CalOSHA Standards Board Chickens Out of Issuing Emergency Temporary Standard for Popcorn Lung

As long as I've been in this business, there are some things I just don't understand. Like this: Earlier this week, the CalOSHA standards board decided not to issue an emergency temporary standard to protect workers from "popcorn lung." Instead, they decided to send the issue to an advisory committee.

The chemical at question here is diacetyl, the chemical butter flavoring that wreaks havoc on workers lungs. It's a chemical that causes bronchiolitis obliterans a disease that obliterates the lungs bronchioles (the lung's tiniest airways), resulting in "astonishingly grotesque" effects on the lungs, "the worst" that this nation's leading experts have ever seen. Its effects have been "likened to inhaling acid."

California, where health officials have detected a number of cases of bronchiolitis obliterans, established a "Special Emphasis Program" in the roughly 30 manufacturing facilities that use diacetyl. The agency is monitoring workers for signs of the disease and educating employers about how to prevent overexposure.

But cases continued to turn up. Just last week, the Sacramento Bee reported that

An ongoing health investigation of California's flavor manufacturing industry has found another six workers who have lost nearly all use of their lungs.

The six are in addition to two cases that sparked the investigation nine months ago, according to the state's occupational health chief, Barbara Materna.

"Most of these workers are severely impaired, cannot work and suffer extreme shortness of breath on exertion," Materna wrote in a Jan. 11 report updating investigation results. "At least one is reported to be on a list for lung transplantation."

And last week George Washington University Professor David Michaels, on behalf of the Project on Scientific Knowledge and Public Policy (SKAPP), sent the Board additional evidence from an unpublished Dutch study reporting three cases of the rare lung disease among workers at a diacetyl factory.

Last August, the United Food and Commercial Workers and the California State AFL-CIO petitioned CalOSHA for an Emergency Temporary Standard to protect workers against the damaging lung disease caused by diacetyl. (In July, UFCW and the Teamsters petitioned federal OSHA for an emergency temporary standard.)

What's an Emergency Temporary Standard (ETS) and why is it so important to use it. Normal OSHA standards can take ten years or more from the time that OSHA decides to start working on them until they are actually issued. Most OSHA chemical standards date from the 1960's and, under the Bush administration, only one new chemical standard has been issued -- and that was done under court order.

But the Occupational Safety and Health Act states that if the Assistant Secretary determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." OSHA also has to show that the ETS is "necessary to protect employees from such danger." The ETS serves as a proposed standard until the final standard is issued, which must be done within six months.

Sounds like diacetyl would be a prime candidate.

OSHA has rarely used this provision of the act, even in the rare case that the agency has issued an ETS, the courts have often overturned it. No successful ETS has been issued in over 25 years. Nevertheless, as UFCW Health and Safety Director Jackie Nowell told the CalOSHA Board, "If this doesn't rise to the need for an emergency standard, I don't know what does."

More insulting to workers afflicted with bronchiolitis obliterans are the excuses the Board members used to chicken out, according to the Cal-OSHA Reporter.

Board occupational health representative Jonathan Frisch, Ph.D, said "doing the speedy thing isn't necessarily the right thing." He and the other board members backed the decision to send the petition to advisory committee, which DOSH Acting Chief Len Welsh said would meet the first or second week of February. Frisch commented that it takes courage to "step back, even when people are hurt," if it's the right thing to do. "Let's take a hard look at the exposures that are going on."

Board Chair John MacLeod agreed. "We're in a groundbreaking situation," and it's important to develop good information, he said.

No, Doctor Frisch, it actually takes courage to do the right thing -- take immediate action to protect workers. Developing good information is important. But in this case it's possible to protect workers at the same time you develop good information. Isn't it better to err on the side of overprotection if the alternative is more dead workers?

As Dr. Michaels explains in the Pump Handle,

Regulators cannot wait for complete information before issuing rules to limit exposure to potentially toxic substances. Diacetyl poses the classic (but easily addressable) regulatory dilemma. The evidence for the toxicity of diacetyl is limited by an obvious problem: we do not have (and cannot have) controlled studies of humans exposed to diacetyl but to no other potential toxins. There are multiple chemical exposures at factories where diacetyl is used. Regulators must rely on these studies of the patterns of disease in workplaces, in addition to evidence gathered in experiments with laboratory animals.

It is hard to imagine what additional evidence could still be gathered on diacetyl. We will never find a workplace in which only diacetyl is present. The Dutch study comes close, since it deals with a diacetyl production plant rather than a plant producing multiple flavorings, but reluctant regulators could still argue for the presence of other confounding factors. The animal evidence is very strong. It is time to assume that diacetyl causes obstructive lung disease at extremely low levels and prevent all exposure – probably by banning it.

Meanwhile, OSHA has still not bothered to respond to the unions' petition -- almost 8 years after learning of the first cases of bronchiolitis obliterans.

Like I said, after all these years, there are still some things I just don't get.

More information on popcorn lung here in Confined Space and here from SKAPP.

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

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.

Cooking The Books: Underreporting Worker Injuries at the San Francisco Bay Bridge: Part I

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

Confined Space has often covered stories of chronic undercounting of workplace injuries and illnesses by employers, as well as violations OSHA’s recordkeeping rules. More specifically we've covered the systematic falsification of injuries and illness numbers by KFM – Kiewit Pacific/FCI Constructors/Manson Construction, A Joint Venture, on the project to rebuild the eastern span of the San Francisco Bay Bridge. The consortium had never missed a chance to brag about worksite injury and illness rates that they claimed were one-fourth to one-third those of other California bridge builders -- until Cal/OSHA and the Tribune documented the real story based on interviews with two dozen Bay Bridge workers – that KFM had “cooked the books” on injury rates.

But now, thanks to KFM worker interviews from Cal/OSHA's casefiles, we're able to present for the first time a series of posts that paint a detailed and vivid picture of exactly how KFM used a sophisticated combination of strategies to “cook the books” of worker injuries and illnesses.

KFM’s cookbook includes:

1. cash incentives to workers and supervisors who do not report injuries;
2. reprisals and threats of reprisals against those employees who do report injuries;
3. selection and use of employer-friendly occupational health clinics and workers comp insurance administrators;
4. strict limits on the activities of contract industrial hygiene consultants; and, ultimately,
5. a secretive management committee which decides whether reported injuries and illnesses are legitimate and recordable.

But the problem is much bigger than KFM. The consortium's deliberate under-recording of workplace injures and illnesses is part of a growing national problem that has resulted in repeated “willful” citations by Federal OSHA and has important adverse impacts on hazard prevention by employers, resource allocation by government agencies, and the accuracy of safety in the nation’s workplaces. The KFM story also presents a searing indictment of controversial “behavioral safety” programs which punish workers for injuries and reward workers for not reporting injuries or unsafe conditions.

Background

Since 2004, the Oakland Tribune has run an extended, award-winning series of articles about safety and production problems at the bridge, and has posted the Cal/OSHA citations and key witness testimony on its website. In August 2006, the newspaper ran another series of articles on the specifics of KFM’s injury reporting suppression program.

In June 2006, Cal/OSHA issued “willful” citations against KFM for deliberately failing to record at least 13 worker injuries at the bridge, as well as two more citations for failing to investigate reported accidents and failing to record injuries within the time period set by law. The citations followed a report by the California Bureau of State Audits that accused the agency of not having procedures necessary to verify the accuracy of injury and illness reporting, and noting that the Cal/OSHA's compliance assistance/partnership approach with the company made it even more difficult to uncover unsafe conditions and faulty reporting.

KFM was accused of violating laws that require employers to record on an “OSHA Log 300” all injuries and illnesses on the job that result in death, days away from work, restricted work, medical treatment beyond first aid, or loss of consciousness.

Cal/OSHA considered KFM’s violations “willful” because evidence showed

that the employer committed an intentional and knowing (as contrasted with inadvertent) violation and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law.

KFM had originally claimed that it had zero lost work days and zero restricted work days for more than 1 million man-hours of work at the Bay Bridge in 2004. KFM’s recorded injury rate was 1.47 injuries per 100 workers, as compared to another major bridge project in the San Francisco Bay, which had a rate of 12.43 injuries per 100 workers. But some things in life are just “too good to be true.”

As a result of two state investigations in 2005 – one by Cal/OSHA and one by the Bureau of State Audits (BSA) – KFM revised its 2004 Log 300 to add one “newly recognized” case with 14 days away from work. However, the consortium claims the 13 cases identified by Cal/OSHA were either fraudulent or exempted under Log 300 regulations.

Cooking the Books: The Carrot

The centerpiece of KFM’s strategy to suppress reporting of worker injury and illnesses is its “Safety Incentive Programs” designed to

to motivate employee and supervisory safety performance to achieve zero injury results in an environmental that sustains teamwork, open communication, and total involvement.

Monetary incentives are given to every level of employee – hourly, foremen, supervisors and managers – for meeting quality and completion timeline goals, but only if no Log 300 recordable injuries are reported. Any reported injury or illness that is “Log 300 recordable” loses the worker, his or her crew, the foreman, other supervisors and managers the monetary bonus.

The monetary incentives for workers as a crew and for foremen are substantial:

• The “Pile Head Welding Incentive Plan” provided the individual crew members with $200, $400 or $600 in bonuses over every 26-36 day period – only if there is “no recordable accident” – and crew foremen “receive double the award amount.” The crews consisted of 8 employees – 1 foremen and 7 welders and helpers;


• The “Pier 10W – 7 W Access Casing Incentive Plan” provided – only with “no reportable/recordable accident” – “possible incentive for entire crew achieving target is $3,150 ($5,544 total pay off with gross up) with maximum award incentive for entire crew can be $6,750 ($11,880 total pay with gross up).” The crews consisted of 6 employees – 1 foreman, 4 carpenters and 1 laborer);


• The “Pier 9W-7W Pier Column Formwork Incentive Plan” provided – only with “no reportable/recordable accidents” – “maximum award incentive for entire crew is $6,400 ($11,264 total payoff with gross up).” The crews consisted of 13 employees – 3 foremen, 8 carpenters and 2 laborers;


• The “Pier 10W – 7W Misc. Metal & Set Casing Pre-Cast Slab Incentive Plan” provided – only with “no reportable/recordable accidents” – “maximum award incentive for entire crew is $3063.” The crews consisted of 2 employees – 1 foreman and 1 ironworker journeyman;


• The “Skyway Concrete Placement Incentive Plan,” whose “approximate maximum award for entire crew is $37,560,” clearly stated “any reportable accidents will eliminate the entire crew for the current award period. Any recordable accidents will eliminate the entire crew for a minimum of two award periods and up to elimination from the entire program as determined by the Job Superintendent.” The crews consisted of 11 employees – 2 foremen, 7 laborers and 2 masons.

General foreman, superintendents, craft superintendents, job superintendents and project managers also received monetary awards and “merit cards” essential for salary increases and individual career advancement. The time periods for these awards were determined by the collective number of hours worked by all crews under the salaried employee’s supervision, ranging from 5,000 to 100,000 hours of work.

As always, the awards were dependent on no injuries or illnesses being reported. Section 11 of KFM’s 2004 Safety Plan on the “Recognition and Rewards Program” stated:

Employees will forfeit their recognition/reward on a crew-by-crew basis for any OSHA recordable injury or when directly involved in a general liability accident. When an employee suffers a restricted duty or lost-time accident case, the entire job will forfeit the recognition/reward for the current period.”(emphasis added)

Rewards for supervisors and managers, depending on the number of accident-free hours worked, ranged from a “Merit Care and $100” to a “Merit Card and $3,000,” with a variety of gifts along the way including an “engraved billfold,” “engraved watch,” “trip not to exceed $2,500,” and a “gift decided by the District Safety Manager.”

Welders told Cal/OSHA that during the first six months of the incentive plan, from November 2003 to June 2004, they received their monthly $200-$600 incentive awards in the form of crisp, new $100 bills tucked neatly inside their pay envelopes.

But any “OSHA recordable injury” resulted in everyone up the chain losing their cash incentive, and perhaps not just for the current bonus period but for future award periods as well. Thus the cash incentive plan was self-policing – no worker wanted to lose their own cash bonus, or make their foreman, general foreman, superintendents and project managers lose their bonus money.

Pile excavation crew foreman Arne Paulson told Cal/OSHA:

It was known by everyone not to report any injuries because that would mean no BBQ, no tool prizes, no tool box prizes. Everyone would know who ‘lost’ the prizes for the crew, so everyone was terrified to report anything.

Welder David Dixon reported to Cal/OSHA that supervisors “downplayed reporting of accidents. If you reported an injury, ‘you are hurting the team’ or ‘you are screwing the crew.’”

Another welder, Mario Armani, said the cash

bonus program keeps guys away from reporting accidents, many injuries are not reported, many employees would clean out their own eyes [of metal slivers from grinding] or have their co-workers do it.

According to the Cal/OSHA case file, an injured welder, David Laniohan, did not report his injury on the daily time card so as to stay in the good graces of the foreman,

because no foreman wants to have a ‘yes’ answer [time card asks whether an injury occurred that day]. The foremen get bonuses for no injuries. There is a general pressure not to say ‘yes’

Paulson told Cal/OSHA that as a foreman,

whenever I tried to report an injury in the crew, I could not get anyone (superintendent or manager) to sign the form…salaried employees received bonuses for production, which also include safety goals, so any reported injuries mean no bonus.

Paulson himself was injured on the job, but for months was literally carried by co-workers onto the tug boats going out to the work barges to do paperwork in a make-shift office so that there was no “lost time” or “restricted work” duties to record. “The whole reason they were carrying me out to the barge was to avoid putting my injury on the Log 300,” Paulson told Cal/OSHA.

Tomorrow: Part II -- Cooking the Books: The Stick and The Doctor

Schwarzenegger Saves Pennies At Expense Of Workers' Lives

This article would be funny if the joke wasn't at the expense of workers' lives.

California Governor Arnold Schwarzenegger used his line-item veto to strike $1.5 million in funding for 15 new workplace safety inspectors, out of a $131.4 billion state budget. The excuse was that CalOSHA already has open positions that it can't fill.

Cal/OSHA spokeswoman Renee Bacchini said the agency was neutral about the state budget allocation for more inspectors.

She acknowledged, however, that the agency is having trouble keeping up the staffing levels it already has money budgeted for, mainly because the private sector offers better salaries.

"Not that we don't want to fill them," she said. "They're up there on the state job site. Please come apply."

Or... maybe we could pay them what they deserve. Right now the pay and benefits of a CalOSHA Industrial hygienist lag almost 40% behind comparable public sector jobs in other agencies in the San Francisco Bay area, and 20% statewide, according to CAPS. I mean, whatever happened to capitalism, supply and demand and all that?

Then there's this: The inspector's union, the California Association of Professional Scientists (CAPS), argues that it's the short staffing of CalOSHA that led to the injury underreporting that was recently exposed in Bay Bridge skyway project. An audit by the California state auditor earlier this year revealed the CalOSHA had not monitored the project well enough. The contractor, KFM Joint Venture, had claimed that the project was five times safer than the average heavy construction project. But the Oakland Tribune revealed that the company's amazing safety record was likely due to the $100 to $2,500 bonuses that depended on the number of worker hours logged without reporting a recordable injury, rather than safe working conditions. KFM and it's lead firm, Kiewit Pacific Company, also used the stick: suspending workers without pay for reporting injuries.

CAPS blamed Cal-OSHA's chronic understaffing for the serious enforcement problems detailed in the State Auditor’s office probe and Cal/OSHA officials have admitted that they do not have the resources to monitor the accuracy of those reports. Last month, CalOSHA issued three citations to KFM, A Joint Venture, including a "willful regulatory violation" for the unreported injuries, and fined the company a whopping $5,790.

Now here's the funny part. In an effort to justify it's short-staffed operations, CalOSHA spokesperson Bacchini

disputed that employers might routinely fudge their injury reports.

"If the employers are not reporting those things, then they're in violation of the law," Bacchini said, and subject to penalties and fines.

Asked how effective a $5,790 fine would be on a $1 billion contract, she said that fines "go up and up and up.

"If they have a horrible history, their fines get higher and higher."

Yeah, I'm sure they're all shaking in their boots that CalOSHA might double, or even triple that fine. Up and up and up. If the fines go up and up and up enough, maybe the state can even afford to give CalOSHA inspectors a raise a hire a few more.

CalOSHA Fines Contractor For Recordkeeping Fraud

The contractor building the new California Bay Bridge eastern span, KFM (Kiewit/FCI/Manson), had once boasted about its immaculate safety record, five times safer than the average heavy construction project, "even safer than your average flower shop."

But all was not as it seemed.

Today, CalOSHA

issued three citations to KFM, A Joint Venture, including a "willful regulatory violation" for the unreported injuries - the most severe classification possible. Of the 13 injuries not reported on the company's annual injury logs, 11 occurred in 2004 - more than doubling the contractor's reported injuries rate that year.

The citations resulted in a $5,790 fine - including $5,000 for the willful violation, the maximum penalty allowed. "Obviously we are very disappointed in KFM after reviewing the findings of this investigation," said Len Welsh, acting director of Cal/OSHA in a statement.

***

The 13 unreported injuries cited in the Cal/OSHA report included head injuries, leg injuries, back injuries, a hip injury and an employee who was struck on the head and lost consciousness.

So what was the problem?

The Bay Bridge skyway project boasts a remarkably low injury rate compared to other Bay Area bridge or retrofit projects and large construction projects in California or nationwide. Both KFM and Cal/OSHA officials have vouched repeatedly for worker safety conditions on the project.

Yet more than 20 welders who have worked on the project said they were pressured to conceal injuries for fear of retribution or the loss of their job. In addition, crews received cash bonuses for posting clean safety records, a practice the auditor said could either help prevent accidents or simply discourage workers from reporting them.

"During my experience at KFM, I witnessed a pattern of deliberate underreporting of injuries," former KFM field safety manager Winston Peart wrote in an October statement for the state audit and included in the summary of Cal/OSHA's key testimony. "This was frequently accomplished by classifying injuries in a way that allowed individuals to return to work and perform some light-duty assignment."

This citation is particularly significant for a number of reasons.

First, as I noted in a review of an Oakland Tribune series that first broke this story in April 2005, the Bay Bridge project was a classic case "behavior-based safety out of control," as OSHA's chief or recordkeeping, Bob Whitmore termed it. An Oakland Tribune article at the time reported that KFM's amazing safety record was likely due to the $100 to $2,500 bonuses that depended on the number of worker hours logged without reporting a recordable injury, rather than safe working conditions. KFM and its lead firm, Kiewit Pacific Company, also used the stick: suspending workers without pay for reporting injuries.

In documents released today by CalOSHA, several workers described how they were treated.

Along with the citations issued today, Cal/OSHA released statements from 14 workers interviewed during the investigation, alleging a pattern of intimidation and retribution to minimize reported injuries.

"KFM discourages people from reporting injuries," current welder Ventura Ochoa told a Cal/OSHA investigator in March. "The reason is that the foremen get money if no accidents or injuries are reported."

Another witness, Pat Karinen, secretary/treasurer for Pile Drivers Local 34, which represents welders on the project, was interviewed three times during the investigation, according to Cal/OSHA records.

"KFM shows you the door as soon as you are hurt," he told the investigator. ``They are very hard on guys."

The second reason this case was significant is that OSHA had formed a close "partnership" with KFM on this project, and vouched repeatedly for the safety of the project, even after the Oakland Tribune article revealed problems with injury and illness reporting. Len Welsh, Cal-OSHA's acting director, supported the company's punishment and reward behavioral safety policies, stating that rewarding good safety behavior while disciplining bad is a common practice and one that he sees as effective in reducing injuries. Even the revelation that the company had underreported injuries didn't undermine CalOSHA's support of the company:

In a June 1, 2005 e-mail, agency spokesman Dean Fryer wrote: "The purpose of recording injuries is to determine where the employer may have safety problems. Cal/OSHA is frequently on site and is very familiar with the safety practices of KFM, has reviewed their safety program thoroughly and hasn't seen any pattern of problems with recordable injuries.''

On the Bay Bridge project, Cal/OSHA entered into an informal partnership with KFM, allowing state inspectors frequent access to the site. The partnership also meant that any hazardous conditions found would be pointed our but not officially cited.

KFM only agreed to the partnership - and never in writing - after Cal/OSHA found the contractor had knowingly exposed workers to excessive levels of manganese and other welding fumes for more than a year.

Despite the growing evidence that KFM was cooking the books, CalOSHA continued to stick closely to KFM's side until a state audit earlier this year severely criticized the agency, reporting that

Cal/OSHA didn't discover potential underreporting of alleged injuries and an alleged illness on the project because it lacks procedures to ensure the reasonable accuracy of contractor KFM Joint Venture's annual injury reports.

The audit also found Cal/OSHA failed to adequately follow up on three of six complaints received from bridge workers, including an April 2004 complaint in which it found two alleged serious violations but never issued citations to KFM.

Without a system to detect the underreporting of injuries, there is no way to know if employers' reports are accurate, the state audit stated.

The audit also found

that CalOSHA did not use its statutory authority to investigate the [welders'] complaint and issue citations for the two alleged serious violations it found. It instead used the compliance assistance approach outlined by its informal partnership with KFM, which precludes issuing citations.

Cal/OSHA finally launched the investigation of KFM after the state audit report was released initiated in response to California State Assemblywoman Wilma Chan's request and a $200,000 budget allocation.

Despite the serious citations, CalOSHA's Welsh continues to defend the company. After announcing today's citations, Welsh went on to note the lack of fatalities during the project, stating that, despite the serious recordkeeping problems, "This is one of the safest construction work sites we have ever seen."

In a Confined Space post last week, guest-bloggers ERM noted that federal OSHA is partly responsible for CalOSHA's partnership problems:

In defending its failures, Cal-OSHA implicated federal OSHA, which approved and encouraged the partnership with KFM that now seems to be a big part of the reason why Cal-OSHA was complicit in the company’s efforts to conceal safety and health problems

***

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.

Finally, it is vitally important that recordkeeping violations be cited in light of a recent Michigan State University study reported that the current national surveillance system for work-related injuries and illnesses may miss two-thirds of the total number of occupational injuries and illnesses.

Meanwhile, Kiewit, which announced today that it would appeal the citations, clearly doesn't understand the significance of these violations:

"It is important to note that the issues raised by Cal/OSHA involve recordkeeping and paperwork processes only," said Kiewit spokesman Kent Grisham. "The exemplary safety achievements at the skyway project are in no way diminished by these allegations."

But in fact, these citations are far from just paperwork. As ERM pointed out last week, "when injuries and illnesses are not recorded, it’s not a case of a meaningless bookkeeping error. Real workers get hurt and sick."

Go back and read ERM's first post, Learning From Enron: Why Accurate OSHA Recordkeeping Matters where they describe the reasons that accurate recordkeeping matters: First, because OSHA relies on companies' self-reported records to target its inspections; second, because inaccurate recordkeeping undermines other OSHA programs which rely on accurate records, for example, to determine what standards need to be issued or strengthened; third, that employees who are coerced into not reporting injuries and illness may not receive proper medical care; and fourth, if employers themselves don’t have an accurate picture of where and why their workers are getting hurt, how will they effectively target their health and safety efforts?

I will end by again quoting ERM on the lesson learned in California: that federal OSHA recordkeeping, like CalOSHA, needs to be independently audited

Does anybody think this would have happened without the state auditor’s investigation? Nor would the auditors have gotten involved without the result of the tireless reporting of the Oakland Tribune.

The conclusion is simple, clear, and logical. If we really want to protect workers and if we really want to know what’s going on in the nation’s workplaces, we not only need OSHA to investigate company records, we need auditors to investigate OSHA.

Related Articles

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 Stories

• 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

Other Behavioral Safety Articles

• MSHA Makes The "Wrong Decision" To Blame Workers For Accidents, July 27, 2005
• Blaming The Worker: In Texas City and On the Rails, May 18, 2005
• Bloody Pocket Syndrome in the Steel Industry, April 6, 2005
  
• Deaths and Injuries at US Steel: Blame the Workers?, February 24, 2005
• Behavioral Safety Comes To The Railroads, November 15, 2004
  
• So Cal Edison Screws Itself With Safety Incentive Programs, October 22, 2004
  
• Safety Bingo: Bad Behavior, October 1, 2003
• Worker Error Department (cont'd), April 14, 2003
• Worker Error Department, Part 2 April 11, 2003
• Worker Error Department, April 10, 2003

CalOSHA -- Going From Bad To Worse

CalOSHA has eliminated its last physician position, effectively abolishing Medical Unit, according to the California Association of Professional Scientists (CAPS), which represents CalOSHA employees. CalOSHA Acting Chief Len Welsh told the CalOSHA Reporter (paid subscription) that this is no big deal, just an experiment, and they may fill the position again at some point.

Others disagree.

“This is really serious and will cripple the Division’s ability to enforce the [ergonomics] standard and enforcement in other areas,” [CAPS representative Garrett] Brown counters. “We are no longer dying the death of 1,000 cuts but now have received hatchet blows to the heart of the Division.” He contends that any salary savings “will be dwarfed” by the costs of contracting out medical services. Seemingly, the Medical Unit has been dying that 1,000-cut death for years – at one time, it boasted seven physicians and three registered nurses. The unit assists the Division in enforcing California’s ergonomics standard, the only regulation of its kind in the nation, evaluates employers’ medical surveillance and bloodborne pathogens exposure control programs and chemical exposure effects. Unit personnel also provide expert testimony in Cal/OSH Appeals Board hearings.

CAPS asserts that the ergonomics standard will be “effectively nullified” by the move because Appeals Board administrative law judges generally refuse to accept non-physician evaluations of medical criteria verifying the existence of two repetitive-motion injuries on the same job in a workplace.

The union also points out that the decision “comes at a time when Cal/OSHA is preparing for the Asian flu pandemic and is preparing for new regulations for infectious airborne diseases like tuberculosis.”

In addition, according to Brown, there are several other important programs that depend on the medical unit:

• Evaluation of employer medical surveillance programs;
• Medical expert testimony in appeal hearings;
• Evaluation of bloodborne pathogen exposure control programs; and
• Evaluation of adverse health effects from chemical exposures.

Acting CalOSHA Chief Len Welsh offered a variety of lame explanations for eliminating the office:

• the ability to terminate contractors, in case they don't like the "quality" of a permanent employee,
  


• a budgetary decision "to ensure that we would not need to cut enforcement slots,"
  


• the tendency of previous medical officers to look for new hazards instead of just "enforcing the rules you have on the books.”

This last excuse is particularly upsetting considering that almost every major "new" health hazard affecting workers has been discovered by the affected employees themselves, along with their unions and sympathetic physicians. And few physicians would be better placed to discover unregulated hazards than one working inside OSHA. OSHA only regulated around 600 chemicals, based on science from the 1950's and 1960's. Sticking solely to current regulations may satisfy the law, but doesn't satisfy OSHA's ultimate mission of ensuring a safe workplace.

The elimination of CalOSHA's Medical Unit comes just over a month after the agency was criticized by the California state auditor for failing to discover underreporting of work-related injuries and illnesses on the Bay Bridge project. CalOSHA also to adequately follow up on three of six complaints received from bridge workers. At the time, CAPS blamed the agency's critical understaffing for its failure to adequately monitory the safety situation on the bridge project.

“Cal/OSHA’s worker-to-inspector ratio is double that of Federal OSHA’s ratio, worse still than neighboring states like Oregon and Washington, and dramatically worse than Canadian provinces like Ontario and British Columbia,” Austin pointed out. “In fact, there are 66 more Fish and Game Wardens in California than there are Cal/OSHA inspectors.”

Last month, CAPS called for amending the California state budget to authorize the agency to hire an additional 100 workplace inspectors.

The CAPS proposal would increase the number of authorized workplace inspector positions in Cal/OSHA from 200 to 300. Currently, only 170 of those authorized positions are filled. The increased number of inspectors would give Cal/OSHA the same inspector-to-worker ratio that Federal OSHA has nationally.

CAPS has pointed out that chronic understaffing is the underlying reason for Cal/OSHA's poor performance at the Bay Bridge, and that lack of inspectors is seriously compromising the agency's ability to meet its legally mandated responsibilities to protect the health and safety of 17.7 million workers in over 1 million workplaces in California.

Current Cal/OSHA staffing levels mean that each of the 170 inspectors is responsible for over 100,000 workers and 6,800 worksites.

Twenty-one states run their own occupational safety and health programs, under authorization from OSHA. OSHA mandates that these programs are "at least as effective as" the federal program, but does a poor job monitoring their performance. CAPS has been particularly active in publicizing CalOSHA's problems, but I can't help wondering what problems the other state-plan states are facing that we don't know about.

Cal-OSHA Blasted By Auditor for Bay Bridge Illnesses and Underreporting. Understaffing Blamed

Seems, MSHA and OSHA aren't the only workplace safety agencies not doing their job enforcing the law. CalOSHA has also joined the crowd. And they all have one thing in common -- too few staff to do the job.

Last Spring, the Oakland Tribune ran a series casting heavy doubt on San Francisco Bay Bridge contractor KFM Joint Venture's claim that the project was five times safer than the average heavy construction project. The amazing safety record, according to the Tribune, was likely due to the $100 to $2,500 bonuses that depended on the number of worker hours logged without reporting a recordable injury, rather than safe working conditions. KFM and it's lead firm, Kiewit Pacific Company, also used the stick: suspending workers without pay for reporting injuries.

Cal-OSHA's acting director supported the company, stating that rewarding good safety behavior while disciplining bad is a common practice and one that he sees as effective in reducing injuries.

The Tribune also reported that the company had knowingly exposed workers to welding particulate and fumes including manganese, in excess of Cal-OSHA standards, resulting in what came to be known as the KFM flu. The affected bridge welders were laid off after reporting their illnesses to Cal/OSHA.

But the problems wasn't confined to the company's malfeasence. The watchdogs weren't watching, according to the California state auditor which reported today that

Cal/OSHA didn't discover potential underreporting of alleged injuries and an alleged illness on the project because it lacks procedures to ensure the reasonable accuracy of contractor KFM Joint Venture's annual injury reports.

The audit also found Cal/OSHA failed to adequately follow up on three of six complaints received from bridge workers, including an April 2004 complaint in which it found two alleged serious violations but never issued citations to KFM.

In addition, Caltrans' safety oversight of the project seems sufficient but could be improved, perhaps by increasing attendance at safety training and meetings, the audit found.

The full audit report found that CalOSHA

did not use its statutory authority to investigate the [welders'] complaint and issue citations for the two alleged serious violations it found. It instead used the compliance assistance approach outlined by its informal partnership with KFM, which precludes issuing citations. In the case of an October 2004 complaint, the division did not investigate at all because of internal miscommunication. In the case of a January 2005 complaint regarding several potentially hazardous situations, the division's response was to query KFM by letter and rely on KFM's assertion the hazards did not exist, even though state law requires it to investigate complaints from employees in a specified period of time unless the complaint is without reasonable basis.

The auditor recommended that Cal-OSHA "design procedures to detect the underreporting of workplace injuries." The report also recommended that if the agency was going to continue its "parternship" strategies, it needed to ensure that the activites would provide "appropriate oversight and be aligned with state law."

Understaffing to Blame

The reason Cal-OSHA dropped the ball is because the agency is critically understaffed. The California Association of Professional Scientists (CAPS) issued a press release and report today blaming Cal-OSHA's chronic understaffing for the serious enforcement problems detailed in the State Auditor’s office probe.

“Cal/OSHA does not have enough field inspectors to meet its day-to-day responsibilities, let alone effectively investigate complaints at a huge project like the Bay Bridge retrofit,” charged representative Matt Austin of the California Association of Professional Scientists. “A compilation of the agency’s own organization charts shows that there are only 169 Cal/OSHA inspectors in the field for an economy of 17.9 million workers and more than one million workplaces.”

“Cal/OSHA’s worker-to-inspector ratio is double that of Federal OSHA’s ratio, worse still than neighboring states like Oregon and Washington, and dramatically worse than Canadian provinces like Ontario and British Columbia,” Austin pointed out. “In fact, there are 66 more Fish and Game Wardens in California than there are Cal/OSHA inspectors.”

This lack of staff directly contributed to the conditions on the Bay Bridge and Cal/OSHA's failure to address the problems, according to CAPS.

“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,” Austin explained. “This is how important things – like worker complaints – fall through the cracks.”

Indeed, the state auditors report recommended that If Cal-OSHA believes it does not have the resources necessary detect underreporting , it should seek additional funding from the Legislature for this effort.
In addition to the staffing problems, Cal-OSHA hasn't had a permanent Chief since July 2002 and has not had a Deputy Chief for Health since November 2000. In addition, Cal/OSHA only has 25 field compliance officers fluent in languages other than English, despite the fact that at least 4.5 million or 25% of the workforce are immigrants, many of whom are not fluent in English.

OSHA state plans are supposed to be "at least as effective" as federal OSHA, not a particularly high bar to pass these days. But CalOSHA can't even seem to reach that goal. And the feds, who are supposed co-fund and monitor the adequacy of state programs, clearly aren't doing their job either. In fact, the amount of federal money going to state programs has not gone up in four years.

Someone's not minding the store. But we knew that already.

Arnold: Chevron's Girly Man or Disney's?

Chapter I: Arnold and the Oil Company

California Governor Arnold Schwarzenegger released a report over the summer calling for a radical resturing of the California state government. Among the many proposals were elimination of many of the independent environmental boards that have made California the national leader in environmental protections. (And for good measure, he also proposed getting rid of the CalOSHA standards board, but who would notice?)

Well, it seems that Chevron, the giant oil company was more than a little interested in the outcome of that report - to the tune of $200,000 to Schwarzenegger's political action committees and $500,000 to the California Republican Party since his election last year.

But what could Chevron possibly have to gain?

Proposals that would benefit Chevron are peppered throughout the four-volume report. They include:

• Streamlining the permit process for the construction of new oil refineries and the expansion of existing ones. Chevron, which owns two of the state's largest refineries in Richmond and El Segundo, wanted the state's help in revising existing laws so local government officials would be required to make decisions more quickly on construction permits at refineries.
  
  
• Streamlining the activities of the San Francisco Bay Conservation and Development Commission. That agency, which issues permits for dredging and sand mining in the Bay Area, oversees activities related to Chevron's interests in the Bay Area.
  
  
• Reorganizing the regulatory process for picking the locations for refineries, tank farms, liquefied natural gas and other energy facilities. Chevron has two proposals to build liquefied natural gas (LNG) facilities in Southern California and the Mexican state of Baja California.

"California's ability to produce gasoline is shrinking at the same time demand for gasoline is rising, contributing to California's dubious position as a national leader in the fuel prices. Time-consuming, costly and complex permitting processes are among the obstacles to expanding ... California's petroleum infrastructure to meet the growing demand," the CPR report said. "The state needs to streamline its permitting processes to allow supply to more readily keep pace with demand, so that price volatility and price differentials are reduced."

It's not like the Governor doesn't know how things work:

Disclosure of Chevron's determined role in what many believe is the administration's most important political reform effort contrasts sharply with statements he made during last year's election campaign and afterward in which he promised to sweep out a corrupt system where "contributions go in, the favors go out."

Personally, I'm SHOCKED.

Chapter II: Arnold and the Mouse (and the fox and the chickencoop)

And speaking of contributions going in and favors going out, who better to appoint as the chief regulator of California amusement parks than the safety manager of Disneyland: "Gov. Arnold Schwarzenegger is expected to name Richard Warner as director of the California Division of Occupational Safety and Health (CalOSHA) as early as this week, according to sources inside the agency."

Some of you may remember CalOSHA as the agency that regulates workplace safety. But since 2000, it also has the responsibility of regulating California amusement parks.

Some are not convinced that this is the greates idea:

Warner's expected appointment comes as the state moves to finish drafting enforcement regulations for California's first amusement park safety law. Naming an industry insider to run Cal/OSHA could create a conflict of interest, safety advocates contend.

"We've had really good accident investigations, but that could change in a heartbeat," said Kathy Fackler, an amusement park safety activist who pushed for passage of the 1999 law. Fackler's then 5-year-old son lost part of his foot in a 1998 accident on the park's Big Thunder Mountain Railroad ride.

Arnold's people argue that who would know more about amusement park safety than a former Disney employee?

But Lisa Odabashian, a senior policy analyst at the West Coast office of Consumers Union in San Francisco, countered that Warner's ties to Disney, which contributed $10,000 to Schwarzenegger's political action committee this year, "don't pass the smell test."

Efforts to fully implement the 4-year-old amusement park law were delayed when Schwarzenegger, soon after his election last year, put a halt to writing new regulations that affect business. Odabashian said she feared the theme park regulations could be watered down if Warner got the state post.

Disneyland may be Fantasyland for the youngsters, but it's been Toad's Wild Ride as far as safety is concerned.

Disneyland has been plagued by a spate of accidents in recent years — most of them before Warner arrived at the park.

Last September, a 22-year-old Gardena man was killed and 10 other riders were injured in a Big Thunder Mountain derailment. Inspectors from Cal/OSHA blamed the accident on poor maintenance, lack of management oversight and poorly trained ride operators.

Since then, two empty cars crashed during a test run in April, and five people suffered minor injuries when two trains collided July 8. Disneyland wasn't fined by Cal/OSHA in any of the Big Thunder Mountain incidents.

In all, nine people have died since the theme park opened in 1955, but most of the accidents were caused by unsafe rider behavior.

MUST READ: Put 'em to work, poison 'em, then move to China and fire their asses

This is an amazing and extremely disturbing article from the East Bay Express about AXT Inc., a Fremont, CA, semiconductor company which exposed its employees to airborne arsenic at levels four times the legal limit in 2000 and was issued "Willful" citations and penalties of $313,000 by Cal/OSHA, the California workplace health and safety agency.

Company employees were almost entirely recent Chinese immigrants who spoke no English. As a result of the Cal/OSHA inspections and fines, American Xtal Technology (AXT) moved its production operations to Beijing, China, where it now has a 1,000-worker factory doing the work that health and safety regulators in California would not allow.

Despite the reloccation of the major production operations, the company has been cited and fined three times since the 2000 inspection, including another set of "Willful" citations issued in June 2003, which are currently under appeal.

Every day, Chan poured industrial alcohol into dozens of boxes. She worked without goggles -- her supervisors did not provide any -- and her eyes were assaulted by the alcohol fumes and gallium arsenide dust. By the end of each shift, she and her co-workers would stagger to their cars, their eyes red, bleary, and inflamed, their vision so clouded they could barely see. At night, when Chan went to sleep, she says the pain felt as if someone were rubbing gravel and sand into the underside of her eyelids, or piercing her irises with little needles.

In October 2001, a woman on the cleaning crew asked Chan to look at her neck. "She asked if there are lumps in glands in her throat, and she went to the doctor the next day," Chan recalls. Her friend was eventually diagnosed with nasopharyngeal carcinoma, a cancer of the upper respiratory tract. She never returned to work and eventually was laid off. Today, she can no longer talk above a guttural wheeze.

The following April, another woman on Chan's crew was diagnosed with rectal cancer, which has left her unable to control her bowels. In the space of six months, half the members of her team discovered they were staring death in the face. Chan confronted her manager and asked if something was wrong with the air, but he told her not to worry. "They said, 'We have people working here for ten years, and they're okay,'" Chan says. "I was very worried, but I still had to work, so there was nothing I could do about it."

As it turned out, Chan wouldn't have to worry much longer. In September 2002, AXT outsourced her job to a new factory in China, firing her and more than one hundred other workers. When she came to pick up her two weeks of severance pay, she says, a manager told her that unless she signed a statement promising never to sue AXT, she wouldn't get her money. Chan signed the statement.

It's a common story in Silicon Valley as we've seen from recent lawsuits against IBM.

Workplace toxins and outsourcing jobs are hardly new to Silicon Valley. Personal computers and the Internet continue to transform our lives in many ways, but the building blocks of the high-tech revolution have left a toxic legacy in Bay Area soil and drinking water. Santa Clara County, for instance, now has 23 Superfund waste clean-up sites -- the most of any county in America: Nineteen of them are directly related to the high-tech industry and involve poisons such as freon, benzene, and trichloroethylene. The 1980s saw a disturbing rise in the incidence of birth defects and miscarriages in certain Silicon Valley neighborhoods, and the cost of cleaning contaminated sites and settling the subsequent lawsuits has run into hundreds of millions of dollars.

Moving production to China where AXT doesn't have to worry about worker health reveals the dark underside of globalization:

"The reason everyone talks about outsourcing is cheap labor," says Jim Puckett, founder of the Basel Action Network, a nongovernmental organization that tracks the spread of toxic chemicals across the globe. "But there are certain things that go hand in hand with cheap labor that no one wants to talk about. They include the lack of government occupational safety regulation, lack of tort law to redress a grievance, lack of labor unions. All of these things are part and parcel of outsourcing. You're not just taking advantage of cheap labor, you're taking advantage of marginalized and vulnerable populations, and the fact that you can poison people without ever having to face the music."

Much of the attention paid to the exploitation of immigrant workers focuses on the construction industry, but it's the same story here.

Young Shin, the executive director of Asian Immigrant Women Advocates, says employers hire workers such as Zhao precisely because they speak little or no English and know nothing of their legal rights. "It's not an accident that certain industries employ Asian females with no or limited English," Shin says. "It's institutional; it's a design to hire certain targeted populations. You're talking about immigrants who do not have networks to assert their rights, so it's an easy target for them. Second, this being the US, a monolingual society, when you don't speak English it's hard to get information about your rights. So you're targeting a population that's easy to exploit."

Read the entire article. It gets worse when workers experience increased exposures after the company had been inspected and cited by CalOSHA and then appealed the citation which meant the CalOSHA inspectors could no longer enter the plant until the appeal is resolved. And this article, along with many others appearing lately on the plight of immigrant workers in this country also raises important questions about whether federal OSHA or state OSHA's have the resources, ideas or will to tackle these problems. More on that later this week.

Two other things: The CalOSHA inspector who broke this story, Garrett Brown, is well known to many Confined Space readers. Garrett is also the coordinator of the Maquiladora Health & Safety Support Network, a volunteer network of over 400 occupational health and safety professionals who provide information, technical assistance and on-site instruction regarding workplace hazards in the 3,000 "maquiladora" (foreign-owned assembly) plants along the U.S.-Mexico border.

I also want thank the author of this article, Chris Thompson, for believing that Americans should care about how American companies treat immigrant workers in this country and in the countries that they flee to. Chris joins David Barstow, Justin Pritchard and Andrew Schneider in the Confined Space Journalism Hall of Fame. If you appreciated this story, send him an e-mail. Reporters need love too.

Wither CalOSHA?

Most people don't realize that almost half of the states in this country run their own OSHA programs and that the effectiveness of these programs is dependent on both federal and state funding. Federal OSHA runs the rest. OSHA law allows federal OSHA to fund up to 50% of the program as long as the state runs a "fully effective" program. To determine whether a state program is fully effective, federal OSHA and the state agree to staffing level "benchmarks."

The California Association of Professional Scientists (CAPS), the union representing CalOSHA inspectors, has released a report questioning whether California OSHA (CalOSHA) is actually running a "fully effective" program. The report found CalOSHA's staffing level to be below its staffing commitment to federal OSHA and and far below what is needed to assure safe workplaces for California workers.

"It's a sorry picture," according to CAPS' Matt Austin.

California is one of 22 states to run its own OSHA program, covering both private and public sector employees. In 1980, when the CalOSHA program was first approved, the state agreed to a staffing level of 805 inspectors to cover over 11.6 million workers in half a million workplaces. CalOSHA never came close to that level and in 1994 renegotiated a much lower level with federal OSHA: 118 safety and 80 health inspectors. At that time, CalOSHA estimated that the safety inspectors would be able to inspect around 12,000 workplaces determined to be high priority, in addition to complaint, fatality and catastrophe inspections. Health inspectors would be able to inspect around 3800 workplaces.

In 1994, California was estimated to have just over a million workplaces, which meant that there was 1 inspector for every 82,822 workers and 1 inspector to for every 4,718 worksites.

Fast forward 10 years. California's labor force has grown 15% and the number of workplaces over 30% since 1994. How is CalOSHA doing keeping up?

Not well, according to CAPS.

Instead of growing in proportion with the number of workplaces covered, the official benchmark has remained at 198. The actual number of inspectors in the field, however, is much less: 176.5 (not including 7 who are on long term leave), making today's ratio of inspectors to workers 1 to 100,181 workers and 1 to 6,464 worksites.

Today, California has more fish and game wardens than workplace safety and health inspectors - 227 vs. 193.

If California was still operating under the 1980 federal OSHA benchmark ratios, the agency would have one inspector to every 15,000 workers and 625 workplaces.

CalOSHA also doesn't seem to be doing well compared to other western states. Washington State, for example, has a ratio of one inspector to 21,655 workers and 1,834 worksites, while Oregon has a ratio of one inspector to 22,286 workers and 1,239 worksites. And just for amusement, check out British Columbia which has a ratio of one inspector to 9,549 workers and 845 worksites.

There is currently a hiring freeze in California and the effect of the current round of budget cuts is not yet known.

CalOSHA is also failing to meet the challenge of keeping up with the changing composition of the state's working population. The non-English speaking workforce of California is estimated to be more than 6 million workers, over one-third of the working population. Yet CalOSHA has only 29 inspectors (or 16% of the total) who are fluent in a language other than English. Twenty of these speak Spanish.

According to Austin, there are several obstacles to fully staffing the program: budget problem, low pay for inspectors and lack of political will. CalOSHA has not been on top of the priority list for either the current or under Democrat Gray Davis. In fact, CalOSHA has not had a permanent Chief since July 2002 when former Chief John Howard was appointed by President Bush to head NIOSH.

It is not surprising, then, that Cal/OSHA staff members frequently complain of overwhelming caseloads. In November 2001 the California Senate Labor and Industrial Relations Committee held a hearing on Cal/OSHA’s response to workplace fatalities. In that hearing, Cal/OSHA was presented with a list of problems, ranging from a lack of bilingual staffing to delayed response times after worker injuries and deaths.18 Cal/OSHA representatives attributed many of the problems to staffing shortages; and they also cited noncompetitive salaries for state-employed engineers, namely, 20 percent lower than the salaries of state-contracted engineers from private consulting firms.

Even the conservative Sacramento Bee came to CalOSHA's defence in December following a fvorable article about CalOSHA in the NY Times:

At a time the state is reeling from a budget crisis of historic proportions, its worker safety law and aggressive enforcement sets California apart and above. That is something to be proud of and to protect. It also is a standard the rest of the nation would do well to emulate.

While most attention is paid to funding and program of federal OSHA, it is important to also focus on the status of workers in the 23 state plan states. Remember, it's not just a Presidential election year. Local elections are where state priorities are made. If you're in one of the other state plan states, check out your state OSHA budget and staffing.