• WMD Found! Look Over Your Shoulder, May 9, 2005
• "We can't protect ourselves if we are not part of the plan", February 20, 2005
• NY Chem Company Decides Terrorism Threat Is Over, February 6, 2005
• Department of Homeland Security: Buddy Can You Spare a Dime?, September 27, 2004
• Chris Cox & Tim Russert: Educate Yourselves!, July 17, 2004
• If Safety Was Voluntary, Only Volunteers Would Be Safe, April 8, 2004
• Chemical Industry Steps Up To the Plate...And Strikes Out, June 26, 2003
• Weapons of Mass Destruction Found -- In Our Backyards, November 17, 2003
• The War for Chemical Plant Safety, May 4, 2003

Florida Mental Health Workers Make Progress After Attendant's Death

Public employees do jobs that most of us don't even like to think about. For example, criminal defendants who are found incompetent to continue with court proceedings because of mental illness, retardation or autism, or who are acquitted of felony charges -- by reason of insanity? Where do they go? Who takes care of them? Who cares?

Well, in Florida, it's the attendants at the Florida State Hospital in Chattahoochee. What's it like to work there in modern times? You get spit on, beaten up regularly, sometimes killed, threatened with discipline if you complain and no one really appreciates the job you do or how dangerous it is. The only bright spot is that they have a union that's willing to fight for them.

Two weeks ago, I wrote about the death of Florida State Hospital mental health attendant, James Smith, who had a heart attack after coming to the aid of another attendant who was being attacked by a patient. The workers at the Florida State Hospital in Chattahoochee had complained about understaffing and frequent fights with patients who are criminal offenders sent to the hospital as mentally unfit for trial or for psychiatric evaluation. A recent state audit had confirmed understaffing and a sharp rise in violent assaults against staff.

Earlier this week, the workers and their union, the American Federation of State, County and Municipal Employees (AFSCME), met with state legislators to describe conditions in the hospital and how "they are frequently assaulted, spat upon and threatened by criminally insane patients." The workers blamed Smiths death on understaffing, although the hospital denied it.

Doris Cobb, the shift supervisor, disputed DCF claims that there were 18 employees on duty that evening -- well over the minimum staffing level of 12 for four hospital units. Cobb said Smith and Doug Harris, the injured coworker, were watching 25 patients and a third attendant was working in a "chart room" off of the hospital floor when the incident occurred.

For the hard and dangerous work they do, public employees in Florida are rewarded by having no right to a safe workplace. Like public employees in 24 other states, Florida public employees are not covered by OSHA. The state had a non-federally approved state law covering public employee health and safety until it was repealed in 2000.

It not only takes some courage to work in these dangerous facilities, but it also took some courage for the workers to testify before their lawmakers about their working conditions:

Several employees expressed fear of losing their jobs or being placed on undesirable work shifts for speaking out. Cobb and other workers and supervisors said, however, that Smith's death and many years of legislative inaction on hospital conditions left them no choice.

The Department of Children and Families denied that there would be any retaliation against staff members for publicly discussing working conditions at the meeting, which was organized by the American Federation of State, County and Municipal Employees.

In any case, the workers had finally had enough and were not about to be quiet about the people they are assigned to care for, and the lack of support they get:

'When they're in jail, they're 'inmates,' but when they come to us, they're 'residents,'" Cobb said, drawing loud applause and shouts of approval. "Then they go back to jail and they're 'inmates' again."

Joann Williams said she suffered a back injury when a patient attacked her.

"From the Department of Corrections or wherever they come from, those residents we get are still murderers," she said. "On the floor where I work, our minimum coverage is two . . . and we have no protection either."

Williams added, "We're trained to say, 'Excuse my touch,' and ask their permission to touch them - and I can only touch the resident in a way that they will not feel threatened."

Again, heads around her nodded.

***

Employee Verdell Sutton, who has almost 24 years' service, displayed a knee scarred by reconstructive surgery she underwent after intervening in one patient's attack on another.

"If they kill one of us, what happens? They're still 'residents,' " she said. "When we do our jobs, we have a right to be protected."

And they weren't alone. Program specialist Frankie Duncan

who marked her 27th anniversary at the hospital on Wednesday, grabbed the microphone for an informal straw poll.

"If you have either been assaulted or involved in a fight where you feared for your own safety and your life, would you please raise your hands?'' she said. Everyone in the room raised a hand as Duncan turned toward the lawmakers and said, "That ought to show you something because this is just a random sampling - it looks like this all over the hospital."

Meanwhile, the state announced that it is planning on adding more beds and staff to the unit, but instead of hiring permanent employees, they're contracting out the new positions to a private company. The privatized workers will have no no insurance, vacation, job security or other benefits -- and no union protection. At least the new workers won't be complaining much about conditions at the facility.

In addition to safer working conditions, the employees are also trying to get the same 3 percent special-risk retirement credit that Florida police, firefighter and corrections officers receive, so they can retire at a younger age without loss of benefits.

Florida state Senator Al Lawson and Representative Curtis Richardson, both Tallahassee Democrats, told workers at the overflow meeting that they "have assurances from the Department of Children and Families to extend "special risk" retirement benefits to the hospital attendants."

Department representatives confirmed that promise:

Children and Families Secretary Lucy Hadi said her department will support special-risk retirement credit for the unit treatment and rehabilitation employees and will ask the 2007 Legislature to improve minimum staffing levels at the hospital.

Sounds good. We'll be keeping an eye on them. And while they're at it, maybe they should make sure those staffing levels are real and filled with full time employees that have a stake in the system. Early retirement is good – if you live that long and you're health enough to enjoy retirement. Too bad it had to take the death of James Smith to get something done.

Saving Lives: The Tripoli Six

In order to maintain my sanity, I generally try to stick to domestic issues, but I probably wouldn't be able to sleep if I didn't alert you to this. It's literally a life and death issue.

Revere at Effect Measure alerts us to an article and editorial in the British journal Nature about six medics (5 Bulgarian nurses and a Palestinian doctor) on trial for their lives in Libya for allegedly infecting many children with HIV. They were tortured and forced to sign "confessions" written in Arabic they did not understand. This might be the ultimate "blame the worker" situation.

According to Revere, the scientific evidence for this has been examined by Luc Montagnier (co-discoverer of HIV) and he has concluded that the children were infected prior to the workers getting to the country, and other evidence implicates bad hospital hygiene as the cause. But Montagnier's evidence has been excluded by the Libyan judge and it now appears likely that the nurses and doctor will be condemned to death by firing squad.

The outraged parents are pressing for an explanation and foreign medics are more convenient than bad medical care. A last ditch attempt now is being made to restore some scientific content to the trial by demanding an independent scientific panel examine the evidence. If the Tripoli court returns a guilty verdict -- now considered likely that the scientific evidence has been excluded -- the only hope would be an appeal to the Libyan Supreme Court to convene the panel.

Thanks largely to Revere's efforts, the story is spreading throughout the blogosphere -- both liberal and conservative. And well it should. As Revere points out, this is a vitally important issue for anyone in the public health profession or anyone interested in human rights:

We still don't know where this is going. But for a doctor to see colleagues face firing squads for failures in the health care delivery system (dirty syringes) it is the ultimate metaphor, except that it's more than a metaphor for these six who have languished in prison for 7 years and now face the death penalty once again. They stand in for all of us who risk killing our patients because the tools we are given are so defective, our patients, through no fault of their own, are so sick, and the system so corrupt, cruel and inhumane it cares nothing for their deaths except as a political gambit to divert attention.

But, as Revere notes, it's not just a human rights story, it's also a science story:

how scientific evidence, presented by one of the world's leading HIV scientists, was rejected out of hand, the only exculpating evidence possible in favor of these five nurses and a doctor. The goal, now, is to push -- and push hard -- for an independent scientific panel to review the genetic evidence that the discoverer of HIV, Luc Montagnier, indicates shows these aid workers were not responsible for infecting Libyan children with the virus.

Aside from the obvious injustice, this affair brings back bad old memories from less than two decades ago when AIDS first hit this country and calls went out to requre HIV testing of every health care worker and calls to ban those who tested HIV postive from ever seeing patients. We managed to fight that off, but it left a bad taste of where fear and ignorance can lead if we don't fight them.

The second bad memory it dredges up was a World Health Organization meeting in which I participated in the late 1980's where health care professionals from around the world (but mostly North Americans and Western Europeans) discussed how to prevent hospital-borne HIV infections from contaminated needles and unprotected exopsure to blood. The group discussed the use of clean, disposable needles, the need to safely dispose of used needles and the importance of changing gloves after every patient. We thought we were making great progress until the late Dr. Jonathan Mann, then head of the WHO, smiled at our draft recommendations and reminded us that health care professionals in most developing countries were lucky to see one clean glove a day, much less one glove per patient, and disposable needles were generally an unffordable luxury.

We now take all of that for granted, but for most of the world it's still a struggle. And some would rather blame others for their inability to control their own environments.


What Is To Be Done

Write letters (preferably the kind that go in envelopes, with stamps) to the Libyan Embassy.
The best choice would be the Libyan UN Mission.

Mission of Libya to the United Nations
309 - 315 East 48th Street,
New York, NY 10017

The phone number for the UN mission is: (212) 752-5775
Email: The Center for Nursing Advocacy has an online form and form letter. The email address that they are using is: libya@un.int.

After that, start on the American power structure, your congresspersons, Senators, committee members, the White House, etc. Go here and scroll to the bottom for more details.


More from Effect Measure on the Tripoli Six:

Saving the lives of six of our colleagues (The Tripoli Six)
"The Tripoli Six" campaign
Update on "The Tripoli Six" campaign

Daily Kos:We Urgently Need Your Help to Save the Tripoli Six, by nyceve
Firedoglake: And If They Were American Nurses?

Cooking The Books, Part IV: Partnerships and Underreporting -- What It Means In California and Nationwide

Note: The entire four-part series can be read here.

In the last three installments of "Cooking the Books," we've described how KFM cooked the books by using "the carrot" to discourage workers from reporting injuries or illnesses, "the stick" to punish workers who do report injuries, how KFM's doctors and industrial hygienists collude with the company to ensure that injuries and illnesses don't get put on the Cal/OSHA Log, and how KFM benefits from the coverup.

Today, Part IV concludes the series by discussing how Cal/OSHA can't decide whether KFM's actions are good or bad, and what implications these underreporting has nationally.


Cal/OSHA: A Schizophrenic Enforcer/Defender

KFM’s creative accounting with worker injuries has been enabled by Cal/OSHA’s schizophrenic jumping between worker protector and employer defender.

Normally, federal OSHA would have jurisdiction over the parts of the job that were done on floating platforms. Federal OSHA would not give up its jurisdiction on work done on barges in the bay until Cal/OSHA agreed to.a “compliance assistance partnership” with KFM. Rick Rice, undersecretary of Cal/OHSA’s parent agency, defended the partnership in his reply to the scathing Bureau of State Audit (SBA) report by saying that “federal OSHA encourages them [partnerships] and expects State Plan states to engage in them.”

As guest-blogger ERM wrote in a series on recordkeeping problems last May,

Federal OSHA has been promoting voluntary partnerships for years, in an effort to induce companies to make safety improvements. OSHA lacks the resources to enforce everywhere, the reasoning goes, so the more it can encourage companies to comply voluntarily, the better for everyone. Being kinder and gentler to business is also in line with the political program of the Republican administration.

The compliance assistance agreement with KFM allows Cal/OSHA complete access to the work site, with prior notice to KFM, in return for KFM’s agreement to correct identified hazards found during a visit.

But a written partnership agreement, with explicit roles and rights for workers and their unions, was never formalized with KFM, which balked at signing any of the seven versions of the partnership text prepared by Cal/OSHA. Eventually Cal/OSHA gave up on a written agreement and has been operating on a “handshake” basis with KFM, but without any direct role for workers or any additional resources for monitoring the giant construction site.

The problem with the agreement, as CAPS, the union representing Cal/OSHA inspectors, noted in February 2006, is that

The Bay Bridge is an enormous, 10-year project that could keep a full-time team of inspectors busy morning, noon and night. Instead, Cal/OSHA has only had the resources over the last three years to send out individual inspectors on pre-announced, rotating visits about once every other week. The eight inspectors involved, and their supervisors, all have major responsibilities in their home offices, and none were dedicated full time to the bridge.

Moreover, bridge workers interviewed by the Cal/OSHA enforcement inspector in 2006 said that advance notice of Cal/OSHA compliance assistance visits prompted a rapid clean-up of the areas to be visited by the compliance assistance personnel, who were then treated to a “dog-and-pony show” substantially different from the work site’s normal activities.

At the same time that Cal/OSHA was citing KFM for recordkeeping violations, the agency was making a considerable to defend KFM in the media and with state auditors and legislators.

For example, when the willful citations against KFM were issued on the morning of Thursday, June 1st, 2006, Cal/OSHA did not issue a press release until the next day, a Friday, when media coverage would be minimal. The Cal/OSHA press release itself never mentioned that the citations issued were classified “willful” and most of the one-page release praised KFM.

When the Oakland Tribune ran another set of articles in August 2006 providing specific details on how worker injuries were under-reported by KFM, Cal/OSHA officials again leapt to the consortium’s defense.

Dean Fryer, spokesman for Cal/OSHA’s parent agency, told the Tribune:

This type of project involves extremely hazardous work and is very prone to causing serious injuries. The low rate of fatalities and serious injuries, which cannot be hidden and no one has alleged to have been hidden,

Actually, hiding the actual injury rate was exactly what Cal/OSHA says happened at the Bay Bridge and precisely why it issued willful citations to KFM. These are not just “minor paperwork violations,” but citations for a deliberate, willful suppression of reporting of serious injuries, at least four of which required major surgeries.

At the same time, KFM has appealed all three sets of citations issued by Cal/OSHA in enforcement inspections generated by two injury accidents and one complaint, as well as the June 2006 Willful Log 300 citations. The consortium has hired an expensive, very aggressive management law firm to fight all citations issued by its “partner.”

Cooking the Books: A National Problem

The problem of deliberate employer under-recording has become so serious that even George Bush’s partnership-crazy Fed OSHA has issued Willful citations to major Fortune 500 companies:

• In June 2004, Federal OSHA issued a Willful citation (later changed to “unclassified”) and $70,000 fine to Weyhaeuser’s Truss Joint facility in Buckhannon, WV, for failing to record at least 38 injuries and illnesses on its Log 300. The citations “paint a picture of an organization where under-reporting of injuries and illnesses appeared to be a routine practice that was tolerated, and even rewarded, by company vice presidents,” according to Occupational Hazards magazine.
  
  
• In October 2004, Southern California Edison under-reported workplace injuries and illnesses for the previous seven years and had to return $35 million in safety-related bonuses to the California Public Utilities Commission. “Edison found evidence that supervisors contacted outside medical personnel to influence treatment, change medical records or downgrade the seriousness of an injury. Other times, Edison said, its managers encouraged employees to dodge safety reporting requirements by undergoing physical therapy or using vacation days during recover,” the Los Angeles Times reported.
  
  
• Also in October 2004, Federal OSHA issued two willful citations and $140,000 in fines to General Motors Powertrain Corp. in Massena, NY, for failing to record 98 instances of work-related noise-induced hearing losses and other injuries and illnesses. Eight other citations with $20,000 in fines were issued.
  
  
• In November 2005, Federal OSHA issued three willful citations and $165,000 in fines to Fraser Paper’s Madawaska, ME, paper mills for Log 300 violations between 2003 and 2005. Fed OSHA found 59 instances of injuries and illnesses that were not records, 77 instances where recordable entries were not made within 7 days, and two years (2003 and 2005) for which incomplete annual injury and illness log summaries were certified as being complete.

In April 2006, the Wall Street Journal reported on a Michigan State University study that indicated the current method the government uses to track on-the-job injuries and illnesses may miss up to two-thirds of the total number of cases. “Researchers estimated that 869,034 work-related injuries and illnesses occurred on average each year in Michigan from 1999 to 2001, compared with the BLS [Bureau of Labor Statistics] estimate of 281,567 per year. Dr. Rosenman estimates that 75% of the injuries and illnesses missed by BLS resulted from employer underreporting,” the Journal noted.

Accuracy in Log 300 reports is important because these, along with other workers comp information, are used by employers to identify hazardous operations needing attention on the job, and by government agencies to set priorities for their limited research and enforcement resources. Moreover, injured workers, whose injuries or illnesses are not acknowledged by their employers, often cannot obtain needed medical treatment, rehabilitation and compensation.

As the publisher of the Oakland Tribune noted in its September 3rd, 2006 editorial:

If the safety record constructed by KFM is built on doctored injury reports, a facade of safety is created. If other firms follow the same practice, it means that an unknown number of work-related injuries and illness go unreported. That inflates safety and downplays injuries and risks. It’s deceptive, giving state officials and the public a false picture of workplace safety, which in turn can lead to more hazardous conditions and injuries.

What’s Next for KFM and Cal/OSHA?

Although KFM lost its bid to build the second phase of the Bay Bridge’s eastern span, the consortium will be working on site for several more years. The “compliance assistance partnership” with Cal/OSHA is still in effect, as are KFM’s various safety incentive plans.

Cal/OSHA, for its part, will now have to divide its limited resources between defending its citations against KFM’s “scorched earth” attorneys, and attempting to maintain a sporadic presence of non-enforcement personnel at the bridge to assist its “partner.”

One of the key findings of the February 2006 BSA report was that Cal/OSHA clearly needs additional field inspectors and resources to meet its mission and legal mandate at the Bay Bridge and throughout California.

In July, the state legislature passed a very modest $1.5 million budget augmentation to hire an additional 15 Cal/OSHA inspectors. But in August, Governor Arnold Schwarzenegger eliminated the funds earmarked for hiring on the grounds that new inspectors are “not necessary” as “workplace injuries and fatalities in California are well below the national average.”

Related Articles

"Cooking the Books" Series

Cooking the Books, Part I: Underreporting Worker Injuries at the San Francisco Bay Bridge, September 19, 2006
Cooking the Books, Part II: The Stick and The Doctor, September 20, 2006
Cooking The Books, Part III: The Industrial Hygiene Consultants and How KFM Benefits, , September 21, 2006


OSHA Recordkeeping Series by ERM

Part I: Learning From Enron: Why Accurate OSHA Recordkeeping Matters, May 15, 2006
Part II: At AK Steel, as at Enron, the Numbers Don’t Add Up, May 23, 2006
Part III: OSHA Recordkeeping: Who Will Audit the Auditors?, May 27, 2006

Confined Space Bay Bridge and Related Stories

• Incentives To Cheat: OSHA Recordkeeping And Its Toll On Workers, August 27, 2006
• CalOSHA Fines Contractor For Recordkeeping Fraud, June 1, 2006
• Study Finds Workplace Injuries And Illnesses Significantly Undercounted, April 11, 2006
• Cal-OSHA Blasted By Auditor for Bay Bridge Illnesses and Underreporting. Understaffing Blamed, February 9, 2006
• More KFM Flu: Neglected Workers and a Suffering Safety Agency, April 19, 2005
• Behavioral Safety Out of Control and The KFM Flu, April 12, 2005

Killer Spinach: The Human Cost Of Tax Cuts, Small Government and Self Regulation

Bush To Americans: Eat (Cow)Shit And Die (Part II)

Was life was easier, if not as tasty, when spinach came in cans?

Since the start of the current E. coli spinach outbreak, 166 people in 25 states have been infected with the strain of E. coli O157:H7; 88 people have been hospitalized; 27 have developed a type of kidney failure called hemolytic-uremia, and at least one has died. This strain of E. coli damages the intestinal lining, leading to internal bleeding and organ failure.

The direct cause is spinach contaminated with cow manure that contains the virulent strain of E. coli. But the root causes of toxic spinach affair lie in a host of issues tragically familiar to anyone following the state of consumer and worker safeguards during the Bush administration: weak laws and regulations, budget cuts leading to fewer inspections and weaker enforcement, over-reliance on voluntary efforts instead of mandatory regulations, and industrial cattle raising.

Regulation of meat safety and vegetable safety are conducted differently in the United States. The US Department of Agriculture (USDA) enforces mandatory regulations for meat, fish and poultry in order to "prevent contamination at each step of the process that carries those foods to consumers."

And we're dealing with more than just a bad case of diarrhea:

“In the course of one week, he went from this healthy, lively little boy to a boy in a hospital bed fighting for his life,” said Anne Grintjes, of Brookfield, Wis., whose 7-year-old son developed a dangerous form of kidney failure linked to E. coli, called hemolytic uremic syndrome. “He turned yellow and gray, literally. It was shocking and terrifying and unbelievable to watch.”

Safety of agriculture products, on the other hand, is handled on a voluntary basis by the Food and Drug Administration (FDA). According to Caroline Smith DeWaal, director of food safety for the Center for Science in the Public Interest.

Typically, the FDA and state health department officials can inspect only processing plants and don't venture onto farms unless there's an outbreak. The FDA doesn't have the power to order recalls, though it can seize food before it has gone to retailers if a producer doesn't agree to one. The federal government has more powers when it comes to produce that has a plant disease that threatens other crops

There are historical reasons for the differing treatment, although things have changed today. Meat regulation stems from the publication of Upton Sinclair's The Jungle.

Meat-processing plants have on-site federal inspectors, a practice rooted in an
earlier era when refrigeration was rudimentary. The tradition of looser regulation of the fruit and vegetable industry dates to a time when fresh produce was locally grown, not a commodity shipped cross-country or around the world.

The FDA guidelines — known as "good agricultural practices" — include irrigating with clean water, providing toilet facilities for pickers, making sure animals don't contaminate produce in packing sheds, properly washing fresh produce, and maintaining correct temperatures during shipping.

What oversight that exists in agriculture is increasingly underfunded and understaffed largely due to Bush administration budget cuts.

For example, since the FDA hired inspectors in the wake of bioterrorism concerns after the Sept. 11 attacks, the government has been steadily thinning their ranks. The number of FDA staff in field offices around the country shrank from 2,217 in 2003 to 1,962 currently, budget documents indicate.

In the 1970s, the agency conducted about 35,000 food inspections a year, said William Hubbard, former FDA associate commissioner for policy, planning and legislation. More recently, that has fallen to about 5,000 annual inspections, with state officials carrying out about another 4,000.

"There are more than 100,000 food processors in the country. It doesn't take a rocket scientist to do the math," said Hubbard, whose tenure at the agency spanned nearly 30 years.

The FDA tries to set priorities for inspections, so that risky operations are checked more often. Even so, a processed food facility may not see an FDA inspector for years at a time.

"The bottom line is that the food safety effort at the agency grows smaller and weaker year by year, despite continuing food safety problems," Hubbard said.

***

An FDA analysis last month found that modest increases in the agency's budget had failed to keep pace with inflation in personnel costs, and that the burden had fallen disproportionately on the food division — the equivalent of a 28% cut in its budget from 2004 to 2007.

"As long as the resources available to FDA do not keep up with the realities of increasing costs … it is increasingly difficult for FDA to perform in a way that meets public expectations," the Aug. 10 analysis concluded.

Not only does the regulatory structure differ between meat and vegetables, but so do the available resources:

Last year, the FDA's approximately 800 inspectors conducted about 20,000 food safety inspections of all non-meat products, allowing them to visit a processing plant on average once every few years. By contrast, the USDA, which has an inspector daily in more than 6,000 processing plants nationwide, performs the same number of inspections in a matter of days, said Tony Corbo, a lobbyist with Food and Water Watch.

The state of California also oversees agricultural safety, although tight resources also don't allow the state to keep up with the need:

But now growers, processors, government regulators and consumer groups paint a picture of a loosely regulated industry.

Consider that 97 percent of irrigation water used in the Salinas Valley comes from private wells. But there is no mandatory inspection of those wells. Irrigation water is only one of several water sources investigators are looking at in trying to explain the latest outbreak.

Cal-OSHA is responsible for checking field sanitation, focusing on rules, that for example, require one port-a-potty for every 20 workers. But with thousands of farms in the state, it on average conducts between 800 and 1,200 annual inspections.

The state Department of Health Services is charged with inspecting processing facilities annually, but the California Department of Food and Agriculture generally does not inspect farms unless there is a problem, state officials say. The FDA, says Halloran, makes site visits about every five years.

Despite the current outbreak and disaster for spinach growers, farmers continue to insist that voluntary compliance -- with enhancements -- is all that's needed.

The presidents of two major trade groups announced the effort after meeting Thursday morning in Salinas with FDA officials and 200 growers, processors, shippers and others.

Thomas Nassif, president of the 3,000-member Irvine-based Western Growers, vowed to swiftly come up with a plan focusing on 'the three Ws' — potential contamination from water, the workforce and wildlife.

Nassif said that it was a cooperative effort and that the FDA was not trying to impose tough new regulations on farmers. He said that the FDA had requested the food safety guidelines. Industry groups hope to present their proposal to the federal agency within a week to hasten the lifting of the fresh-spinach warning.

Of course, everyone doesn't agree that we can continue to rely on voluntary self-regulation:

"They always come back and tell us they don't need mandatory regulations," said
Rep. Rosa DeLauro (D-Conn.), ranking Democrat on the appropriations subcommittee that oversees FDA funding. "We need to examine whether federal agencies have the authority to go on the farms to regulate food safety."

Voluntary guidelines have proven ineffective, said DeWaal, the consumer activist. Cleanliness standards and other safeguards "should be mandated, and government should have the authority to enforce them," she said.

Finally, another cause of this whole affair is industrial farming of cattle. Cows that graze naturally on grass hay, and other fibrous forage don't generate the toxic E. coli that's been the source of the current illnesses. But factory farmed beef that is fed grain that doesn't maintain the acidic conditions in cows' stomachs that kill the bacteria.

The short-term solution to this problem is to stop feeding grain to cattle. But, even if we accomplished this tomorrow, we'd still have to deal with huge existing lagoons of potentially contaminated waste, according to Nina Planck, author of “Real Food: What to Eat and Why." To prevent pollution, the federal government pays 75% of cattle farmers' cost of making manure pits watertight.

Planck thinks the problem lies more with the cattle farmers than the spinach farmers and processors:

Taxpayers are financing a policy that only treats the symptom, not the disease, and at great expense. There remains only one long-term remedy, and it’s still the simplest one: stop feeding grain to cattle.

California’s spinach industry is now the financial victim of an outbreak it probably did not cause, and meanwhile, thousands of acres of other produce are still downstream from these lakes of E. coli-ridden cattle manure. So give the spinach growers a break, and direct your attention to the people in our agricultural community who just might be able to solve this deadly problem: the beef and dairy farmers.

The bottom line here, as with other corporate threats to community and worker health is that voluntary self- regulation works only up to a point. In these days of huge factories that process millions of points of vegetables every day, it's time for the government to step in to "promote the general welfare" and issue the regulations and other safeguards needed to keep our food safe.

Related Articles

• The "Swallow At Your Own Risk Act", March 25, 2006
• Bush to America: Eat Shit and Die!, December 9, 2004

Not Quite "Just Another Construction Death"

Construction worker Jeffrey Martin, age 23, was killed at a Philadelphia worksite on Wednesday when he fell six stories "through a steel cable barrier and down several floors to a garage area, where he was impaled by construction material."

Just another construction death? Not quite. Martin was employed by Fabi Construction, the same company that killed four workers and injured 21 when five stories of parking garage collapsed at the Tropicana Casino & Resort in Atlantic City in October 2003. The New York Times reported that the collapse

was caused by the faulty installation of concrete floors after changes were made to the design to speed the job and save money, according to engineers for the contractors and others who have studied the design plans and the debris.

OSHA fined the company $98,500, but did not press criminal charges, despite a wilfull citation. Fabi was unrepentent, calling the citation an "unproven allegation which in no way represents a determination of the actual cause" of the collapse. Nevertheless,

In March, a court ruling upholding citations against Fabi said the company ignored safety concerns and "failed to take sufficient seriousness to employee concerns about signs of distress" in a concrete slab, even though company officials "knew or should have known that reinforcing steel was not placed properly."

OSHA is concerned about the high number of construction deaths in the Philadelphia area over the past year, particularly from falls, according to OSHA spokesperson Kate Dugan:

In OSHA's Philadelphia District, which includes Delaware County, there have been 15 fatal construction accidents in the last 12 months, and about half have been the result of falls, which she said is extremely high.

Although comparisons with other cities were not immediately available, she said 1,224 construction workers died nationwide last year, and 39 percent were the result of falls.

"To have 15 fatalities is high, but to have half of them falls is extremely alarming," Dugan said. "Employers know they have to have fall protection for their workers."

Philadelphia area labor and health and safety activists are thinking the time may finally have come to start thinking more seriously about a criminal prosecution.

Unfortunately, for Jeffrey Martin it's a little too late.

"Repugnant" Companies That Deny Workers Comp for Undocumented Workers

Yet another in a growing number of disgusting news stories about how insurance companies are trying to get out of paying workers comp for injured undocumented workers. It's not enough that they do the most dangerous work in the country, for low pay and suffer a higher and climbing rate of injuries and fatalities than non-immigrant workers. Let's screw them when they get hurt as well.

This article by Liz Chandler in the Raleigh News and Observer tells the story of Francisco Ruiz who, after losing his job in Mexico, crossed over the border to the United States and got a job with the Belk Masonry Co. which offered him $300 a week to work as a laborer for a masonry crew. On Oct. 7, 1997, a crane hoisting Ruiz along with a load of bricks collapsed, throwing him to the ground where the bricks rained down on him.

He broke a rib and injured a kidney, and his right lung collapsed. He also hit his head on the floor, severely injuring his brain's frontal lobe, which controls language, memory and motor function.

Ruiz was in a coma, able to breathe only with a ventilator.

His younger brother, Jose, left his wife, two young children and his job in Mexico and rushed to Charlotte.

Ruiz's wife followed, with a temporary pass to enter the country, leaving her three children behind. When she arrived at Carolinas Medical Center, she found the Virgin of Guadalupe medal in her husband's hand.

Nurses were hoping for a miracle, but at Belk Masonry, a counterattack had begun.

The Companion Property & Casualty Insurance Co. paid his initial medical bills, but adjusters wanted to know all about Francisco Ruiz. When they discovered his illegal work status, they rejected his claim.

The law in North Carolina, as in most states, says that illegal immigrants who are hurt on the job are entitled to compensation. Companies, the law says, must pay injury benefits to "every person engaged in employment ... whether lawfully or unlawfully employed."

But officials at Companion Property & Casualty questioned the law's intent. Why should they pay an alien who lied about his immigration status to get his job? How could an illegal worker technically be considered an employee?

Ruiz took the company to court and won.

It would be "repugnant," the court said, for a company that benefited from a worker's labor not to pay him for an injury. Whether the worker was illegal didn't matter.

The company appealed and after winning several appeals over five years, the case finally reached the North Carolina Supreme Court which refused to hear Companion's final appeal. Another year to settle and Ruize was finally awarded $438,000.

Just another day's work for Companion.

The company was disappointed but not surprised.

"We're always viewed as the deep pocket," said Companion President Charles Potok. "If you're talking about paying somebody or cutting someone off cold, we typically lose."

Deep pocket? How about the the legal obligation of companies and workers comp insurers to pay the costs of workers' deaths, injuries, medical treatment, lost wages and disabilities. -- whether or not they're "legal."

Related Articles

• "Violation of the American Spirit" -- Immigrants Denied Workers Comp, September 17, 2006
• Throwaway Workers, Part 2: Labor Day For The Most Vulnerable, September 4, 2006
• Throwaway Workers: The Immigrant Experience, September 4, 2006

Cooking The Books, Part III: The Industrial Hygiene Consultants and How KFM Benefits

Note: The entire four-part series can be read here.

Over the past two days we've described how KFM cooked the books by using "the carrot" to discourage workers from reporting injuries or illnesses, "the stick" to punish workers who do report injuries, and how KFM's doctors collude with the company to ensure that injuries and illnesses don't get put on the Cal/OSHA Log.

Today, Part III discusses how KFM used its industrial hygiene consultants to limit information, who makes the decisions about what gets recorded and how KFM benefits from "cooking the books."

****************

Cooking the Books: The Industrial Hygiene Consultant

A June 2004 Oakland Tribune report showed that KFM had knowingly exposed workers to welding particulate and fumes, including manganese, for more than a year, in excess of Cal-OSHA standards. Exposures caused pneumonia-like conditions that workers nicknamed the KFM flu. Cal-OSHA records show prime contractor KFM Joint Venture didn't tell the workers about the overexposures, or require respirators or address the problem.

According to Rosemarie Bowler, a lecturer at San Francisco State University who researches the toxic effects of manganese on the brain, "They had increased respiratory problems, and their working memory was impacted from the manganese." Yet KFM never recorded the illnesses on their Log 300 forms and Cal/OSHA declined to cite the contractor for ignoring the claims of as many as 48 sick welders.

How did they get away with it?

Log 300 recording depends on employer knowledge of workplace illness. So, KFM's "Sergeant Schultz" strategy was deliberately limit information it received that explicitly pointed to employee exposure to potentially illness-causing chemical exposures so that responsible officials would know as little as possible.

In 2002, KFM hired the Salt Lake City-based firm IHI Environmental, which has a Bay Area office, to conduct industrial hygiene monitoring and provide technical assistance at the Bay Bridge.

IHI President Don Marano told Cal/OSHA that his firm was "hired for specific tasks, to provide specific information, we had no general responsibility…We gave KFM the data – it was their responsibility to interpret and act on it." During the 2002-2004 period, Marano told Cal/OSHA, "early on we did give recommendations. Some were followed, some were not or only partially implemented."

In June 2004, however, the reporting protocol for IHI changed as KFM had been sued by welders claiming welding-related illnesses from their work at the Bridge. "We did the same work as before, but reported on the results without interpretation and recommendations by IHI," Marano told Cal/OSHA. "KFM did not want anything other than raw results data."

Cal/OSHA's investigative files note that "IHI Environmental tables indicate that between March 2003 and June 2004 IHI personnel took 111 personal samples for welding fume exposure and 46 personal samples for fibers on welders. 23 of the 111 samples (21%) showed exposures above the Cal/OSHA PEL [permissible exposure limit] of 0.2 mg/m3 while another 6 samples showed exposures over the 10-hour day "adjusted" PEL of 0.16 mg/m3 (taken together this means 26% of personal sampling documented over-exposures). 16 of the exposures above the Cal/OSHA PEL occurred between March and June 2004.

Former Field Safety Manager Peart told BSA in his written statement

I was aware that an industrial hygiene company had conducted air samples in the confined spaces in which the welders worked. I asked Mr. Hughes about the results and he said that they were within acceptable parameters. When I pointed out the workers were still getting sick, he said the workers were just 'crybabies.' I asked if the workers would be allowed to see the results and he said that they wouldn't know how to interpret them.

Actually it was worker complaints about welding fume exposures that generated the first Oakland Tribune articles, which sparked the BSA audit of Cal/OSHA's performance at the Bay Bridge (resulting in strong criticism of Cal/OSHA for mishandling three worker complaints). This information ended up as the basis of multiple lawsuits against KFM and IHI Environmental by the welders.

In fact, it wasn't until after almost a year of continuous welding fume exposures to welders who were forced to take numerous personal sick days due to that the "KFM flu" that KFM finally installed an effective ventilation system, according to the Cal/OSHA case file.

Peart told Cal/OSHA that employees were "afraid for their jobs" if they called in sick with work-related illnesses, instead they would "call in sick for a home-related illness, such as a 'cold picked up from a child'" rather than from welding fumes. The former safety staffer said "things would have to become a serious issue (such as welding fume exposures) before they were addressed" by KFM.

Peart reported to Cal/OSHA that "the problem of welding exposures was definitely not resolved in April 2004, when I left. The welders were still complaining about it and they didn't have an effective ventilation system."

Despite the illness-related worker absences, ongoing media coverage and state investigations, no welding-related illnesses were ever entered onto KFM's Log 300.


Cooking the Books: The Real Decision-Makers

KFM's ultimate "failsafe" for maintaining low injury and illness rates at the Bay Bridge is the fact that the consortium, like all employers, is the one who decides what gets entered onto the Log 300, a decision that is supposed to be made by considering the medical work status reports, internal accident reports, Log 300 regulations, and "other relevant information."

In May 2006, Cal/OSHA conducted interviews with KFM safety managers Robert Hughes and his successor Tim Dare. Dare told Cal/OSHA that the decision to make a Log 300 entry was made via "informal, verbal discussions" among a select group of managers (all of whom are eligible for the cash incentive program), including the project safety manager, job superintendents and construction managers on site, the local project director, and the district and regional safety managers in Vancouver, Canada.

Conveniently, this select group of decision-makers does not meet formally, but rather has "informal" telephone conversations; it does not keep any records of their discussions or who participated; and it does not exchange emails or generate any written record of their deliberations or decisions.

Exactly what occurs behind closed doors with this group of managers was not discovered by Cal/OSHA or the BSA until former safety staffer Winston Peart wrote to the BSA:

During my experience at KFM, I witnessed a pattern of deliberate underreporting of injuries. This was frequently accomplished by classifying injuries in a way that allowed individuals to return to work and perform some light-duty assignment. This allowed KFM to avoid reporting the injury to Cal/OSHA or submitting an Employer's First Report of Injury (Form 5020) to KFM's worker's compensation administrator. In addition, I found that these injuries were typically not included on the Form 300 logs.

Cooking the Books: Why KFM Does It

Why would a giant construction consortium spend so much time and effort to keep recorded injury rates low? The reasons were explained in a September 3, 2006, editorial by the newspaper chain which publishes the Oakland Tribune:

Thus, a head injury to Ramon Martinez, Keith Bates' disabling fall from a truck, Darrell Hall's back injury and a career-ending knee injury to Arne Paulson never showed up on state injury records. Paulson even spent 16 months performing light duties before going to an outside physician who almost immediately scheduled him for surgery. Paulson said he was fired by KFM the day he was on the operating table.
How does this scenario help KFM, beyond sanitizing its injury record?

Good safety records keep insurance rates down, enabling a firm to more competitive when bidding for jobs. High insurance rates resulting from two many injuries can price contractors out of the market. Its sort of market-controlled, says Bart Ney of the California Department of Transportation. And, if most other things are equal, safety records can be the deciding factor in getting a contract since fewer injuries signal that a contractor runs safe projects, saving time and money.

A win -win situation for everyone -- except KFM's employees.

Tomorrow, Cooking The Books Part IV: Cal/OSHA's role and the national problem.

MSHA Nominee Richard Stickler: Chao's Puppet?

As you're probably all aware, President Bush has renominated Richard Stickler to head the Mine Safety and Health Administration. Stickler's nomination had been returned to the White House after a vote on his nomination was cancelled due to widespread dissatisfaction with his lackluster corporate background and his perceived lack of committment to strengthen the agency's regulations and enforcement capabilities.

Mine safety expert Sandy Krumholtz knows Stickler. I thought her opinion on Stickler's nomination might be of interest:

I don't think that Stickler is a bad choice to head MSHA, given his background. The man that I have seen over the years, and at conferences, is a compassionate, seemingly honest man who has tried to do the best job that he can do. Keep in mind that no one is perfect.

I believe that we do need someone with mining experience (not necessarily underground coal experience) to head MSHA. You just can't "get it" until you have been underground day-after-day. On the other hand, there are people who are not miners, like Tony Oppegard, who have been underground and have their miner's certificate, and do understand what happens when the law is not enforced. He would make a good Assistant Secretary, but that will never happen, no matter who is in power.

What upsets me about Stickler is that I do not think he is the man to stand up to Labor Secretary Elaine Chao, should there be differences on how the laws are enforced. The "Stickler" I saw in the Senate hearing is not the "Stickler" that I've seen in the past. At the Senate hearing, I saw a man who appeared to be an Elaine Chao mouthpiece (albeit not as nasty or conniving as Chao is), versus a man who was speaking his own convictions. He was obviously torn between what he wanted to say, versus what he was told say.

I think that if Stickler were left to his own devices to do his job, he would be a very good Assistant Secretary of Labor for Mine Safety and Health. That said, I do not think Elaine Chao will leave anyone alone to do what they do best, and she would certainly meddle on behalf of the coal industry, making Stickler into the puppet that we saw at the hearing.