No Mercy For Alaska Governor Who Pardoned Company Convicted Of Killing Worker

The Anchorage Daily News was as upset as we were by (former) Governor Frank Murkowski's pardon of a company convicted of negligent homicide in the 1999 death of a backhoe operator on a Cordova hydroelectric power project job site (which I wrote about here). The company had also stiffed the state on a quarter-million-dollar fine and interest resulting from the death of Gary Stone who was killed in an avalanche. State job safety officials had warned the company about avalanche dangers at the job site.

In response to the pardon, granted just before Murkowski left office, the state legislature is considering a bill that would

require governors to submit pardon applications to the state Parole Board for review. The existing law makes that optional for governors. The former governor did not bother to ask the Parole Board for its opinion on the pardon that he issued just a few days before leaving office. Nor did Gov. Murkowski or his staff bother to ask whether Whitewater Engineering Corp. of Bellingham, Wash. had ever paid its fine to the state in the case. It hadn't paid a dime.

According to the NewsT

the legislation would not interfere with a governor's constitutional prerogative to issue a pardon, but would shine a much brighter light on the process.

It's good that Rep. Samuels and his colleagues see the need for this legislation, which already has picked up bipartisan support. But it's sad that there is a need for this legislation.

BOTTOM LINE: It's too late to fix what's been done, but Alaska can do better next time.

Company Pardoned: Mother Nature Guilty of Homicide

It was just "a tragic accident caused by a snow avalanche in Alaska's harsh climate" said Alaska Governor Frank Murkowski just days before leaving office, as he pardoned a company convicted of criminally negligent homicide in the death of one of its workers, killed in an avalanche in 1999.

Gary Stone, a 46-year-old father of five, was killed in an avalanche while on a Whitewater Engineering Corp. job site. According to Murkowsiki,

In a Nov. 30 letter addressed to Thom Fischer, Whitewater's president and owner, Murkowski said: "I recognize that criminal convictions against a company has serious implications for small businesses operating in Alaska." He said the criminal charges "seem to be excessive punishment."

Yeah, wouldn't ever want to hurt any small businesses. I mean, shit happens, right? Can't do anything about Mother Nature, right?

Not necessarily.

Stone was working on a $15 million hydroelectric project in a valley outside Cordova. He was on a backhoe when snow slid off a 2,000-foot slope and buried him.

Workers had previously complained about the danger, and an avalanche expert hired by the company had warned Fischer there was a high probability of a serious snow slide at the site, according to a report from the state's occupational safety agency.

Basic, required safety procedures were not followed on the site and the company exhibited gross negligence, according to information submitted by the state at the company's sentencing. A state report said Fischer didn't want to spend the money on a comprehensive avalanche control program.

A state judge found the company guilty of negligence in Stone's death, fined Whitewater $150,000 and ordered the company to pay approximately $17,000 to the victim's family. Settlement of a Stone family lawsuit left his children with about $7,000 each, family members said.

The state filed a separate lawsuit alleging multiple violations, which was resolved with an additional fine against the company.

And it's not like anyone was even going to jail. The company's owner, Thom Fischer, was initially charged personally with manslaughter in Stone's death, but that charge was dropped and the company itself was convicted. Pardoning the company means it may be eligible for company insurance breaks and opportunities for future federal or state jobs.

The victim's family said that the state never notified them of the pardon, which the company had requested. "This is a huge slap on the face," said Stone's daughter, Jessica Ridinger, 30, who burst into tears when told about the pardon by an Anchorage Daily News reporter.

Hard to blame her.

Criminal Prosecution In Trench Death

Now this is more like it.

A concrete company was criminally charged Tuesday in the death of a worker who suffocated in a trench that collapsed at a worksite.

Maco Concrete Inc. willfully violated the Michigan Occupational Safety and Health Act in connection with the April 23 death of Jeffrey Padot, Attorney General Mike Cox said in a news release.

The St. Clair Shores-based company was charged with failing to provide a hazard-free workplace, a 1-year felony carrying a fine of up to $10,000.

A telephone listing for Maco Concrete could not be located Tuesday night.

Padot, 41, of Eastpointe, and another worker were laying sewer pipes in a 10-foot-deep trench at a home in Oakland County's Addison Township. The other worker was rescued after the trench walls collapsed.

Investigators determined that the earthen trench walls were nearly vertical and were not supported or shored to reduce the risk of collapse, in violation of MIOSHA requirements.

OSHA regulations require trenches deeper than 5 feet to be either shored or sloped.

Jail For Asbestos Test Fraud

This is one of those stories that you need to remember when you hear Bush administration officials say that we don't really need more enforcement of our workplace safety laws, just more compliance assistance, fact sheets and web pages. Or when you hear (outgoing) Chairman of the Senate Health, Education, Labor and Pensions Committee Mike Enzi optimistically telling us that:

Cooperation, not confrontation is essential in making our workplaces safer. The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of profit is a dangerous myth.

Last week, Timothy Carroll was sentenced to 28 months in prison for falsifying asbestos air sampling results. Carrol was falsifying the reports to help Alex Salvagno and his father, Raul, who conducted illegal asbestos removal in up to 1,555 buildings throughout New York over a ten year period. They even paid homeless persons $4 an hour to remove the asbestos. The Salvagnos were found guilty of racketeering and conspiracy to violate environmental laws for rushing asbestos-abatement.

Carroll admitted he falsified air sample results and destroyed documents that revealed the illegal relationship between Analytical Laboratories of Albany, which Carroll owned, and AAR Contractors Inc. of Latham. Charges included mail fraud, federal Clean Air Act violations and filing false income tax returns.

In 2005, Alex Salvagno was sentenced to 25 years in prison and his father, Raul, to 19 years. The falsification of the asbestos tests conducted by Carroll was essential to the scam.

During the five-month trial, former employees testified the Salvagnos ordered them to crudely rip asbestos from buildings and falsify up to 75,000 laboratory samples. By working without even minimal safety precautions, the Salvagnos saved on labor costs. The scheme worked for so long because of the Salvagno-Carroll connection.

When the U.S. Environmental Protection Agency began investigating, agents discovered everything from asbestos fibers to chunks of asbestos left behind at job sites where AAR Contractors had performed work. In one case, investigators found asbestos dust on a box of lollipops given out at a bank, according to prosecutors.

Be careful out there. There are a lot of bad people around, and most of them probably aren't getting caught.


Related Stories
Job Wanted. Will Get Cancer For Food, June 22, 2005
Asbestos "Compensation" -- Return of the Living Dead, January 10, 2005
Father and Son Story, February 4, 2004

Mine Officials Go To Jail For Lying

Kathy Snyder at Minesafetywatch reports on three mine officials who are on their way to jail for lying to MSHA officials about a 2003 death at a southern Illinois coal mine.

And while you're in the neighborhood, check out this post which describes the support that incoming Virginia Senator Jim Webb received from the southern Virginia coal fields.

Walking Away From Negligent Homicide

I've been writing the same stupid, tragic stories in this stupid blog almost every single day for three and a half years, but there never cease to be stories like this that make me mad as hell and nauseous at the same time.

Jeremy Foster's stepmother, Becky, sent me this article about her son, yet another young worker -- 19 years old -- who was killed in a perfectly preventable incident that should have drawn a citation that might have really punished the company, and, more important, sent a message throughout the land that this kind of thing absolutely won't be tolerated.

Instead, for the death of Jeremy Foster in a sawmill accident more than two years ago, OSHA fined the company, Deltic Timber in Ola, Arkansas, a grand total of $2,250. That $2,250 was half of the original fine because OSHA wanted to ensure that the problems were fixed as quickly as possible. Sometimes that kind of thing makes sense, because the law states that if an employer appeals an OSHA citation, they don't have to fix the problem until the appeal is exhausted which can be months or years later. In this case, however, the problem had been fixed while OSHA was still at the plant, well before they issued the original $4,500 citation.

On the night of Oct. 1, 2004, Foster showed up for work at the Deltic Timber plant in Ola where he worked as a chipper attendant. His job was to remove wood chips and sawdust from a chipping machine.

As usual, he worked alone. No one witnessed his accident that night, but a report filed by the Ola Police Department describes what happened, based on testimony from co-workers who found Foster’s body:

“Co-workers stated that Foster’s sweatshirt had got caught and tangled up in the tail spool. Co-worker said that Foster had apparently grabbed the shirt and tried to free himself …. Foster’s left glove apparently got hung inside the tail spool, possibly when he was trying to free himself.”

Foster died of asphyxiation, strangled as his sweatshirt — caught on a circulating machine shaft — wrapped tighter around him.

Normally, a machine operator in a similar situation would have been able to slide off the shaft. But the shaft that caught Foster’s sweatshirt had a piece of metal welded to its end, preventing Foster from freeing himself.

In January 2005, the U.S. Occupational Safety and Health Administration (OSHA) cited Deltic for a “serious” violation, noting:

“In the chipper tender area, the projecting end of the tail spool shaft on the edger saw dust chain conveyor did not present a smooth surface. A metal bar had been welded to the end of the shaft, which created a catch point. On or about 10/1/04, an employee’s shirt was caught on and twisted around the metal bar and rotating shaft, resulting in the death of the employee.”

Foster's parents are feeling betrayed by their government. “Deltic walked away from negligent homicide,” Foster's father, Jeff, said.

One other thing that just isn't right. Foster worked for a temporary agency, not Deltic. More and more, companies are hiring "independent contractors" or temps so that they don't have the responsiblity of paying the same benefits or providing the same training that their regular employees get. The downside, is that unlike regular employees who are barred by workers compensation laws from suing their employer, contract workers usually are not prevented from suing. For some odd reason, this isn't the case here:

Little Rock attorney Gary Davis advised Foster’s family that “only a workers’ compensation claim would be available under circumstances due to our ‘exclusive remedy’ law in Arkansas. Deltic Timber would, by use of the ‘dual employment doctrine,’ likely be able to also take advantage of this exclusive remedy provision of Arkansas law. In other words, Deltic will be allowed to declare themselves as Jeremy’s ‘employer’ for purposes of the law which returns us to the limits of workers’ compensation. … Since Jeremy had no dependents, there is really no monetary gain to be had from even pursuing a workers’ compensation claim.”

While Jeremy was alive, Deltic did not treat him as a company employee. According to his parents, Jeremy Foster did not clock in, as a Deltic employee would. He signed in at the guardshack, like a contractor. And his temp agency paid him, not Deltic.

And just to add insult to injury, worker comp didn't even have to pay anything, because Jeremy had no dependents.

“The way workman’s comp laws in Arkansas work, they protect the company,” Jeff Foster said. “If Jeremy had just been hurt, we could have got a large settlement. But since he died, we didn’t.” If a worker killed on the job has dependents, benefits may be paid to them, but Foster had none.

Finally, take a look at the comments at the bottom of the article by Jeremy's parents, friends and relatives following the article. They get it.

Jeremy's mother and stepfather wrote: "What was OSHA thinking? They are suppose to be so strict!" His aunt and uncle wrote "I thought OSHA was suppose to ensure a safe work place for us, But is our tax dollars being wasted?"

Here we see the myth propagated by corporate America. OSHA the bully, OSHA the gestapo, OSHA the job-destroyer.

A wise person once told me that America should have the laws that people think we already have. People think that companies that kill workers will be seriously punished. They think that fines will be more than the cost of a beat-up old used car. People think that workplace homicide is a serious offense. People think that someone, somewhere -- like maybe even politicians -- gives a shit.

But this isn't the reality in the United States today. Workers can be killed due to employer negligence the employer will get away with a slap on the wrist. Even if the death is caused by a violation that the employer knew was life-threatening, there are only criminal prosecutions in the rarest of circumstances, almost never resulting in jail. Unfortunately, the reality doesn't sink in until you lose your teen-age son, or your husband, or father (or daughter, wife or mother).

Is this the kind of country people think we live in? I don't think so.

So what are we doing about it?

A Month In Jail -- And No One Even Died!

OK, this is interesting, even if it happened in another far off country, north of the border.

I mean we almost never even send people to jail for willfully ignoring a safety standard that leads to the death of a worker. This guy gets jail for a bruised shin:

Seeley's Bay contractor jailed 30 days for health and safety violation

KINGSTON, ON, Oct. 25 /CNW/ - A partner of Peaks & Valleys Contracting, a roofing contractor based in Seeley's Bay, Ont., was ordered jailed for 30 days today for a violation of the Occupational Health and Safety Act that resulted in injuries to a young employee.

On September 14, 2004, a worker fell from a roof about three storeys into a refuse bin on the ground below. The worker suffered a bruised shin bone. Just prior to the incident the worker had been instructed by the defendant to ascend the roof to remove old shingles so they could be replaced. The roof was about eight metres (27 feet) from the top of the eavestrough to the ground. The worker had been on the roof for about 10 minutes before falling. It was the worker's first day on the job. The incident occurred at a shingling project at row housing on Craig Lane in Kingston. K.B. Home Insulation Ltd., a Kingston-based contractor, was hired by the row housing's condominium corporation for the shingling project. K.B. Home Insulation Ltd., in turn, hired the defendant to do the work.

A Ministry of Labour investigation found the worker was not wearing a
fall harness when ascending the roof. However, as the worker lay injured in the bin, the defendant put a fall harness on the worker and told the worker to tell Ministry of Labour investigators the worker had been wearing it while on the roof. The worker did as instructed.

Of course the punishment was not just the bruised shin; it was the lie and the fact that the man could have been killed, just like two workers fall to their death every day down here, south of the border, in the United States.

But more important than the guy spending a month in jail is the message this sends out to employers across Canada. You put workers at risk, you lie to inspectors, you go to jail -- even if no one dies.

Think about it.

Mass Legislature: Criminal Convictions Needed For Companies That Kill Workers

Isn't it amazing how a few deaths in broad daylight in front of dozens of onlookers can stiffen legislators' spines about how best to convince employers to make their workplaces safe?

The prospect of criminal convictions and jail time send a powerful and necessary message to companies that might not be deterred by a fine....People should not have to choose between earning a living and preserving their health and well-being.

This was the opinion of a report issued by the Massachusetts Legislature's Joint Committee on Public Safety and Homeland Security following the announcement of a $119,000 fine against Bostonian Masonry, the company that employed two construction workers who were killed last when a scaffolding collapsed in downtown Boston in April. A pedestrian was also killed. OSHA issued one willful citation carrying a $70,000 fine, the maximum allowed under law. The willful citation was for the improper removal of the bracing.

The report says the state's law enforcement officials should be given a stronger hand to go after negligent contractors.

"Criminal prosecutions may be one of the only solutions that the commonwealth's attorney general and district attorneys have available to them to permit action against willful violations," the report said.

Construction industry executives weren't too sure of the report's conclusions:

Robert L. Petrucelli, president of Associated General Contractors of Massachusetts, a trade association representing the state's commercial construction industry, said the group is studying the report.

"Certainly that's a huge potential impact on the construction industry and we have to look at the thought process behind that recommendation," he said referring to the call for criminal penalties.

The group is researching what penalties currently exist for wanton or reckless behavior on the part of companies and neglect on the part of workers.

The Massachusetts Coalition for Occupational Safety and Health issued the following statement following the OSHA citation:

The OSHA investigation in late September confirmed what most of us anticipated: the tragedy that took the lives of Robert Beane, Romildo Silva and Michael Ty, was preventable had the employers instituted basic, well-known safety measures.

To honor the memory of three men, we can no longer tolerate the claim that a workplace death was a “freak accident” when a 20,000 pound scaffold with no supports, collapses and crashes down 30 stories.

We can no longer call worker deaths a shock when at least one construction worker in Massachusetts dies every single month.

The state can no longer throw its hands up after a worker death and say its OSHA’s responsibility.

Like a science experiment, we know that if all conditions remain the same, we can predict the results - that employers will continue to ignore safety precautions and workers will die.

It’s time for the state to step up to the plate and not allow employers to put profit over safety.

Amen


Related Stories

• Boston Scaffold Collapse: Asking The Wrong Questions, April 10, 2006
• Scaffold That Fell Should Have Been Attached To A Crane, April 8, 2006
• Boston Scaffold Collapse: Voluntary Safety Doesn't Work, April 6, 2006
• More On The Boston Scaffold Collapse, April 6, 2006
• Falling Scaffold Kills Three -- Cheap Workers or Expensive Bystanders?, April 3, 2006

Contractor Faces 25 Years In Jail For Using Untrained Homeless Men To Remove Asbestos

This is one of the ironies of the law here in the United States.

Roanoke, VA contractor John Edward Callahan has been accused of hiring homeless men to rip out cancer-causing asbestos without giving them proper training or protective equipment.

This is obviously a very bad thing to do. Neither Callahan, nor his firm, Environmental Construction, had the necessary training or license to do the job. If he's convicted on all five counts of violating the Clean Air Act, Callahan faces up to 25 years in prison and a fine of up to one and a quarter million dollars. And he would deserve every day and every dollar of the penalty.

Of course, if Callahan had knowingly killed the workers and been charged under the Occupational Safety and Health Act instead of the Clean Air Act, he would have faced a total of only six months in jail, although statistically, it's highly unlikely that he would ever have had criminal charges brought against him.

Anyone else think something's wrong with this picture?

Manager Convicted Of Homicide: Sentenced To Teaching Safety Classes

I've written a few times about the deaths of Far West Water and Sewage Company employees James Gamble, 26, and Gary Lanser, 62, who were suffocated by toxic sewage gases while working on an underground sewer tank on Oct. 24, 2001, in Mesa Del Sol, Arizona.

The company and the company's President Brent Weidman were prosecuted. According to the prosecutors on the case, the violations were so blatant, and it was so obvious that the workers had no idea of the danger inherent in confined spaces, that a criminal prosecution was completely appropriate. The air in the tank had not been tested during the day of the incident, the workers weren’t properly trained and the required safety and rescue procedures weren’t followed. Far West decided to fight the case, at one point arguing that the workers had mysteriously suffered simultaneous heart attacks.

The company was convicted of negligent homicide and aggravated assault last November and fined $1.77 million. Weidman was found guilty by a jury of two counts of negligent homicide and two counts of endangerment last June. Last week he was sentenced:

Superior Court Judge Andrew Gould sentenced Brent H. Weidman to four years of supervised probation for one of the negligent homicide convictions and another four years for one of the aggravated-assault convictions. The sentences will be served concurrently.

Weidman was also sentenced to three years of supervised probation for a second count of negligent homicide and three years of supervised probation for another count of aggravated assault. Those terms will also be served concurrently, and will start after his four-year probation ends.

"I'm pleased it's over and that it came out the way it did," a still-emotional Weidman said in the hallway outside the courtroom moments after the sentence was handed down. "But, it will always be a sore spot in everyone's life. I'm sorry for the families and their loses and sorrow."

The judge also sentenced Weidman, who used to head Far West Water and Sewer Company, to serve 840 hours of community service in which he will teach safety training classes for the Arizona Occupational Safety and Health Administration in Yuma and ordered him to pay a $50,000 fine at the rate of $250 a month which will take Weidman about 17 years to pay off.

Yeah, I'll bet Weidman's pleased. Kills two workers, convicted of negligent homicide and gets sentenced to teaching and the equivalent of a monthly car payment -- fates apparently worse than jail. That should teach American employers not to kill their workers.

I've spend a lot of time in this blog talking about the ineffectiveness of OSHA's penalty system and the need for more criminal prosecutions of employers who kill workers in clear violation of OSHA standards. But if judges are going to hand down non-sentences like this, what's the point?

I am currently reading a book called Working Disasters: The Politics of Recognition and Response. I will review the entire book late, but there's a chapter by Richard Johnstone, Professor of Law at Griffith University in Australia, on "Courts, Crime and Workplace Disaster" that discusses how, throughout history, occupational safety and health offenses were not considered to be "real crime."

Johnstone discusses defense attorney's success in using a variety of defenses or "mitigation techniques" in the sentencing process such as "blameshifting" (subtly blaming the worker), pleas that the employer is a "good corporate citizen" with an otherwise excellent safety record, suggesting that the workers succumbed to a "freak accident," pointing out that the accident was in the "far distant past," whereas the employer has seen the light and corrected the problems, and, finally, "anthropomorphizing the defendendent," in other words, convicting the company as if it were a person, rather the the responsible persons themselves.

As we have seen, some of these tactics were clearly in play, and the judge, in this case, may have fallen for others. In other words, as Johnstone explains, judges

may have difficulty conceiving these offences to be truly criminal; they are susceptible to careless worker and other blameshifting arguments.

While the judge made no statement about his reasoning, it is entirely probable that in his heart of hearts, he felt that Weidman was truly sorry, that he probably wouldn't do it again, that it was (kind of) a freak accident (I mean, it doesn't happen every day), and anyway, why put a nice middle aged man in one of those nasty old prisons with all of those other, uh, disreputable scoundrals?

One more thing. Apparently attempting to make lemonaid out of lemons, Andrea Esquer, press secretary for Arizona Attorney General Terry Goddard, explained to Occupationalhazards.com:

That was really the point of pursuing criminal charges against him....We think [safety training] was one thing that was really needed to help these workers avoid this incident."

Well, no, I don't think training was the point here. No one will dispute the value of a good worker training program, particularly when it comes to the potentially deadly hazards of confined spaces. But training is only one small part of a comprehensive confined space program, which, if isolated from the rest of the program, essentially becomes another version of blaming the worker. Gamble and Lanser were sent by their manager into a confined space without evaulating the hazards, without monitoring the space, and without ensuring a means of rescue. Lack of training was only one part of the crimes.

The law states that the employer is responsible for maintaining safe working conditions. Putting the entire blame on lack of training puts the burden on the employee to confront his managers, risking his job. While risking one's job is clearly preferable to losing one's life, that's not the way the law is supposed to work in this country. After all, if the trained employee doesn't confront his manager, then whose fault is that?

What this makes clear is that we have a lot of work to do -- not just changing the laws, but also developing effective arguments to be presented to juries, as well as judges and the media.

Trench Deaths: "90 mph hour in a 15 mph school zone"

Yet another case where a negligent employer gets away with murder -- two murders -- with a small fine.

The families of two workers who were crushed to death in the collapse of a 12 foot deep trench in Reno, Nevada are calling for criminal prosecution of the employer, Jon Winfield. Travis Cruz and coworker Clayton Gregory were killed in the collapse. Nevada state OSHA recently fined the now-closed Western States Equipment and Bobcat Service $49,000 after finding "serious" safety violations. The OSHA trenching standard says that a trench box or some other kind of protection has to be used if the trench is over 5 feet deep.

The families don't think the relatively small fine is enough: Cruz's brother Terry

said Jon Winfield, owner of the Reno company hired by Somersett to dig the ditch, should be prosecuted.

"He was very careless," she said. "I think he should be facing jail time. He caused two people to lose their lives."

***

Steve and Jo Gregory said criminal charges should be brought against Winfield because a financial penalty alone will not protect others from the safety abuses that are responsible for the end of their son's life.

"I think it is very important that criminal charges be filed against this young man," Steve Gregory said of Winfield.

Gregory said he's met Winfield twice since his son's death, and thinks Winfield was foolish, not malicious, in ignoring the safety issues that preceded the trench's collapse.

"But if this is allowed with only a fine, then the state of Nevada sends a message that it's OK to work in unsafe conditions and all you get is a $50,000 penalty. (Contractors) can make that up in a day."

Unfortunately, because OSHA didn't find any willful violations, Winfield can't be prosecuted under the OSHAct which requires a willful violation that results in a fatality.

But reading the article, I can't understand why Nevada OSHA didn't find a willful violation:

OSHA officials could not be reached to comment on the report, issued June 22 and obtained Tuesday by the Reno Gazette-Journal.

The report said on the day of the accident, Winfield and six employees were working on the project. Winfield's company had a verbal contract with Somersett Development Co. in Reno to install a French drain to "de-water" the area along the fairway of the second hole on the golf course.

The trench at the time of its collapse was 54 feet long and up to 12 feet deep with an average width of 40 inches.

"Mr. Winfield stated that his crew was under pressure from management at the Somersett Development to complete this job as soon as possible," the report states.

Attempts to reach a Somersett representative after working hours were unsuccessful.

"(Two employees) both stated that Mr. Winfield would yell at the employees to hurry up their work," the report noted. "(One employee) stated that Mr. Winfield repeatedly said, 'Move your ass,' to laborers."

According to the OSHA investigation, employees also asked Winfield to remove debris and told him of water seeping into the trench at shoulder height. One employee who asked if the trench would be shored was told it did not need it, the report states.

"(Another employee) stated that he never felt safe in the trench, but did not say anything to Mr. Winfield because he was afraid of being ridiculed or humiliated," the report states.

The report found that "Employees of Western States Equipment and Bobcat Inc., had not been trained in recognition of hazards of the environment they were exposed to. Protective helmets were not required for employees working in the trench and surrounding areas."

The report also found:

• Water was allowed to accumulate in the trench without proper precautions.
  
  
• The spoils pile was not maintained at the required distance from the trench.
  
  
• No inspections by a competent person were conducted prior to the start of work in the trench.
  
  
• There was not an adequate means of access or egress from the trench. With no ladders of other means of egress, there was no safe or quick method to exit the trench when the collapse occurred.
  
  
• There was no evidence of any protective system for employees working in and around the trench. No shoring or shielding system had been installed in or around the trench.

Gregory's father talked of how the death of his son had altered the lives of his family:

"I saw the hole where he made footprints where they dug him out," he said. "I went through his pockets, which were soaking. That told me the ground in that trench was wet. It doesn't take a rocket scientist to know the conditions there weren't safe."

Winfield's employees shouldn't have been allowed to work in a ditch with soil that was more than 5 feet deep and wet, said Gregory, adding that he has 27 year experience in the construction field.

"That's not just fudging a little," he said. "That's doing 90 mph hour in a 15 mph school zone."

Good point. Does anyone think that a person driving 90 miles per hour who kills a couple of kids in a 15 mph school zone would get off with a $50,000 fine?

The Future Of (Some) Work-Site Enforcement

Think employers shouldn't get away with just a fine for killing workers? Well, here's good news for all of you fans of criminal prosecution. The Bush administration seems finally to be catching on:

One thing we have learned ....is that simply fining employers ... doesn't work. [The federal government] invested substantial time and effort in issuing proposed administrative fines against unscrupulous employers, only to see the fines ignored, paid in an untimely manner or reduced to nothing. For many employers, these fines amounted to a cost of doing business. They were no deterrent.

We can achieve far greater respect for the law among employers by bringing criminal prosecutions and seizing assets derived from illegal employment schemes. The prospect of 10 years in federal prison and losing that new home and car to forfeiture has much sharper teeth than a small fine. This is the future of work-site enforcement.

Oops, unfortunately, this statement is not from OSHA director Ed Foulke, but from assistant secretary of homeland security for immigration and customs enforcement (ICE), Julie Myers. And she's talking about employers who knowingly hire undocumented immigrants, not employers who knowingly kill their employees.

Myers' bureau is the same one that did such a great job of impersonating OSHA staff last year in an effort to nab undocumented workers in North Carolina. Maybe OSHA should now return the favor by copying some of ICE's new found zeal for tough enforcement.

There's a lesson here. If you can raise an problem to such a frenzy that it becomes a major election issue in an election year, politicians will respond.

McWane Executive Sentenced to Prison For Clean Air Violations

Some companies never seem to learn. Charles Matlock, an executive with an affiliate of the notorious McWane Corporation, has been sentenced by a federal court to a year and a day in prison and a $20,000 fine for violating the federal Clean Air Act.

As one reader pointed out to me upon reading about this, the company's fines would have been much lower if they had just filtered the air through workers lungs instead of into the outside air. The only way an employer can go to jail under the Occupational Safety and Health Act is if they knowingly violate a standard that results in the death of a worker. Penalties under the Clean Air Act (and most other environmental legislation) are much more severe.

Matlock is an executive of the Pacific States Cast Iron Pipe Co in Sprinville, Utah. Atlantic States Cast Iron Pipe Company, owned by the notorious McWane Inc., an Alabama-based conglomerate whose extensive record of safety and environmental violations was highlighted in a 2003 NY Times/Frontline series.

On Feb. 8, a federal judge sentenced McWane to pay a fine of $3 million – the largest criminal environmental fine in Utah history – and serve a 3-year period of probation, after it pleaded guilty to violating the Clean Air Act. At that time, Matlock also pleaded guilty to violating the Clean Air Act by rendering inaccurate a stack emissions test required under the act.

"[The] sentencing of the former vice president and general manager of Pacific States Pipe Company underscores McWane's lamentable record of serious environmental misconduct nationwide," said Granta Nakayama, EPA's assistant administrator for enforcement and compliance. "The message should be clear that prosecutions will go as high up the corporate hierarchy as the evidence permits and we will hold senior managers of corporations accountable, as well as the corporation itself. All company employees should definitely think twice about knowingly breaking the law because they should clearly understand that they will face incarceration and fines for harming the environment and putting the public at risk."

Prosecutors were not happy with McWane's actions:

"Protecting local communities from harmful air pollution depends upon honest reporting by regulated companies, and when senior corporate executives cheat on required tests, public health and the environment suffer," said David Uhlmann, chief of the Justice Department's Environmental Crimes Section.

Last April, Atlantic States, along with four of its managers at a New Jersey plant, were found guilty of conspiring to evade workplace safety and environmental laws. After that verdict, Uhlmann said that the verdicts "demonstrate beyond any reasonable doubt that McWane is one of the worst and most persistent violators of our nation's environmental and worker safety laws," said in an interview.

Related Articles

• GUILTY: The "McWane Way" May Land Managers In Jail, April 27, 2006
• McWane Guilty Again June 12, 2005
• Jury To McWane: It's Not Nice To Pollute Mother Nature, June 12, 2005
• McWane Admits to Environmental CrimesMarch 23, 2005
• Of Fish and Men: Corporate Penalties And The Law, March 19, 2005
• Another McWane Death, January 25, 2005
• McWane Employee Admits Illegal Dumping, May 31, 2004
• More Charges Against McWane, May 26, 2004
• McWane a "Model Corporate Citizen?"....God Help Us All!, December 16, 2003
• McWane/Tyler Pipe: Getting better or Same Old, Same Old?, September 28, 2003
• McWane Fined Again, September 8, 2003
• Oops, McWane Does it Again: Mistakes Are Made, July 24, 2003
• Three Finger Defense: McWane/Atlantic Pipe Talks to the Press, July 24, 2003
• McWane Fingered in Workplace AccidentThe NY Times ..., June 5, 2003
• More McWane Violations: High Crimes, Low Fines, April 15, 2003

No One's Died Yet, So What's The Problem?

BUFORD, GA — A construction worker was trapped up to his chest in dirt when a trench collapsed Friday morning, but co-workers helped dig him out before firefighters began rescue operations.

The laborer was installing a sewer line for Metropolitan Land Development, a Lilburn-based company cited five times in the past three years for serious violations involving trench safety, according to the Occupational Safety and Health Administration's Web site

The trench was reported to be 18-20 feet deep. OSHA requires trenches over 5 feet deep to have a protective trench box or to be shored or sloped against collapse.

Now, here's something I don't understand. OSHA assistant area director Bill Cochran said that a serious violation could result in a $7,000 fine. That's true, but given previous citations against the company, I would think that a willful citation -- carrying a $70,000 fine -- would be in order.

In 2003, Metropolitan Land Development was cited for two serious violations involving trenching hazards and ordered to pay OSHA $2,000 in an informal settlement. In 2004, the company was cited three times for trenching safety violations and fined $9,000, according to inspection reports posted on OSHA's Web site.

And one more thing. Rare among trench collapse articles, the author points out that why even partial trench collapses are potentially deadly:

Capt. Scott Kennedy, who supervises the tactical rescue team for Gwinnett County Fire Department, said trench collapses are often fatal. Just one cubic foot of dirt can weigh between 100 to 150 pounds, so a trench collapse can restrict breathing and blood flow to the point that it becomes deadly.

Or put another way, a cubic yard of soil weights about 2700 pounds, the weight of a mid-sized automobile. A trench collapse may contain three to five cubic yards of soil. Do the math.

Conclusion #1: This guy was damn lucky.

Conclusion #2: Put these guys in jail before they kill someone.

Company President Convicted of Homicide In Deaths of Two Workers

Occasionally, all too rarely, justice is done; those responsible for the preventable deaths of workers receive appropriate punishment.

The former president of a water and sewer company, Brent Weidman, has been found guilty by a jury of two counts of negligent homicide and two counts of endangerment in the deaths in 2001 of 26-year-old James Gamble and 62-year-old Gary Lanser, who were killed in a confined space incident while working on an underground sewage tank. Last year, Arizona prosecutors Christina Fitzpatrick and Mark Horlings convinced a jury to find the Far West Water and Sewer Company guilty on five of the six felony charges filed against it. In January, a Yuma judge imposed $1.77 million in criminal fines against the company.

The jury acquitted Weidman of a charge of aggravated assault for the injury of a worker who survived the incident, but has permanent lung damage.

This tragedy was unfortunately typical of confined space incidents, where one of the workers killed was the attempted rescuer and two other rescuers narrowly escaped death:

Gamble entered the tank to remove a plug that was blocking a line into the tank and died after being overwhelmed by hydrogen sulfide fumes when a pump that ran raw sewage into the tank from a different line was turned on. Lanser died trying to save Gamble,

Enclosed areas or “confined spaces” in sewers and wastewater treatment plants (or anywhere where there is rotting organic material) are notorious for accumulations of hydrogen sulfide which can kill workers and their rescuers. Confined spaces can also develop life-threatening oxygen deficiencies and generate explosive methane gas. For this reason, OSHA has a detailed Confined Space standard which requires the air to be monitored, a means to safely rescue workers if they are overcome by fumes, and extensive training.

According to the prosecutors on the case, the violations were so blatant, and it was so obvious that the workers had no idea of the danger inherent in confined spaces, that a criminal prosecution was completely appropriate. The air in the tank had not been tested during the day of the incident, the workers weren’t properly trained and the required safety and rescue procedures weren’t followed.

The families of the dead workers were pleased with the jury's verdict:

Ed Thrasher, Gamble’s stepfather, who smiled as the guilty verdicts were read aloud in court, was also pleased with the jury’s decision.

“I thought the jury did a good job weighing all the evidence and coming back with the right decision,” said Thrasher, who attended every day of the 22-day trial. “It’s been a long five years.”

Both [Gamble’s mother, Carol] Borieo and Thrasher added they felt justice had been served and that they hope the jury’s decision will help save other lives as well as make companies take safety more seriously.

***

“Maybe this will make sure the people with the big paychecks, fancy titles and perks will realize they can be held responsible,” Thrasher said. “It’s really shameful when the bottom line is more important than people who work for the company.”

This is but one of thousands of cases every year where clear violations of OSHA standards lead to the preventable deaths of workers. Most employers get away with a relatively small fines (the total OSHA fine in this case was $31, 500), but sometimes aggressive prosecutors can not only punish the killers, but send an important message out to employers nationwide: Workplace killing means jail.

NY Contractor Indicted For Worker's Fatal Fall

Chalk up yet another example to disprove Senator Enzi's theory that "The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of profit is a dangerous myth."

Tariq Alamgir and Nasir Bhatti, owners of Metla Contracting and Roofing, Inc., were indicted in federal court last week for failing to provide fall protection which led to the death of Mohamadou Jabbie,an immigrant worker who fell 60 feet from a scaffold in Bushwick, NY last June. What caused Jabbie's death took a little while to discover:

A co-worker initially told an OSHA investigator that Jabbie had been wearing a safety harness, but took it off just before the accident. Later, the co-worker admitted that wasn't true, and said that no one from Metla ever told them that safety equipment was required.

The co-worker also disclosed that when Alamgir arrived at the scene of the accident, he told the worker "to tell investigators that harnesses had been on site prior to the collapse," according to court papers.

Alamgir made the same claim to OSHA investigators when he was interviewed, and is additionally charged with making false statements

If convicted, the contractors each face up to six months in jail and $10,000 fines. OSHA has already fined the company $126,00, including a $70,000 willful citaion.

Under federal safety rules, workers potentially exposed to a fall of 6 feet or more must have some type of protection, such as guard rails, safety nets or harnesses.

So maybe if Alamgir ansd Bhatti had only known about these OSHA standards and taken advantage of compliance assistance offered by OSHA, they would have acted responsibly and done the right thing.

Think again:

Metla Construction, Inc.,...had been slapped with 20 safety violations in 2004-2005 by the Occupational Safety and Health Administration for failing to provide workers with fall protection at two work sites, but never settled the violations and ignored the penalties.

I'd say I was shocked and surprised if this was something that didn't happen almost every day.
Jail sounds just about right to me.

"My Son Was Killed" -- Workers Memorial Day, Philadelphia

Below are excerpts from a Workers Memorial Day speech in Philadelphia by Irene Warnock whose 22 year old son, Chuck Carpenter, was electrocuted last year.

My 22-year-old son, Chuck Carpenter, was killed instantly at work July 2, 2005. It was not an "accident", "unfortunate incident", "terrible tragedy", or any of those other politically correct words. My son was killed.

My son was electrocuted at work. He was a mechanic, not a licensed electrician.

My son worked for William Major who owns and operates Funtown Pier in Seaside Park, New Jersey, which is an amusement park at the Jersey Shore boardwalk. It was two days before the big July 4th money-making weekend. It was hot and humid at the Jersey Shore. My son was sweaty and overtired. He had already worked, approximately, 16 hours that day.

We have not received OSHA's report as of this date; but, from what little I understand, not one, but two employees were electrocuted that single day on the Arctic Circle ride, killing my son instantly with 440 volts. Bulgarian work-visa ride operators AND PATRONS were complaining of being shocked. The New Jersey newspaper reporters reported, "by static electricity." I have heard of static electricity while walking on a rug with slippers on a winter day, but - "static electricity" on a hot, humid summer day? Is this what William Major/Funtown Pier, the employer, told the newspaper and television reporters? If so, how could William Major/Funtown Pier have a license to operate these HIGH VOLTAGE machines?

***

The operative cause of my son's workplace death was that the owner of a company using dangerous machinery powered by HIGH VOLTAGE electric power, allowed that these machines be maintained by an unlicenced worker untrained in that field. It should have been obvious that such power installations required the employment of a trained and licenced electrician. Sadly, my son's work ethic contributed to his death. Young, ambitious men are likely to get out of their depth, and sometimes must be prevented from doing so, by their employer and by government regulation.

Even the best- regulated operations, well-trained workers will sometimes be injured or even, sadly, killed. But, it is the job of OSHA and other government agencies to reduce those cases to the absolute minimum. How hard would it be for such an agency to declare that HIGH VOLTAGE power must be maintained by a licenced electrician, to determine that a company uses such power, and to demand to see a copy of the license?

It would seem to me that allowing untrained and unlicenced personnel to work with HIGH VOLTAGE power should be illegal, and probably is, but why was there no mechanism to ensure compliance?

Is it because OSHA positions are politically appointed that the majority of the time OSHA does not impose a jail sentence in a work-related death or impose stiff fines and penalties because of pay-to-play political party donations? Is it possible that such regulations and reporting requirements already exist, but that unscrupulous business owners might gain immunity from them through political influence?

***

In New Jersey a hairdresser or barber must be licensed! Why can we not do so for more dangerous workplace environments?

My son's work-place death began as a crime scene. Is it going to conclude as a criminal investigation? The reality is, probably not. The crime is that right now, probably right at this moment, another family just lost a loved one to a work-place death, which, more than likely, could have been prevented.

In conclusion, per Donald Coit Smith, whose 22-year-old son was also electrocuted in a meat packing facility in Texas last year . . . "Employer negligence is all about money . . . elect legislators who will take the public's best interest at heart and make these law changes to protect the common man. Too much employer PAC money is given to elected officials to (make) employer favorable laws."

It is time to stop the "Pay-to-Play" politics in New Jersey.

PLEASE VOTE WISELY.

The entire speech can be read here.

P.S. OSHA'S web site reports this case as closed, without citation. Stay tuned.

GUILTY: The "McWane Way" May Land Managers In Jail

Atlantic States Cast Iron Pipe Company, owned by the notorious McWane Inc., an Alabama-based conglomerate whose extensive record of safety and environmental violations was highlighted in a 2003 NY Times/Frontline series, along with four of its managers, were found guilty earlier this week of conspiring to evade workplace safety and environmental laws.

Yesterday's verdict marks the fifth time a McWane plant has been found guilty of federal crimes since The New York Times published a series of articles in 2003 about McWane's safety and environmental record.

In the four previous cases, McWane was ordered to pay a total of $19 million in fines and restitution, and several current or former managers were fined or sentenced to probation. The Atlantic States verdict is likely to bring many millions more in criminal fines; Atlantic States was found guilty on 32 of 34 counts. The four managers, all found guilty of multiple felony charges, face possible prison terms.

Prosecutors didn't have many nice things to say about the company

"Today's sweeping verdicts demonstrate beyond any reasonable doubt that McWane is one of the worst and most persistent violators of our nation's environmental and worker safety laws," David M. Uhlmann, chief of the Justice Department's environmental crimes section, said in an interview. The case represented the most serious confrontation yet between McWane and the Justice Department.

Prosecution witnesses, including several former foundry supervisors, depicted a brutal and dangerous workplace at Atlantic States, in Phillipsburg, N.J. They told of rigged smokestack tests, of polluted wastewater dumped under cover of night, of regulators stalled at the front gate while flagrant safety violations were hidden. Workers, they said, were blamed for accidents even when shoddy equipment or inadequate training was the real cause. Prosecutors called it "the McWane way."

"Welcome to Atlantic States, a division of McWane, where production is priority number one — everything else is incidental," Norv McAndrew, an assistant United States attorney.

***

Two incidents framed much of the trial testimony. The first concerned the foundry's response when environmental officials showed up one weekend day in 1999 to investigate the cause of an 8.5-mile oil slick on the Delaware River. The second focused on the actions of foundry managers after an employee was run over by a forklift and killed in 2000.

In both cases, prosecutors said, top foundry managers conspired to obstruct official investigations. "There was an implicit agreement between all of them," Mr. McAndrew said, "to work together for the common goal, and that goal was to deceive. That goal was to lie."

The managers that face jail time were convicted of a variety of crimes:

Besides the conspiracy charges, the four Atlantic States managers were convicted on other charges involving specific environmental and workplace crimes.

[John] Prisque, the plant manager, was convicted of making false statements to safety investigators after three separate workplace accidents, including the forklift fatality. In another, a worker had three fingers amputated in a cement mixer, and in another a worker lost an eye when a saw blade broke.

[Craig] Davidson, Jeffrey Maury, the maintenance supervisor, and Scott Faubert, the human resources manager, were all convicted of lying to either environmental or workplace safety investigators.

The New York Times article, written by David Barstow who is the Pulitzer Prize winning co-author of the oringal McWane series, points out that this is one of the first cases where the federal government is using stiffer environmental laws, on top of the much weaker Occupational Safety and Health Act to prosecute workplace wrongdoing. OSHA announced this program with little fanfare around a year ago.

Personally, while I think it's quite appropriate to to see prison sentences being used to punish workplace crimes instead of generally ineffectual financial penalties, you have to wonder if the managers are just evil, or whether they're acting under the direct (or implied) orders from above. In other words, what was it about the environment or "culture" in which they worked that encouraged them to cut corners, neglect safety standards and lie to government officials?

You can't help but feel sorry for the relatives:

Outside the courtroom after the verdicts were read, Jane Prisque, the elderly mother of defendant John Prisque, the plant manager, sobbed in the arms of Phyllis Davidson, the mother of defendant Craig Davidson, the finishing supervisor at the foundry.

"They don't deserve this. They were doing their jobs," Prisque said. "They took them out of the plant in chains. They're all good men. They didn't do nothing."

Craig Davidson's father, Stuart, stood nearby seething at prosecutors and jurors.

"I can't believe it. It's just pathetic what our government can do to us," he said. "They're just a bunch of tree huggers."

Well, not quite. And just "doing their jobs" sounds like a line out of Nuremburg. Nevertheless, if, as we hope, the idea of criminal prosecution catches on in this country, we need to do a lot more thinking about the issue of of "who should go to jail" -- particularly in big companies with many layers of management .



Related Articles

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

Workplace "Dirty Dozen" Report Calls For Stopping Corporate Killers

The National Council on Occupational Safety and Health (National COSH) released a report today listing twelve companies -- a dirty dozen -- whose reckless disregard for their employees’ safety and health has had tragic consequences for workers and their families. Coinciding with Workers Memorial Day, April 28, the report announces a new National COSH campaign, “Stop Corporate Killers” which calls for an overhaul of the regulatory system to ensure that workers realize the right to a safe and healthy workplace that the Occupational Safety and Health Act promised.

The "Dirty Dozen" consists of the following companies: British Petroleum, Cintas Corp, DuPont Corp, Hayes Lemmerz International, Honda Motor Company of America, International Coal Group (Sago Mine), McWane, Safety Bingo Inc, Sunesis, UNICCO, Wal-Mart Stores Inc. and W. R. Grace.

The “Stop Corporate Killers” Campaign calls for

1. Stronger enforcement of current standards and regulations, including higher penalties and increased criminal prosecution of corporate irresponsibility in cases of willful and egregious actions by employers that result in fatalities and serious workplace injurie


2. Promulgation of new and revised standards to address known hazards.


3. Revision of policies to increase the participation of unions in the OSHA process after the inspection and investigation occurs.


4. Revision of OSHA policies to include families of victims in agency procedures and access to information and increased rights to compensation.


5. Preservation of the right of workers and citizens to bring suits in the civil courts and have their claims presented before a jury of their peers when corporations have wantonly violated their rights to safe workplaces and communities.


6. Appointment of individuals to key safety and health positions on the basis of knowledge and competence, not ideology and political connections


7. Passage of a criminal prosecution law authorizing OSHA to indict corporations for felony manslaughter when they cause the death of workers by willfully violating safety and health laws.

Donald Coit Smith, whose son (far right in the photo) was killed last year in a meatpacking fatality, stated that:

Another death incident was posted at OSHA. A company in North Tonawonda, New York was cited $60,000 for 20 violations as a result of Corporate America not caring. No lockout procedures, no employee training, no lockout inspections just to name 3 of the citations given. OSHA does not have the power to stop these killings. Our legislature and lawmaking entities MUST TAKE CHARGE and quit covering up for companies killing people. Violations of the law, especially where death is concerned, must carry stiff penalties to include long jail terms. There's no difference in what happened in New York and someone getting run over by a drunk driver...except the laws protect companies. They are, in effect, getting away with murder.

The National Council for Occupational Safety and Health is a federation of local and statewide "COSH" groups--Committees/Coalitions on Occupational Safety and Health consisting of health and technical professionals, labor unions, and others that work to promote worker health and safety through education, training, and policy advocacy.

A Spanish language copy of the report can be found here.

In A "Go To Jail Issue" Asbestos Manufacturers Fight To Stay Free

Nothing sharpens the mind like the prospect of jail terms because you're found guilty on charges of conspiracy, wire fraud, obstruction of justice and violations of the Federal Clean Air Act -- not to speak of knowingly exposing thousands of workers and citizens to asbestos.

What to do, what to do? How about running the clinic that's diagnosing cases of cancer and asbestos disease out of business? That's what staff of the (CARD) are accusing the WR Grace Company of doing. Grace executives were charged earlier this year in connection with the company's vermiculite mining operations in Libby, Montana. Grace's vermiculite is laden with asbestos and Grace's mining and milling operations spread the dust throughout the town. Grace executives were not just charged with contaminating the people and the town, but with conspiring to conceal information about the hazardous nature of the company’s asbestos contaminated vermiculite products, obstructing the government’s clean-up efforts, and wire fraud.

Grace had set up the Center for Asbestos Related Disease to diagnose and treat the hundreds of sick and dying people in Libby. But that was then...

Grace, a producer of chemicals and building materials, voluntarily pays for most of the medical treatment at the clinic. In recent months, the company's medical plan administrator imposed new rules that have made reimbursement more lengthy and involved, and pushed the clinic, its administrators say, into a cash-flow crisis. And the administrator said that a review it commissioned of past medical diagnoses in Libby found flaws in more than a quarter of the cases.

LeRoy D. Thom, who worked at Grace's vermiculite mine for 17 years as a foreman and is the vice chairman of the clinic's board, said he thought legal strategy and trial preparation could explain the company's actions.

"If they can put out the fact that people are being overdiagnosed, then they reduce the credibility of the doctors," he said.

Dr. Alan Whitehouse, a consulting pulmonologist at the clinic, is even more blunt.

"It's a go-to-jail issue," he said.

And jail would be such a bad idea? The grand jury that indicted the executives found that Grace knew when they took over the mine in 1960 that the vermiculite ore was tainted with asbestos and that asbestos exposure was deadly. Grace concealed this knowledge from the town and from the workers in Grace's 200 plants across the country. The biggest problem, however -- which EPA hasn't even begun to deal with -- is that asbestos-tainted vermiculite insulation remains in the attics of 35 million homes around the country, and has contaminated other communities with Grace's products were processed.

So far, more than 1,400 people in the Libby area, which has a population of about 8,000, have received diagnoses — many but not all, at the CARD clinic — of lung abnormalities related to asbestos exposure. And people are still coming forward.

"We see about 20 new patients a month, and that is ramping up," said Kimberly Rowse, a nurse and clinical coordinator at CARD. "We're seeing more and more people, and younger people, but our clinical resources are the same."

Medical experts around the country who support the clinic say there is more at stake than the patient care itself.

"These doctors stood up in the face of considerable pressures, including from some people in the town, and said, we have a real problem here," said Stephen M. Levin, the medical director of Mount Sinai School of Medicine's center for occupational and environmental medicine in New York. "To close this clinic would prevent us learning some very important things about this disease and what we might do about it."

The problem is that asbestos-related disease is difficult to diagnose, particularly with the type of asbestos found in Libby's vermiculite, and Grace executives are trying to spread the blame to particulate pollution, mainly from the smoke of wood-burning stoves.

Last November, Andrew Schneider of the Baltimore Sun reported that physicians hired by Grace's insurer, HNA, were challenging the findings of Libby physicians, national pulmonary specialists and federal public health experts, sending letters to more than a quarter of the 700 people covered by the HNA plan saying they show no signs of asbestos disease.

But it may also be that we ain't seen nothing yet.

In addition, the effects of asbestos often do not manifest themselves for years, or even decades. "Even if the clinic did overread their X-rays," said Dr. Jacqueline Moline, an associate professor of occupational and environmental medicine at Mount Sinai, "people are still at risk for developing disease, and that risk is not going to go away."

The company could face a fine of up to $280 million, and some Grace executives could be facing up to as many as 70 years in prison, making it quite tempting to make sure that the jury see's no evil.


Related Stories

• Hallelujah: Grace Miraculously Cures Asbestos Victims, November 4th, 2005
  
• Grace's Deadly Asbestos Tentacles Continue To Reach Across The Country, October 2, 2005
• Lessons of Hamilton, New Jersey, June 29, 2005
• Grace Knew About Asbestos Contamination of NJ Plant, June 28, 2005
• Attorney for Grace To Head EPA Enforcement, June 27, 2005
• W.R. Grace: Did These Guys Ever Tell The Truth?, March 4, 2005
• Asbestos: Cruel, Deadly and Uncompensated, February 19, 2005
• Libby Montana and Tort Deform: What's Wrong With This Picture?: February 15, 2005
• They Were Killing Us, They Were Killing Our Wives and Children: February 12, 2005
• W.R. Grace Goes To Jail: "Why not all the others?": February 10, 2005
• W.R. Grace Execs Indicted For Asbestos Coverup, February 8, 2005