Wednesday, December 31, 2003

Edwards First to the Starting Gate on OSHA

While the FDA bans Ephedra (a bit late), the Agriculture Department bans meat from sick cows (also a bit overdue), and John Ashcroft bans himself (way late), Senator John Edwards (D-NC) has become the first presidential candidate to respond to the NY Times series on "Death in the Workplace."

According to the NY Times, Edwards "will announce a plan to decrease workplace deaths and injuries by strengthening laws and hiring more federal safety personnel."

Edwards will call for
the hiring of an advocate at the Occupational Safety and Health Administration to increase prosecutions of companies that are found responsible for workplace deaths and require them to note those deaths in their annual reports. The advocate would also notify workers and their unions of pending criminal cases.
In addition,
Mr. Edwards said his plan would mandate certain safety measures in an effort to reduce the nearly two million ergonomic injuries each year and raise staffing levels at nursing homes to reduce the likelihood of injuries to workers.

Tuesday, December 30, 2003

NY Times Workplace Safety Series Update

Two Cheers for the NY Times:

First, you all know how I complain endlessly about the NY Times' obnoxious practice of making internet readers pay for articles that are more than a week old. Well, the Times has graciously set aside a free site for those who want to read David Barstow's recent "When Workers Die" series, or the "Dangerous Business" series on the McWane Corporation that appeared last January.

All of the articles can be found -- free of cost -- here.

Second, if you click on the series and scroll down a bit, you will notice the "More Resources" on the right-hand side of the page that consists of three items: the OSHA website, the National COSH Network, and, yours truly, Confined Space.

What an intelligent newspaper! A remarkable journal!

(But they really need to stop charging for articles more than a week old.)

Health & Safety Jobs as Political Spoils: Maybe this is why we have so many problems...

Generally, you want someone in charge of workplace safety issues who knows something about workplace safety -- especially in a county engineer's office which has responsibility for capital projects, road and bridge improvements, snow and flood response -- all of which involve a number of potentially dangerous jobs.

So, I found the following article to be of some interest:
Former judge heads governmental affairs

AKRON - Former Akron Municipal Court Judge Brian Stormer is the newest employee in the county engineer's office.

Engineer Greg Bachman hired Stormer to be in charge of governmental affairs. Stormer, who began his job Monday, will be paid $73,900 annually.

Bachman said Stormer will be in charge of coordinating information between the engineer's office and the cities, villages and townships in the county. He also will handle the department's Occupational Safety and Health Administration issues and will assist in putting out the department's annual report and quarterly newsletter.

Stormer was appointed to the municipal bench earlier this year when Judge Marvin Shapiro moved to county common pleas court. He lost his bid to retain the seat in the November election, when he was defeated by Democrat Annalisa Stubbs Williams.

Bachman and Stormer are Republicans.
Now I would be the last to argue that someone can't learn a new trade -- even late in life. But I don't see much evidence here that Stormer has worked to learn about occupational safety and health issue after a long career as a corporate lawyer. Aren't there plenty of unemployed safety experts out there who are looking for work? Is health and safety an appropriate place for political patronage?

And even if he won't be personally overseeing the construction sites or the trenches or the bridge repair, will he be responsible for monitoring the supervisors' safety practices or hiring contractors to do the work safely? Will he be responsible for assuring that county contracts and county workplans have meaningful assurances of safe working conditions and the resources to make sure it happens?

On the other hand, to the extent we have county employees doing the work, Stormer may not have much to worry about. Public employees aren't even covered by OSHA in Ohio.

Letters to the NY Times

The NY Times has published a number of letters to the Editor in response to David Barstow's series on workplace safety.

The first is by Assistant Secretary of Labor for OSHA, John Henshaw.

First, the shorter version of his response to the Time's accusation that OSHA's pursuit of criminal penalties leaves something to be desired:


And the original version:
Under the Occupational Safety and Health Act, responsibility for worker health and safety rests with employers. OSHA helps employers meet their obligations through compliance assistance and enforcement.

One enforcement tool is referral for criminal prosecution. However, many cases do not reach the high burden of evidence for successful criminal prosecution — proving each element of a violation beyond a reasonable doubt.

For a civil citation, a lesser standard suffices — preponderance of the evidence. The department does not refer cases that do not meet the higher burden of proof required for criminal prosecution by the Justice Department.

We will continue to use every tool at our disposal, and we will continue to strongly enforce all workplace safety and health laws.
A similar point is made by a former prosecutor:
What is not mentioned, however, is the practical reality of prosecuting this type of case. Prosecutors with limited resources and time must make difficult decisions about the types of serious cases that they will take before juries. When faced with choices between prosecuting cold-blooded killers or employers who have cut corners in order to make a living, the former win out every time.

Also, there is a greater standard of proof required to convict people criminally than to find civil liability, and unlike jury decisions in civil trials, criminal verdicts must normally be unanimous. It is little wonder that OSHA seeks civil remedies given the constraints of the system under which it operates.
Two points to be made here. First, I find it hard to believe that, even with the higher standard of proof, that a jury wouldn't convict the employer who was the subject of Barstow's trench collapse article -- Previous trench fatality, full knowledge of trench hazards, caught putting workers into an unsafe trench two weeks before the fatality.

I'm not a prosecutor, but it sounds to me like the kind of case any prosecutor would love, IF (and this brings me to my second point), IF the penalty was worth the work that goes into trying the case, which currently it doesn't. This means the law needs to be changed, and Henshaw, if he's sincere about reducing workplace death, should be promoting the strengthening of OSHA's enforcement powers.

And a number of other letters here as well.

This guy's heart is in the right place, but I think he's blaming the wrong people:
OSHA is a prime example of a bureaucracy that "doesn't want to rock the boat" and protects the corporations and companies it is supposed to regulate. It needs many fewer paper pushers and managers and many more people on job sites.

Get those people out of their offices and into the field to conduct more inspections, or get rid of OSHA and start all over again with an organization that will actually protect workers and prosecute companies that do not operate construction sites in a safe manner.
Most OSHA inspectors would love to be more aggressive in going after employers who endanger workers. What's needed -- to begin with -- is more political will at the top, a Congress that isn't under the thumb of anti-regulatory business associations, significantly more funding, and laws that make it easier to criminally prosecute.


Sunday, December 28, 2003

Worker Killed by 'Classic Employee Misconduct'

I've already written about the trench collapse death of William Steadman, 37, who died in a trench collapse on Dec. 15. I noted then that this this was an example of "blame the worker" theory of occupational safety.

"We told him not to climb into that trench."

"We told him not to climb down into that sump."

"We told him not to stick his head in that machine to clean it out."

In this case, the attorney representing Steadman's employer claims that
"None of them were told, 'You go down and dig that trench.' ... Nobody was forced or coerced into doing it. That's not how this company works."
This means, according to Washington D.C. employer attorney Baruch Fellner*,
depending on the circumstances, the employer could be free of blame. It is, Fellner said, the "classic employee misconduct defense."


In other words, Fellner said, if an employee decided to disobey the explicit instruction of an employer, the employee could essentially be responsible for his own misfortune, even if the employer did not follow every OSHA regulation.
According to OSHA, the employer is responsible for providing a safe workplace. It generally doesn't matter whether the worker was ordered into an unsafe situation, whether he or she was allowed into an unsafe situation, or even if written procedures were violated.

The so-called "classic employee misconduct defense" has been rarely applied when the employees have been trained appropriately, when every effort was made to eliminate or control the unsafe environment, when following safe working procedures was something the employer actively encouraged, and when disobeying safe procedures was something the empoyer actively discouraged, and all of the training, encouragement and discouragement were well documented.

This isn't even close to the situation that killed Steadman.

According to this article
Steadman was one of several employees at American Contracting Enterprises Inc. of McKees Rocks, an asbestos remediation firm, who offered to dig the trench for their boss, Dennis Jackson, according to Smith.

They were trying to track down the source of a stopped-up toilet by uncovering a sewer pipe.

Authorities at the scene said the trench did not have any safety features or supports typically used to shore up walls during such excavations.....

[The employer's attorney Templeton] Smith could not provide any specifics about the conversation between Steadman and Jackson about staying out of the trench other than to say it took place the day before the collapse.

Workers at the small company were not specially trained in trench-digging. They were told to use the backhoe and to keep out of the trench. They did not express any concerns about safety, Smith said.
They hadn't been trained and there was no safety equipment. Almost nothing in OSHA's trenching standard had been followed.

Just telling someone not to go down into a trench (allegedly) the day before the trench is dug doesn't come close to "classic employee misconduct," nor does the fact that the employees weren't "ordered" to go down into the trench, nor does the fact that the employees didn't express any concerns about safety.

This is why OSHA standards require substantial amounts of training -- so that knowledgable workers will express some concern before entering unsafe situations.

There is little doubt here that the employer will at some point be found at fault and fined by OSHA. But the impression will be left by the attorneys and by this newspaper headline: "Lawyer says worker was told to stay out of trench," that if this poor dumb guy hadn't been so stupid, he'd be alive today.

*Fellner, a partner at the lawfirm Gibson, Dunn & Crutcher, was one of the lead attorneys opposing the federal OSHA ergonomics regulation as well as the recently suspended ANSI ergonomics standard. He was also active in the campaign against the Washington State ergonomics standard.

China Gas Well Disaster

An industrial disaster in China approaching Bhopal-scale dimenesions
The government raised the official death toll by 7, to 198, but did not give details of the additional deaths.

The government said that 9,185 people had been treated for gas poisoning and other injuries, and that 431 were still hospitalized, with 17 in critical condition. Newspaper photos showed children with red faces and their eyes swollen shut from chemical burns.

The death toll was high even by the standards of accident-prone Chinese industry, where thousands of people are killed every year in coal mine explosions and other disasters. Two of those killed were gas field employees, the news agency said.

As many papers report, China has a notoriously poor work safety record.
More than 120,000 people died in work-related accidents from January to November this year, the official China Daily said earlier this month.

In its annual safety report for 2002, PetroChina said the company suffered 179 accidents with 38 deaths, including a hydrogen sulfide toxic accident that killed five people.

Tuesday, December 23, 2003

NY Times Editorial

As Barstow's articles indicate, OSHA has problems, according to the NY Times Editorial Page:
But one factor dominates: a cultural resistance by not only the agency but also society as a whole to the idea that workplace deaths can in fact be criminal acts. This reluctance helps explain the inability of the family of Patrick Walters — a plumber's apprentice who was buried alive and the subject of the series' opening article on Sunday — to persuade OSHA to recommend the case to prosecutors. And it is why the case of two dead dairy-farm workers described in today's installment would probably have gone nowhere were it not for the persistence of a California prosecutor.

OSHA's culture cries out for reform. Congress should find out why more cases are not referred to the Justice Department, and should consider toughening the law by making "willful violations" that kill people a felony with a maximum sentence of 10 years instead of making it a misdemeanor. The current law, combined with OSHA's passivity, seems to have little deterrent effect.
It's actually not a "cultural resistance" as much as it's an antiregulatory, business-can-do-no-wrong political ideology.

But more on that later.

Happy Holidays

OK, I'm up too late, but I get to sleep in and then fly off to vacation tomorrow. Even bloggers need a break sometimes. I'll be back with you in about a week (unless I get an urge and I happen to be near a never know.)

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.

Holidays Not So Happy For Some

Got a short note tonight from a woman whose daughter had happened upon Confined Space while searching the web for mention of her father who was killed a few weeks ago falling from a roof.

She couldn't seem to locate the mention (part of "The Weekly Toll"), so I told her where to find it and gave her the original cite: A few short sentences sandwiched between a couple of local newsbriefs.

OSHA is investigating.

Discussion of NYT Articles

Check here for an interesting, if at times uninformed discussion of the NYT articles on another blog.

Sunday, December 21, 2003

"You done killed my boy!"

Read the linked articles, A Trench Caves In; a Young Worker Is Dead. Is It a Crime?, and U.S. Rarely Seeks Charges for Deaths in Workplace by David Barstow, author of last January's excellent series on the McWane corporation in the NY Times (here, here and here.)

The first article is a story of a young man, Patrick Walters, killed in an uprotected 10-foot deep trench, only a couple of weeks after OSHA had cited the same company for sending workers into unprotected 15-foot deep trench. It's the story of OSHA refusing to issue a willful citation despite proof that the hazards were well known to the company, and finally the story of a federal workplace safety agency that wouldn't even refer this case to the Justice Department for possible criminal investigation.

Montgomery County Coroner's Office

The body of Patrick Walters as it was removed from the trench that collapsed and killed him in 2002. His family's lawyers provided the photograph.

Where Barstow's McWane series may have left the impression that McWane was a uniquely bad actor, the devastation caused by the death of Patrick Walters in a collapsed trench is clearly only one of many similar preventable tragedies -- in unprotected trenches and elsewhere -- that are all too common in this country, yet are hardly reported or noticed by anyone except the families or co-workers of the dead.

Those involved in occupational safety and health, and all of you readers of Confined Space -- "The Weekly Toll," the article below and other items like the recent letter from the sister-in-law of an Ohio trench collapse victim (and other stories here, here, here and here)-- may be some of the few who have any idea of the devastation experienced many times every day in small towns and large cities across this country.

Barstow's second article -- "the first systematic accounting of how this nation confronts employers who kill workers by deliberately violating workplace safety laws" -- is, if possible, even more disturbing
every one of their deaths was a potential crime. Workers decapitated on assembly lines, shredded in machinery, burned beyond recognition, electrocuted, buried alive -- all of them killed, investigators concluded, because their employers willfully violated workplace safety laws.

These deaths represent the very worst in the American workplace, acts of intentional wrongdoing or plain indifference that kill about 100 workers each year. They were not accidents. They happened because a boss removed a safety device to speed up production, or because a company ignored explicit safety warnings, or because a worker was denied proper protective gear.

And for years, in news releases and Congressional testimony, senior officials at the federal Occupational Safety and Health Administration have described these cases as intolerable outrages, "horror stories" that demanded the agency's strongest response. They have repeatedly pledged to press wherever possible for criminal charges against those responsible.

These promises have not been kept.
The reality is that the only employers who face substantial penalties are those who kill an employee or those very few who are unlucky enough to be the subject of an OSHA inspection. For a constantly moving and changing construction site, it is even more unlikely for OSHA to be on the scene at the same time that workers are being exposed to life-threatening conditions.

Even when caught -- even having killed a worker -- even having killed a worker in full knowledge that the employee was working in an unsafe workplace -- the chances of paying a substantial penalty or serving jailtime are extremely remote. The employer of an Iowa worker killed in a confined space last July was fined a whopping $1,125. Even companies that willfully violated the law and killed workers
face lighter sanctions than those who deliberately break environmental or financial laws.

For those 2,197 deaths, employers faced $106 million in civil OSHA fines and jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991.

By contrast, one company, WorldCom, recently paid $750 million in civil fines for misleading investors. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years.
The reasons: Lack of encouragement from Washington for criminal prosecutions, intimidation by industry lawyers, resistance by OSHA's lawyers, (the DOL Solicitors Office), the time it takes to put a case together when easier cases will chalk up higher numbers, and the fact that willfully killing a worker on the job is only a misdemeanor with a maximum jail sentence of 6 months, making prosecutors less likely to want to invest the time to go after them.

But it doesn't have to be this way. If things are to change, the outrage generated by the death of Patrick Walters and the thousands like him must be translated by families, friends, co-workers, labor unions (and NY Times readers) into pressure on our politicians to create a system where employers who are trying to save a few bucks would no more consider putting a worker into a life threatening situation than your average citizen would consider robbing a bank because they are short of money. Until that happens, until there is a real fear of certain jail time, these tragedies will continue to constitute a daily toll.

But even under the best circumstances, few employers will ever go to jail -- and then only if someone dies. For those "lucky" enough not to kill someone -- yet -- or lucky enough to avoid an inspection by OSHA, there must be a better way to prevent such incidents. Ultimately, workers themselves must refuse to be fodder for employers trying to save a little time or a few bucks.

But that's not easy in today's conditions.

Barstow reports that
it was dangerous work, and [Walters] had known it. He told his mother of being buried to his waist in one trench. He told his father of being lowered into trenches on the bucket of a backhoe, leaving him no ladder to escape a collapse. "I just ask God never to let me die that way," he said to his wife.

His family urged him to put up a fuss. But he pointed out that he was only an apprentice, easily replaced. If he was seen as a troublemaker, he worried, his bosses would find an excuse to get rid of him. Their attitude, he told his father, was "either do it or go home."

And in truth, he did not have many better alternatives.
Giving workers the unchallenged right to refuse to work in hazardous situations without fear of reprisal requires better laws protecting a worker's right to refuse, meaningful enforcement of those laws and high penalties for violating them. Finally, it also means that workers need a real right to organize because ultimately, only workers protected by a strong union will feel secure enough to tell that boss, "Hey, I just came to work here. I didn't come to die."

There has been some activity in Congress -- in the form of a billintroduced by Senator Jon Corzine -- to increase the maximum jail sentence from 6 months to 10 years. The response from the Chamber of Commerce: "Obviously we're not going to support the expansion of criminal penalties," said Randel K. Johnson, vice president for labor issues at the United States Chamber of Commerce.


And the response from OSHA Director John Henshaw:
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."
We are entering an election year: President, all 435 members of Congress and 16 Senators. We have before us an opportunity that comes around only every four years to make sure that no candidate goes a week without having to respond to this question: "Suppose OSHA can prove that an employer knew a workplace is unsafe, but sends a worker to work under those conditions anyway and the worker is killed. Should that employer go to jail?" Or "Do you think that $5,000 or $50,000 or $150,000 is enough for an employer to pay who knowingly sends a worker into an unsafe workplace and the worker is killed?"

Or make up your own questions. These articles are being reprinted in papers all over the country. The proverbial iron is hot. Strike it now. Make workplace killing an issue that no one can defend.

If You Try To Re-Build It, They Still Won't Come

Ergonomics Expert Boycott OSHA Symposium

The nation's leading ergonomics experts have announced that they will boycott an upcoming ergonomics research symposium called by OSHA as part of its COMPREHENSIVE APPROACH TO ERGONOMICS.

Assistant Secretary of Labor for OSHA, John Henshaw, is not amused. “The good scientists will engage in the process and participate like responsible people.” The bad, irresponsible scientists objected to the fact that "the focus of the symposium appears to be on research topics already exhaustively reviewed."

One of the leading lies that the anti-ergonomics industry, Congressional Republicans and the Bush Administration used in their campaign to repeal the ergonomics standard was that there was no science behind ergonomics. Despite the fact that there were more good studies done on ergonomics than any other health or safety standard ever issued by OSHA, and despite a comprehensive review of the literature by the National Institute for Occupational Safety and Health in 1997, Republicans in Congress called for another review by the National Academy of Sciences (NAS).

When that report was issued in 1998 showing that the kind of work people do is related to musculoskeletal injuries, and that ergonoimc measures can reduce the incidence of those injuries, Republicans called for yet another NAS/Institute of Medicine (IOM) study, hoping that the Clinton administration would "wait for the science" and that a Republican would be in the White House by the time the study was done. That study, issued in January 2001, shortly after the ergonomics standard was issued, confirmed the findings of the previous study and, like every other scientific study in the history of mankind, called for more research on a number of issues.

Congressional Republicans, ignoring the conclusions of the reports, but seizing on the call for more research, went ahead and repealed the ergonomics standard anyway.

The signers of the letter stated that "Surprisingly, none of this prior work is mentioned in your announcement."
As you know, the NAS/IOM panel of 19 scientists met for 2 years to study these issues and developed a set of carefully considered findings regarding the relationships between occupational risk factors and musculoskeletal disorders. The NAS/IOM panel also made specific recommendations regarding data collection methods by BLS, NIOSH, and NCHS, a potential role for NIOSH to develop uniform definitions of musculoskeletal disorders, and other specific administrative and research recommendations (NAS/IOM 2001 report; pages 364 to 374). It is disturbing that the Department of Labor will expend valuable resources to repeat the work of this and earlier panels and reviews. Those funds would be far better spent implementing the NAS/IOM report recommendations.
Research was one of the four "prongs" of OSHA's CompRehensive APproach when it was announced in 2002, and one of the main reasons for establishment of OSHA National Advisory Committee on Ergonomics.

The honor roll of bad, irresponsible scientists who are refusing to participate in the charade make up many of the country's leading researchers in the area of ergonomics. The signatories are:

David Rempel, M.D., M.P.H.
Professor, Department of Medicine
University of California, San Francisco

Don B. Chaffin, Ph.D.
R.G. Snyder Distinguished University Professor
The University of Michigan

Bradley Evanoff, M.D., M.P.H.
Associate Professor of Medicine
Washington University School of Medicine, St. Louis

Fredric Gerr, M.D.
Professor, Department of Occupational and Environmental Health
University of Iowa

Monroe Keyserling, Ph.D.
Professor, Industrial and Operations Engineering
The University of Michigan

William Marras, Ph.D.
Professor, Industrial and Systems Engineering
Ohio State University

Laura Punnett, Sc.D.
Professor, Department of Work Environment
University of Massachusetts Lowell

Robert Radwin, Ph.D.
Professor and Chair, Department of Biomedical Engineering
University of Wisconsin-Madison

John Rosecrance, P.T., Ph.D.
Professor, Environmental & Radiological Health Sciences
Colorado State University

Barbara Silverstein, Ph.D.
Director, SHARP, Department of Labor and Industries
Washington State

David H. Wegman, M.D., M.Sc.
Dean, School of Health and Environment
University of Massachusetts Lowell

Several of the signatories had served on the NAS/IOM panels, while others had worked with OSHA on the ergonomics standard that was issued in November 2000. Rempel chaired the National Safety Council committee that was on the verge of issuing an ANSI voluntary ergonomics standard before the NSC was pressured to drop the guidelines in October.

What If The Canary Stops Singing, But No One's Listening

You all know the story of the canaries that miners used to bring down into the mines to warn them against explosive methane gas. The canaries were more sensitive to the gas than humans, so when the canaries stopped singing, the miners knew something was wrong and they'd better get out -- fast.

That was then. This is now. After new regulations by the Office of Management and Budget go into effect, the scenario will change. Intead of the miners evacuating when the Canary drops dead, mine owners will tell them to stop until a peer reviewed study can be done proving that the canary was killed by the gas, and not old age, cancer, smoking or illegal drug use. And the peer review -- which might take years -- could not be done by anyone who had ever worked for a union or the federal government. In fact, only scientists hired by the mining industry would be able to peer review the miners' theory of why the canary died. After all, who better to know the real conditions in mines than the mine owners?

In the real world, workers are the canaries of modern industry. No possible workplace health hazard has been regulated by the federal government -- or intensively studied by scientists -- before workers noticed that their health was being affected and made a stink about it.

I wrote a couple of weeks ago about a number of scientists and fellow bloggers who warning of the Bush Administration's proposed guidelines under the little-noticed "Data Quality Act that would abuse "peer review" to stifle the regulatory process. Now the news is starting to break into the regular press with an article in the Baltimore Sun.
On its face, the idea sounds utterly unassailable: Who would oppose a government rule to increase expert discussion of key scientific research?

But a new Bush administration proposal to increase peer review for many scientific studies has alarmed public health and environmental groups, as well as many scientists.

They call it a back-door attempt to stifle new health and environmental regulations by burying them under mountains of discussion and analysis. Critics contend the process is also designed to produce conclusions slanted toward industry.

Saturday, December 20, 2003

Second Violation Follows Trenching Fatality: What Does It Take?

I'm starting to think that Congress should pass a law: kill someone in an unprotected trench, the boss goes to jail. Automatic.

First this. A Rhode Island plumbing contractor, Greenwood Plumbing, Heating and Solar, Inc., also known as Mr. Rooter, was just cited for $140,000 by OSHA because employees were working in an unprotected 8-foot deep trench less than a year after the company received an $89,000 OSHA citation for killing an employee, Walter Gorski, in an unprotected 11 foot deep trench. Any trench over 5 feet deep must be protected by shoring or a trench box according to OSHA regulations.

"It's amazing," said Kim Corrente or Warwick, Gorski's sister. "You learn from your mistakes. There should not have been a second incident after someone's death."

Gorski's family, who learned after the tragedy that the company had not been following safety rules, is hoping for a criminal prosecution.
After he died, Gorski's widow, Kyleen, gave birth to his daughter, Emily, who is now 7 months old, Corrente said. Gorski's family, which includes three sisters and a brother, have been on a "roller coaster" of emotions while waiting to see whether there will be criminal charges brought against the owner of the company, Donald Lapierre, Corrente said.

Detective Lt. Luke Gallant, spokesman for the Woonsocket Police Department, said detectives recently presented their findings in a criminal investigation surrounding Gorski's death to the office of Attorney General Patrick Lynch. But Gallant said he is not optimistic that state prosecutors are going to recommend the case for presentation to a grand jury. Michael Healey, a spokesman for the attorney general, said prosecutors are "carefully reviewing" the case but haven't made a decision yet.
Doing everything correctly?

Meanwhile, in Florida A 20-year-old construction worker, James Randal Helton, was killed early last Wednesday morning when he was buried in a 16-foot deep trench that collapsed on top of him.

"A pile of dirt that had been placed outside the trench fell, burying Helton in the hole, authorities said."

OSHA reported that since October of last year, there have been seven trench deaths in north Georgia. During the previous 12 months, there were none. Breezley explained the economy played a role in the disparity.

“Because the economy’s looking good, then they build more and they dig more,” he said.

Employed by EKK Grading & Development, Helton was part of an eight-man crew installing a 10-inch sewer line.

"It was tragic accident and I hate it and everybody, all of us, are very upset," said the company's owner, Jared Bailey.

Bailey said his crews were doing everything correctly, as far as safety precautions were concerned.

I don't think so. This tragedy was similar to a trench collapse in Zanesville, OH last month where the office manager claimed that "nothing could have prevented it."

As in Zanesville, overlooked was OSHA standard 1926.651(j)(2) which states
Employees shall be protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations. Protection shall be provided by placing and keeping such materials or equipment at least 2 feet (.61 m) from the edge of excavations, or by the use of retaining devices that are sufficient to prevent materials or equipment from falling or rolling into excavations, or by a combination of both if necessary.
And as in Zanesville, it had been raining recently, destabilizing the pile of soil outside the trench.

Which is the reason for OSHA standard 1926.651(k)(1)
... An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence.
In the vast majority of long articles about workers' deaths, a company representative is quoted as saying "We were doing everything right." or "I can't imagine what went wrong. We had no idea." or "It was a freak accident."

And then there's the old "blame the worker" story:
A North Side (PA) man killed in a trench collapse should not have been there, a lawyer for his longtime employer said Tuesday.

William Lee Steadman, 37, was using a small backhoe to dig the trench Monday morning in McKees Rocks, when he climbed into the gully and a water-logged clay and soil wall gave way, burying him up to his shoulders.

Steadman was among about five workers digging inside the garage of the building on Chartiers Avenue, officials have said. None of them was supposed to be in the 7-foot-4-inch deep trench, said Templeton Smith, a lawyer for Steadman's employer, American Contracting Enterprises Inc., which owns the building.
Sometimes they may really believe that there was nothing they could have done. Sometimes they just want to believe it or want others in their community to believe it. But it's important for reporters to dig a little deeper to find out why these tragedies happen and what laws and regulations are being violated. Only when workers and the community understand that almost every workplace accident they read about in the paper could have been prevented will we have any chance of creating the political force that's needed to have strong standards, and meaningful enforcement of workers' legal right to a safe workplace.

The Weekly Toll

Worker Crushed Under Falling Lumber

DENVER -- A construction worker died Friday when he was crushed under a large pile of two-by-fours that fell off a semitrailer.

Co-workers dug him out and he was transported to a local hospital, where he died.

The 56-year-old worker was not identified.

Garbage Truck Worker Killed

PITTSBURGH (AP) — A garbage truck driver who was killed when he was run over while trying to stop his runaway truck did not set the emergency break, setting off the deadly accident, police said.

Gregory Leonard, 46, of Crafton, apparently fell while trying to jump into his out-of-control garbage truck and was run over Oct. 2.

Fast Food Employee Killed in Robbery

A San Antonio man is dead after three suspects robbed a fast food restaurant late Tuesday night.

Police say after a 21-year old clerk handed over the money, he tried to escape. Then, police say the employee was shot in the back.

Think OSHA investigated to see if the store had taken any recommended precautions to protect their late night employees? I doubt it.

Falling Boom Kills Worker

A Buras (LA) worker was killed in an industrial accident at a Venice business early Monday morning, Plaquemines Parish authorities said.

Kenneth Price, 29, a crane operator, died about 7 a.m. when the boom on a crane fell, pinning him to the ground and causing head and chest injuries, according to coroner's investigator Anthony Buras. He said an autopsy will be performed today.

The accident happened at French's Welding Service in Venice.

Worker Dies In Trench Collapse

McKEES ROCKS, Pa. -- A man was trapped and killed Monday when a trench collapsed in McKees Rocks, Channel 4's Chris Glorioso reported.

Will Steadman, 38, of Pittsburgh's North Side, was identified as the victim by a family member.

Steadman and three other people working on a sewer line nine feet under the ground floor were trapped when the walls of clay on either side of the trench apparently gave way. The other three were able to make it out.

Man Shot During Robbery Dies From Injuries

ORLANDO, Fla. -- Police searched overnight for some violent robbers in the Orlando area. The latest incident was late Wednesday night, where a Chinese restaurant worker was fatally shot in the head and another at a Game Stop store in College Park.
See comment above

Bridge worker killed in accident on barge

A worker died yesterday afternoon when a barge he was operating during reconstruction of the Potee Street Bridge on the Patapsco River struck an I-beam under the bridge, causing a pilot's station to collapse onto the man, authorities said.

The man -- Travis Mayfield, 23, of the 9400 block of Wind Pine Road in Baltimore County -- was moving the small work barge about 2:15 p.m. when the barge struck the I-beam, said Detective Gordon Carew.

South Side (IL) food store employee murdered

An unarmed grocery store employee was killed during an apparent robbery attempt on the South Side.

Errol White, 54, was shot in the chest when he confronted two gunmen who entered the store about 6:25 p.m. Wednesday and accosted the cashier.See comment above

Train Accident Investigation Could Take 9 Months

It could be another nine months before the investigation into a deadly train accident is complete.

This weekend a worker was killed at an east side rail yard as he ran a remote controlled train.

37-year-old Jody Allen Herstine was killed instantly. He was the only worker on duty at the time.

IDOT Worker Killed Helping Motorist

CHICAGO (AP) An Illinois Department of Transportation worker, Eddie Gates, 35, was killed when he was struck by a truck while helping a motorist change a flat tire on the Dan Ryan expressway, authorities said.

Machinist Dies In Job Accident

A machinist was killed in a work-related accident that occurred in Elk Grove Township last week.

Saleh Atwel, 63, a Chicago resident, died on Sunday at Alexian Brothers Hospital after suffering several injuries while on the job at O'Hare Precision Metals LLC, 2404 W. Hamilton Rd. on Wednesday, Dec. 3.

According to Thomas Knowles, president of O'Hare Precision Metals, Atwel was operating a bar straightener during the accident shortly before 8 a.m. "The safety guard was open," Knowles said. "He was trying to make an adjustment in the unguarded area, when the drive shaft snagged his uniform jacket." At that point, Knowles said, Atwel "suffered numerous traumatic injuries."

Gunman kills Mail-Well employee

A former employee of Mail-Well Inc., which makes envelopes and prints documents, shot a worker to death and then apparently killed himself at a central California printing plant Tuesday morning, according to police and the company.

Roofer killed as brickwork, trash chute fall on him

A 45-year-old Cleveland roofer was killed and another man was injured yesterday when part of a brick ledge gave way on top of a three-story building in the 4100 block of Pearl Road and fell onto them, police said.

The two were inside a trash container at the side of the building about 4:45 p.m., shaking a circular waste chute attached to the brick ledge. They were trying to loosen roofing material that had become lodged inside the chute when part of the brick ledge gave way, police said.

Bricks from the ledge and the metal bracketing holding the chute to the ledge crashed down on the trash container, police said,

Run, Ralph, Run -- NOT

Ralph Nader is conducting a poll to decide whether to run for President again. You can vote here. Your choices:

YES: Run. (We need four more years of George Bush. You gave him to us the first time and you can do it again.)

NO: Don't Run. (Put whatever credibility you may have left into the effort to defeat George Bush)

Friday, December 19, 2003

Pesticides: Unsafe at Any Speed

During my early AFSCME days, I became fascinated -- in a horrified sort of way -- with pesticide regulation -- that is, how poorly pesticides in this country were tested and regulated.

Aside from chemical warfare, pesticide application is the only human activity where poisons are intentionally sprayed on the earth, plants, bugs, animals, and people. By definition, pesticides are poisons, and one thing I discovered in my travels through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was that it was actually illegal to advertise a pesticide as safe, "safe when used as directed" or any variation on that theme.

Clearly, if you read pesticide advertisements, no one really takes this prohibition seriously, until modern day corporate enemy number one (and New York Attorney General) Eliot Spitzer decided that it was time to resurrect the idea that poisons are not good for people, even when they're licensed by the EPA to kill evil bugs.
A subsidiary of Dow Chemical Co. will pay a $2 million fine for making illegal safety claims in advertising of its pesticides, state Attorney General Eliot Spitzer said Monday.

The penalty involving the popular Dursban and other pesticides is the largest in the nation's history, he said.

"By misleading consumers about the potential dangers associated with the use of their products, Dow's ads may have endangered human health and the environment by encouraging people to use their products without proper care," Spitzer said.
What was Dow's crime?
Among the advertised claims cited by Spitzer was: "No significant adverse health effects will likely result from exposures to Dursban even at levels substantially above those expected to occur when applied at label rates."

Dr. Philip Landrigan of the Department of Community and Preventative Medicine at Mount Sinai Medical Center in New York City, who was involved in the study, said that claim was false.

"Excellent studies conducted by independent scientists have clearly shown that chlorpyrifos, the active ingredient in Dursban, is toxic to the human brain and nervous system and is especially dangerous to the developing brain of infants," Landrigan said.
Dow agreed to pay the $2 million penalty, but admitted no illegal or erroneous advertising.

Ain't A Fit Night Out For Man Nor Beast

OSHA has announced that it is joining an Alliance with Jack Frost in order to promote its Cold Stress Card to educate workers on how to prevent serious cold-related health problems such as trench foot, frostbite and hypothermia.

The card is available in English and Spanish. Speakers of Chinese, Polish, Swahili or any other language can go ahead and freeze to death.

Copies of the cards can be ordered at 1(800) 321-OSHA.

(The Jack Frost part is a joke. The rest is real, including hazards of cold weather.)

Thursday, December 18, 2003


What do you do with an attorney heads a legal team that argues that it's good for conservationists if the military bombs an important nesting island for migratory birds in the Pacific because it helps make some species more rare -- and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one?" And who argues that bombing was good for the birds too, as it kept the island free of other "human intrusion?"

Put him on the Comedy Channel? Sign him up to work for The Onion?

If you're the Bush Administration, you nominate him for a seat on the 4th U.S. Circuit Court of Appeals. William Haynes II's is general counsel for the Defense Department, the military's top lawyer and leader of the team that made this argument.

Fortunately, a federal judge was not amused:
A federal judge ruled against the military in 2002, saying "there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources ... . The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future."
Unfortunately, according to Bush Greenwatch,
His nomination hearing was held Nov. 18 and he awaits a Senate Judiciary Committee vote. On his Senate questionnaire, Haynes listed the bird case as the second most significant case of his career. (
Senator Pat Leahy (D-VT) has strongly hinted that Haynes may join the list of filibustered judicial nominations mainly because of his important role as the architect of the Administration's policy of holding U.S. citizens as enemy combatants without access to attorneys. This policy was overturned today when a federal appeals court ruled that President Bush does not have the power to declare an American citizen seized on U.S. soil an "enemy combatant" and hold him indefinitely in military custody.

Sounds like the President could use another friend on the bench.

Support the Strikers/Boycott Safeway

This is a bad time of year to be on strike. The weather's lousy and the holiday season with no job and no money is hard on everyone, especially the kids.

More than 80,000 supermarket workers are fighting to protect health care benefits as their employers--grocery super-chains like Safeway-owned Vons, Albertsons and Kroger-controlled Ralph's--attempt to cut their health care--driving these workers into poverty.

The AFL-CIO has set up a national strike support fund to help these workers. The fund is raising money to support the everyday needs of the strikers and their families. Please consider donating to help the grocery workers by clicking here.

Boycott Safeway

Do not shop at any Safeway stores. From San Diego to Boston
and from Seattle to Miami the UFCW is asking everybody to not shop at Safeway-owned stores, including Vons, Safeway, Pavilions, Carrs, Dominick's, Randalls, Tom Thumb or Genuardi's.

For more than nine weeks these workers have been holding the line for affordable health care at work against the Safeway-led charge to destroy health benefits for workers and their families. These workers and their families urgently need your support.

Wednesday, December 17, 2003

One of the worst environmental disasters in U.S. history: Anatomy of a Coverup

Last month I wrote about a Mine Safety and Health Administration (MSHA) official, Jack Spadaro, who was in the process of being fired for blowing the whistle on an investigation of an October 200 slurry spill that was being whitewashed by Bush administration officials.

I just ran across a much longer article in Salon (if you're not a subscriber, you need to sign up for the "Free Day Pass") that describes in sickening detail the background of "one of the worst environmental disasters in U.S. history."

Indeed, The EPA called the the slurry spill at the Martin County Coal Company in Inez, KY on October 11, 2000
the worst environmental catastrophe in the history of the Eastern United States. Far more extensive in damage than the widely known 1989 Exxon Valdez oil spill off the coast of Alaska, the Martin County Coal slurry spill dumped an estimated 306 million gallons of toxic sludge down 100 miles of waterways.
But this isn't just any coverup. The players include the senior U.S. Senator from Kentucky, Mitch McConnell, his wife, Secretary of Labor Elaine Chao, who oversees MSHA, and the mighty coal industry, which has at stake in this case its ability to continue to locate slurry impoundments over old mines. All of these relationships were best summed up by coal executive Bob Murray at a meeting with MSHA inspectors.
West Virginia Public Radio managed to obtain notes from the meeting. Said Murray: "Senator Mitch McConnell calls me one of the five finest men in America, and last time I checked he was sleeping with your boss."

And Spadaro's crime for which he may lose his job and his pension just a few years before retirement? Blowing the whistle on the whitewashed investigation, or on the no-bid contracts that he contends were awarded to friends and former business associates of David D. Lauriski, the assistant secretary of labor for mine safety and health, and other senior mine safety officials?

Of course not, you Bush-hating enviro-labor weenies! He's being fired because he made some unauthorized cash advances on his government credit card (paid back on schedule) and, get this:
The most serious of MSHA's charges against Jack Spadaro revolve around the superintendent's granting of free room and board to two instructors who were disabled. MSHA also says that Spadaro violated government rules by providing free room and board at the academy to participants in a mine rescue competition.
Sounds like firing is too good for him.

Yesterday, Salon reported that
Members of a congressional committee have launched a probe into personnel actions taken against a high-ranking mine safety official who is accusing the Bush administration of engaging in a coverup.

On Nov. 18, three Democratic members of the House Committee on Education and the Workforce requested that U.S. Secretary of Labor Elaine Chao provide them critical documents and information to help them assess whether Jack Spadaro, the superintendent of the National Mine Safety and Health Academy, is being wrongly terminated.


In their letter to Chao, Reps. George Miller, D-Calif., Robert Andrews, D-N.J., and Major Owens, D-N.Y., wrote: "Obviously, Mr. Spadaro's status as a whistleblower -- questioning the conduct of the Martin County Coal investigation and the Department's use of no-bid contracts with friends and associates of Department officials -- raises a very serious concern about the nature of the current disciplinary investigation against him. It is incumbent upon the Committee to ensure that whistleblowers such as Mr. Spadaro are afforded fair treatment and the full protection of the law in employment matters."

Senator Ted Stevens: Redefining Appropriations

I always thought being chair of the Senate Appropriations Committee meant you were in charge of appropriating funds for the government, not for yourself.

Silly me.

In true embodyment of the American Dream, Senator Ted Stevens (R), powerful chair of the Senate Appropriations Committee and President Pro Tem of the Senate, went from almost broke in the mid-1970's to being a millionaire today. Anything to do with the fact that he's one of the most powerful people in the country and (shudder) third the constitutional line of succession to the Oval Office? You be the judge. Here are some of the ways he did it, according to the Los Angeles Times.
  • Armed with the power his committee posts give him over the Pentagon, Stevens helped save a $450-million military housing contract for an Anchorage businessman. The same businessman made Stevens a partner in a series of real estate investments that turned the senator's $50,000 stake into at least $750,000 in six years.

  • An Alaska Native company that Stevens helped create got millions of dollars in defense contracts through preferences he wrote into law. Now the company pays $6 million a year to lease an office building owned by the senator and his business partners. Stevens continues to push legislation that benefits the company.

  • An Alaskan communications company benefited from the senator's activities on the Commerce Committee. His wife, Catherine, earned tens of thousands of dollars from an inside deal involving the company's stock.
Stevens, in a written response to questions submitted by The Times, said that in all these cases his official actions were motivated by a desire to help Alaska, and that he played no role in the day-to-day management of the ventures into which he put money.

Tuesday, December 16, 2003

Couldn't Resist This

From Mike Ramirez at the L.A. Times via Orcinus.

And while you're laughing, check this out.

Cause they've been bad, bad children this year.

The Mad Prophet tells us how we can send a lump of coal to Wal-Mart this holiday season. Oh hell, make it two lumps.

"It's Just Disgusting" Says Widow of Atlantic States Cast Iron Pipe/McWane Victim

While everyone concerned about workplace safety applauds yesterday's indictment of States Cast Iron Pipe officials yesterday, the federal government's action had special meaning for the families of the victims of McWane Corporation, parent company of Atlantic States.
Every time Gloria Peacock hears of a workplace injury at the Atlantic States Cast Iron Pipe Co., she gets angry.

She sees it as proof that not much has changed in the nearly four years since her husband, Sonnie, died at the Phillipsburg plant.

"It's just disgusting," Peacock said.

The Harmony Township widow was pleased Monday upon hearing that the pipe manufacturer and five of its managers face federal charges of violating federal workplace safety laws, obstructing criminal and regulatory investigations and breaking federal clean air and water regulations.

"It's about time somebody went after them," Peacock said. "I don't believe in an eye for an eye, but they should be made accountable for all the things that have happened there."

Sonnie Peacock, 54, died in January 1999. The electrician was hit by a crane as he repaired a conveyor motor on an elevated platform.

Peacock's death was one of two fatal accidents and a spate of less serious incidents that have occurred at the foundry in the last few years.
More on the Atlantic States indictments here and here.

EPA: Too Much Mercury? Too Bad

So, imagine that the building next door to you is being torn down and you learn that it's spewing cancer-causing asbestos dust into the air around your home. You quickly call the Environmental Protection Agency expecting to see the building owners hauled off to jail. But the nice people at EPA say "Sorry, the owner of the building next door has bought some asbestos credits from the building owner across town who is doing an especially good job cleaning up his asbestos. Deal with it."

That's essentially what Bush's EPA is proposing in its new proposal to regulate mercury pollution from coal-fired power plants. A similar system is used for air pollutants like ozone, that are not considered to be "hazardous air pollutants" under the Clean Air Act. Since mercury is a human neurotoxin, the Clinton Administrtion had decided that pollution credits would not be appropriate.
Cap-and-trade programs, which let companies buy and sell the right to emit pollutants, are widely considered to be a great approach to dealing with non-toxic emissions like carbon dioxide and sulfur dioxide that diffuse into the air without affecting the neighborhoods where they are released -- but other emissions, such as mercury, create local toxic hotspots in the areas immediately surrounding the polluting facility. In this case, if dirty plants in Chicago bought mercury pollution credits from clean plants in Maryland instead of cleaning up their own emissions, Chicago residents would get a real bum deal.
The New York Times reported today that the Clinton Administration had considered the same proposal and decided that it would be illegal.
The Clean Air Act lists 189 hazardous air pollutants, including asbestos, lead and mercury, and requires the environmental agency to design strict rules limiting their emissions. Coal-burning power plants currently release 48 tons of mercury a year, or about 40 percent of all the mercury emissions produced by humans in the United States.


"The Clinton administration evaluated the same approach that the Bush administration is now relying on and found that it was not legally supportable under the Clean Air Act," said Gary Guzy, an E.P.A. general counsel under Mr. Clinton.

"Because of the specificity of the Clean Air Act provision on mercury and power plants, we concluded that there was not a legal basis for this approach," Mr. Guzy said.

Ohio Republicans Pass Industry Asbestos Comp Bill

Tired of waiting for the U.S. Congress to negotiate national asbestos compensation legislation, the Republican-controlled Ohio state House of Representatives has gone ahead with its own bill. And guess who it favors:
The bill is retroactive, meaning that half or more of the 40,000 asbestos cases now in Ohio courts could be dismissed because plaintiffs do not qualify for compensation under the new medical standards.

"The eyes of the country are looking at the Statehouse in Columbus right now," said Steve Schneider, Midwest region vice president of the American Insurance Association.

"No other state has gotten as far in the debate or legislative process as has Ohio," Schneider said.

Supporters say the legislation will weed out those who are not sick, clearing the way for those who have become ill to be compensated quickly by the courts.

But opponents call the legislation a recipe for more disaster for victims already traumatized from exposure to asbestos.

The bill is written with the purpose of eliminating as many asbestos claims as possible, said attorney Thomas Bevan, whose Northfield firm represents many of Ohio's plaintiffs.

"This bill is a hose job," Bevan said. "We would be the first state in the country to bar most of its citizens from filing asbestos claims when they have injuries."

McWane a "Model Corporate Citizen?"....God Help Us All!

You may remember the Frontline and NY Times series earlier this year on the McWane corporation whose corporate strategy left a trail of dead and maimed workers in its wake.

Well, they're back in the news, as David Barstow continues the sad story in the NY Times....
Senior managers of a New Jersey foundry owned by McWane Inc., the nation's largest manufacturer of cast-iron pipe, conspired for years to violate workplace safety and environmental laws and then obstructed repeated government inquiries by lying, intimidating workers into silence and systematically altering accident scenes, according to a sweeping federal indictment unsealed here on Monday.

The motive, the indictment said, was to enrich the foundry, Atlantic States Cast Iron Pipe in Phillipsburg, N.J., and its managers by maximizing production "without concern to environmental pollution and worker safety risks."

The foundry's managers routinely dumped thousands of gallons of contaminated wastewater into the Delaware River, repeatedly exposed workers to unsafe conditions and regularly deceived environmental and workplace safety regulators, the indictment charges.

When one worker, Alfred E. Coxe, was struck and killed by a forklift with a history of brake problems, the indictment stated, the McWane managers "took steps to conceal facts" and instructed one employee to "provide a misleading account" to hide the plant's faulty forklifts from the federal Occupational Safety and Health Administration.

The managers took other steps to evade regulators, the indictment asserted. They falsified injury logs, submitted false pollution monitoring reports and burned incriminating evidence in the foundry's cupola, a furnace that turns scrap metal into molten iron.

"To Atlantic States' blue-collar work force, composed in large part of immigrants, some non-English speakers, all working in an area with few jobs that could support a family, these defendants routinely presented a harsh choice," Tara Donn, a special agent for the Environmental Protection Agency, wrote in an affidavit that accompanied the indictment. "Perform an unreasonably dangerous work task or lose your job; work injured or lose your job; lie to OSHA or lose your job; lie to environmental regulators or lose your job; forego filing workers compensation claims or lose your job."

In court on Monday, defense lawyers entered pleas of not guilty for Atlantic States and its managers, who were released on bail but ordered not to return to the plant without permission because of reports of witness intimidation.

Later, at a news conference, a lawyer for McWane, the former Whitewater prosecutor Robert Ray, called the company a "responsible corporate citizen" that has demonstrated a willingness to change its culture. While acknowledging "areas where the company has fallen short" in the past, Mr. Ray said that McWane had spent tens of millions of dollars on new safety equipment and pollution controls and remained committed to making all of its plants "model facilities for the 21st century."
Right, an this just in. Saddam Hussein's lawyers called the former dictator a "responsible world citizen" who has demonstrated a willingness to change his ways. While acknowledging "areas where his regime had fallen short..." Yadda, yadda, yadda.

Comment: As usual, this is a great report that exposes one of the worst corporate actors in America today. But don't let this leave you with the impression that McWane is the only bad one out there. They may be larger than most bad actors, but check out the "Weekly Toll" that I publish every couple of weeks. Many of these companies treat their employees no better than McWane. And remember that generally only fatalities make the news (and not all of those). Many deaths and the vast majority of serious injuries are never known by anyone except witnesses and the families.

Thankfully, we have stories like these in the NY Times to reaveal some of the daily carnage in our workplaces. It's up to all of you to make sure that all of the others aren't forgotten.

Curse of the Ergonomics Standard

What do Ernest Hollings (D-SC), Zell Miller (D-GA) and John Breaux (D-LA) have in common? All three Democratic Senators decided not to run for re-election next year. And these are three of the six Democrats who voted to overturn the federal ergonomics standard in 1991. Although none of them admitted it, they clearly could no longer bear the shame of betraying this nation's working people.

(Now lets just hope their seats aren't taken by the other party.)

True Lies: Trade Theory, Trickle Down, Labor Rights Meet Reality...And Guess Who's Losing

OK, it's been a while since I've studied economics, international trade theory, comparative advantage and all that stuff, but weren’t we supposed to be less upset about well-paying manufacturing jobs disappearing overseas because they would be replaced by better paying, high tech jobs like computer programming?
IBM Said to Export Programer Jobs to Asia

NEW YORK (Reuters) - International Business Machines Corp., the world's largest computer company, will move the work of as many of 4,730 U.S. software programers to India, China and elsewhere, the Wall Street Journal reported on Sunday.

The unannounced plan, which the newspaper said it viewed in company documents, would replace thousands of workers at IBM facilities in Southbury, Connecticut, Poughkeepsie in New York, Raleigh, North Carolina, Dallas, Boulder in Colorado, and elsewhere in the United States.

The Wall Street Journal said that about 947 people will be notified during the first half of 2004 that their work will be moved overseas. It was not yet clear how many of the other 3,700 jobs identified as ``potential to move offshore'' in the IBM documents will move next year or later, the paper said.
Oh well, there are always jobs down at the local Wal-Mart or McDonalds. Right? Well, maybe not. As Bob Herbert notes in the New York Times yesterday,
The problem is that we are not creating many jobs, and the quality of those we are creating is, for the most part, not good. Job growth at the moment is about 80,000 per month, which is not even enough to cover the new workers entering the job market.

And when the Economic Policy Institute compared the average wage of industries that are creating jobs with those that are losing jobs, analysts found a big discrepancy. The jobs lost paid about $17 an hour, compared with $14.50 an hour for those being created.
Meanwhile, Herbert notes that while the war abroad commands daily headlines, the war against workers at home goes on in relative secrecy, except to those who are its victims
The war is being fought on several fronts. For example, after years of shipping manufacturing jobs out of the U.S. to absurdly low-wage venues, we are now also exporting increasing numbers of technical and professional jobs.

Another example: Despite the loss of more than two million jobs over the past three years, and the fact that nearly nine million Americans are officially unemployed, the Bush administration has refused to support a Christmastime extension of crucial unemployment benefits.

Worse, the administration is trying to implement a regulation that would deny overtime protection for more than eight million men and women.

Efforts to get an increase in the pathetic $5.15 minimum wage continue to fail. The benefits from productivity increases that have resulted primarily from an incredible squeeze that employers have put on workers are not being shared with workers. Health and pension benefits are in a downward spiral.
But don't workers in this country have strong labor laws protecting them (unlike the poor slobs in developing countries)? Well, not according to a former Secretary of Labor. Former Labor Secretary Ray Marshall (writing in the L.A. Times with economist Julius Getman) says that while we may have decent laws on paper,
the reality is far different. The rights enunciated almost 70 years ago are constantly challenged and frequently denied. Those who oppose the right of workers to organize and strike have learned to phrase their opposition in the language of liberty and to justify it in terms of the best interests of working people. There are few areas where hypocrisy is more firmly entrenched.

This hypocrisy has been woven into the structure of our labor laws. The right to organize is frustrated by the election system used in deciding whether employees are to be unionized. Firing of employees involved in union campaigns is common today. Though the law declares such firing to be illegal, anti-union discharges are difficult to prove, and the remedies are woefully inadequate. Even when the National Labor Relations Board finds that employees have been illegally fired, they rarely return to their jobs.

And even if the union election is not preceded by unfair labor practices, the law gives employers a significant advantage. Before the election is held, employers have the right to deliver speeches to a captive audience of employees. These speeches, typically written by anti-union consultants, play upon fear and ignorance. The union has no right to reply, and its organizers usually are barred from the premises.

Our national hypocrisy is even greater when it comes to the fundamental right to strike. The law specifically proclaims such a right, and our system of collective bargaining requires it. But employees who exercise that right can lose their jobs to permanent replacements.
I wonder what they're teaching kids in school these days.

Bah Humbug!

Some stories are timeless. Like this one.
In a moment only an unrepentant Ebenezer Scrooge could fully appreciate, Congress got out of Washington yesterday without leaving behind so much as a lump of coal for the unemployed.

Thanks to Republican inaction this year, there will soon be no more extensions of the 13-week federal unemployment benefit for those who exhaust the customary 26 weeks of state benefits. That federal program kicked in during March of last year when the unemployment rate was 5.7 percent. It ends while unemployment is 5.9 percent.
And this:
At this festive season of the year, Mr. Scrooge," said the gentleman, taking up a pen, "it is more than usually desirable that we should make some slight provision for the Poor and Destitute, who suffer greatly at the present time. Many thousands are in want of common necessaries; hundreds of thousands are in want of common comforts, sir."

"Are there no prisons?" asked Scrooge.

"Plenty of prisons," said the gentleman, laying down the pen again.

"And the Union workhouses?" demanded Scrooge. "Are they still in operation?"

"They are. Still," returned the gentleman, "I wish I could say they were not."

"The Treadmill and the Poor Law are in full vigour, then?" said Scrooge.

"Both very busy, sir."

"Oh! I was afraid, from what you said at first, that something had occurred to stop them in their useful course," said Scrooge. "I'm very glad to hear it."

'Under the impression that they scarcely furnish Christian cheer of mind or body to the multitude,' returned the gentleman, 'a few of us are endeavouring to raise a fund to buy the Poor some meat and drink and means of warmth. We choose this time, because it is a time, of all others, when Want is keenly felt, and Abundance rejoices. What shall I put you down for?'

'Nothing!' Scrooge replied.

'You wish to be anonymous?'

'I wish to be left alone,' said Scrooge. 'Since you ask me what I wish, gentlemen, that is my answer. I don't make merry myself at Christmas and I can't afford to make idle people merry. I help to support the establishments I have mentioned -- they cost enough; and those who are badly off must go there.'

'Many can't go there; and many would rather die.'

If they would rather die,' said Scrooge, 'they had better do it, and decrease the surplus population."

Monday, December 15, 2003

Alan Dalton

When I start new jobs (which has been happening quite a bit over the past few years) or need to figure out why I'm doing what I'm doing, I often write an imaginary obituary for myself. It helps me set some goals and figure out where I want to be at the end of this stage in life’s journey.

I didn’t know Alan Dalton, but his would not have been a bad obit to leave with.

Saturday, December 13, 2003

Iowa: Dean vs. Gephardt/Union vs. Union

Things seem to be getting more bitter between the industrial unions campaigning for Gephardt and the service/government unions pushing Dean.
"It's trench warfare now," said Larry Scanlon, political director of the American Federation of State, County and Municipal Employees, who moved here last week from Washington to help coordinate his union's efforts on behalf of Dr. Dean. "It's hand-to-hand combat."

In recent weeks, supporters of Mr. Gephardt, a longtime ally of organized labor, have bombarded their active and retired members with phone calls and a direct mailing blitz of about 60,000 campaign brochures. They have been holding meetings and sending out weekly faxes. About 25 of their members are now working here full time.

Dr. Dean's union supporters, who endorsed him just last month, are moving aggressively to counter those efforts. They argue that Dr. Dean has more money, more energy and a better chance of winning, even though he has not always supported labor's causes. This week, the government employees union, which represents 30,000 workers here, sent out the first of its own direct mailings and has promised to send workers door to door in coming days.

The federation boasts of having more cash and technology, despite its later start. The union has promised to spend more than $1 million in the state and has already moved 90 full-time staff members here this month. It is also arming its workers with hand-held computers so they can quickly update the master database of supporters as they knock on doors and make calls.

Mr. Gephardt's union supporters acknowledge that they may be outspent by their rivals, but they argue that the sheer size of their combined memberships will ultimately give them the advantage on Jan. 19, when the caucuses are held.
I don't know. I sometimes wonder if all the money spent on Dems fighting Dems in the primaries might better be saved for the ultimate battle next year.

But no one asked me.

Friday, December 12, 2003

Public Employees to Senator Graham: Go Forth and Agitate

From the Congressional Quarterly Mid-Day Update:
The Gainesville (Fla.) SUN reports that workers at Gainesville Regional Utilities' Deerhaven Generating Station discovered a new guy had joined their ranks Wednesday, as they used monstrous earth movers to shove around about 100,000 tons of coal for the plant's coal-fired system. Sen. Bob Graham, D-Fla., showed up for one of his famous "workdays," which he began in 1978 before he was elected governor of Florida. This time, on his 394th workday, the paper said "Graham, 67, handled the mechanical contraption expertly -- much to the surprise of onlookers. 'I grew up on a farm where you got a lot of experience driving equipment,' Graham said." He said he intends to continue his workdays though he plans to retire from the Senate after next year.
The Sun also reported that Graham recently worked as a road construction worker on Interstate 4 in Orlando.
“Our basic infrastructure is getting old,” said Graham, who peered out from under a bright yellow hard hat that read “Bob.” He also wore jeans and a black canvas work shirt that had been delivered to his hotel the night before.

“We need a comprehensive program to help maintain the systems we already paid for,” he said.
Well, that's nice. I have a few suggestions for the Senator's next workday.


Senator Bob Graham
524 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Graham:

I was happy to hear about your latest "workday" at the Gainesville Regional Utilities' Deerhaven Generating Station. It's good to know that you're attempting to see what it's like to do the work that average Americans do every day. I was also happy to read that you understand that our nation's aging infrastructure is in dire need of maintenance.

I have a suggestion for your next workday. As you are undoubtedly aware, public employees in Florida aren't covered by OSHA (as they're not covered by federally approved OSHA programs in 25 other states). I'd like to suggest that you try out some average public employee jobs and let people know what it's like to work in hazardous situations where you have no legal assurance of a safe workplace.

For example, on your next workday, go down in a 12 foot deep trench that is not shored or sloped. Climb down into a manhole or other confined space that has not been monitored for hazardous chemicals or oxygen deficiency. Go work on a locked, understaffed, overcrowded mental health ward or maybe in a high security prison. Go drive around in some old city vehicles with defective brakes. Maybe you could bring a few Florida state legislators and Governor Bush with you.

Assuming you live through the experience and that you think that this nation's public employees don't deserve to work and die under such conditions, please consider spending whatever time you have left in the public eye fighting for OSHA protections for public employees. They do the jobs that this country demand to make life safe and enjoyable. Safe workplaces are the least they deserve.

Thank you and keep up the good work.


Jordan Barab

A Little Holiday Wal-Martian "Cheer"

To get you in the mood, click here.