Dead Heroes? Mammoth Ski Resort Fined For Vent Deaths

The California Division of Occupational Safety and Health has fined Mammoth Mountain Ski Area nearly $50,000 for the deaths of three ski patrol members last April who fell into a gas vent and were overcome by carbon dioxide.

The largest of the penalties was $18,000 each for the two serious accident related violations of Cal/OSHA regulations addressing training issues. The investigation also revealed that the employer failed to properly identify and evaluate the hazards for working near the areas of volcanic fumaroles, which were known to have high levels of carbon dioxide gas. A third serious citation was issued for not having proper warning signs to indicate a potentially hazardous situation at the location of the fumarole.

In addition to the three serious violations, Mammoth Mountain Ski Area was issued general citations for not conducting proper internal atmosphere testing, not using proper engineering controls and not providing proper respirators for escape or rescue.

It was a tragic event, as reported in the Los Angeles Times:

During most of the year, the vents are harmless because the carbon dioxide fumes they emit dissipate in the air. But in winter, the volcanic gases pool and concentrate in pockets beneath the snow.

On the day of the accident, the fumarole had been covered with a layer of heavy snow, as much as 21 feet. That created a dome over the large crevasse, with poison gases trapped inside.

Some patrollers were trying to dig out a buried fence around the area when the snow around the vent collapsed. James Juarez and John "Scott" McAndrews fell about 20 feet to the bottom of the chute, where gases had accumulated.

Charles Walter Rosenthal, a patrol member and researcher for UC Santa Barbara, went in after them with several other patrollers. Rosenthal died.

What bothers me is the response of Mammoth executives.

But resort Chief Executive Rusty Gregory said that, intent on saving their colleagues and friends, ski patrol members acted "heroically" and went after them despite the rules.

"Heroes sometimes do that," he said. "This has truly broken our hearts forever. This was a huge personal loss for us."

The masks the patrollers wore, Gregory said, were designed to stabilize people injured on the mountain, not for protection against lethal gases.

"The bottom line is that our procedures for carbon dioxide occurrences or any noxious gases is that you don't enter a space where those gases exist," he added. "We lost two patrollers who fell in, and a third … who heroically jumped in to try to save them. He did what great friends do, which is to take care of other people."

Now, confined spaces are well known to health and safety professional as extremely dangerous -- not just to the original victims, but to poorly equipped, untrained rescuers as well. NIOSH has reported that a high percentage of confined space fatalities are rescuers. (more information here and here)

And it's not hard to understand why. You see you buddy passed out down in that pit, and your first instinct is to jump in and save him.

OSHA's confined space standard requires monitoring of confined spaces before entering, and a means to rescue workers without rescuers entering the space unless absolutely necessary, and unless their equipped with an air-supplying respirator.

The standard also requires training -- training workers not to jump in and try to save someone (without training, an air-supplying respirator and backup), or they'll become the next victim(s).

One of the first lessons of confined space, trench or fire, explosion or toxic gas rescue is not to become a victim yourself. We all think of firefighter as heros (and they are), but there are very strict rules for when they are alowed to attempt a rescue, and when they have to give up. As tragic as it is to know that a victim of a fire, trench collapse or confined space is probably going to die, it's more tragic to needlessly lose the life of one or two or more rescuers who aren't appropriately equipped or trained to perform the rescue.

Aspen (Colorado) Daily News agreed with the Mammoth executive:

Regulators are around to constantly push for safer work habits, and their work will undoubtedly have an effect at Mammoth. But we're not surprised and almost expect patrol members to go a little beyond OSHA-mandated caution. Patrol members themselves expect it. They realize that danger lurks in their jobs but don't dwell on it.

Yes, it's true that some jobs -- firefighting and ski patrol, for example -- are always going to be inherently dangerous, no matter how many standards, rules, regulations and training. But the standards, training and the rest are there for a reason -- to reduce the risk as much as possible while still being able to do the job. Expecting patrol members to violate the standards is not acceptable. The expectation of their loved ones is that they'll be alive at the end of the shift, and if the worst happens and they don't come home, the most they can hope is that their training, equipment or managers "expectations" weren't to blame.

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.

Why OSHA Has A Confined Space Standard

OSHA has what's known as a "confined space" standard. (It's not named after this blog.)

Confined spaces are areas that are too small and cramped for workers to regularly work there, but where asphyxiating atmospheres can easily build up an kill anyone in the space. The most common confined spaces are sewer manholes where rotting sewage or vegetation can generate high levels of hydrogen sulfide or eat up all the oxygen.

OSHA's confined space standard requires monitoring of confined spaces before entering, and a means to rescue workers without rescuers entering the space unless absolutely necessary, and unless their equipped with an air-supplying respirator.

The National Institute of Occupational Safety and Health (NIOSH) reports that more rescuers have died in confined spaces than original victims. And it's not hard to understand why. You see you buddy passed out down in that pit, and your first instinct is to jump in and save him. That's why the standard also requires training -- training workers not to jump in and try to save someone (without training, an air-supplying respirator and backup), or you'll become the next victim.

An article that appeared yesterday in a Canadian newspaper describes a confined space incident in which three workers died:

A 30-year-old subcontractor from Montreal died on the scene Saturday after using argon gas to weld inside a large metal tank at the facility in Lac Brome, about 100 kilometres southeast of Montreal.

When the younger man fell unconscious, the 55-year-old attempted to enter the tank to rescue him, but was also overcome with fumes. The woman, a mother of three young children who was also trained in first aid, also fell unconscious after entering the tank.

The article notes that this incident bears a striking similarity to two other recent tragedies:

On May 17, 2006, four people died after being overcome by hydrogen sulfide gas at a Teck Cominco's Sullivan mine in Kimberley, British Columbia. Chris Faulkner, a subcontractor who checks water quality, went missing inside the underground mine and was found two days later by Teck Cominco employee Robert Newcombe Douglas Lloyd Erickson, who was able to dial 911 before succumbing to the gas himself. The two B.C. paramedics who responded to the call, Kim Weitzel and Shawn Currier, also died when they went into the mine. Their bodies were eventually retrieved by firefighters equipped with oxygen masks.

On January 10, 2003, a maintenance supervisor went missing inside the hull of the Sea Link Rigger, a 342-foot-long barge. One colleague found him in an enclosed space within the hull and attempted to retrieve him. One by one, several other workers also attempted to access the space to rescue their colleagues, but eventually lost consciousness. Ultimately, four workers died of oxygen deprivation.

And speaking of confined spaces, watch out for manure pits.

Air emissions from livestock manure pits contain hundreds of chemicals, including highly toxic hydrogen sulfide, microbes, acids, alcohols, ammonia and nitrogen compounds that contribute to global warming and promote weed growth in surface waters, according to several scientific studies.

"An overview of studies of VOCs (volatile organic compounds) emitted from animal facilities indicates that hundreds of compounds are present," according to a U.S. Department of Agriculture report. "Malodorous emissions (from livestock manure) can negatively impact health."

Scientists in North Carolina identified more than 300 chemicals in air emissions from hog barns, according to the USDA report.

Hydrogen sulfide can be lethal if inhaled in relatively small amounts, according to government data. Dozens of farmers in several states have died after falling into manure pits and being overcome by hydrogen sulfide or methane fumes.

In 1989, five dairy workers died of methane asphyxiation when one of the men fell into a manure lagoon at an Upper Peninsula farm and the others went in to rescue the men ahead of them.

More confined space information here.

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.

GUILTY! Successful Homicide Prosecution Against Company That Killed Two Workers

In Arizona, "A person commits negligent homicide if with criminal negligence such person causes the death of another person." "Criminal negligence" is defined as “gross negligence so extreme that it is punishable as a crime,” "aggravated assault" is committed if a person causes serious physical injury to another and “endangerment” is defined as “recklessly endangering another person with a substantial risk of imminent death or physical
injury."

Knowing these definitions, can anyone tell me why an employer who sends a worker to his death in an unmonitored confined space or an unprotected 12 foot deep trench shouldn't be prosecuted under any of the above felonies -- as opposed to the Occupational Safety and Health Act, where the maximum penalty for willfully killing a worker is a misdemeanor with a maximum of six months in jail?

Well, just prosecuting under the OSHAct certainly didn't make sense to the Arizona Attorney General's office. Prosecutors Christina Fitzpatrick and Mark Horlings last month convinced a jury to find the Far West Water and Sewer Company guilty on five of the six felony charges filed against it.

The jury....convicted the water and sewer company of negligent homicide, aggravated assault, violating a safety standard causing the death of an employee and two counts of endangerment in the deaths of James Gamble, 26, and Gary Lanser, 62, who were overcome by toxic sewage gases while working on an underground sewer tank on Oct. 24, 2001, in Mesa Del Sol.

***

Far West had been charged with two counts of manslaughter, one for each of the deaths, but the jury, composed of nine women and three men, found the company not guilty on both counts.

Each count of manslaughter the water and sewer company was facing carried with it a lesser included charge of negligent homicide. While jurors found Far West guilty of negligent homicide in Gamble’s death, the jury was unable to come back with a verdict for the negligent homicide charge in Lanser’s death.

Santec Corp. a subcontractor that employed Lanser, pleaded guilty last year to a felony charge of violating a safety standard causing the death of an employee. Under the plea agreement Santec was required to implement a safety program that complies OSHA confined space standards, pay $30,000 in restitution and will be inspected annually by Arizona OSHA.

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 went into the tank to try and save Gamble, he, too, was overcome. A third worker, [Nathan] Garrett, went down a ladder in the tank but didn’t make it all the way down. Forewoman Connie Charles went down the ladder after Garret and she, too, breathed the toxic gas and had to be rescued.

Garret has suffered permanent lung damage.

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. Unlike Santec, which admitted guilt prior to the trial, Far Western decided to fight the case, at one point arguing that the workers had mysteriously suffered simultaneous heart attacks. But the prosecution was strongly supported by Dr. Daniel Teitelbaum, a Denver toxicologist who has been a long-time fighter for workers' rights.

The AG’s office originally filed against both the company and its executives, although the judge separated the case into two trials. Far West president Brent Weidman will be tried for manslaughter, aggravated assault and endangerment in February.

Look back at the definitions at the beginning of this article, then consider that under the OSHAct, the penalty for causing the death of a worker by willfully violating safety laws is half the maximum for harassing a wild burro on federal lands. I'm very happy about the results of this case, and about the recent decision to charge Ken Formica, owner of Staten Island, New York-based Formica Construction, with manslaughter in the 2003 trenching death of a Mexican laborer. But these are only two cases.

As far as I'm concerned, every single trenching and confined space death should automatically be referred to state or local prosecutors for felony manslaughter and negligent homicide charges. I'm sick of waiting for Congress to increase OSHA penalties when all they seem interested in is weakening enforcement and making sure that the good companies don't have their feelings hurt by mean OSHA inspectors.

Carol Borieo, the mother of James Gamble, said she would like to see an example made of Far West because she is worried what happened to her son could happen again if the company isn't punished.

And in that spirit, here's our New Year's resolution: Familiarize yourselves with these cases. Download and print out the articles. And every time you see a trenching, confined space or other workplace fatality that any jury could see was preventable, contact the local media and the local prosecutor or state Attorney General and demand that felony charges be brought.

3 Dead:Warning -- Confined Space+ Sewage/Rotting Material = Death

This happened in a cruise ship in Los Angeles yesterday, but the same hazard may be facing rescue and cleanup workers cleaning up in the wake of Hurricane Katrina as they repair sewer lines, go down into basements or even small enclosed rooms where organic material has been rotting:

Gas Kills 3 Crewmen on Ship

By Hector Becerra and David Pierson, Times Staff Writers

Three crew members were killed and 20 others injured after sewage gushed from a pipe being repaired inside a crowded Royal Caribbean cruise ship docked at the Port of Los Angeles, releasing deadly levels of hydrogen sulfide gas.

Crew members aboard the Monarch of the Seas were trying to fix the pipe in a roughly 10- by 12-foot portion of a propeller shaft tunnel on the starboard side of the ship about 9 a.m. when the accident occurred, officials said.

The workers thought the pipe would be empty, but when they opened it, gas-laden sludge burst out of a 5-gallon sewage container, firefighters said.

Their deaths were "almost instantaneous," said Barbara Yu of the Los Angeles County Fire Department. "Hydrogen sulfide is a deadly gas, and it's heavier than air."

The amount of gas the crewmen inhaled was believed to have been four times the lethal level, Yu added.

Hydrogen sulfide is a sewage byproduct generated by decaying organic material. Also known as sewer gas, it smells like rotten eggs.

At low levels, it can irritate the eyes and throat, but at high concentrations, even a few breaths can cause sudden death.

Officials do not know what triggered the malfunction. The three workers were not wearing protective gear or breathing equipment during the repair effort.

More resources on confined space hazards can be found here.

Tyson 'Slapped On The Wrist' For Killing Two Employees

Corporate giant Tyson Foods, with a 2004 profit of $403 million was fined a whopping $60,000 for the 1999 deaths of two workers at its animal feed plant in Robards, Ky.

Investigators initially recommended fines and penalties of $139,500 for conditions involving the fatal accident at Tyson's River Valley Animal Foods plant.

Labor Commissioner Phil Anderson said he believes the settlement amount was appropriate and will lead to improved safety at the Tyson plant.

"I don't believe we caved," said Anderson. "We wanted to get it out of the way and get it settled because it was an ongoing drain of our time and effort."

Curiously, the Kentucky Department of Labor described the penalty as "the largest occupational safety and health settlement in the state's history," because several other cases against Tyson were thrown into the mix, bringing the total to $184,515.

James Allen Dame fell into a vat of decomposing chicken parts while trying to retrieve a broken scoop. Co-worker Mike Hallum was lowered in to rescue him. Both men were overcome by methane gas and died. The company killed three other workers that same year, according to the United Food and Commercial Workers Union:

On October 8, 1999, Charles Shepherd died from head trauma after a fall in the chiller room in the Berlin, Maryland Tyson plant. There were two fatalities at the company's Harrisonburg, Virginia poultry plant and two Tyson chicken catchers were killed during the summer, both from electrocution in chicken houses.

***

In February, 2000, Tyson's Henderson, Kentucky complex was slapped by Kentucky OSHA with a record-breaking $269,000 in fines from citations for 73 serious health and safety violations.

For all of that, Tyson made the Corporate Crime Reporter's list of the nation's ten worst corporations in 1999 and the company earned a place as one of Sierra Club's "Ten Least Wanted" in 2002.

The stepson of James Allen Dame, one of the workers who died, said he was unhappy with the state settlement.

"I don't think they paid enough," said Jared Durbin, 18.

***

Bruce Finley, a retired union organizer for Local 227 of the United Food and Commercial Workers Union who organized workers at the Tyson plant, said the settlement "seemed like a slap on the wrist and not a penalty that would modify a corporation's behavior."

Tyson is the largest poultry processing company in the U.S. with 50,000 employees at 59 plants.

In addition to the company's $403 million profit in 2004,

John Tyson, chairman and CEO, was paid $1 million, with a $5.4 million bonus and $545,297 in other compensation, including a $2,000 holiday department-store gift card, $9,765 in medical reimbursement and $125,341 attributable to use of the company plane.

Confined Space "Mystery"

Oh yeah, what a mystery! Who has ever heard of oxygen deprivation in a confined space? Quel surprise!

Now look at the title of this blog. I didn't make the term up (although I meant it more figuratively than literally).

Deadly Mystery At Delaware County Construction Site

Jul 9, 2004 1:29 pm US/Eastern

PHILADELPHIA (KYW) One worker is dead and another is clinging to life after losing oxygen at a Newtown Square, Delaware County, construction site.

The workers were inside a nine-foot manhole working on a sewer line just after 8 a.m. Friday when officials say they began to lose oxygen. CBS 3's Natasha Brown reports another worker pulled the unconscious men from the hole but has been told they were already in cardiac arrest.

Both were rushed from the 400 block of Merlin Road to an area hospital where one was pronounced dead upon arrival. The other was admitted.

Neither victim has been identified.

Roman Siletsky of the U.S. Occupational Safety and Health Administration says there was a lack of oxygen in the manhole but noted no fumes.

An investigation into the incident is ongoing.

Now, I've got a couple of problems here. First, it is well known that one of the hazards of confined spaces is oxygen deprivation. That's because chemical reactions (such as development of rust) or decaying organic material in the space (e.g. sewage, leaves, etc) consumes the oxygen. Which is why OSHA has a "Permit Required Confined Space" standard requiring, among other things, that spaces be monitored for oxygen deficiency and toxic gases, and that a trained and properly equipped attendant be present to monitor the workers inside the space, and perform a rescue (or call for help), if necessary. Any employer whose employees work on sewer lines should know this.

The other problem I have is with the reporter. Natasha, maybe you could do just a little bit of research here. Just because the hazards of confined spaces are a mystery to you doesn't mean they're a mystery (I hope) for most employers and employees who enter manholes, nor certainly to OSHA or those familiar with workplace safety issues. A couple of questions to a knowledgeable person or two could have put other employers on notice that their deadly negligence won't be overlooked by the media, and it could have educated some workers and possibly saved some lives.

Instead, most readers will go away thinking, "Gosh, how mysterious. I wonder what happened? Just one of those things. Too bad. What's for dinner."

Update here.

These Are Not Evil People

The last in NY Times writer David Barstow's devastating "When Workers Die" series appears today.

This article told the story of a group of California prosecutors, led by Roy Hubert Jr., whose mission is to go after employers whose workers die in their workplaces. The case discussed here was an all-too-common confined space incident: A worker is sent down to unclog a sump in a manure pit. He is overcome by hydrogen sulfide and methane fumes. Another jumps in to rescue him. Both die, drowned in the manure. (Ed. Note: I wrote about this here.

The incident and the resulting prosecutions raise a number of issues.

First, most employers sent to jail for killing workers are "not bad people." They're not the drug addicts, thieves, or murders that you generally find in jail. And the last thing they ever wanted to do was kill one of their employees.

"These are not evil people," [Hubert] said. "They are not people who hurt for the sake of hurting. They are not bad people. This is good ol' Pat, good ol' volunteer fireman Pat. He feels terrible. He's devastated. I get a lot of that. Well, good. So are the widow and the mother and the father and sister and brother. Just imagine the incredible despair and anguish as you're drowning in manure."

A friend of Patrick Faria, the company's owner, reflects a common attitude around these tragedies.

"This is a hazardous job," said Mr. Xavier, who has worked on the Faria dairy. "Nobody told them, `Stick them down a hole. They're going to die.' What those guys did, I've done 10 times. If I had been there that day, I'd have gone down in that hole."

A few years ago, Mr. Xavier's father was killed on another Gustine dairy farm, crushed under a bale of hay. "It was a freak stupid accident," he said. "It's just one of these things. It's like being in the Twin Towers the day those planes hit. Hey, it was his day. That's just how life is."

But confined space deaths are not freak accidents. It is common knowledge among those in these businesses that manure or sewage generate toxic gasses that can kill workers in a confined space. In fact, Mr. Hubert

had evidence that Pat Faria knew all about those dangers and safety laws. For one thing, he had been taught them as part of his volunteer-firefighter training. Mr. Hubert subpoenaed the man who had trained Mr. Faria in "Confined Space Awareness" in a four-hour class for firefighters in 1999.

The trainer explained how he had taught Mr. Faria the dangers of gases in confined spaces, including how hydrogen sulfide is common in spaces where there is wastewater. The trainer said he also taught Mr. Faria about how no one should enter a confined space without an air test, safety harnesses and respirators.

Mr. Faria had been tested on the class material. In fact, his answer sheet was given to the grand jurors.

He passed, the trainer said.

Even worse,

As if to underscore the urgency of the safety situation, in August 2002 another man died at another Gustine dairy farm under similar circumstances. He was overcome by hydrogen sulfide and drowned while working in a sump pit of a manure lagoon. And there had been other such deaths, in California and in other dairy states, like Michigan, where five dairy workers died in one manure pit in 1989. As Roy Hubert saw it, it was high time that the dairy industry stopped using "fate" as a way of avoiding a problem.

Now let's take a short political break. At the end of yesterday's article, Barstow quoted John Henshaw's view of legislation that would make it easier to file criminal prosecutions.

Mr. Henshaw made it clear that he saw no need to change either the law or OSHA's handling of these worst cases of death on the job.

"You have to remember," he said, "that our job is not to rack up the individual statistics that some people like to see. Our job is to correct the workplace."

The dominant ideology among the Republicans, the business community and far too many Democrats is that OSHA's previous "strong arm" tactics, it's Gestapo mentality, it's "command and control" philosophy, its punative fines, and -- God forbid -- criminal prosecutions, are all counterproductive. They just turn employers off, making them focus on useless, unfair, complicated regulations instead of "correcting the workplace." They hurt business so people can't even get jobs.

So far better to just provide information to employers. We don't need training funds for workers, just give information to employers who want to do the right thing. Workers are their most important resource, and often their friends and neighbors. We don't need any new regulations that hurt business and therefore hurt workers. Our job is to correct the workplace. Just spend time forming endless alliances where "OSHA and its allies work together to reach out to, educate, and lead the nation's employers and their employees in improving and advancing workplace safety and health."

So yes, Mr. Henshaw, we all want employers to "correct the workplace." The question is how.

How do we keep people from driving drunk? Education is good. Trying to persuade people that they might kill themselves or someone else is sometimes effective. But high fines, losing their license, and criminal prosecution if they kill someone -- even if they happen to be Congressmen -- are the real deterrents.

Does the same principle work for employers who let their workers die even though they may be the nicest, most caring people in the community?

According to Barstow, the evidence says YES:

On closer inspection, there are clear indications that something important and rare has occurred here. For all the resentment stirred by the prosecutor with the bow tie, the old moral lines have begun to shift.

On dairy farms across the valley floor, there has been a broad reassessment of safety. Farmers are hiring safety consultants, putting their workers through safety training, installing first aid kits and posting signs.

"It makes you concerned because you think, `Heck, he's a dairyman and I'm a dairyman, too,' " said Mark Ahlem, a young farmer in the valley.

Before the indictment, Mr. Ahlem said, "We were taking some baby steps toward setting up some regular safety meetings."

Since the indictment, though, he has hired a part-time safety director, insisted on frequent safety meetings and established a disciplinary system for safety violations.

Another dairy farmer, Frank Faria — no relation to Pat Faria — said the indictment was an "unfortunate wake-up call." He has since hired a safety consultant for his dairy operation, and feels much better for it.

The changes are not entirely the doing of this one indictment. Cal OSHA levied $166,650 in civil fines against the Faria dairy for the two deaths, a substantial penalty for almost any farmer. The agency also conducted a sweep of the valley's dairy industry, inspecting more than 160 farms, levying nearly $500,000 in fines and offering free consultations. The Western United Dairymen held several crowded training sessions about the dangers of confined space.

But in conversations with farmers here, it is clear that the prosecution made the deepest impression.

Confined Space Fatalities

Earlier this week I wrote about a confined space incident that had a happy ending. Those workers were lucky. The ones I ran across today weren't:

Authorities in Hanover County are trying to determine what caused the death of a landfill worker. The accident happened Monday afternoon at a privately owned landfill.

Officials say two maintenance workers went into a manhole 18 feet deep to check on a sump pump. One of the men passed out and died before they could get him out. Investigators are not sure what caused the man to collapse. The man's name has not been released.

This is a confined space incident where the toxic gas was apparently introduced by the workers when they a gasoline-powered pump into a hole. This is an example of a poor or missing safety program and another where the rescuer almost ends up dead:

One city worker is dead and another was in serious condition this morning after an accident late Sunday afternoon that occurred while they were trying to repair a sewage pump station in Athens.

Mike Stanley, a 14-year city employee, was pronounced dead at O’Bleness Memorial Hospital, according to Athens Service-Safety Director Wayne Key.

Dave Carder was listed in serious condition this morning at Ohio State University Medical Center in Columbus, a hospital spokesman said.

The two men were overcome, possibly by carbon monoxide, after responding to a maintenance problem at the Oakmont sanitary lift station. Worker Scott Lambert also was at the scene.

Key said an underground portion of the lift station had flooded, and the workers attempted to use a vacuum truck to pump it out. When that failed, they gradually lowered a gasoline-powered pump into the 20-foot-deep hole, emptying it as the pump was lowered.

Stanley then descended into the lift station, but became ill. Lambert left the immediate area to call 911, and while he was away Carder apparently went down into the pump station to try to rescue Stanley, Key said.


And the U.S. is not the only country with confined space problems, as well as higher injury and fatality rates among foreign workers. This is from Greece:

Dimitris Kolovos, 45, and Vasili Passa, 42, died when they were overcome by methane fumes in a sewer while carrying out a project for Acharnon Municipality at Menidi.

Dimitris Tsakalis, 32, first went into the sewer to measure its depth and was overcome by the fumes. His colleagues went in to save him and they too collapsed. They were pulled out a short while later by the fire department, but the two were dead and Tsakalis is being treated at Sismanogleio Hospital, where he is in critical condition. Labor Inspectorate officials said the three belonged to a small private team that was working on the area's sewerage system. They had not taken the necessary precautions, such as wearing gas masks, and no one was supervising them. If a supervisor was there, he had run away to evade arrest, officials said.

The accident underscored the dangers faced by foreign workers especially, as Passa and Tsakalis are Albanian citizens. Foreign workers are usually more likely to carry out dangerous work without objecting, are not union members, and often don't have the necessary training. Last year, 40 foreign workers died in work-related accidents, 38 died in 2001 and 20 in 2000.

Tysons Settles Wrongful Death Suit

This is an interesting story, as well as another confined space tragedy.

A wrongful death suit filed by the families of two Tyson Foods Inc. workers who suffocated at the company's rendering plant four years ago has been settled in federal court.

The families of the late James Dame Jr. of Slaughters and the late Michael Hallum of Madisonville settled their case against Tyson about a month ago.

The terms of the confidential settlement were sealed by the judge's order at the families' request.

Dame, who was 40, died July 22, 1999, after being overcome by fumes while trying to retrieve a forklift bucket that had fallen into a gas-filled pit at Tyson's River Valley Animal Feeds rendering plant near Robards.

Hallum, 24, perished trying to rescue his co-worker from the pit....

The families sought compensation for pain and suffering, medical and funeral expenses and loss of future earnings. Additionally, Dame's family sought $20 million in punitive damages.

Now I'm glad Tysons was forced to pay for these workplace killings, but I don't understand how they got around the "exclusive remedy" of Workers Compensation which generally prohibits workers or their families from suing their employers. Any attorneys out there who can explain this?

Oh, and one more thing. I'm awarding the "Sensitivity Award" to Tyson Attorney David Sarvadi (who in a previous life was also one of the leading anti-ergo extremists):

"This is a very sad occasion, a very tragic accident," David Sarvadi, a Tyson attorney, told the hearing officer, Thomas J. Hellman, in his opening remarks last November.

But, Sarvadi said, "The employees did not follow rules that had been established. They did not follow their training."

Got what they deserved, I guess.

Confined Space Close Call

I figure being as this Blog is called Confined Space, I should occasionally write about confined spaces.

This story has a happy ending -- barely -- unlike most of the confined space incidents that make the papers.

Two workers were rescued from the bottom of a Cape Coral manhole Friday after apparently succumbing to toxic fumes, emergency crews reported.

Rodney Jones and Michael Radford of the Cape Coral company Reliable Divers were taken to Cape Coral Hospital. Radford was treated and released, a hospital nursing supervisor said.

The conditions were not unusual for this type of incident:

One of the men apparently passed out from a combination of low oxygen levels and hydrogen sulfide and methane fumes, said Tom Tomich, operations chief for the Cape fire department. Both gases are a byproduct of sewage and are found in sewage pipes.

NIOSH reports that more rescuers are killed in confined space incidents than original victims. We almost had an example here.

Tomich said the two men were inside the shaft apparently fixing a leak. One of the men passed out and fell part of the way down the 12- to 15-foot shaft. Tomich didn't know how far the man fell.

The other man went down to help him; he also began feeling the effects of the gas and fell.

Luckily, the fire department got there fast and ventilated the pipes to provide life-saving air to the workers before rescuing them. Many workers and rescuers aren't so lucky.

One more rather disquieting note:

Tomich said people often pass out after working in such tight quarters in sewage shafts. The sewer pipes weren’t hooked up yet, he said, but apparently there still were fumes.

People often pass out? Hello? Doesn't that tell you something about your program? One person passing out is a pretty frightening "close call" from which serious lessons should be learned. But often?

And one more thing. As the article says, oxygen deficiency, hydrogen sulfide and methane gas are "byproducts of sewage." But they are also byproducts of any decaying organic material -- plant material like weeds or grass, dead animals, whatever. So, as Tomic notes, there can still be fumes, even if the pipes aren't hooked up. Lesson: Assume any sewer line is a potentially deadly confined space. Always follow the OSHA standard: monitoring, ventilation, training, proper procedures and equipment, and safe rescue preparations.



More confined space information here.

Life Gets Cheaper

And while I'm in such a fine mood, WHAT THE HELL IS THIS?

Contractor Cited for Exposing Workers to Confined Space Hazards
Two Employees Died at Miami Beach Job Site

FT. LAUDERDALE, Fla. -- The U.S. Department of Labor's Occupational Safety and Health Administration has cited Electrical Technologies Corporation for exposing employees to safety hazards at a Miami Beach job site where two workers died after entering a manhole and being exposed to hydrogen sulfide gas. The agency issued four citations with proposed penalties totaling $62,000.

Now, all of you who have been reading my rants for the last few years know that I have this THING about employers killing workers in trenches. Because EVERYONE who is in construction knows that trenches can collapse and kill. And they should go to jail if they kill people in trenches.

I also have a THING about confined spaces. Partly the same reason. And partly because about 10 years back an AFSCME member was killed in a manhole and the manager said "Oh, gosh! We never had any idea. Someone must of poured some chemical in there or something. Just one of those terrible tragic things." This person should have gone to jail, because no one who runs a wastewater treatment plant or a sewage system can honestly claim they don't know about confined spaces. This person didn't go to jail. The employer (the city) wasn't even cited or fined because this happened in one of 26 states in this country where it is still perfectly legal to kill public employees.

But I digress....

First, why does this press release say "Contractor Cited for Exposing Workers to Confined Space Hazards?" The Contractor didn't "expose" workers to confined space hazards. The contractor killed two workers in a confined space.

Second, why is the fine only $56,000 for willfully killing two people -- the original victim and the rescuer. (Actually, they probably came within seconds of killing a third worker -- another potential rescuer who managed to get out when he felt dizzy.) Quite a bargain for two -- almost three -- deaths. And just to add insult to injury, four guys had been working inside an unsafe 12-foot deep trench before one climbed down the manhole to unclog a hose. Those and other citations brought the grand total to a whopping $62,000.

Now everyone knows that OSHA doesn't have anywhere near enough staff to do the job that Congress told it to do 33 years ago. But what they can do is send a message to the employers that probably won't be inspected. $62,000 may be an "ouch" for a small contractors, but the potential for millions of dollars or jail time might really catch their attention. I don't know what the circumstances were in this case. Maybe it was a small company. Maybe this, maybe that. But $28,000 per life?

But it's not all OSHA's fault. It's up to Congress to give OSHA the authority to increase its penalty structure and make it easier to impose criminal penalties and jail time.

I could go on and on. And I will. Some other day.