Hard Labor ©2013 Center for Public Integrity 2 Table of Contents

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Each year, some 4,500 American workers die on the job and 50,000 perish from occupational diseases. Millions more are hurt and sickened at workplaces, and many others are cheated of wages and abused. The stories in this digital newsbook explore the threats to workers — and the corporate and regulatory factors that endanger them.

The Center for Public Integrity

Introduction 5 Article 1: In U.S. Steel town, fatal gas explosion goes unpunished by OSHA 10 Impact: OSHA pares inspection goals 26 Article 2: ‘They were not thinking of him as a human being’ 27 Follow-Up: OSHA strengthens protections for temp workers 41 Article 3: Even after workplace Follow-Up: GAO report supports deaths, companies avoid OSHA science behind black lung rule 78 penalties 43 Impact: Federal inspectors About the data analysis 55 step up enforcement of rules to prevent black lung 80 Article 4: Black lung surges back in coal country 57 Article 5: Unchecked explosions kill, injure hundreds of workers 82 Impact: Labor Dept. assembling expert team on mine dust Follow-Up: House bill targets enforcement after deadly dust explosions 98 CPI-NPR investigation 73 Article 6: Kentucky death case: Follow-Up: GOP seeks to kill Another black eye for state black lung reform 76 workplace safety enforcement 101

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Article 7: Fishing deaths mount, Follow-Up: Union demands but government slow to cast protection for workers, after safety net for deadliest industry 107 breast cancer linked to auto plastics industry 175 Article 8: Worker suffocations persist as grain storage soars, Follow-Up: U.S. report employers flout safety rules 121 urges deeper look into breast cancer’s environmental Follow-Up: Rethinking OSHA links exemption for farms 136 179 Follow-Up: New federal Article 12: Farmworkers plagued scrutiny in wake of grain bin by pesticides, red tape 182 ‘drownings’ report 139 Follow-Up: Farmworker Article 9: OSHA rules on workplace advocates press EPA to toxics stalled 142 update pesticide rules 193 Article 10: Landmark worker Article 13: As critics press for death case continues against action, Chemical Safety Board UCLA chemistry professor 151 investigations languish 196 Article 11: Study spotlights high breast Article 14: Warehouse worker cancer risk for plastics workers 164 lawsuit targets Walmart 207

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The Center for Public Integrity

The Center for Public Integrity was founded in 1989 by Charles Lewis. We are one of the country’s oldest and largest nonpartisan, nonprofit investigative news organizations. Our mission: To enhance democracy by revealing abuses of power, corruption and betrayal of trust by powerful public and private institutions, using the tools of investigative journalism.

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Sexual Assault On Campus A Frustrating Search for Justice The 2012 election was the most expensive and least trans parent presidential campaign of the modern era. This project seeks to “out” shadowy A culture of secrecy political organizations that have flourished in the surroundssurrounds higherhigher education’s handling wake of the Supreme Court’s ruling. education’s handling Citizens United ofof sexualsexual assaultassault casescases As the nation prepares for major state-level elec- tions in 2013 and critical midterms in 2014, we provide the narrative behind the flow of money and how professional politicking is influencing a flood of new spending.

THE CENTER FOR The Center for PUBLIC INTEGRITY Public Integrity Investigative Journalism in the Public Interest

SHOW CONTENTS SHOW CONTENTS SHOW CONTENTS Other free digital newsbooks produced for the Center in collaboration with the Donald W. Reynolds Journalism Institute at the Missouri School of Journalism.

Support the Center: Donate Today The Center for Public Integrity would cease to exist if not for the generous support of individuals like you. Help keep transparency and accountability alive and thriving by becoming a new or recurring member to support investigations like Hard Labor. To make a donation, click or touch here when you are online or visit www.publicintegrity.org.

3Cover SHOW CONTENTS FIRST ARTICLE4 Hard Labor | Introduction ©2013 Center for Public Integrity 5 Millions of American workers suffer injury, disease or exploitation, with little safety net to protect them By Jim Morris, Chris Hamby and Ronnie Greene

hey are America’s invisible backbone — laborers, Tcoal miners, fishermen, farmworkers and factory techni- cians, whose sweat equity helps buildings rise, crops travel from the fields to dinner plates, and the economy hum. Yet across the U.S., across scores of blue-collar industries, workers are being injured and killed by the thousands with little protection from Congress and the federal agencies that are supposed to safeguard them: the Department of La- bor, the Environmental Protection pushed for a thorough review of the Agency and the U.S. Coast Guard. death, but his bosses — focused on They are people like Nick Re- hitting inspection quotas — pulled vetta, killed by an explosion at a him off the case and told him to hit behemoth U.S. Steel plant on Penn- golf balls instead. U.S. Steel was not sylvania’s Monongahela River. An fined; the plant blew up again less inspector with the Occupational than a year later. Safety and Health Administration They are people like Ray Mar-

Each year, some 4,500 American workers die on the job and 50,000 perish from occupational diseases. Millions more are hurt and sickened at workplaces, and many others are cheated of wages and abused.

cum, a retired 83-year-old Kentucky Mattera, a Rhode Island fisherman coal miner whose lungs are filled who watched a friend’s 22-year-old with a dust that is killing him — son die on a fishing boat and vowed and his three sons, all miners suf- to improve safety in an industry fering similar fates. Across Appala- with America’s highest death rate. chia, black lung is back, thanks, in Despite decades of deaths, Con- part, to corporate cheating, weak gress refuses to require inspections rules and tepid enforcement. of aged fishing boats. They are people like Carlos Cen- The Center for Public Integrity teno, a temporary worker burned told these stories and others in Hard over 80 percent of his body at a Labor, an unprecedented explora- Chicago-area factory. Company tion of the often-hidden hazards on managers refused to call 911 as U.S. jobsites, portraying a culture Centeno screamed for help, and a where laborers receive thin protec- horrified co-worker finally drove tion despite congressional vows to him to a local clinic. He died three safeguard America’s workforce. weeks later. Center reporters traveled to eight They are people like Tania Ban- states and Canada, telling human da-Rodriguez, a teenage farmwork- narratives behind the tragedies and er sickened in the blackberry fields scrutinizing the role of regulators in of Arkansas and sent to the hospital every case. We documented systemic vomiting and spitting blood. For 10 flaws in government oversight, using months, her lawyer tried to learn data in many stories to underscore which pesticide sickened her. The widespread problems that come to a state initially refused to open its head with wrenching consequences files. The EPA refused to weigh in. for real people. We explored health And, they are people like Fred and safety breakdowns in industries

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Introduction ©2013 Center for Public Integrity 7 Growing workload The number of inspections by OSHA has risen nearly 16 percent since 2000, while the number of inspectors has increased by only 8 percent. Total Federal OSHA Inspectors by Year (2000—2012)

1,250

1,000

750

500

250

0 2002 2011 2012 2003 2005 2004 2010 2006 2009 2008 2001 2007 2000 SOURCE: OSHA

from coke production to coal min- Boeing 737 every day. Yet the typi- ing, plastics manufacturing to or- cal fine for a worker death is less ganic chemistry. than $8,000. And, we put worker peril in con- A Center story, built from an text, describing how the annual analysis of a decade’s worth of jobsite death toll — nearly 5,000 OSHA data, helped explain why: perished in 2011 — exceeds the The government systematically total number of U.S. fatalities in deletes or fails to collect corpo- the nine-year Iraq war. Combined, rate fines even in cases of death. America’s annual fatal tally from That finding was one piece of a workplace injury and illness is com- deep body of work shining light on parable to the loss of a fully loaded threats to U.S. workers.

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Introduction ©2013 Center for Public Integrity 8 Growing workload The number of inspections by OSHA has risen nearly 16 percent since 2000, while the number of inspectors has increased by only 8 percent. Total Federal OSHA Inspections by Year (2000—2012)

50K

40K

30K

20K

10K

0 2002 2011 2003 2005 2004 2010 2006 2009 2008 2001 2007 *2012

FY 2000 SOURCE: OSHA * Goal for fiscal year

“The Center for Public Integ- tional outlets including NPR. These rity is doing a real service by pub- partners, building on our research, lishing these stories,” wrote Ross produced their own deeply report- Eisenbrey, with the nonpartisan ed pieces. Other partners, such as Economic Policy Institute. “In the Mother Jones and NBC News.com, case of workplace safety and health, republished our stories. we need more regulation, not less.” Our reports, touching communi- We expanded our reach by part- ties across the U.S., prompted im- nering with local media outlets mediate reform. from the Charleston Gazette in After our examination of the West Virginia to Boston’s WBUR death of Nick Revetta — and the and Chicago Public Radio, and na- role of inspection quotas in an in-

vestigation that produced no tan- Hard Labor: The most exhaustive gible punishment — OSHA pared reporting produced exploring the its inspection goals. After our hazards imperiling America’s most exclusive report spotlighting the hidden, vulnerable workers. Thus resurgence of black lung disease far, the project has been honored in Appalachia, federal regulators with the Edgar A. Poe award for escalated their inspections of dan- national reporting from the White gerous, dust-filled mines. “These House Correspondents’ Associa- groundbreaking reports should be tion and the non-deadline report- a call to action for everyone con- ing award (online) from the Society nected to the mining industry,” of Professional Journalists. At this said Sen. Tom Harkin, D-Iowa. writing the series is a finalist in the These steps begin to make good online category of the Gerald Loeb on the government’s promises to pro- Awards for distinguished business tect America’s blue-collar laborers. reporting from the UCLA Ander- They are the direct result of son School of Management. n

Edgar A. Poe Award Judge’s Comments: With deft story-telling and precise data, “Hard Labor” compellingly shows the government has failed to keep its promise to protect workers from injury and death on the job. Drawing on years of data and on-the-ground reporting in eight states and Canada, the authors demonstrate how corporate corner-cutting, government inability or unwillingness to impose meaningful penalties, and bureaucratic pressure to make caseload quotas how sty- mied real regulation. They tell the workers stories in a manner that evokes Studs Terkel, excellently weaving human interest with deep- data scrutiny and using numbers sparingly but with powerful effect. “Hard Labor” clearly meets the Edgar A. Poe award’s standard of “excellence in news coverage of subjects and events of significant national or regional importance to the American people.”

On Sept. 3, 2009, contract laborer Nick Revetta was killed in an explosion at U.S. Steel’s Clairton Plant near Pittsburgh. Revetta’s death and the events that followed reveal the limitations of a federal law meant to protect American workers. In U.S. Steel town, fatal gas explosion goes unpunished by OSHA By Jim Morris Published Online: May 21, 2012

LAIRTON, Pa. — Early on the Monongahela River. He never the morning of Sept. 3, 2009, returned home. CNicholas Adrian Revetta left Stocky and stoic, Revetta was the Pittsburgh suburb of Pleasant working that Thursday as a laborer Hills and drove 15 minutes to a job for a U.S. Steel contractor at the at U.S. Steel’s Clairton Plant, a soot- same plant that employed his broth- blackened industrial complex on er, for the same company that had

employed his late father. Shortly agency. “They occur one or two at before 11:30 a.m., gas leaking from a time, on private property. There’s a line in the plant’s Chemicals and an invisibility element.” Energy Division found an ignition Under the Occupational Safety source and exploded, propelling and Health Act of 1970, American Revetta backward into a steel col- workers are entitled to “safe and umn and inflicting a fatal blow to his head. Thirty- two years old, he left behind a wife and two young children. Nick Revetta’s death did not make national head- lines. No hearings were held into the accident that killed him. No one was fired or sent to jail. Revetta was among 4,551 people killed on the job in America in 2009, carnage that eclipsed the total number of U.S. fatalities in the nine-year Iraq Nick Revetta, right, with his brother Patrick. war. Combine the victims Courtesy of Patrick Revetta of traumatic injuries with the estimated 50,000 people who die annually of work-related healthful” conditions. Nick Revet- diseases and it’s as if a fully loaded ta’s death and the events that fol- Boeing 737-700 crashed every day. lowed lay bare the law’s limitations, Yet the typical fine for a worker showing how safety can yield to death is about $7,900. speed, how even fatal accidents can “These deaths take place be- have few consequences for employ- hind closed doors,” says Michael ers, and how federal investigations Silverstein, recently retired head of can be cut short by what some call a Washington State’s workplace safety de facto quota system.

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 1 ©2013 Center for Public Integrity 12 In the Revetta case, the OSHA inspector's plea: 'My spirit Department of Labor’s Occupational Safety and is broken.' Health Administration — OSHA — failed to is- OSHA inspector appeals for more time sue even a minor citation on Revetta investigation to U.S. Steel, the world’s 12th-largest steelmaker and an economic leviathan in Western Pennsylvania. The company paid no fine, although current and former workers say that U.S. Steel’s contractors — including Revetta’s employer, Power Piping Co. — faced intense pressure to finish OSHA inspector Mike Laughlin com- their work. plains to deputy regional administrator OSHA did look into Re- Ed Selker that he isn't being allowed vetta’s death, as required time to complete an investigation into the explosion that killed Nick Revetta. by law. Michael Laughlin, a safety inspector from the agency’s Pittsburgh of- OSHA manager tells inspector to ‘relax’ fice, spent more than two months on the case, working tirelessly to find the cause of the explosion. Selker responds to Laughlin’s plaintive email. Yet emails obtained by the Center for Public Integrity show that Laughlin’s requests for we give up quality for quantity,” help went unanswered, and he was Laughlin wrote in an appeal to a pulled off the investigation by a su- higher-ranking OSHA official in pervisor striving to meet inspection Philadelphia in November 2009. “I goals. need some guidance because I’m “My problem is at what point do torn and my spirit is broken because

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 1 ©2013 Center for Public Integrity 13 of the need to complete Pressure to meet inspection this case to the best of my ability.” goals The official advised Laughlin to “relax” and OSHAsupervisor pushes inspection use the weekend to “go out numbers and hit some [golf] balls!” In the end, OSHA penalized only an insulation An OSHA supervisor reminds other agency contractor that had been officials that the end of the fiscal year is working in the area of the coming and they should keep up their pace explosion. The contractor of inspections. paid $10,763 in fines unre- lated to the blast and was not implicated in Revetta’s ‘A ton of heat’ possible if goals aren’t death. met, supervisor warns “The OSHA investigation that was done missed the point,” says John Gis- mondi, a lawyer who represents Nick Revetta’s wife, Maureen, in a lawsuit The supervisor warns that there could be against U.S. Steel. “It wasn’t serious consequences if inspection goals the right type of investiga- aren’t met. tion. They spent all their time on penny-ante stuff. How do you have a situa- OSHA’s ‘quota system’ tion where all the pipes are owned or maintained by An OSHA official uses the term “quota U.S. Steel, you have an ex- system threat” to describe the supervisor’s plosion, a guy is killed and plea for more inspections. you have no violation? How is that possible?” “I’m upset with U.S. Steel,” says I’m angrier with OSHA. They’re the Maureen Revetta, 34, “but I think government agency that’s supposed

to keep people safe … It just seemed Steel employee who has worked in like they purposely didn’t want to Clairton since 1979. “Nobody has fine U.S. Steel.” really explained to us exactly what Ten months after her husband’s happened. They tell us they don’t death, a second explosion rocked know what the ignition source was. I the Clairton Plant, sending 17 work- was working in that same area a cou- ers to the hospital. OSHA blamed ple of weeks before the explosion. I the accident on a contractor short- look back and say, ‘That could have cut approved by U.S. Steel, an alle- been me.’ “ gation the company is contesting. In a written statement to the Cen- ‘A ton of heat’ ter for Public Integrity, OSHA said it conducted a “thorough investiga- The recession has made American tion” of Nick Revetta’s death. “It was workplaces seem safer than they are. determined [that] there was insuf- In 2008, the year before Nick Revetta ficient factual evidence that could was killed, 5,200 people perished on support the issuance of citations the job. A decade earlier, the toll ex- specifically related to the root cause ceeded 6,000. The soft economy, the of the incident.” U.S. Bureau of Labor Statistics notes, David Michaels, assistant secre- has led to fewer workers and fewer tary of labor for occupational safety hours in high-risk industries such as and health, would not talk about the construction. Even so, the latest gov- Revetta case; nor would Robert Szy- ernment tally — 4,690 worker deaths manski, head of OSHA’s Pittsburgh in 2010, up 3 percent from 2009 — is Area Office. Edward Selker, the sobering. The U.S. workplace fatality now-retired OSHA deputy regional rate remains roughly six times that administrator who urged inspector of the United Kingdom, which has Laughlin to go hit golf balls, did not stricter safety rules. return calls to his home. A U.S. Steel It would take the perpetually spokeswoman declined to comment. short-staffed OSHA 130 years to In a court filing, the company de- inspect every workplace in the U.S. nied any negligence in the case. Managers and their underlings must The silence has shaken Revetta’s strike a balance between meeting former co-workers. “It just hasn’t “performance goals” set in Washing- gone away,” says John Straub, a U.S. ton and conducting comprehensive

inspections when deaths occur. A unidentified safety supervisor in target of 42,250 inspections nation- OSHA’s Region 3 office, covering wide was established for fiscal year Pennsylvania, Delaware, Maryland, 2012, up 5.6 percent from the pre- Virginia, West Virginia, and Wash- vious year’s goal. The number of ington, D.C., urged inspectors federal inspectors, meanwhile, has to step up their pace and not get stayed mostly flat; there were 1,118 bogged down in the minutiae of in February 2012. In a statement, OSHA said it “does not set strict inspection quotas. The Agency does, however, set inspection goals — and they are just goals — in order to monitor and manage our activities. We do not believe that these inspection goals preclude the Agency from doing a thor- A Labor Day parade in Pittsburgh in 2009 was ough inspection.” dedicated to Nick Revetta. Courtesy of Patrick Revetta Others aren’t so sure. “They called them goals, but you complex cases, including those in- were definitely expected to make volving deaths and serious injuries. your numbers — that was the term “As per our calculations this of art,” says David DiTommaso, a morning, we need an average of 14 former OSHA area director in Mon- inspections opened per week,” wrote tana. “If you didn’t, you had to have the supervisor, whose name was re- a reason and you would be judged moved from an email obtained by on it.” the Center for Public Integrity. In August 2011, with the fed- The supervisor went on: “Essen- eral fiscal year nearing a close, an tially, do what you gotta do to stay

gainfully employed. It’s great to be ary after being struck by a car.) caught up, but we only have a short A chart dated two days after Re- window to open enough inspections vetta’s death shows that OSHA’s to make all of our goals. I suppose Region 3 was easily surpassing its you could say, ‘it’s not my problem’ counterparts in the numbers game. but I can’t guarantee there wouldn’t With the fiscal year coming to an be a ton of heat coming down from end, the region was ahead of its goal the RO [regional office] on any of- by 245 inspections. In an email four fice that falls short. We are going days later, Selker complimented Szy- to be getting a new RA [regional manski and other managers in Pitts- administrator] soon and being per- burgh for the “very encouraging and ceived as ‘slackers’ is not a good first impressive inspection stats … We are impression. I know how difficult all very well positioned to make sure all of the accidents/fatalities/sig [sig- FY2009 inspections are ‘cleaned up’ nificant] cases have been on every- and issued by 9/30/2009. This will one but that won’t likely be taken allow a good quick and clean start to into consideration when the clock what appears will be a challenging strikes October” — the beginning FY2010. We can hit the ground run- of the new fiscal year. One OSHA ning and get off to a good start in official referred to the supervisor’s the first quarter instead of playing email as a “Quota System threat.” catch-up. If we can hold our own in Other OSHA emails obtained the first quarter, it will make the rest under the Freedom of Information of the year much less tense.” Act reveal the numbers-driven pres- sures that existed in Pittsburgh after Patrick and Maureen Nick Revetta’s death. In a message to then-deputy re- Nick Revetta’s older brother, Pat- gional administrator Selker two rick, is tall and solidly built, with months after the first Clairton grey stubble. Forty years old, he lives explosion, inspector Laughlin ac- 11 miles from Clairton but has tried knowledged that “goals must be to avoid the place since Nick’s ac- met” but said the Revetta case was cident. He made an exception one “clearly not done.” His bosses none- bitterly cold day in January 2011. theless directed him to end the in- After pointing out Neil C. Brown vestigation. (Laughlin died in Janu- Stadium, where he played quarter-

back for the Clairton High School drank his first beer with me at my Bears, he drove past a string of de- college. I took him everywhere. I serted businesses on his way to U.S. raised him.” Steel’s hulking Clairton Plant on Nick met Maureen Mulligan in the Monongahela River. 1994, when they were 17, and they Clairton, a city of 6,800 about married nine years later. Their son 15 miles south of downtown Pitts- Nick was born in 2005, their daugh- burgh, has seen better days. In 1980, ter Gianna in 2008. The children’s U.S. Steel employed nearly 5,000 at names were tattooed on their fa- the Clairton Works, as it was then ther’s right arm, along with the known, where coal is superheated in word Italia, a nod to his heritage. ovens and turned into coke, a key in- Thin and well-spoken, Maureen gredient in steel. Though the plant is a special education and speech remains a major employer, its staff- teacher. She struggles to raise the ing has dropped by three-quarters, children without their father. Six- not counting contract workers. Al- year-old Nick craves male attention. most one-quarter of the city’s resi- “When [the accident] happened, dents and nearly half of its children he was 4 ½,” Maureen says. “I don’t live in poverty. think he knew people died. I said, The Revetta brothers and their ‘Daddy got hurt at work and he’s sister, Kathy, grew up in Clairton never coming home.’ ” the 1970s and ’80s. “This place was The Clairton Plant is the largest booming,” Patrick recalls. Nick was operation of its kind in the coun- the “spitting image” of his father try, with 12 clusters of coke ovens, Adrian, who worked for Power Pip- known as batteries, which produce ing Co., a construction and fabrica- 4.7 million tons of the carbon-rich tion contractor. “They walked alike. fuel annually. At the depth of the They were built the same way — like recession, in early 2009, coke pric- bulls, basically,” Patrick says. Adrian es were depressed and activity in got Nick a job at Power Piping; Nick Clairton was sluggish. As prices be- would work there for 11 years. gan to rebound that year, “there was Nick and Patrick grew exception- a mad rush to get everything up and ally close after their mother, Patri- running again,” Patrick says. cia, died of cancer in 1991. “He was Nick was caught in that rush. like a son to me,” Patrick says. “He Power Piping was brought in to help

refurbish gas processing equipment. “You could see it every day,” says Pat- rick, a U.S. Steel employee whose job at the time was to help control emissions from the coke oven batteries. “There was just too much pressure. They had to have that production, man. Nick, he kept telling me they were shortcutting stuff, putting pressure on them to hurry up and get the job finished. I said, ‘Just watch your ass.’” OSHA inspector Laughlin’s vo- luminous notes reflect the frenetic work environment experienced by U.S. Steel contractors such as Pow- er Piping. “They were pushing the manpower … U.S. Steel pushing … pushing people,” Laughlin wrote while transcribing one worker inter- Nick and Maureen Revetta Courtesy view. of Maureen Revetta The winter before he was killed, Nick logged 60 days straight at the Clairton Plant. “He was very proud Around the same time, Patrick of his job, proud of providing for recalls, Nick complained that there his family,” Maureen says. “He never were gas “leaks all over the place” complained about working.” Sub- in a part of the plant’s Chemicals dued among strangers, animated and Energy Division known as the among friends, Nick had few hob- No. 2 control room. “I always knew bies outside his family time. “I nev- somebody would get killed inside er really worried about his safety,” that place,” Patrick says, “but I never Maureen says. “Then, one morning thought in a million years it would about two weeks before he died, he be my baby brother.” said, ‘I don’t think you know what a Four days before Labor Day dangerous place I work at.’ ” 2009, Nick and a co-worker were

given a routine assignment. They on a stretcher. Patrick’s chest grew were to repair concrete pillars sup- tight, his breathing labored. He porting the dormant B Cold Box, thought he was having a heart attack a pipe-filled structure the size of and was taken by ambulance to the a storage pod in the No. 2 control plant clinic. room. The box is part of a cryogen- Eventually, a U.S. Steel worker ic process used to separate “light who’d found Nick told Patrick his oil” containing benzene, xylene brother was dead. Patrick began and toluene from coke oven gas; cursing everyone within earshot, the chemical byproducts in the oil then went straight to Jefferson Re- are then sold. gional Medical Center, where Nick Nick was standing near the box, had been taken. He asked to see his getting ready to mix grout, when, brother’s clothing, which was “soak- at 11:26 a.m., an explosion sent him ing wet. You could smell the ben- hurtling backward into a column. zene.” He saw no signs of trauma: He appears to have died instantly. “There wasn’t a burn mark on him.” A foreman at the plant later told Although an autopsy would es- OSHA inspector Laughlin that it tablish the cause of death as blunt- looked like Nick had been buried in force trauma to the head and trunk, a snow drift, the “snow” being piles Maureen also detected no evidence of white, fluffy insulation blown of serious injury when she saw Nick’s from the B Cold Box. body that afternoon. “He looked At the moment of the blast, Pat- perfect,” she says, “except for a little rick was coming off his shift at the red line on his nose.” plant’s B Battery, maybe 100 yards away. “I heard a loud arcing noise,” The investigation he recalls. “I turned in that direction and saw the flash and heard Mike Laughlin was dispatched to the explosion.” He called Nick three the Clairton Plant about two and times on his cell phone but got no a half hours after the explosion. A answer. heavyset Army veteran with a thick Patrick ran to the lunch trailer grey mustache, Laughlin had in- and encountered Nick’s boss, who vestigated dozens of fatal accidents said Nick was unaccounted for. Then since joining OSHA in 1990. he saw his brother being carried out Rose Bezy, vice president of Unit-

ed Steelworkers Local 1557, which represents about 1,200 U.S. Steel workers in Clairton, joined Laugh- lin as he picked his way through the debris around the demolished B Cold Box. “The guy was relent- less,” Bezy says. “He was all over the place.” U.S. Steel officials followed Online Video: A laborer dies in a gas Laughlin as he worked. “Whenever explosion, safety questions linger. he would take a picture,” Bezy says, Emma Schwartz “there would be a U.S. Steel guy with a camera, taking the same picture.” Three well-dressed corporate with such specialized training, two security officials from Pittsburgh in Pittsburgh. These specialists can appeared at the plant several hours draw conclusions from mangled after the accident, Bezy says, and pipes and burned-out vessels—clues forbade Clairton managers from sit- likely to be missed by generalists ting in on interviews with lower-level like Laughlin. employees, as would customarily oc- Laughlin made his initial re- cur. “It looked to me like U.S. Steel’s quest for help not quite two weeks own managers were intimidated,” after Revetta’s death. Former she says. OSHA managers say the request Laughlin realized early in the Re- should have been granted. “It vetta investigation that he needed doesn’t make a whole lot of sense help navigating complex federal that you have an explosion where rules detailing the steps companies one of your [inspectors] is ask- must take to prevent catastrophic ing for help and you don’t give it fires, explosions and chemical re- to him,” says Dave May, a former leases. He kept pressing Pittsburgh OSHA area director in New Hamp- area director Szymanski to pair shire who oversaw some 100 death him with someone who had exper- investigations. “In a fatality you tise in this “process safety manage- bend over backwards to get the ment” protocol. OSHA has several help.” hundred inspectors nationwide DiTommaso, the former Mon-

tana area director, says, “In a situa- inside [Quad 3] and oxygen got tion like [the Revetta accident], we in.” This suggests that two of the would have got a team in there. You three ingredients required for an would call the regional administra- explosion — flammable gas and tor and say, ‘Look, I’ve got this type oxygen — were present. All that of case. Can we get some people who was needed was an ignition source have heavy experience in that from — something as simple as static somewhere around the country?’ electricity. U.S. Steel declined to You’ve got to make sure there’s not comment. a continuing hazard.” The precise cause of the ex- Near-misses plosion that killed Nick Revetta remains a mystery. Workers had John Straub, a senior operating tech- been grinding and welding on nician with U.S. Steel, was at home the B Cold Box just prior to the the morning Nick Revetta died. He blast, but none of the witnesses learned about the explosion from interviewed by Laughlin report- his wife, who’d seen a bulletin on ed smelling gas. “No evacuation TV. “I said, ‘I know exactly where alarm ever went off,” a foreman it was.’” A casual acquaintance of told Laughlin, according to the the Revetta brothers, Straub had inspector’s notes. worked in the area of the blast and Another witness said he’d heard had been troubled by what he de- “a large gas escaping sound — defi- scribed as sloppy “hot work” proce- nitely a pipe hissing — and [seen] dures designed to contain sparks a big ball of fire” near Quad 3, a from welding and burning. trailer-sized structure, containing The job to which Nick Revetta four cryogenic vessels, located close had been assigned — the rebuilding to the disabled B Cold Box. There of the B Cold Box — was, in Straub’s had been an explosion in Quad 3 view, being done without proper in 2005. No one was hurt, and U.S. enclosures to segregate potential Steel blamed the event on lightning. sources of ignition. It was part of Lawyer Gismondi says U.S. a disturbing trend he’d observed: Steel’s own investigation, which Precautions that would have been has not been made public, con- taken five years earlier were deemed cluded that “there was a gas leak too expensive and time-consuming.

“In the old days, responsibility for figure it out. That’s no excuse.” In safety was shared by the contractor the second meeting, which included and U.S. Steel,” Straub says. “Now then-deputy regional administrator it’s just somebody else working. You Selker, Gismondi produced inspec- don’t look at [a contract employee] tor Laughlin’s written request for like it’s your son or your daughter help and asked why it hadn’t been or your dad working, which you honored. “They were flustered,” the should.” lawyer says. Straub filed a 10-page, handwrit- In October 2010, Gismondi ap- ten complaint with OSHA’s Pitts- proached OSHA chief David Mi- burgh office in January 2010, alleg- chaels at a conference in Pittsburgh ing that U.S. Steel had violated the and hand-delivered a letter. “Mrs. process safety management stan- Revetta and I have strong concerns dard. Straub claimed that several that the OSHA investigation into “near-misses” in the No. 2 control this accident was not as thorough room before Revetta’s death hadn’t and complete as it should have been investigated. Six months later, been,” it said. A month later, Mi- OSHA cited U.S. Steel for five “se- chaels replied that the process safe- rious” violations related to Straub’s ty investigation sought by Laughlin complaint and proposed a $32,400 “would not likely have determined fine. The company settled and paid the root or underlying causes of $19,800. the incident that killed Mr. Revetta” Not long after Straub filed and said that Straub’s complaint his complaint, Maureen Revetta had resulted in citations that would learned that OSHA’s investigation discourage “unsafe practices at the into her husband’s death had been Clairton Plant.” closed, with no citations issued to In her own letter to Michaels, the U.S. Steel. She and Gismondi had United Steelworkers’ Bezy observed two unsatisfying meetings with that it took an expert — Pittsburgh- OSHA officials in the summer of based OSHA inspector Jan Olesze- 2010. In the first, “One guy said, wski — to document the violations ‘We don’t have enough resources,’ Straub had alleged. Oleszewski or “ Maureen says. “I wouldn’t tell par- someone like him should have been ents that I don’t have enough re- assigned to the Revetta investiga- sources to teach their kids. I have to tion, Bezy argued.

“I fear that [U.S. Steel] will con- He was rushing to tighten the bolts tinue to injure and kill our employ- on the flanges when a wall of flame ees and those who contract to work “came right at me and blew me in our plant,” she wrote. “They seem over.” He remembers picking him- to be above the law in matters of self up off the ground and hearing Health and Safety.” screams: “You thought someone was Indeed, one week before Oleszews- dying.” The fire peeled the skin off ki cited U.S. Steel for violations stem- his hands; his ears and the back of ming from the Straub complaint, the his head were burned as well. Oth- Clairton Plant blew up again. It was ers, including the U.S. Steel supervi- July 14, 2010 — not even a year after sor, were burned more severely. Nick Revetta was killed. OSHA said the procedure approved by U.S. Steel — allowing coke ‘You thought someone oven gas to keep flowing through the was dying’ line rather than shutting it off and purging it with nitrogen — invited That morning, Denny Lentz, a steam- disaster. The agency cited the com- fitter with Power Piping, was helping pany in January 2011 for 12 alleged a co-worker install a flat piece of steel violations and proposed a $143,500 between flanges on a 30-inch coke fine. One violation was classified as oven gas line in the Clairton Plant’s “willful,” suggesting OSHA believes B Battery. The “blank” was supposed the steel maker either disregarded to block the flow of gas while the men or was “plainly indifferent” to safety repaired a leaking valve. Something rules. U.S. Steel is appealing. Lentz went wrong: Lentz, outfitted in a and other workers hurt in the acci- self-contained breathing apparatus, dent are suing the company. could hear and feel the gas escaping. The B Battery conflagration may “It was blowing the coal dust off the have been foreshadowed 2 ½ years ceiling,” he says. “Once you got gas earlier in River Rouge, Mich. At blowing everywhere, it’s gonna find U.S. Steel’s Great Lakes Works on a spark.” Jan. 5, 2008, a pipe dislodged by a Lentz says that a gas alarm went gas explosion fatally crushed Thom- off several times, but a U.S. Steel su- as Pichler Jr., a 27-year-old contract pervisor silenced it each time. “I was pipefitter. A lawsuit filed by Pichler’s thinking, ‘I gotta hurry,’” Lentz says. parents alleged that U.S. Steel al-

lowed flammable gas to enter the have identified other hazards. supposedly inactive pipe; the case “OSHA should have used that as was settled out of court for an undis- an opportunity to look at the entire closed sum in March 2011. operation rather than just limiting Although Michigan’s workplace its inspection to the area where the safety agency did not cite U.S. Steel, fatality occurred,” Monforton says. the lawsuit uncovered evidence of “To me, it’s just inexplicable that they company culpability. U.S. Steel al- didn’t do it. People can say all they lowed coke oven gas to enter a line want about OSHA’s lack of resources, that was supposed to have been out but they had the tools to go in.” of service, says Robert Darling, the The OSHA Field Operations lawyer for Pichler’s parents. During Manual gives local managers consid- the litigation, U.S. Steel officials be- erable latitude in death cases to de- trayed no knowledge of what caused termine the scope of investigation. the explosion. May, the former New Hampshire The breakthrough came when area director, says, “If the place is a the president of Pichler’s employer mess and it’s had a fatality, it’s not testified in a deposition that only atypical that you jump in and say, U.S. Steel had the key to remove a ‘We need to do the whole place.’ “ lock on a valve that kept gas from flowing into the pipe on which Pi- Burros, crabs…and people chler was working. Evidence showed that the lock had been removed Under the Occupational Safety and prior to the explosion. U.S. Steel Health Act, a willful safety violation did not respond to requests for com- that causes the death of a worker is ment on the Pichler case. a misdemeanor, punishable by no Could a more complete OSHA more than six months in prison. probe and sanctions in the Revetta Contrast this with the Wild Free- case have prevented the second blast Roaming Horses and Burros Act, in Clairton? Celeste Monforton, a which carries a one-year sentence former OSHA analyst who lectures for killing or merely harassing one at the George Washington University of the animals on public lands. School of Public Health, says that Re- OSHA chief Michaels says that vetta’s death should have prompted statutory changes, enabling OSHA a broader investigation that might to assess stiffer civil penalties and

making it easier to criminally pros- gress and business groups, includ- ecute wrongdoers, are needed. ing the U.S. Chamber of Commerce, “There’s no question in my mind killed the legislation. “It’s been a con- that higher penalties would encour- stant campaign” to demonize OSHA, age employers to eliminate hazards says Miller, a California Democrat. before workers are hurt,” he says. “I “The attack on this type of regulation think all of us recognize that fear of is across the board. It’s not nuanced.” prison focuses the mind.” In 2010, Michaels told a Senate Postscript panel about Jeff Davis, a boilermaker at the Motiva Enterprises oil refinery Patrick Revetta has lost 30 pounds in Delaware whose body “literally dis- since Nick was killed. “He’s not solved” in sulfuric acid after a stor- the same person I’ve known for age-tank explosion in 2001. Motiva 10 years,” says his wife, Kathy. “He was fined $175,000 for the accident, holds everything in. He sits there in which hurt eight others. a daze.” Still a U.S. Steel employee, “Yet, in the same incident, thou- Patrick is out on medical leave for sands of dead fish and crabs were dis- post-traumatic stress disorder. covered, allowing an EPA Clean Wa- “I got a lot of bitterness in my heart ter Act violation amounting to $10 over this, and I don’t think it’s ever go- million,” Michaels testified. “How ing to go away,” he says. “How is it that can we tell Jeff Davis’ wife Mary, and somebody gets killed, OSHA finds their five children, that the penalty nothing and they send guys back in for killing fish and crabs is many and go back to full production? I be- times higher than the penalty for lieve OSHA turned their head to it.” killing their husband and father?” His father, Adrian, died of com- That same year, Rep. George Mill- plications from diabetes 13 months er, then chairman of the House Com- before Nick was killed. Adrian mittee on Education and the Work- would not have allowed the cause of force, introduced legislation that the 2009 explosion to remain unde- would have raised limits on OSHA termined, Patrick says. “If my dad penalties and made it easier to hold were still alive, there would have corporate officials criminally liable been an answer.” for flagrant violations. Opposition On a Saturday in January last year, from Republican members of Con- he drove a visitor from Clairton to

the snow-covered Finleyville Cem- stone; following the hockey team etery, where his brother, parents had been one of his passions. and grandfather are buried, and On his way down the hill a few parked his truck next to the family minutes later, Patrick gave his plots. A small Pittsburgh Penguins horn two taps. Goodbye, little flag fluttered next to Nick’s head- brother. n

IMPACT: OSHA pares inspection goals By Jim Morris Published Online: June 7, 2012

wo weeks after a Center for Public Integrity story highlighted concerns about alleged quotas imposed on federal work- Tplace safety inspectors, the Occupational Safety and Health Administration has pared its inspection goal for the year. OSHA had established a target of 42,250 inspections nationwide for fiscal year 2012, which ends Sept. 30. An OSHA spokesman confirmed Wednesday that the new goal is 41,000 inspections. The revision was made primarily because the agency has been conducting “more complex, time consuming” inspections this year, the spokesman wrote in an email. OSHA told the Center it sets goals, not quotas. But some former agency managers said that inspectors who fail to “make their numbers” face repercussions from their bosses. On May 21, the Center published a story about a 2009 explosion at a U.S. Steel plant near Pittsburgh that killed Nick Revetta, a 32-year- old contract laborer. The OSHA inspector who led the accident investigation complained that he was unable to do a thorough job because of de facto quotas imposed by his supervisors. U.S. Steel, which has denied wrongdoing, was not cited in the case. n

Carlos Centeno with his partner, Velia Carbot. Centeno was employed as a temp worker at a Chicago-area factory in 2011 when a solution of hot water and citric acid erupted from a 500-gallon tank, burning him over 80 percent of his body. His bosses refused to call 911, and more than 98 minutes passed before he arrived at a burn unit. He died three weeks later. Centeno family ‘They were not thinking of him as a human being’ By Jim Morris and Chip Mitchell Published Online: December 20, 2012

HICAGO — By the time Car- ric acid inside a factory on this city’s los Centeno arrived at the southwestern edge. CLoyola University Hospital The laborer, assigned to the plant Burn Center, more than 98 minutes that afternoon in November 2011 by a had elapsed since his head, torso, temporary staffing agency, was show- arms and legs had been scalded by a ered with the solution after it erupt- 185-degree solution of water and cited from the open hatch of a 500-gal-

lon chemical tank he was cleaning. Factory bosses, federal investigators Timeline of torment would later contend, refused to call an ambulance as he awaited help, Temp worker Carlos Centeno’s excruciating journey from a fac- shirtless and screaming. He arrived tory floor to a hospital appropri- at Loyola only after first being driven ate for his life-threatening burns. to a clinic by a co-worker. Asterisks indicate events where At admission Centeno had burns times are approximate. Maps over 80 percent of his body and suf- indicate the shortest routes, not fered a pain level of 10 on a scale of necessarily the actual routes. 10, medical records show. Clad in a T- Reporting: Chip Mitchell and Jim shirt, he wore no protective gear oth- Morris; Visuals: WBEZ/Logan Jaffe er than rubber boots and latex gloves in the factory, which makes house- November 17, 2011 hold and personal-care products. 1:30 PM Centeno, 50, died three weeks Acid solution erupts later, on December 8, 2011. A narrative account of the acci- from tank * dent that killed him — and a descrip- Ron’s Staffing Services Inc. tion of conditions inside the Raani employee Carlos Centeno, 50, approaches the end of his shift at Corp. plant in Bedford Park, Ill. — Raani Corp., a maker of house- are included in a U.S. Occupational hold and personal-care prod- Safety and Health Administration ucts in Bedford Park, a Chicago memorandum obtained by the Cen- suburb. He is wearing a T-shirt ter for Public Integrity. The 11-page and medical-grade latex gloves OSHA memo, dated May 10, 2012, but no gear protecting him from argues that safety breakdowns in the chemicals or hot liquids, accord- plant warrant criminal prosecution ing to Occupational Safety and — a rarity in worker death cases. Health Administration records. The story behind Centeno’s A mixture of scalding water and death underscores the burden faced anhydrous citric acid erupts from a hatch in this 500-gallon by some of America’s 2.5 million tank and burns most of his body. temporary, or contingent, workers SOURCES: OSHA records, Material Safety — a growing but mostly invisible Data Sheet from Raani Corp. group of laborers who often toil in

the least desirable, most dangerous jobs. Such workers are hurt more Timeline of torment frequently than permanent employees and their injuries often go unre- corded, new research shows. Raani’s “lack of concern for employee safety was tangible” and injuries in its factory were “abundant,” Thomas Galassi, head of OSHA’s Di- rectorate of Enforcement Programs, wrote in the memo to David Mi- chaels, assistant secretary of labor for occupational safety and health. Raani managers failed to put Centeno under a safety shower after he was burned and did not call 911 1:35 PM even though his skin was peeling Company fails to call and he was clearly in agony, Galas- to 911 * si wrote. “It took a minimum of 38 Centeno takes off his T-shirt minutes before [Centeno] arrived and complains of extreme pain. at a local occupational health clinic Pieces of skin peel from his … after having been transported by body, according to Occupational and in the vehicle of another em- Safety and Health Administration ployee while he shivered in shock records. Raani Corp. officials and yelled, ‘hurry, hurry!’ ” discover the injury within minutes but fail to call 911 and fail to A clinic worker called an ambu- rinse him in a safety shower the lance, which, according to Chicago company has installed, according Fire Department records, arrived at to OSHA records. A Raani official 2:26 p.m. Centeno was in “moderate takes time to review Centeno’s to severe distress with 70-80% 1st and driver’s license and fill out paper- mostly 2nd degree burns to head, work authorizing treatment at a face, neck, chest, back, buttocks, arms clinic, the records say. and legs,” the records show. Paramed- SOURCES: OSHA records, WBEZ/Center ics administered morphine. for Public Integrity interviews. “The EMT’s were horrified and

angered at the employer, for not calling 911 at the scene and further Timeline of torment delaying his care by transferring him to a clinic instead of a hospital,” Galassi’s memo says. John Newquist, who retired from OSHA in September after 30 years with the agency, said the case was among the most disturbing he encountered as an assistant regional administrator in Chicago. “I cannot remember a case where somebody got severely burned and nobody called 911,” said Newquist, a Google Maps former compliance officer who investigated more than 100 fatal accidents 2:00 PM during his career. “It’s beyond me.” Coworker takes On May 15, OSHA proposed a victim to clinic * $473,000 fine against Raani for 14 One of Centeno’s coworkers alleged violations, six of which are drives him from the factory to classified as willful, indicating “plain MacNeal Clearing Clinic, an occu- indifference” toward employee safety pational health center in Chicago. and health. No decision has been The clinic has no burn unit. Its made on whether the case will be “primary goal,” according to the referred to the Department of Jus- group that runs it, “is to improve the productivity and profitability tice for possible prosecution, agency of your workforce.” During the spokesman Jesse Lawder said. OSHA four-mile drive, Centeno shivers hadn’t inspected the Raani factory and yells, “Hurry, hurry!” accord- for 18 years prior to the accident. ing to Occupational Safety and Centeno’s family has filed a wrong- Health Administration records. ful-death lawsuit against Raani and a SOURCES: Chicago Fire Department workers’ compensation claim against incident report, OSHA records, MacNeal Clearing Clinic records, Vanguard Medical the temp agency that employed him, Group website. Ron’s Staffing Services Inc. “It’s just wrong, what happened,”

Centeno’s 26-year-old son, Carlos Jr., said of Raani managers’ actions Timeline of torment after his father’s accident. “They were not thinking of him as a human being.” Raani is appealing the OSHA citations. H. Patrick Morris, a lawyer for the company, did not answer questions about the alleged violations. Morris said, however, that while Centeno was “a good worker and nice person,” the company has “good and valid defenses” to the allegations in the family’s lawsuit. Raani has yet to file court documents outlining its position. 2:08 PM Jeffrey Kehl, a lawyer for Ron’s Victim arrives at Staffing, declined to comment. clinic * Centeno reaches MacNeal ‘I wanted him to quit’ Clearing Clinic a “minimum of 38 minutes” since the acid Carlos Centeno came to Chicago solution scalded him in the fac- from Mexico City in 1994. He was tory, according to Occupational joined six years later by his part- Safety and Health Administration ner, Velia Carbot, and Carlos Jr. A records. The clinic staff observes daughter, Alma, stayed behind. burns over “at least 80 percent The family settled in Humboldt of his body” and rinses off the chemicals. The clinic reports his Park, a working-class neighborhood pain as “10/10”— the most severe on the city’s northwest side. A second level. The clinic provides Cen- daughter, Melanie, was born in 2001. teno an injection for relief but he Centeno held jobs as a bartender, remains “in severe pain.” newspaper deliveryman and fork- SOURCES: OSHA records, MacNeal Clear- lift driver at a warehouse. In June ing Clinic records. 2010, after being laid off by the warehouse, he put in an application

at the Ron’s Staffing office on West 63rd Street, not far from Midway Timeline of torment International Airport. He was sent to the nearby Raani Corp. factory, which makes products ranging from shampoos, styling gels and deodor- ant sticks to dishwashing liquids and household cleaners. His starting pay was $8.25 an hour. Raani, founded in 1983 by Rashid A. Chaudary, a Pakistani chemist- turned-entrepreneur, has about 150 2:21 PM employees, roughly 40 percent of Ambulance whom are contingent workers, according to the May 2012 OSHA memo. dispatched to clinic Centeno cleaned the tanks in which After a MacNeal Clearing Clinic employee calls 911, the Chicago the factory’s products are mixed. His Fire Department dispatches this work clothes became so rank, he had Engine Co. 32 ambulance. The his own laundry basket at the fam- firehouse stands about a mile ily’s apartment, partner Carbot said; north of the clinic. about six months before the fatal ac- SOURCE: Chicago Fire Department cident, chemicals splashed in his right incident report, WBEZ/Center for Public eye and he couldn’t see out of it for Integrity interviews. three days, she said. 2:26 PM “I wanted him to quit,” Carbot, speaking in Spanish, said. “But, at Ambulance arrives the same time, we knew he hadn’t at clinic found another job yet, and expenses The ambulance reaches MacNeal continued, unfortunately, and he Clearing Clinic. Paramedics find had to work.” Centeno on his feet in “moderate to The OSHA memo describes a severe distress.” They observe burns on his “head, face, neck, chest, factory in which workers were often back, buttocks, arms and legs.” hurt and injuries were not properly SOURCE: Chicago Fire Department inci- recorded. An OSHA inspection dent report. on December 9, 2011, the day af-

ter Centeno died, revealed, for example, that workers “were handling Timeline of torment chemicals including, but not limited to, corrosives and acids while wearing only medical grade latex gloves,” the memo says. Workers were seen putting their hands directly into streams of chemicals poured from drums, OSHA enforcement director Galassi wrote. “Another significant hazard [to] which employees are exposed, as evidenced by the fatality, was the high temperature (nearly boiling) water and cleaning solutions used for cleaning tanks, process lines and floors. Employees interacted with 2:34 PM high temperature liquids wearing Paramedics begin only latex gloves and tee-shirts.” A manager explained that thick, their treatment black gloves were kept in the main- The paramedics provide Centeno tenance department “because they oxygen but struggle to find an unburned part of his body for were expensive and the employees intravenous therapy. They eventu- stole them,” Galassi wrote. The man- ally establish the IV and provide ager said, however, that “any em- morphine, but Centeno’s pain level ployee could obtain the black gloves remains “10 of 10.” if so desired.” SOURCES: Chicago Fire Department A review of Raani’s medical files incident report, Occupational Safety and turned up five injuries, apart from Health Administration internal memo. Centeno’s, that had occurred since 2010 but had not been entered in OSHA logs, as required by federal law, Galassi wrote. Injuries “involving chemical exposure to eyes, high temperature liquid burns and cuts

had been a common occurrence for years,” his memo says. One worker Timeline of torment who had been burned and whose skin was peeling was told by a manager “to leave it alone, it wasn’t dangerous.” Another was burned so badly he needed skin grafts, but the incident wasn’t recorded even though CEO Chaudary “stated he was aware of the injury,” Galassi wrote. On Janu- ary 27, 2012, more than two months after Centeno was scalded, a worker performing a similar tank-cleaning procedure received severe burns to his left leg. He was handed a written notice from management. “You are hereby warned to be careful in the Google Maps future,” it said in part. 2:54 PM “Instead of issuing the appropri- Ambulance leaves ate [protective gear] to its workers and ensuring its usage, Raani Cor- with victim poration has chosen to blame their After putting Centeno on a stretcher and into the ambu- employees outright for their injuries lance, the paramedics drive him and non-compliance,” Galassi wrote. toward Loyola University Hospi- Two managers “admitted to wit- tal, more than 9 miles northwest nessing [Centeno] with his shirt off in Maywood, a Chicago suburb. and speaking with him” shortly after On the way, they bypass closer he was burned, the memo says. “Both hospitals that lack specialized managers agreed the injured em- burn units. Centeno’s pain ployee’s skin was burned, damaged, remains excruciating. He cries, wrinkled and parts were ‘peeling.’ ” moans and winces. The managers not only failed to SOURCES: Chicago Fire Department incident report, Occupational Safety and call 911 — they made Centeno wait Health Administration internal memo. while one filled out paperwork be-

fore allowing him to be taken to a local clinic, Galassi wrote. The co- Timeline of torment worker who drove Centeno about four miles to the MacNeal Clearing Clinic 3:00 PM said “he was asked to lie on his written Relatives arrive at statement and write that Carlos Cen- hospital * teno was acting fine, conscious and Centeno’s wife and son arrive at talking on the drive to the clinic. Even Loyola University Hospital’s emer- after the incident, company officials gency area and begin waiting for have not concluded that 911 should the man’s arrival. Two ambulances have been called immediately.” pull in but neither is carrying him. Chaudary, who was not on the SOURCES: WBEZ/Center for Public Integ- scene the day of the accident — No- rity interview with Velia Carbot and Carlos Centeno Jr. vember 17, 2011 — told an OSHA inspector that the “wrong valve opened” on the tank Centeno was cleaning, according to the memo, but insisted that “if Carlos Centeno had lived, the decision to not call an ambulance would have been the right call.” Centeno’s co-workers, however, “provided signed statements of the severity of the injury and the extreme delayed response in seeking 3:08 PM medical care,” Galassi wrote. Victim reaches hospital Chaudary did not respond to re- Carried by an ambulance like this quests for comment. one, Centeno arrives at Loyola Uni- Not long after he was doused with versity Hospital. A stretcher carries the hot water-citric acid mixture, him out of the vehicle and into the Centeno called Velia Carbot, asking hospital. The hospital admits him for Carlos Jr. He sounded agitated into an intensive-care burn unit, and had trouble speaking, Carbot where he will die 21 days later. said, but would not explain what OURCES: Chicago Fire Department incident report, Loyola University Hospital had happened. records. Carbot went across the street and

got Carlos Jr., who called his father’s weeks later, on December 8. OSHA, cell phone. It was answered by a which learned of his death from the co-worker, Samuel Meza, who said Cook County medical examiner, Carlos Sr. had been burned at work. began its inspection of Raani the “He was like, ‘I’m taking him to the next day. Its last visit to the plant clinic,’ ” Carlos Jr. said. had been in 1993, when, responding Meza called Carlos Jr. after he ar- to a worker complaint, it cited the rived at the MacNeal Clearing Clin- company for six alleged violations ic. While they talked, Carlos Jr. said, — including failing to protect work- “I could hear that the nurse in the ers from unexpected energizing clinic was telling him, ‘Why are you or startup of machines — and pro- bringing him here? … He needs to posed a $9,500 fine. Raani settled go to the emergency room.’ ” the case for $6,500 in 1994. Carbot and Carlos Jr. began driv- In an emailed statement, OSHA ing to the clinic, 13 miles south of said no follow-up inspection was con- Humboldt Park, but diverted west ducted. This is “not unusual,” the to Loyola Hospital when Meza told agency said, “as long as we receive them that’s where Centeno would be documentation from the employer heading. that the violations were corrected.” Carlos Jr. and Carbot got there first, watching ambulance after am- Dangers of temp work bulance pull up. “I remember just walking up to all the ambulances The use of contingent workers by U.S. and it was someone else,” Carlos Jr. employers has soared over the past said. “It wasn’t my dad. It just makes two decades. In 1990, according to the you more anxious.” U.S. Bureau of Labor Statistics, there At 3:08 p.m., more than 98 min- were about 1.1 million such workers; utes after he had been burned, Car- as of August 2012, the number was los Sr. made it to Loyola. “When they 2.54 million, down slightly from pre- finally opened the doors and I saw it recession levels but climbing. was him, I could just see he was in The American Staffing Associa- pain,” Carlos Jr. said. “He was try- tion, a trade group, says the hiring ing to hide it. He saw my mom and of contingent workers allows em- I could see his eyes started to tear.” ployers to staff up at their busiest Carlos Centeno Sr. died three times and downsize during lulls.

Temporary work enables employees workers, those in temporary em- to have flexible hours and “provides ployment situations are for the most a bridge to permanent employ- part a vulnerable population with ment,” the group says on its website. few employment protections,” wrote Recent research, however, sug- the researchers, with the Washing- gests a dark side to contingent work. ton State Department of Labor and A study published this year of Industries. nearly 4,000 amputations among In fact, experts say, there’s little workers in Illinois found that five incentive for host employers to rig- of the 10 employers with the high- orously train and supervise temp est number of incidents were temp workers because staffing agencies agencies. Each of the 10 employers carry their comp insurance. If an had between six and 12 amputations agency has a high number of inju- from 2000 through 2007. Most of ries within its workforce, it — not the victims lost fingertips, but some the host employer — is penalized lost legs, arms or hands. with higher premiums. The researchers, from the Uni- “This is really about an abdication versity of Illinois at Chicago School of responsibility,” said Tom Juravich, of Public Health, called the glut of a professor at the University of Mas- amputations a “public health emer- sachusetts, Amherst, who has stud- gency,” inflicting psychological and ied the temp worker phenomenon. physical harm and costing billions. “If some of the jobs in your facility Another study, published in 2010, are undesirable and dangerous, you found that temp workers in Wash- outsource them to people who won’t ington State had higher injury rates complain. If you have a direct worker than permanent workers, based on who’s injured, you have an obliga- a review of workers’ compensation tion to him through workers’ comp. claims. In particular, temp workers If he’s a contingent worker, you don’t were far more likely to be struck by or have that obligation.” caught in machinery in the construc- As part of a three-year study, re- tion and manufacturing industries. searchers in Canada interviewed “Although there are no differ- temp workers and managers at temp ences in the [OSHA] regulations be- agencies and client companies. “To tween standard employment work- be frank,” one agency manager con- ers and temporary agency employed fided, “clients hire us to have temps

do the jobs they don’t want to do.” needs to come up with different ap- Co-author Ellen MacEachen, of the proaches for this rapidly growing University of Toronto and the In- sector” — meeting with temp work- stitute for Work and Health, said, ers offsite, for example, so they’re “Even if [temp workers] are not not intimidated by supervisors. cheaper, they’re more disposable. Temp workers are often reluctant … You can get rid of them when you to report injuries because they are want, and you don’t pay benefits.” so easily replaced, Bicchieri said. Bureau of Labor Statistics numbers “They have no power to speak say contingent workers’ injuries are up,” he said. “The whole temp indus- declining. Yet, new evidence suggests try was created so the client compa- these injuries are undercounted. ny has less liability. We need to put In a BLS-funded project complet- workplace injuries back on the plate ed last summer, officials with the of the client company.” Washington State Department of Stephen Dwyer, the American Labor and Industries interviewed 53 Staffing Association’s general coun- employers who had used temp work- sel, cautioned against an OSHA ers. Only one-third said they would crackdown on temp agencies. “To enter a temp worker injury in their the extent that efforts become OSHA log, as the law requires. The heavy-handed, there can be a dis- others said they wouldn’t or claimed incentive, then, to using temporary ignorance. “A lot of them just didn’t workers,” Dwyer said, to the detri- know” the rules, said Dr. David Bon- ment of the workers, client employ- auto, the department’s associate ers and “the overall economy.” medical director. In a statement, OSHA said it The executive director of the “feels strongly that temporary or Chicago Workers’ Collaborative, contingent workers must be protect- which advocates for temp workers, ed. They often work in low wage jobs says OSHA should target employers with many job hazards — and em- known to make heavy use of staffing ployers must provide these workers agencies. with a safe workplace.” “The rise of the staffing indus- The agency said it has brought a try is partially to give companies a number of recent enforcement ac- greater distance from regulation,” tions against employers for accidents said Leone José Bicchieri. “OSHA involving temp workers. In June, for

example, OSHA cited Tribe Medi- “It should not be the case that a terranean Foods for 18 alleged vio- facility that commits willful viola- lations following the death of a tions of the worker safety laws faces worker at its plant in Taunton, Mass. only misdemeanor charges when a The worker — not properly trained, worker dies because of those viola- according to OSHA — was crushed tions,” said David Uhlmann, a law by two rotating augers while clean- professor at the University of Michi- ing a machine used to make hum- gan and former chief of the Jus- mus. The case was closed after Tribe tice Department’s Environmental agreed to fix hazards and pay a Crimes Section. $540,000 fine. “The company involved as well as “While some employers believe any responsible corporate officials they are not responsible for tempo- should face felony charges that carry rary workers … OSHA requires that significant financial penalties for employers ensure the health and the company and the possibility of safety of all workers under their su- lengthy jail terms for the individuals,” pervision,” the agency said Uhlmann said. “Anything less sends a terrible message about how we value Weak law, few prosecutions the lives of American workers.” Federal prosecutors are gener- Although the Galassi memo recom- ally unenthusiastic about worker mends criminal action in the Cen- cases, said Jordan Barab, second- teno case, employers in America are in-command at OSHA. The Justice rarely prosecuted for worker deaths. Department “often says, ‘You know, The Occupational Safety and we’re not going to spend all these Health Act of 1970 is exception- resources just to prosecute a misde- ally weak when it comes to criminal meanor,’ ” Barab said. penalties. An employer found to At Justice, Uhlmann made cre- have committed flagrant violations ative use of environmental statutes that led to a worker’s death faces, at to get around the OSH Act. In one worst, a misdemeanor punishable by case, a worker at an Idaho fertilizer six months in jail. plant named Scott Dominguez near- By comparison, a violation of the ly died after being sent into a steel Endangered Species Act carries a storage tank containing cyanide- maximum sentence of one year. rich sludge. Dominguez had been

ordered into the 25,000-gallon tank vision. Congress came close to add- without protective equipment by the ing felony provisions to the law in plant’s owner, Allan Elias, who had 2010 but failed amid pushback from refused to test the atmosphere in- the business community. side the vessel. “Accidents are not criminal,” Dominguez collapsed and sus- Uhlmann said. “What are criminal tained brain damage from the cya- are egregious violations of the work- nide exposure. Prosecutors charged er safety laws that result in not just Elias with three felony counts under deaths but serious injuries.” environmental laws, including the Sen. Tom Harkin, an Iowa Demo- Resource Conservation and Recov- crat who chairs the Senate Health, ery Act, which governs the handling Education, Labor and Pensions and disposal of hazardous waste. Committee, is a co-sponsor of the Because Elias had fabricated a Protecting America’s Workers Act, confined-space entry permit indi- which would enhance criminal and cating it was safe for workers to en- civil penalties for OSHA violations. ter the tank, he also was charged “In every other walk of life, if a with one count under a section of person engages in willful conduct Title 18 of the United States Code, that results in someone else’s death, for making a false statement to, or we throw the book at them,” Harkin otherwise conspiring to defraud, said in a statement. “But if someone government regulators. dies on the job, the rules are differ- After a jury trial in 1999, Elias ent. Even intentional lawbreaking was convicted on all counts and sen- that kills a worker brings no more tenced to 17 years in prison. than a slap on the wrist.” Environmental statutes don’t al- Whether a bulked-up worker-pro- ways apply in worker death or injury tection law would have improved con- cases. The accident that mortally ditions at the Raani Corp. is a matter wounded Carlos Centeno, for ex- of speculation. According to Thomas ample, appears not to have involved Galassi’s memo, the accident that ul- hazardous waste, or air or water pol- timately killed Carlos Centeno mer- lution. ited only a one-line entry in the com- Charges under Title 18 remain a pany’s files, stating that an internal possibility, Uhlmann said. Nonethe- committee would investigate. less, he said, the OSH Act needs re- During the inspection after Cen-

teno’s death, a newly hired Raani WBEZ’s Chip Mitchell; story editing manager asked OSHA officials to by CPI’s Ronnie Greene and WBEZ’s help him convince his superiors to Cate Cahan; photography by WBEZ’s train and provide safety gear to work- Logan Jaffe; data visualization by ers, Galassi wrote. The manager had WBEZ’s Elliott Ramos; multimedia concluded that those above him had editing by CPI’s Paul Williams and “no respect for the hazards of the WBEZ’s Tim Akimoff; and executive chemicals on site or human life.” n editing by CPI’s Ellen Weiss and WBEZ’s Sally Eisele. Additional About this story: This package reporting and production assistance was jointly reported by the Center for by CPI’s Chris Hamby and WBEZ’s Public Integrity’s Jim Morris and Anthony Martinez and Bryan Hayes.

Follow-Up OSHA strengthens protections for temp workers By Jim Morris Published Online: April 29, 2013 Federal regulators today announced new measures to protect 2.5 million temporary workers in America amid evidence such laborers are hurt more often than regular employees. In December, the Center for Public Integrity and WBEZ/Chicago Public Media highlighted the case of temporary worker Carlos Centeno, who was badly burned in a Chicago-area factory in November 2011 and died three weeks later. Occupational Safety and Health Administration records obtained by the Center concluded that Centeno’s bosses refused to call 911 as his skin peeled and he screamed for help. OSHA said today it had sent a memo to regional administrators “di- recting field inspectors to assess whether employers who use tempo-

rary workers are complying with their responsibilities” under the law. “Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations,” the agency said in a press release. “Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand.” As the Center/WBEZ story noted, recent research indicates temporary workers are more prone to injury than permanent ones due to often-subpar safety training and the feeling among some employers that temps are expendable. Last year, for example, researchers who studied nearly 4,000 amputations among workers in Illinois found that five of the 10 employers with the highest number of incidents were temporary staffing agencies. The new OSHA memo, written by enforcement director Thomas Galassi, says the agency has received “a series of reports of temporary workers suffering fatal injuries during the first days on a job. In some cases, the employer failed to provide safety training or, if some instruction was given, it inadequately addressed the hazard, and this failure contributed to their death.” Centeno was employed by a staffing agency at the time he was burned. A co-worker wound up driving him to a clinic after a delay of at least 38 minutes. Centeno didn’t make it to a hospital burn center until an hour after that. OSHA recommended that the host employer, Raani Corp., which makes personal-care products, be criminally prosecuted for the accident. The agency has proposed a $473,000 civil fine against Raani, which is appealing. In court filings in a lawsuit brought by Centeno’s family, the company denies fault. Centeno, a 50-year-old immigrant from Mexico, was among 4,693 workers who suffered fatal, work-related injuries in 2011. Three more workers died in 2011 than in 2010, according to the U.S. Bureau of La- bor Statistics. Worker deaths in 2010 also rose when compared to the previous year: 4,690 died in 2010, while 4,551 died in 2009. n

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 3 ©2013 Center for Public Integrity 43 Even after workplace deaths, companies avoid OSHA penalties By Chris Hamby Published Online: December 21, 2012

YRACUSE, N.Y. — The temperature out- Sside barely reached double digits on the morning of Jan. 15, 2009, and, inside the Crucible Specialty Metals steel mill here, it was bitterly cold. Ice coated the equipment, forcing employees to use torches to free the machines so they could start their work. Danger was everywhere, federal records show. Equip- Sue Grobsmith looks at the files she’s gathered ment was old and in disre- on the accident at a steel mill near Syracuse, pair. Molten steel snaked N.Y., that killed her husband, Jack. Sam Maller through the building, and, at any moment, could snag and twist out of control, burning nearby. Sometimes, workers said, anything in its path. Shafts driv- the torches backfired and burned ing the machines that compress the them. steel spun at high speeds with no This was Jack Grobsmith’s do- guards to shield employees working main. He’d worked at Crucible for

more than 35 years and had ascend- and Health Administration cited ed to the position of head roller. He Crucible for more than 70 viola- adjusted the equipment and made tions and levied almost $250,000 in sure the steel bars came out just fines — high numbers for an agen- the right size. Around the factory, cy with relatively little power to im- he was known as a jokester with a pose harsh penalties. purpose — showing up at events in What almost no one outside of character as Crucibella, donning a OSHA has known until now: The dress, lipstick and ‘60s-era Easter hat to preach about safety. That frigid January morning, Grobsmith went to one of the stands that compresses steel to hook up a water hose. Next to him, two rotating shafts driven by a 900-horse-power motor spun at 240 revo- lutions per minute. Grob- smith struggled with the hose, which was covered in The Crucible Industries LLC steel mill near grease, then slipped on ice Syracuse, N.Y., where federal workplace safety coating the area. regulators alleged more than 70 violations The shafts pulled him after investigating Jack Grobsmith’s death in in, crushed his body and 2009. Sam Maller shot him out the other side. Grobsmith’s assistant roller and agency never collected a penny for longtime friend Rocky Saccone ran Grobsmith’s death because it failed over. “It just happened so fast,” re- to file paperwork in time after Cru- called Saccone, who retired a few cible filed for bankruptcy. months later. “We pulled him out, The company’s bankruptcy case and that was it.” drew significant media coverage be- The federal Occupational Safety cause of the economic impact on the

community. Yet OSHA, which has companies to follow the law, what an office based in Syracuse, said in actually happens to these penalties a written statement to the Center for is more complicated. Public Integrity that it didn’t learn Even after investigating a death Crucible was in bankruptcy until and issuing a penalty, federal March 2010. By then, it was too late OSHA or the state agencies it over- to file as a creditor and try to collect. sees have failed to collect any of the OSHA said collection would have original fine in one of every 10 cas- been difficult even if it had filed. es since 2001, the Center found. In A private equity firm bought the many other cases, regulators have company’s assets and reopened the settled for a fraction of the penalty mill — calling it Crucible Indus- initially imposed. tries — with most of the same man- Overall, the federal and state agement. The penalty simply disap- agencies have collected at least 40 peared. percent of the monetary penalties OSHA never told Grobsmith’s initially assessed after workplace wife, Sue. After hearing the news inspections, forgoing $1.3 billion from a reporter, more than three- in the process, a Center data analy- and-a-half years after her husband’s sis found. death, she fanned herself with her Most overdue debts end up at a hands. “I’m blown away by the fact private collection agency under con- that Crucible never paid any fines,” tract with the Treasury Department. she said several moments later. Yet a Center analysis of Treasury De- “OSHA doesn’t feel the need to partment data found that only about bring that out?” 12 percent of OSHA debts have Crucible has not responded to been collected in recent years. The repeated requests for comment. penalties OSHA is allowed by law to The events in Syracuse are part impose are significantly lower than of the largely untold story of what those assessed by many other en- happens after a workplace death forcement agencies, providing little has faded from memory and OSHA incentive for the government or col- struggles to hold employers ac- lection agencies to prioritize them. countable. Though OSHA trum- Both OSHA and the Treasury pets announced penalties as evi- Department can ask the Justice De- dence of its commitment to forcing partment to take an employer to

court, but data show relatively little impose appropriate penalties to in- money has been collected this way. crease deterrence and save lives.” Worker advocates say such failures Data and cases from across the to collect undermine enforcement. country show how penalties can “The penalties matter,” said Peg wither or disappear, even after Seminario, director of safety and workers are needlessly killed. health at the AFL-CIO. Not collecting, she said, “basically means that A death, a debt and a they can violate the law and have drawn-out process very few consequences.” OSHA does face substantial hur- Algo Escalante Cota had worked in dles. The agency can’t force an em- the U.S. for less than a year when, ployer to fix a hazard while a citation during a roofing job, he crashed is contested, and litigation can drag through a skylight and plummeted for years. OSHA sometimes settles almost 20 feet to a concrete floor by deleting violations and erasing below. or reducing penalties — accepting, The fine for his death spent the in some cases, company pledges to next six years winding through a make safety improvements. bureaucratic maze that led from Even when a penalty becomes Alabama to Washington, D.C., to a final, the agency may not be able New York-based private collection to collect. Sometimes an employer agency, then back again. In the disappears or convinces the gov- end, the government collected $0. ernment it doesn’t have the money. Cota, a 39-year-old native of Other times, an employer goes out Mexico, found his way to Birming- of business or declares bankruptcy, ham, Ala., where he worked for then forms a new company and con- Tony Wright, owner of roofing continues similar work — a path that is tractor Integrity Building Services difficult to track and requires legal LLC. Wright found Cota and an- heavy lifting to combat, OSHA said other worker at a congregating spot in a statement. that Hispanic workers called “La In its statement, OSHA said it is Tiendita,” an OSHA report said. doing what it can with the author- “There Mr. Wright knew he ity it has, but it supports legislation could hire Hispanic workers which, that “would give OSHA the tools to compared to American workers,

would work for lower wages and wood covering two of the skylights, who were not trained on the safety including the one through which and health hazards associated with Cota fell. There were also stan- roofing work,” an OSHA inspector chions — stands to mark off dan- wrote. gerous areas on the roof — and a Wright brought the men with poster board containing safety in- him on a hot June day in 2005 to formation for temporary workers. repair a leaking roof at a door man- Wright told the inspector the ufacturing facility in Montgomery. items had been at the scene before Late in the afternoon of the second Cota’s accident, according to the day on the job, Cota was lugging OSHA report. But the other worker two five-gallon buckets of roof seal- and the plant’s owner said Wright er when he stepped on a skylight. hadn’t brought the items until af- The fiberglass gave way, and he fell ter the accident. The inspector be- through to the factory floor. lieved it was “an effort to deceive The OSHA inspector cited OSHA.” Wright for failing to cover or guard In an interview, Wright acknowl- the skylight and for failing to pro- edged bringing the equipment to vide proper fall protection. the scene after the accident, but Wright had been an officer and insisted, “That was not to fool any- co-owner of another business, Su- body.” The plywood and stanchions perior Roofing Contractors Inc., were temporary protection to make that had been cited repeatedly sure no one fell in the hole left by for violating fall protection rules. Cota’s accident, he said. Asked why In an interview with the Center, he brought the poster board, he Wright said he negotiated with said, “That’s been a while. … I don’t OSHA on the company’s behalf af- know.” ter at least one of those inspections. Wright contested all of the cita- The company went out of business, tions, which included one classified Wright said, and he formed Integ- as “willful” — the most severe type rity Building Services. OSHA can allege, signifying that The scene of Cota’s accident the agency believes the employer in- troubled the inspector, records tentionally violated the law or acted show. Arriving the day after the with “plain indifference” to it. accident, he spotted pieces of ply- “The proper safety guidelines were

in place,” Wright told the Center, not- for 180 days, OSHA refers it to the ing that he had spray-painted lines Treasury Department, which issues around the skylights. “The proper its own letter, then waits, usually training had been performed. Daily another month. The department communication on safety was done. also can try to intercept govern- The workman ignored the safety that ment payments to the employer, was in place for him.” such as tax refunds or payments for In 2006, the $48,750 penalty for contract work. Cota’s death began its trek through Ultimately, most OSHA debts the system. The head of the local end up where Integrity Building office that investigated the death Service’s did: a private collection urged a Labor Department law- agency. Four companies have con- yer to pursue the full penalty to tracts with the Treasury Depart- “achieve the appropriate deter- ment, and they do the bulk of the rent effect.” When the department work pursuing debtors, said Ronda filed its complaint in administra- Kent, a deputy assistant commis- tive court, Wright did not respond. sioner in the department’s Finan- Upholding the OSHA citations, a cial Management Service. judge concluded Wright had acted Under the program, the Trea- “with disdain” for the court’s rules. sury Department is charged with Wright told the Center he had collecting anything from debts on limited resources and had to pick government loans to penalties as- his battles, so he chose to fight sessed by a host of enforcement what he viewed as the more serious agencies. threat, a lawsuit by Cota’s family. OSHA debts, however, are typically much smaller than those of The waiting game other enforcement agencies, and it is one of few federal agencies ex- Faced with such an employer, cluded from a law that allows penal- OSHA has a standard procedure: ties to rise with inflation, with pen- The local office issues a letter de- alties the agency can impose stuck manding payment, then waits one at 1990 levels. A violation deemed month. Then the national office “serious” — one that, by OSHA’s issues a similar letter, then waits. definition, “would most likely re- When the debt has gone unpaid sult in death or serious physical

It is relatively rare for an employer to end up in court and be ordered to pay an OSHA debt.

harm” — carries a maximum pen- be ordered to pay an OSHA debt. alty of $7,000. During the seven-year period, the “Just because something’s a low Justice Department collected just dollar amount, it could be a fine over $267,000 in OSHA debts re- that it’s important to collect it be- ferred to it by Treasury. OSHA can cause you certainly don’t want re- also refer debts directly to the Jus- peat offenders,” Treasury’s Kent tice Department. Since 2008, the said. “You don’t want to make it department has collected about cost-beneficial for the businesses to $910,000 in debts sent to it by continue to violate the law.” OSHA. For all federal agencies, the There’s no requirement, though, Justice Department collected about that this attitude trickle down to $15.4 billion between the 2008 and the private collection agencies. 2011 fiscal years. When it is assigned a debt, an agen- “It’s a problem,” said the AFL- cy must send a letter demanding CIO’s Seminario, “but the govern- payment. Beyond that, the agency ment has limitations in terms of can choose which debts are worth what it can do, both in terms of pursuing. “We leave that to them to its authority and in terms of its re- make those decisions,” Kent said, sources. … It’s making choices. It noting that the agencies are regu- isn’t necessarily that they’re ignor- larly evaluated. ing these cases.” Between the 2006 and 2012 fis- Legislation that would increase cal years, OSHA referred about both civil and criminal penalties $131 million in debts to the Trea- was introduced in both houses of sury Department, but only about Congress in 2009 and 2011. The bills $16 million was collected. Data to haven’t made it out of committee. compare OSHA collections with In Cota’s death, the private col- other agencies was not available. lection agency Pioneer Credit Re- Likewise, it is relatively rare for covery called Wright a few times an employer to end up in court and trying to collect, Wright recalled.

He told them he was fighting a pri- Wright, 57, said he still works in vate lawsuit, and Wright said a Pio- the Birmingham area as a consul- neer employee suggested he write tant to a construction contractor. a letter and “ask for forgiveness” of Integrity Building Services still ex- the debt. Wright’s lawyer did so. ists, he said, though it is not taking “Debtor attorney states is in pro- jobs and is winding down its legal cess of settlement agreement in obligations as it prepares to go out court,” Pioneer reported back to of business. The company doesn’t the government. The head of OS- have the assets to pay the OSHA HA’s debt collection office replied fine, he said. that getting sued doesn’t mean an “Even if we had had the money,” employer can avoid paying a pen- he said, “I would have refused to pay.” alty. Still, an invitation to negotiate stood out in bold, underlined text: Negotiations, deletions and “In an effort to assist the debtor in more deaths in South Texas settling this debt, OSHA is willing to review a reasonable compromise Some cases never make it to the offer for this debt.” collection stage. After OSHA inves- On June 13, 2011, OSHA’s debt tigates a death and issues citations, collection office said Treasury had it is often faced with a choice: The deemed the debt “uncollectible.” agency can push to uphold all the The case was being closed. Pioneer violations and penalties, a process refused repeated requests for com- that can involve years of litigation. ment, and the Treasury Depart- Or it can negotiate a settlement, ment declined to answer questions which often involves reducing pen- about the specific debt, citing pri- alties or reclassifying violations. vacy concerns. Another option is deleting viola- “We are disturbed that no pen- tions entirely, erasing the penalties alties were collected in this case,” that go with them. In more than OSHA responded to a Center inqui- 600 cases since 2001, OSHA has in- ry. The agency’s Mobile, Ala., office vestigated a death, issued violations “has been on alert,” and, if future carrying a penalty — and then de- violations occur, OSHA “will pur- leted them all, the Center found. sue action to the extent of the law That occurred in roughly one in to hold this employer accountable.” every 20 cases.

In all closed cases since 2001, an OSHA citation, lawyers say. A OSHA has agreed to delete more lawyer could argue that the OSHA than 104,000 violations that had an standard cited didn’t apply to the initial fine, erasing more than $240 work in question, that no one was million in penalties. actually exposed to the danger or “There are occasional instances that employee misconduct was to when, after citations are issued, an blame, among other defenses. employer may present additional And if OSHA is unwilling to com- evidence to indicate that a citation promise, Lies said, “it’s very easy for is not warranted,” OSHA said. “If the employer to go to a judge.” that evidence, when taken into ac- A stark example of a company’s count, persuades the agency that a ability to beat back OSHA citations citation was not warranted, the ci- has played out in South Texas. tation may be deleted.” Gulf Stream Marine loads and Mark Lies, a partner in the Chi- unloads ships at ports along the cago office of the law firm Sey- Gulf Coast. In Houston and Browns- farth Shaw LLP, is among the law- ville, the company experienced six yers who specialize in squaring off fatal accidents from 2007 to 2011. against OSHA. Lies said he often OSHA investigated and issued vio- gets involved soon after an accident lations in each case, but, in half of occurs and has communications them, agreed to delete all of the vio- come to him, creating an attorney- lations and erase the penalties. client privilege. He sits in on em- The accidents bore similari- ployee interviews with OSHA, if ties, OSHA records show. In Janu- the employee chooses, and reviews ary 2007, a Houston Gulf Stream OSHA’s requests for documents. Marine employee — not certified Employers often fight even small to drive a fork truck — ran into a OSHA penalties because having a security guard with the pipes be- violation on record could open up ing carried on the truck, causing a company to more severe penalties fatal chest wounds. Three months in the future and haunt it in related later, also in Houston, a bundle of civil lawsuits, said Julie Pace, a se- pipes being lifted by crane knocked nior member at the Cavanagh Law a worker into the side of a ship. He Firm in Arizona. fell into the water and never sur- There are many ways to attack faced.

In 2008, a worker in Houston was got something in return — a com- crushed by a truck that came loose pany pledge to adopt a new policy. from the crane loading it onto a Others who have dealt with Gulf ship. The next year, in Brownsville, Stream Marine have been less for- a large chain suspended from a giving than OSHA. “We’re getting crane got stuck, then snapped loose people killed out there for no rea- and hit a worker in the head, killing son,” said George Gavito, who re- him. An employee in Houston was cently retired as chief of the Port of run over by a truck in 2010, and, Brownsville’s police department. the following year, a truck driver Gavito said he constantly clashed in Brownsville was hit with a 40-ton with the company over safety issues. metal beam and killed. Brownsville is near the Mexican In one case, OSHA deleted two border, and many workers are poor serious violations carrying a $9,800 immigrants, he said. “They’re not penalty after Gulf Stream Marine’s going to raise hell,” he said. safety director sent the agency a Lawyer Bill Tinning has battled map showing the areas of the port Gulf Stream Marine twice. In 2005, leased by the company and the areas he represented a worker who was controlled by the Port of Browns- offloading large pipes from a truck ville. A spot labeled “incident site” when one came loose and crushed showed the accident occurred just his head, leaving him in a vegeta- outside the area under Gulf Stream tive state. Marine’s control. OSHA noted in In 2003, he sued on behalf of the file, “The evidence suggests the family of a worker who had Gulf Stream Marine … had no con- been crushed to death by a load trolling authority over safety and that came loose from a crane Gulf health.” The citations vanished. Stream Marine was operating. Tin- In another case, OSHA deleted ning alleged in court filings that two serious violations carrying a the company replaced key parts $10,000 fine because “there were is- of the crane immediately after the sues” with the phrasing of the regu- accident, started disposing of the lations cited, OSHA told the Cen- crane even though there was an ter. In a third case, OSHA deleted ongoing OSHA investigation and two serious violations and a $10,000 withheld information about the ac- fine in a settlement. OSHA said it cident — claiming that one inves-

tigator Tinning wanted to depose “This should never happen,” was a “non-existent person.” he said. “It’s an embarrassment if “It was the most outrageous con- you’ve got fatality cases and cita- duct I’ve run across,” Tinning said. tions deleted.” Gulf Stream Marine refused repeated requests for comment. The ‘I think about it a lot’ company contested the violations in each of the six deaths and, in Every Monday morning at 6:30, the settlement agreements, has denied management and employees at Cru- breaking the law. cible Specialty Metals met to talk OSHA defended its handling of safety. Speaking for the workers on Gulf Stream Marine, saying “viola- the mill floor often fell to Rocky Sac- tions have been abated that could cone, who embraced the role. “They have lingered for years had we not would say, ‘Rock’s on a roll; let him settled the cases.” go,’ ” Saccone recalled. “It would be The agency acknowledged, how- days or weeks or months before they ever, that officials in Houston had would address these issues on the failed to flag the inspection of the mill, and they wonder why you get 2008 death as meeting the crite- upset. It was like pulling teeth.” ria for the agency’s “Enhanced One issue that repeatedly sur- Enforcement Program.” Had they faced, he said, was installing done so, there would have been re- guards to enclose the rotating quired follow-up inspections and shafts on the mill — like the ones perhaps visits to other company that crushed Jack Grobsmith. “It sites. These inspections, OSHA should have been corrected years said, might have prevented future and years ago,” he said. accidents. A few years before Grobsmith’s John Newquist, a former assis- death, Saccone said he nearly suf- tant regional administrator for fered the same fate when the sleeve OSHA who retired this year, said of his shirt touched an unguarded Gulf Stream Marine’s record and shaft. “It ripped it right off in about OSHA’s handling of the death cas- half a second,” he recalled. “All es “should trigger maybe an outside that was left was the collar of my review of it because there’s some- shirt. The rest of the shirt was dis- thing wrong.” integrated.”

Then, in May 2008, another proved the settlement between worker’s shirt was caught in an un- Crucible Specialty Metals and guarded bar straightener, federal OSHA, a private equity firm final- records show. He was flipped over ized its purchase of the company. A and injured. OSHA investigated few months later, OSHA received and issued a citation. By that time, a letter, this time on Crucible In- OSHA had already cited the com- dustries letterhead, saying it would pany multiple times — in 1997 take longer than initially agreed to and again in 2002 — for failing to have machines guarded. An inspector noted portentously in 2002, “Potentially an employee could trip or slip … and be caught in the two rollers.” Though OSHA said Crucible fixed the specific problem cited in 2008, the agency told the Center: “The company should have Sue and Jack Grobsmith hold their grandchildren, installed guards on similar Evan and Jack, who was named for his machines throughout the grandfather. Family photo plant.” Had Crucible done so, “this may have prevented” Grobsmith’s death, OSHA wrote. fix the problems inspectors found. In 2009, OSHA’s Syracuse area The company “does not admit it director authorized the maximum bears responsibility for any cita- fine for violations related to Grob- tions and penalties … issued to and smith’s death “to get the necessary incurred by the previous owners.” It deterrent effect,” he wrote in a maintained it was correcting cited memo, noting the company’s histo- hazards “in the interest of provid- ry of accidents and failure to guard ing of Crucible Industries’ employ- machines. ees a safe workplace.” Three days after a judge ap- Both the settlement agreement

and the letter were signed by the gate the contractors who installed the same person. equipment. Crucible, however, said Crucible employees said that, it couldn’t find any of the contracts. with new owners, there have been “Clearly, Crucible … was to blame,” safety signs both positive and nega- the lawyer wrote to her. “Unfortunate- tive. “I want to believe that the peo- ly, with all of this evidence against the ple up top want the cultural change employer, we still can’t sue them.” and want it to work, but I’m not sure Now 59, Sue works for the local it filtered all the way down,” said Ed school district and keeps in touch Moran, the safety chairman for the with Jack’s friends from Crucible. United Steelworkers’ local. One recent fall day, Saccone and After her husband’s death, Sue Dave Peel, another longtime friend Grobsmith considered a lawsuit. Be- from Crucible, sat with Sue in the cause of state workers’ compensation living room of the house she and laws, she couldn’t sue Crucible; her Jack bought 32 years ago, drinking lawyer’s only option was to investi- coffee and talking about Jack. About the data and analysis he Center for Public Integrity’s analysis relies on data from multiple sources, including the Occupational Safety and THealth Administration, the Treasury Department and the Jus- tice Department. Using the Freedom of Information Act, the Center obtained an extract of OSHA’s master database of inspection records, known as the Integrated Management Information System, or IMIS. The portion received by the Center contains information about more than 1 million workplace safety and health inspections conducted from Jan. 1, 2001, to the date in early August 2012 when the data were provided. In analyzing both penalties initially imposed by OSHA and penalties ultimately collected, the Center used only cases considered “closed” by the agency. This excluded some recent cases in which an employer may still be contesting violations or in which OSHA,

Sue and Jack started dating in cues, graduations, weddings. 1969, in high school. “Right out of “He’d have me in tears at times high school, I worked for Allstate because he’d be so damn funny,” Insurance, Jack went to school and Rocky said. “It could be an old, we knew we were going to get mar- stale joke that I would still laugh at ried,” Sue said. When Jack finished at after 30 years.” a two-year college, he planned to go Inevitably, the conversation re- back to school and become a teacher turned to Jan. 15, 2009. As Rocky de- and coach. Yet a summer job at Cru- scribed running to Jack’s battered cible changed his mind; the promise body, Sue’s expression changed. “I of a good paycheck enticed him. didn’t know that you were the first They married in 1972 and had there,” she said, grabbing his hand. three children. As Jack ascended “Thanks, Rock.” the ranks at Crucible, double shifts Rocky paused, and his eyes welled. became common. He became close “I think about it a lot,” he said. “I still with co-workers, sharing barbe- do. I think about it a lot.” n

the Treasury Department or another entity is still attempting to collect a fine. When calculating penalties initially imposed, the Center included violations and their accompanying fines that were later deleted as part of settlement negotiations or the litigation process. The Treasury Department agreed to provide data on OSHA debts collected under its cross-servicing program for the fiscal years 2006 to 2012. Collection rates were calculated using the total amount collected and the total amount referred in a given year. Data that would trace individual debts across years was not available. Referrals of OSHA debts to the Justice Department can come from either OSHA or the Treasury Department. Data on such referrals by the Treasury Department was included in what the department provided. The Justice Department’s data went back only to 2008. Col- lections for all agencies by the Justice Department are contained in annual reports to Congress by the Treasury Department’s Financial Management Service. n

Ray Marcum, left, and Thomas Marcum share fishing stories at Jenny Wiley State Park near Prestonsburg, Ky. James Crisp/AP Images for The Center for Public Integrity Black lung surges back in coal country By Chris Hamby Published Online: July 8, 2012

RESTONSBURG, Ky. — out of the back pocket of his jeans. Ray Marcum bears the marks “I started chewing in the mines to Pof a bygone era of coal min- keep the coal dust out of my mouth,” ing. At 83, his voice is raspy, his east- he says. ern Kentucky accent thick and his Plenty of that dust still found its forearms leathery. A black pouch of way to his lungs. For the past 30 Stoker’s 24C chewing tobacco pokes years, he’s gotten a monthly check

to compensate him for the disease lung would be virtually eradicated. that steals his breath — the old bane Marcum doesn’t have to look of miners known as black lung. far to see that hasn’t happened. In mid-century, when Marcum There’s his middle son, Donald, worked, dust filled the mines, who skipped his senior year of high largely uncontrolled. Almost half of school to enter the mines here near miners who worked at least 25 years the West Virginia border. At 51, he’s contracted the disease. Amid strikes had eight pieces of his lungs re- throughout the West Virginia coal- moved, and he sometimes has trou- fields, Congress made a promise in ble making it through a prayer when 1969: Mining companies would have he’s filling in as a preacher at Solid to keep dust levels down, and black Rock Baptist Church.

Key Findings ● After decades of decline, black lung is back. Its resurgence is concentrated in central Appalachia. Younger miners are increasingly getting the most severe, fastest-progressing form of the disease. ● The system for monitoring miners’ exposure to the dust that causes black lung allows companies to cheat or exploit loopholes. From 2000 to 2011, the federal Mine Safety and Health Administration, MSHA, received more than 53,000 valid samples showing an underground miner had been exposed to more dust than was allowed, yet the agency issued just under 2,400 violations. This may be attributable, in part, to rules that allow samples to be averaged, potentially masking some miners’ high exposures. ● Even when companies get caught, they have little to fear. They can take five of their own dust samples to prove compliance, and an MSHA citation goes away. The agency has routinely given companies extra time to fix cited dust problems, granting extensions in 57 percent of cases between 2000 and 2011. ● Miners have been exposed for years to excessive amounts of toxic silica dust, generated when powerful machines cut through rock. In each of the past 25 years, the average valid silica sample was above the allowed limit.

There’s James, the youngest, who passed on college to enter the mines. At 50, his ability to breathe is rapidly declining, and his doctor has already discussed hooking him up to an oxygen tank part-time. Both began working in the late 1970s — years after dust rules took effect — and both began having symptoms in their 30s. Donald now has the most severe, fastest- progressing form of the disease, known as complicated coal workers’ pneumoconiosis. James and the oldest Marcum son, Thomas, 59, have a simpler form, but James has reached the worst stage and is deteriorating. Men with lungs like the Mar- cums’ are not supposed to exist. In the hard-won 1969 law, Congress Bottom row from left: Ray Marcum, demanded that dust be controlled Donald Marcum, (Top row from left) Thomas Marcum and James Marcum and new cases of disease be pre- pose for a photograph at Jenny vented. The idea was that, even if Wiley State Park near Prestonsburg, black lung didn’t disappear, there Ky. Each has black lung, despite a would be a small number of mild 1969 law designed to eradicate the cases and virtually no one like Don- disease. James Crisp/AP Images for ald and James Marcum, said Dr. The Center for Public Integrity Donald Rasmussen, a pioneer in recognizing and diagnosing black lung. miners, said in a recent interview at “In 1969, I publicly proclaimed his office in Beckley, W.Va. “I was that the disease would go away be- dead wrong.” fore we learned more about it,” Ras- Throughout the coalfields of Ap- mussen, now 84 and still diagnosing palachia, in small community clin-

What is black lung?

Healthy lung Early stages Late stages

Miners get coal workers’ pneumoconiosis, known as black lung, by breathing tiny dust particles generated when powerful machines cut through coal and rock. Over time, dust collects in miners’ lungs and causes breathing difficulties. In the early stages, miners may not notice any symptoms. As the disease progresses, the lungs become scarred, shriveled and black, and miners often develop a cough or shortness of breath. In the late stages of the most severe form of the disease, known as progressive massive fibrosis, miners have to struggle for each breath. Read more at NPR. Images: NIOSH

ics and in government labs, it has tailor-made for cheating, and min- become clear: Black lung is back. ing companies haven’t been shy The disease’s resurgence rep- about doing so. Meanwhile, regula- resents a failure to deliver on a tors often have neglected to enforce 40-year-old pledge to miners in even these porous rules. Again which few are blameless, an inves- and again, attempts at reform have tigation by the Center for Public failed. Integrity and NPR has found. The A Center analysis of databases system for monitoring dust levels is maintained by the federal Mine

Safety and Health Administration central Appalachia by the National found that miners have been breath- Institute for Occupational Safety ing too much dust for years, but and Health, NIOSH, a government MSHA has issued relatively few vio- research agency. Though levels of lations and routinely allowed com- disease are still below what they panies extra time to fix problems. were before 1970, medical experts MSHA chief Joe Main issued a and miners’ advocates are alarmed. statement in response to the find- “I think any reasonable epidemi- ings: “The current rules have been ologist would have to consider this in effect for decades, do not ade- an epidemic,” said Scott Laney, a quately protect miners from disease NIOSH epidemiologist. “All cases of and are in need of reform. That is [black lung] are preventable in this why MSHA has proposed several day and age, but these cases of [the changes to overhaul the current most severe form] are just astound- standards and reduce miners’ ex- ing … This is a rare disease that posure to unhealthy dust.” Similar should not be occurring.” attempts at reform have died twice The National Mining Associa- before. tion, the main trade group repre- From 1968 through 2007, black senting mining companies, disputes lung caused or contributed to some of NIOSH’s data but agrees roughly 75,000 deaths in the Unit- that black lung’s resurgence is a ed States, according to government problem in need of attention. To the data. In the decades following pas- association, however, it is primarily sage of the 1969 law, rates of the dis- a regional phenomenon of central ease dropped significantly. Then, in Appalachia — one that doesn’t jus- the late 1990s, this trend reversed. tify new national rules. What’s need- Many of the newer cases have tak- ed, the group says, is further study en a particularly ugly form. While and better enforcement of current rates of black lung overall have standards. increased, incidence of the most Researchers are struggling to ex- severe, fast-progressing type has plain what, after years of progress, jumped significantly. These cases, has caused the backsliding and why moreover, are occurring in younger black lung, traditionally viewed and younger miners. Of particular as an old man’s disease, is striking concern are “hot spots” identified in younger and younger miners and

robbing them of their breath faster unit, in part, that NIOSH has docu- and faster. They are trying to figure mented the return of black lung. For out why men like the Marcums are decades, miners have been entitled the new face of black lung. to free X-rays every five years, and this has helped track the drop in the ‘A diabolical torture’ disease’s prevalence. After the data started showing a reversal, NIOSH “They call me Lucky,” retired miner sent its RV out to gather more data James Foster says as he takes off his in 2005. shirt and presses his chest against an What these researchers found, X-ray machine in the back of an RV combined with data from routine in Wharton, W.Va. “Worked 37 years medical monitoring, was worrisome: in all kinds of mines. Been covered From the 1970s through the 1990s, up twice. Been electrocuted.” the proportion of miners with signs His brushes with death aside, he’s of black lung among those who sub- here because he fears there may be mitted X-rays dropped from 6.5 per- one hazard he can’t dodge. “I come cent to 2.1 percent. During the most in here to file for my black lung,” he recent decade, however, it jumped says. During a recent heart surgery, to 3.2 percent. he says, doctors said they saw what Even more disturbing: Prevalence appeared to be signs of the disease. of the most severe form of the dis- He’s one of a handful of min- ease tripled between the 1980s and ers on an April afternoon to move the 2000s and has almost reached through the RV parked at the fire the levels of the 1970s. department in Wharton, in the In a triangle of Appalachia — heart of coal country. Inside, a team southern West Virginia, eastern of NIOSH workers shepherds them Kentucky and western Virginia — from station to station: medical his- the numbers were even higher. The tory, questionnaire, breathing test, rolling unit found a disease preva- chest X-ray. Foster hopes the tests lence of 9 percent in Kentucky from will provide evidence he can use to 2005 to 2009, for example. submit a claim for benefits. Other A wake-up call for some came af- miners are still working and want to ter the Upper Big Branch explosion make sure their lungs are clear. in southern West Virginia in April It is from this rolling medical 2010, which killed 29 miners. Of

the 24 who had enough lung tissue ing to thinner seams surrounded for an autopsy, 17 had signs of black by more rock. At the same time, lung. Some had fewer than 10 years because of the price of coal and ad- of experience in mines; they ranged vances in mining equipment, it now in age from 25 to 61. makes more sense economically The disease leaves miners’ lungs for companies to cut through large scarred, shriveled and black. They amounts of rock to get at the coal. struggle to do routine tasks and are Companies haul it all out and then eventually forced to choose between separate the rock from the coal at eating and breathing. processing plants. “No human being should have “In central Appalachia, you look to go through the misery that dy- at what’s coming out of the mines, ing of [black lung] entails,” said and it’s probably 60 percent rock Dr. Edward Petsonk, who treats pa- on a good day,” said Rick Honaker, tients with black lung and works with a University of Kentucky professor NIOSH. “It is like a screw being slow- who consults for mining companies ly tightened across your throat. Day and has seen their data. and night towards the end, the miner NIOSH research suggests this struggles to get enough oxygen. It is may be having an effect. A particu- really almost a diabolical torture.” lar marker on a chest X-ray is often indicative of silica-related disease. Underpinnings of an epidemic Comparing miners’ X-rays taken from 2000 to 2008 with those taken There are theories about why the during the 1980s, researchers found disease has returned, but no de- that the proportion bearing these finitive answers. One likely explana- markers had nearly quadrupled tion: Miners are breathing a more and, in central Appalachia, had in- potent mix of dust. Coal seams are creased almost eight times over. surrounded by rock, much of which Rules are supposed to limit the contains the mineral silica. When amount of silica in the air in mines, ground up, silica is more toxic to the but a Center analysis of MSHA’s lungs than coal dust and can cause dust sampling database, obtained faster-progressing disease. under the Freedom of Information With larger coal seams becom- Act, shows that the agency has long ing mined out, companies are turn- failed to control silica dust.

Powerful mining equipment, such as longwall and continuous mining machines, can chew through coal and rock quickly, potentially generating large amounts of dust than can reach miners’ lungs. The number of tons of coal produced per hour of work has roughly tripled since the late 1970s.

Longwall mining machine hydraulic jacks A longwall uses spinning shearers to slice through panels of coal as large as 1,000 feet wide and a couple miles long.

pillars panel

Continuous mining machines Continuous mining machines use a rotating drum equipped with teeth to carve out roughly 20-foot-wide rooms in the coal, leaving pillars to help support the roof. Many are now operated by one man with a handheld remote control.

Longwall images/ Wikimedia Commons Graphic by Ajani Winston/iWatch News

In each of the past 25 years, the average of all silica samples — taking into account only those deemed valid by MSHA — has been higher than the allowed limit. Last year, for example, roughly 40 percent of the valid samples were above this limit. What’s more, the limit MSHA enforces is already twice the level NIOSH de- Coal is trapped in seams between layers of rock, termined to be safe in and the thickness of a coal seam can be anywhere 1974. from a few inches to a dozen feet or more. By now, The National Mining many of the thicker, more accessible seams have Association contends been mined out. The price of coal and the advent of more powerful machines have made it economical that what appears to be for companies to go after thinner seams, which a nationwide increase often entails cutting through more rock containing in black lung is actually the mineral silica. When ground up, silica is more a spike in silica-related toxic to miners’ lungs than coal dust. In the regions disease in Appalachia. hardest-hit by the resurgence in black lung, X-ray “The problem here is, evidence indicates an increase in silica-related look, these people were disease. Graphic by Ajani Winston/iWatch News overexposed to horren- dous levels of silica, for God’s sake,” said Bob Glenn, an ex- for the uptick in disease: The num- pert hired by the association. “Why ber of hours worked by miners has hasn’t something been done?” steadily increased over the past three To the association, this means decades, MSHA data show. Ten- and there is no need for a new rule on 12-hour shifts and six- or seven-day coal dust, just better enforcement of workweeks are now common. the silica standard. “I have stayed [in a mine] some- Another possible explanation times two days and never come out,”

said Donald Marcum. Sometimes, or three times a week and plays with he said, “you’d just lay down beside him for as long as his lungs can take. the power box, sleep an hour or two “My biggest fear,” he said, “is I won’t and stay right there.” live long enough for him to remem- Longer hours mean more expo- ber me.” sure to dust and less recovery time. The lungs can clear some dust by Decades of cheating themselves if given the chance, and many miners said in interviews that Donald Marcum knew he was at least they often spit up a mixture of mu- a passive participant in something cus and dust. that was against the rules, maybe even At the same time, production has criminal. Every couple of months, increased, thanks in part to pow- his bosses had to send MSHA five erful new equipment. A longwall samples showing they were keeping shearer, for example, can carve out dust levels under control. The man huge swaths of coal in little time. with the greatest potential exposure Mark McCowan ran one of these — often Donald because he was run- behemoths for the final years of his ning a continuous mining machine, career. “By the time I was 40 years which chews through coal and rock old, I had mined more coal than and generates clouds of dust — was most miners mine in a lifetime,” he supposed to wear a pump to collect recalled, sitting in his living room in dust for eight hours. Pounding Mill, Va. “You would get That almost never happened. in some areas of the coal face where, Most of the time, he said, the mine when you mine, you can’t see the foreman or someone else would take hand in front of your face. … I would the pump and hang it in the cleaner eat so much dust I would throw up.” air near the mine’s entrance. McCowan was diagnosed with When MSHA inspectors showed black lung at age 40. His disease up to take their own samples, it wasn’t has progressed to the most severe so easy to cheat. Donald would actu- form; now 47, he finds it harder and ally wear the pump, but he and his harder to breathe. He pointed to a co-workers would mine only about photo of a beaming, blond-haired half as much coal as they normally 2-year-old on his wall — his grand- did, generating far less dust. son, Haiden. McCowan sees him two “We just done what we was told be-

cause we needed to feed our families a claim with the state or the U.S. and really didn’t look at what it might Department of Labor to try to get be doing to our health,” he said. benefits. But Bailey takes a differ- Donald’s experience echoed what ent tack, drawing on a state law that Center and NPR reporters heard allows workers to sue their employ- from retired miners throughout er in cases of knowing exposure to West Virginia, Kentucky and Virgin- dangerous conditions. ia who had worked underground as This often amounts to proving recently as 2008. Dust pumps ended that the company manipulated its up in lunchboxes or mine offices. dust samples. In depositions, miners Mine officials stalled regulators who have described hanging dust pumps had shown up for a surprise inspec- in cleaner air or getting advance tion and radioed to the men under- warnings of inspections. Over the ground, who fixed the ventilation past eight years, he’s handled about and cleaned up the work site. 40 such cases. In each case, he said, It’s difficult to tell how wide- the coal company eventually settled. spread such practices are, but many “These are criminal acts,” Bailey former miners described some vari- said. “What’s different about these ation of cheating occurring regu- black lung cases is that the cheating larly at almost every mine where is such a part of everyday practices.” they had worked — and a culture of Then there are the numbers fear fostered by the companies. “We themselves. For decades, the average always set and thought, you know, sample submitted by a coal company maybe if we didn’t do it this way, that has been far below the limit. NIOSH they’d come in and shut the mines researchers used a formula to esti- down. Then we’d be out of work,” mate the prevalence of black lung said David Neil, a 52-year-old West that would be expected based on the Virginia miner with black lung who dust samples and compared this with now drives a coal-hauling truck. the disease rates actually occurring. Tim Bailey, a lawyer in Charles- What the researchers found was ton, W.Va., zeroes in on this type of surprising: The two didn’t match up cheating when he sues a coal com- at all. In some areas of the country, pany on behalf of a miner with black there was actually less black lung lung. In general, the only option for than they’d predicted. But in cen- miners who get the disease is to file tral Appalachia, the disease rates

were much higher — more than “I don’t know if any [cheat- three times the predicted levels in ing] is going on today,” said Bruce eastern Kentucky, for example. Watzman, the National Mining As- It was possible, researchers con- sociation’s senior vice president for cluded, that the nature of the dust regulatory affairs. “I hope not. We had become more potent. Another encourage our members to fulfill possibility: The dust samples reflect- their obligations under the law.” ed the results of rampant cheating. Cheating aside, the system for Many of the games described by monitoring dust levels is almost de- miners today remain unchanged signed not to detect problems. Nor from those outlined by miners who has MSHA always been swift to act testified at a 1978 MSHA hearing. when violations do surface. The early 1990s saw the “abnor- From 2000 to 2011, MSHA re- mal white center” scandal, in which ceived more than 53,000 valid sam- MSHA figured out that many coal ples — both from companies and company officials had blown dust off its own inspectors — that showed the sampling filters, leaving a white an underground miner had been center, before submitting them. A exposed to more dust than was al- spate of criminal convictions of com- lowed, yet the agency issued just un- panies and some employees and con- der 2,400 violations, a Center analy- tractors followed. This time period sis of MSHA data showed. accounted for the bulk of the 185 This may be attributable, in part, guilty pleas or convictions for dust to the way the rules are written. sampling fraud between 1980 and When companies submit five sam- 2002, according to data provided by ples to MSHA, some are allowed to MSHA to the Center and NPR. be above the limit. Only the average The agency said it had no records of these five has to be low enough, of criminal convictions or guilty allowing companies to negate high pleas since 2002 and wouldn’t say samples taken from miners en- whether any criminal cases had shrouded in dust. What’s more, the been pursued. MSHA did provide pump runs for only eight hours, data indicating that it had decerti- even if the miner works 10 or 12. fied 14 mine officials since 2009, While an inspector is sampling, a pulling their authority to conduct company is allowed to mine as little dust samples. as half the amount of coal it normal-

ly does. Companies that typically counted for about 30 percent of the cared little about hanging curtains nation’s dust sampling violations, to keep air flowing through the MSHA gave companies an extension mine or making sure water sprays about two-thirds of the time and al- used to suppress dust were working lowed, on average, about 58 extra suddenly did when it came time to days to prove compliance. sample, several miners said. Asked about these numbers, the Even when a company gets caught agency said in a statement, “The with samples that are too high, all majority of these extensions … are it has to do to make the citation go for good reasons such as getting ap- away is take five of its own samples proved dust controls implemented that indicate compliance. “The or allowing the operator time to col- analogy I use is, if I pull you over for lect additional samples to submit to speeding, going 80 in a 50,” Bailey MSHA.” said, “and I tell you … here’s a journal, and I want you to record your A roadmap for reform speed on this same piece of road for the next five days. And, if at the end Even before the reappearance of of those five days, your speed is be- black lung, the need for change low the speed limit, then I am going was apparent. A proposed MSHA to tear your ticket up.” rule led to hearings in 1978, during Sometimes MSHA has allowed which miners testified to widespread dust citations to go uncorrected for manipulation of dust samples. That weeks or even months, potentially proposal stalled and was withdrawn leaving miners overexposed, a Cen- by the Reagan administration. ter analysis of agency data shows. In 1995, NIOSH reviewed the sci- MSHA sets a date by which a viola- entific evidence and concluded that tion must be fixed, but, from 2000 the limits for both coal dust and sili- to 2011, the agency granted exten- ca should be cut in half and periodic sions for 57 percent of the violations. medical exams for miners should be Long extensions have been par- enhanced. The same year, the secre- ticularly common in southern West tary of labor appointed a committee Virginia, one of the key “hot spots” to determine how to eliminate black of disease resurgence identified lung. by NIOSH. In this area, which ac- The committee’s report offered a

roadmap for reform. It recommended that MSHA consider lowering the coal mine dust standard. It suggested the agency reduce miners’ silica exposure and establish a separate limit for this more potent type of dust. Samples should be taken while the mine was producing at least 90 percent of what it normally did, the panel said, and samples Online Video: A 1980 MSHA video about should be adjusted to reflect black lung disease longer work shifts. Perhaps its strongest rec- ommendation: “The committee who was chairman of the committee believes that the credibility of the and is now an emeritus professor current system of mine operator at the University of Massachusetts sampling to monitor compliance Lowell’s School of Health and Envi- with exposure limits has been severe- ronment. ly compromised. … One of MSHA’s History may be repeating itself. highest priorities should be to take MSHA proposed a rule in 2010 that full responsibility for all compliance would cut the overall limit for dust sampling.” in half and require companies to In July 2000, MSHA proposed a use continuous personal dust moni- rule that would have adopted some tors, which would provide real-time of these recommendations. Before measurements. The current pumps the rule became final, though, have to be sent to a lab, where analy- George W. Bush took office, and the sis can take weeks. rule died. Under the rule, the samples “It’s really fairly remarkable that would be weighted to account for we came up with these recommen- shifts longer than eight hours, and dations back in 1996 during a Dem- companies could be cited for a sin- ocratic administration, and nothing gle sample over the limit — rather has happened,” said David Wegman, than an average of five — or a week-

ly accumulation of exposure above the early 1980s and the early 2000s: a certain limit. The rule would also the death of reform. expand the free X-ray monitoring program to include lung function ‘I never said nothing’ tests and medical assessments. Still, the rule leaves much of the In coal country, weakness is a sin. sampling in the hands of the coal Mining is just about the only career companies themselves. Asked why, choice, and one generation often Main said, “It’s an enormous task for follows another underground. the government to take on.” Convincing a miner to go to a Even industry favors MSHA’s tak- clinic, get an X-ray or file a claim ing over all compliance sampling. for benefits can be a challenge. “We need to get to a point where “They’re not going to come and we remove this cloud of controversy complain about how they feel, just and instill in the minds of every- because that’s part of our culture,” one that the samples are accurate,” said Debbie Wills, sitting in the clin- the National Mining Association’s ic in tiny Cedar Grove, W.Va., where Watzman said. she helps miners get evaluated and There isn’t much in the rule that file for black lung benefits. the association supports, however. At the same time, fear is almost The real-time dust monitors — a as deeply rooted. Many miners don’t centerpiece of the proposal — are want their employers to know they still not accurate enough to be the have signs of black lung — or even basis of citations, Watzman argued. that they’ve been X-rayed. Anita Dennis O’Dell, safety director for Wolfe, who runs NIOSH’s surveil- the United Mine Workers of Amer- lance program and is often out with ica, said the few problems with the the RV that screens miners, said she monitors are “little things that can has seen men approaching on foot be tweaked.” The union favors the from miles away because they didn’t proposed rule, though it would like want anyone to see their cars parked to see portions of it changed. nearby. All of this may be moot. A presi- Thanks to a rule MSHA issued dential election is approaching, and in 1980, a miner whose X-ray shows many fear a change in administra- signs of black lung receives a letter tions could mean what it meant in that requires his employer to trans-

fer him to a less dusty job and pay ther, having filed for black lung ben- him the same as before. The miner efits a few years earlier, encouraged alone sees the letter, and he can use him to go to school and stay out of it whenever he wants. the mines. Only about 30 percent of the Nonetheless, James took a sum- nearly 3,000 letters issued to miners mer job at a mine to earn money since 1980 have been used, accord- for college. “I started earning them ing to MSHA data provided to the $800-a-week paydays and said, ‘Why Center and NPR. would I want to go to college when Sometimes miners avoid screen- I’m earning this kind of money?’ ” ing because they just don’t want he recalled, standing in the shadow to know. A diagnosis of black lung of Dewey Dam at the family’s annual would likely mean having to leave picnic at Jenny Wiley State Park in the mines — the best-paying job Prestonsburg, Ky. around and the only way they know He spent about 90 percent of his to provide for their families. “It’s 20-year mining career, he estimat- very known throughout the coal ed, operating a continuous miner. community there’s no cure for this,” In 1991, the motor of the machine Wills said. “They want to pretend he was running caught fire, and like everything’s OK until they just smoke overcame him. can’t do it anymore.” When doctors examined him All of this has led NIOSH to be- and took X-rays, they found what lieve that the resurgence of black appeared to be black lung. James lung may actually be worse than kept the news to himself and didn’t its numbers reveal. “We know that file for benefits, afraid he’d lose his there is disease out there that we are job if he did. “It was good money,” not identifying because miners are he said. “I had my kids to raise, and avoiding participation based upon I just had to work. … I never said disease status,” NIOSH epidemiolo- nothing. I just went on and done my gist Laney said. job.” Take James Marcum: He spent About six years later, James found his last semester of high school himself back in the hospital. He’d taking a class at the University of been caught between two pieces of Kentucky because he already had the continuous miner and injured enough credits to graduate. His fa- his back. Alone in that section of the

mine when the accident happened, socialized and Thomas talked to he finished his shift and went to the their father, Ray, over plates of fried hospital the next morning. chicken, coleslaw and potato salad, Doctors again took X-rays, and, James sat quietly. this time, his lungs were so bad he He glanced at his oldest son, 26, had to see a specialist. A biopsy con- who now works in a mine. Without firmed that he had black lung. realizing it, James paraphrased his Since then, breathing has be- father: “I tried to get him out. He come more and more difficult for won’t come out. He loves the job.” n him, especially during the past year. “I miss hunting bad,” he said. “I About this story: Our stories about used to take my boys hunting. But I black lung were jointly reported by the just ain’t able no more. … I ain’t got Center for Public Integrity and NPR the air to do it.” News as part of Hard Labor, an oc- The youngest of the three Mar- casional series on health, safety and cum brothers, he has shown the economic threats to U.S. workers. Ad- worst decline in lung function. At ditional reporting was provided by Ken the family’s picnic, while Donald Ward Jr. of the Charleston Gazette.

IMPACT Labor Dept. assembling expert team on mine dust enforcement after CPI-NPR investigation By Chris Hamby Published Online: July 13, 2012 ederal regulators are assembling a team of lawyers and other experts to consider how to bolster coal mine dust en- Fforcement given systemic weaknesses revealed by an investigation into the resurgence of black lung by the Center for Public Integ-

rity and NPR, according to an internal Labor Department communication. The effort, involving officials from the Mine Safety and Health Ad- ministration (MSHA) and other offices within the Labor Department, includes discussion of how regulators might be more aggressive in filing civil and criminal cases against mining companies that violate dust standards, the A coal miner performs a lung function test in communication says. a mobile clinic run by the National Institute The investigation by for Occupational Safety and Health (NIOSH) the Center and NPR in Norton, Va. David Deal/NPR documented a recent increase in cases of deadly coal workers’ pneumoconiosis, commonly known as black lung. It highlighted rampant cheating on dust sampling by coal companies, rules riddled with loopholes and weak enforcement. Black lung was supposed to have been eradicated after a 1969 law forced coal companies to control the amount of dust miners breathe. After declining from the 1970s through the mid-1990s, the disease has reappeared, in part because of flaws in MSHA regulations. The agency proposed a rule in 2010 that would close some loopholes but leave much of the dust sampling in the hands of coal companies, pre- serving a self-policing system critics and government panels have recommended eliminating for years.

MSHA spokeswoman Amy Louviere wouldn’t discuss specific plans by the agency but said: “[I]t is obvious more needs to be done. We’re carefully reviewing the issues that were raised by NPR and CPI, and are committed to taking whatever actions are necessary to end black lung disease.” In interviews, many retired miners, some of whom worked as recently as 2008, described placing dust-sampling pumps in relatively clean air rather than on miners working near the coal face, where the pumps were supposed to be. Similar practices have been described by miners testifying in recent court cases. Even when federal inspectors conduct sampling, companies are allowed to mine at half of their normal production pace, generating far less dust. Many miners described receiving advance warning that an inspector was coming, giving them time to improve ventilation and clean up work sites. From 2000 to 2011, more than 53,000 valid samples indicated that miners were exposed to excessive levels of dust, but MSHA issued just under 2,400 violations during that time, a Center analysis found. The disparity is likely attributable in part to rules that allow five samples to be averaged, negating some miners’ high exposures. Between 1980 and 2002, there were 185 criminal convictions or guilty pleas of companies or mine officials for dust sampling fraud, according to MSHA data. But the agency said it had no records of criminal convictions or guilty pleas since 2002 and wouldn’t say whether any criminal cases had been pursued. Since 2009, the agency noted, it has decertified 14 mine officials, removing their authority to conduct dust samples. Several members of Congress have issued statements in response to the Center-NPR investigation. “These groundbreaking reports should be a call to action for everyone connected to the mining industry,” said Sen. Tom Harkin, an Iowa Democrat. “I think the Department of Labor … is taking important steps to help break this deadly cycle, and I believe that it is the

moral obligation of everyone in the industry and every political leader that represents hardworking miners to help make these reforms a reality.” Rep. George Miller, a California Democrat, said: “Inaction should not be an option. Republicans should be working with Democrats to clear the bureaucratic hurdles so that long overdue protections can be finalized.” House Republicans inserted language in a recent budget bill that would bar MSHA from implementing its proposed coal mine dust rule until the Government Accountability Office has evaluated the need for it — an assessment that may be finished in August. n

FOLLOW-UPs GOP seeks to kill black lung reform By Chris Hamby Published Online: July 17, 2012 ouse Republicans inserted language in Ha budget bill unveiled Tuesday that would kill a proposed rule to protect coal miners from dust that causes black lung. Democrats on the House Committee on Appropriations objected, saying in a statement, “Recent reporting by NPR and the Center for Public Integrity U.S. Rep. Hal Rogers, a Kentucky has highlighted the need for Republican, is chairman of the House more effective ‘black lung’ dis- Committee on Appropriations. AP

ease prevention efforts as there has been a resurgence of the disease among coal miners.” The Center-NPR investigation found that, after decades of decline, black lung is making a comeback, increasingly afflicting younger miners with a more severe, faster-progressing form of the disease. The system for monitoring miners’ exposure to dust is riddled with loopholes, and regulators have sometimes failed to enforce even these rules. Mining companies have taken advantage of a self-policing system to manipulate dust sampling results for decades. In 2010, the federal Mine Safety and Health Administration proposed a rule that would close some loopholes, though it would still leave much of the sampling in the hands of mining companies. Last Decem- ber, House Republicans inserted language in a previous budget bill that would have barred any money from being spent to implement the rule until the Government Accountability Office evaluated whether the proposal was necessary. That study is on track to be released in August. The insertion of a paragraph into the new Labor Department’s budget bill goes further, barring the agency from using any money to continue developing the rule, issuing it or enforcing it. Both Denny Rehberg, the Montana Republican who wrote the bill, and Hal Rogers, chairman of the appropriations committee, are up for re-election this year, and both count the coal mining industry among their top donors. Rogers, a Kentucky Republican, has long been a champion of the industry, and mining companies have donated more to his campaigns over the years — about $378,000 — than any other industry. Neither Rehberg nor Rogers responded immediately to requests for comment Tuesday. The National Mining Association said in a statement that it “sym- pathizes with the chairman’s frustration at MSHA’s apparent unwillingness to consider seriously the constructive proposals we have made to address this problem directly and improve miners’ health.” The association, which represents primarily large mining companies, believes the increase in black lung is a regional problem con-

centrated in central Appalachia and not one that requires imposing new rules across the country. It has suggested a number of changes to the proposed rule. Rep. George Miller of California, the senior Democrat on the House Committee on Education and the Workforce, said in a statement: “Re- publicans are sending a message that profits for their wealthy campaign contributors are more important than the lungs and lives of America’s coal miners. The recent investigative report by several news organizations on the devastating impact of black lung and the lengths that some mine operations go to circumvent their responsibility to protect miners should have been a wakeup call. It’s clear that voices wealthier than coal miner families drowned out that message.” n

GAO report supports science behind black lung rule By Chris Hamby Published Online: August 17, 2012 esearch supports an Obama administration plan to reduce coal miners’ exposure to the dust that causes black Rlung, a much-anticipated Government Accountability Office report released Friday found. Last December, House Republicans inserted language into an appropriations bill requiring the study. No money could be used to implement a proposed coal mine dust rule until the GAO evaluated the research underpinning it, the rider said. The GAO report lends support to one piece of the federal Mine Safety and Health Administration’s efforts to address a resurgence of black lung, particularly in parts of Appalachia. A Center for Public Integrity-NPR investigation in July found that the disease has returned amid widespread cheating on required dust sampling by some mining

companies and enforcement lapses by MSHA. In October 2010, the agency proposed cutting in half the amount of dust to which miners could be exposed, but the proposal has drawn opposition from some in the mining industry and Congress. Some miners’ advocates worry the rule could die, as previous reform attempts have, if it isn’t finalized before the coming election. “Black lung is a growing health crisis,” Rep. George Miller, D-Ca- lif., said in a statement Friday. “But special interests and their congressional allies have repeatedly tried to stop the mine safety agency from updating its rules to address this disease. The GAO’s report shows that the latest line of attack was groundless and, as a result, unsuccessful. Opponents of the proposed rule attacked the science, but the study they called for shows the science to be sound: the proposed rule would reduce coal miners’ risk of developing black lung.” National Mining Association spokeswoman Carol Raulston said the GAO report hasn’t changed the organization’s position that the proposed rule is unnecessary. “The data do not seem to indicate that you’re going to get the kind of results you’d hope for with this approach,” she said. The increase in disease, the association contends, is confined to pockets of central Appalachia and is the result of miners breathing more dust from ground-up rock, not coal. What’s needed, Raulston said, is increased enforcement of standards meant to curb exposure to silica, the mineral in much of the rock surrounding coal seams that can cause a faster-progressing form of disease. The association has previously criticized some of the coal mine dust studies that the GAO determined were sound. In the report released Friday, the GAO concluded researchers “took reasonable steps to mitigate the limitations and biases in the data” and “used appropriate analytical methods.” Since last December, House Republicans have continued to attack the rule. A paragraph in this year’s appropriations bill, written by Montana Republican Rep. Denny Rehberg, would bar MSHA from us-

ing any money to continue work on the rule. Democrats on the committee objected, citing the Center-NPR investigation. Rehberg did not respond to a request for comment Friday. A spokesman for Rep. Hal Rogers, R.-Ky., chairman of the House appropriations committee and a longtime champion of the coal industry, said in a statement, “Our office understands that the House Appropriations Committee is reviewing the report, but it doesn’t appear that GAO answered the very specific questions posed by Congress.” n

IMPACT Federal inspectors step up enforcement of rules to prevent black lung By Chris Hamby Published Online: November 1, 2012 federal enforcement blitz targeting coal mines with potentially dangerous levels of dust found a host of viola- A tions at more than a dozen sites where conditions left miners at risk for developing black lung disease. Following the April 2010 explosion at the Upper Big Branch mine in southern West Virginia, regulators have focused on problem mines under a new special enforcement program. The most recent round of inspections, however, used new criteria to target mines likely to have problems controlling the dust that can lead to black lung. The inspections followed a Center for Public Integrity-NPR investigation that highlighted the resurgence of black lung disease and exposed widespread misconduct by coal companies and often-lax enforcement by the federal Mine Safety and Health Administration. In September, inspectors found more than 120 violations at 13 coal

mines. Many companies failed to ventilate working areas properly and relied on broken-down equipment to suppress dust, citations allege. Two of the mines cited are owned by Robert Murray, who has lent strong support to presidential candidate Mitt Romney. A representative for Mur- ray Energy Corp. could not be reached for comment Wednesday. The inspections focused heavily on mines in Appalachia, where the increase in black lung has been most dramatic. Overall, rates of the disease have declined since 1969, when, in a landmark law, Congress forced companies to control dust levels. In the late 1990s, however, the downward trend in disease rates reversed, and government researchers are documenting with alarm the return of black lung, which was supposed to have been eradicated years ago. Even more disturbing: Rates of the most severe form of the disease have tripled since the 1980s. Carol Raulston, a spokesperson for the National Mining Associa- tion, on Wednesday reiterated the industry’s position that the disease’s resurgence is a regional phenomenon of central Appalachia caused by increased exposure to silica — a mineral found in rock that is damaging to miners’ lungs — rather than coal dust. “If they’re just focusing on coal dust [in the special inspections],” she said, “they’re missing the implications of the latest health data.” The promise of the 1969 law has been undermined by rampant cheating on dust samples and exploitation of loopholes by coal companies, the Center-NPR investigation found. A Center analysis of MSHA databases found that miners have been breathing too much dust for years, but the agency has issued relatively few violations and routinely allowed companies extra time to fix problems. In 2010, MSHA proposed a rule that would lower miners’ exposure to coal mine dust and close some loopholes. Republicans in Con- gress have sought to block issuance of the rule, mandating a study of whether it was necessary by the Government Accountability Office. The study, released this August, supported MSHA’s proposal, but the rule remains in limbo. n

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 5 ©2013 Center for Public Integrity 82 Unchecked dust explosions kill, injure hundreds of workers By Chris Hamby Published Online: May 29, 2012

ALLATIN, Tenn. — Small weekend shifts, he said he could fires were a part of the job at hear the telltale popping sound of Gthe Hoeganaes Corp. metal dust sparking when it touched live powder plant 30 miles northeast of electricity. Nashville. By early 2011, some work- In the early morning of January ers later told investigators, they had 31, 2011, Sherburne was called to become practiced in beating down check out a malfunctioning bucket the flames with gloved hands or a elevator that totes dust through the fire extinguisher. plant. Near his feet, electrical wires The company’s own product fu- lay exposed. When the machine re- eled the fires. Scrap metal rolls started, the jolt knocked dust into into the rust-colored plant on the the air. A spark — likely from the town’s industrial periphery and is exposed wires, investigators later melted, atomized and dried into concluded — turned the dust cloud a fine iron powder sold to makers into a ball of flame that engulfed of car parts. Sometimes, powder Sherburne and a co-worker. leaked from equipment and coated “He’s burned over 95 percent of ledges and rafters. Under the right his body,” doctors told Sherburne’s conditions, it smoldered. wife, Chris, when she arrived at the Wiley Sherburne, a 42-year-old Vanderbilt University Medical Cen- plant electrician, sometimes told ter’s burn unit. “He’s not going to his wife how this dust piled up ev- live.” Her husband died two days erywhere, she recalled. On quieter later.

Wiley Sherburne, a 42-year-old electrician, and the Hoeganaes Corp. metal powder plant where he worked. Plant image, U.S. Chemical Safety Board, Sherburne image courtesy of Chris Sherburne.

The fires at the Hoeganaes plant the day before an explosion caused were not over. Another struck in fatal burns. March, then a third in May. In all, Each blaze here involved com- five workers died in accidents that bustible dust, a little-noticed dan- shook this small community. Each ger that has killed or injured at man left behind a wife and chil- least 900 workers across the coun- dren. One had four children under try during the past three decades. 11. Another became a grandfather The fuel has varied, but the effects

have been similarly devastating. In potential to result in fundamental Gallatin, it was iron. In Port Went- changes [for] safety and health in worth, Ga., sugar. In Kinston, N.C., the workplace.” plastic. Elsewhere, dust from sub- Representatives for Hoeganaes stances as varied as wood, nylon refused interview requests from the fiber, coal and flour sparked fires Center for Public Integrity. In a le- and explosions. gal filing, the company has denied Since 1980, more than 450 ac- violating safety standards at the cidents involving dust have killed Tennessee plant where Wiley Sher- nearly 130 workers and injured burne died. another 800-plus, according to a Center for Public Integrity analysis ‘All of a sudden one day, boom’ of data compiled by the federal Oc- cupational Safety and Health Ad- A dust fire is, in a sense, the result ministration and the U.S. Chemical of a perfect storm. The powder Safety Board. Both agencies, citing has to form a cloud in a confined spotty reporting requirements, say area and touch an ignition source, these numbers are likely significant such as a spark, flame or overheat- understatements. ed pipe. “It’s this unlikeliness that Yet a push to issue a rule protect- leads people to the false sense of se- ing workers from the danger has curity that it can’t occur,” said John stalled in the face of bureaucratic Cholin, an engineer who has inves- hurdles, industry pushback and po- tigated dust accidents for 30 years litical calculations, the Center for and has a consulting firm. Public Integrity found. Often, workers don’t know that OSHA, in a statement, said it the dust lurking on flat surfaces must “make difficult decisions as could, when dispersed in a cloud, to how to best allocate the agency’s fuel a violent explosion. But ex- limited rulemaking resources.” perts, worker safety advocates and While addressing dangers like com- government officials have been bustible dust and dangerous sub- sounding alarms for years. stances breathed by workers are im- Steve Sallman, a health and safe- portant, OSHA said, it “has placed ty official with the United Steel- a great deal of emphasis on broad workers union, still thinks about rulemaking efforts that have the the dust fire 20 years ago that se-

verely burned two of his co-workers at an Iowa plant making tires for Timeline agricultural vehicles. “It bothers me to this day because it was pre- Dispersion Confinement ventable,” he said. of dust of dust Hindsight in the wake of dust explosions has often revealed missed warning signs. Rarely does a company develop a dust problem over- night. Ignition Oxygen “It goes along for years with the source dust building up, building up, and Combustible dust everything’s fine, nobody’s harmed, nobody thinks anything about it,” Settled dust is said Sandra Bennett, an official at knocked loose and the Tennessee Occupational Safety spreads the fire and Health Administration, which investigated the Hoeganaes acci- Explosive Dust dents. “All of a sudden, one day, A dust fire is, in a sense, the boom.” result of a perfect storm. The Standards to address the danger powder has to form a cloud in have existed for more than 85 years, a confined area and touch an but following them is voluntary for ignition source, such as a spark, many plants. Where they do apply, flame or overheated pipe. Acci- enforcement is so haphazard that dents are unlikely, but, when they the association that sets the stan- occur, the result is often catastrophic. At least 900 workers dards believes this policing duty have been killed or injured in dust should be placed in OSHA’s hands. fires or explosions since 1980. The agency seems to agree. In 2009, OSHA announced it was May 2, 1878 starting the process of issuing a Flour dust triggers explosions rule to address combustible dust. that level the Washburn “A” Mill Three years later, the process is in Minneapolis, Minn., killing 18 still stuck in its early stages, and people. OSHA has given up on making sig-

nificant progress this year, moving the topic to its list of “long-term ac- Timeline tions.” Some experts point to key impediments OSHA faces: the po- 1924 tential cost of the sweeping rule, Guidance for preventing dust fires an anti-regulatory political climate and explosions is published by the and an increasingly drawn-out rule- National Board of Fire Underwrit- making process. ers and recommended by the Na- Top agency officials refused to tional Fire Protection Association. explain the rule’s status. In a statement, OSHA said, “Prevention of 1957 worker injuries and fatalities from The NFPA publishes Report of combustible dust remains a prior- Important Dust Explosions, ity for the agency.” But, the state- which includes information about ment said, developing the rule is more than 1,000 dust explosions between 1860 and 1956. “very complex,” and “could affect a wide variety of industries and work- 1970s place conditions. As a result it has A series of deadly grain dust ex- been moved to long-term action to plosions garner national attention. give the agency time to develop the analyses needed to support a cost- December 31, 1987 effective rule.” OSHA finalizes a rule to address News of OSHA’s decision the handling of grain dust. reached Chris Sherburne at the end of January, around the first an- December 11, 1995 niversary of her husband’s death. A nylon fiber dust explosion almost “I just couldn’t believe it,” she said. completely destroys the Malden “You put it on the back burner, and Mills textile facility in Methuen, that’s where it’s going to stay.” Mass., injuring 37 people. Her frustration is shared by victims’ families who have seen February 1, 1999 other health and safety rules simi- An explosion, likely spread by coal larly stalled, shelved or eviscerated. dust, kills six workers and injures Whether it’s combustible wood dust 36 at the Ford Motor Company’s at a sawmill, disease-inducing be-

ryllium at an aluminum smelter or lung-wrecking silica at an iron Timeline foundry, OSHA allows workers to face conditions that many experts River Rouge manufacturing plant and even the government’s own sci- near Dearborn, Michigan. entists consider unsafe. OSHA’s statement said it is “com- 2003 mitted to protecting workers,” but OSHA reviews the grain dust that “numerous steps in the regula- standard and concludes that it has dramatically reduced deaths tory process mean OSHA cannot is- and injuries in grain dust fires sue standards as quickly as it would and explosions. like.” 2003 Not the first time The U.S. Chemical Safety Board (CSB) investigates dust explosion Documented dust explosions have in three states — North Carolina, been killing workers since the late Kentucky and Indiana — involving 1800s or earlier, and technical pub- three different dusts — rubber, lications discussing the hazard date phenolic resin and aluminum — to the early 20th century. that killed 14 workers. The Chemical Safety Board, an independent federal agency, has 2006 examined a handful of major dust The board releases a broad study accidents and identified disturbing of dust dangers, identifying a trends. The board, however, can’t rash of accidents and recom- issue or enforce rules. Among the mending that OSHA issue a standard to protect workers. catastrophic accidents the board investigated, each plant also had a February 7, 2008 history of small dust fires that did A sugar dust explosion complete- little or no damage and prompted ly destroys the packing building little concern. at the Imperial Sugar refinery “You have to consider all those near Savannah, Ga., killing 14 fires as close calls for something workers and injuring at least that could kill somebody,” the another 36. board’s chairman, Rafael Moure-

Eraso, said in an interview. “Hoega- naes is precisely the case in point.” Timeline At the Gallatin plant, periodic small dust fires ignited in certain March 11, 2008 areas, investigators found. Some OSHA intensifies its special in- employees told state inspectors spection program targeting sites they put out blazes once or twice a that may have workers at risk month; others said the fires came from combustible dust. about once a week. Because the fires had done little July 29, 2008 damage, workers had come to ac- The U.S. Senate holds a hearing, cept them as part of the job, inves- and then-Sen. Barack Obama tigators found. That changed the declares it is “past time to issue a January day a dust cloud ignited standard to prevent these kinds and fatally burned Wiley Sher- of accidents.” burne and Wayne Corley. Two months later, investiga- April 29, 2009 tors found, a worker accidentally OSHA announces it will begin the process of issuing a rule to ad- knocked loose dust that had col- dress combustible dust. lected on a furnace and was engulfed in flames. He leaped off a September 24, 2009 ladder to safety and survived. The CSB releases a report detail- Then, on May 27, sparks trig- ing grave failures that led to the gered an explosion of hydrogen gas Imperial Sugar catastrophe, leaking from a pipe, investigators urging OSHA to “proceed expedi- determined. The blast knocked tiously” with a rule. dust loose from the rafters, and some of it ignited as it rained down January 31, 2011 on workers. “There was so much March 29, 2011; and May 27, 2011: dust in the air that you could only Three fires involving combustible see the areas where it was burning,” iron dust kill five workers and one employee told investigators. burn another at the Hoeganaes Three workers died, and two more Corp. plant in Gallatin, Tenn. were injured. Last year was not the first time

Hoeganaes had experienced the deadly potential of its iron dust. Timeline The May accident in particular bore “striking similarities” to one January 5, 2012 that occurred in 1992 at the com- The CSB releases a scathing report pany’s plant in Riverton, N.J., said on the Hoeganaes fires and urges the CSB’s lead investigator, Johnnie OSHA to publish a proposed com- Banks. bustible dust rule within a year. Twenty years later, Jeffrey Rich- ardson remembers that accident January 2012 well. It left him with third-degree OSHA releases its regulatory burns covering 97 percent of his agenda, moving the combustible body. He has one ear and one hand, dust rule to its list of “long-term though it has no fingers. His body actions” — items that don’t have is covered with skin grown in a lab; a currently planned regulatory action within the next year. it heals slowly and tears easily. “They said my foot and my eye- lids were the only place where I wasn’t burned,” he recalled recent- violations and $122,900 in fines as- ly. “I still to this day have a nurse sessed by the Tennessee regulators come every day to dress wounds after the 2011 accidents in Gallatin. that I still have ongoing.” As in the May 2011 accident, a hy- Optional standards, lax drogen explosion shook the build- enforcement ing, and burning dust fell from the rafters. Richardson recalls it cover- Many plants already are required ing him as he struggled to find an to follow rules addressing combus- escape route. “I could hear it siz- tible dust — at least in theory. zling and cracking,” he said. The National Fire Protection As- The company contested the 10 sociation, a nonprofit group that serious violations OSHA issued for sets an array of standards and con- the fire that burned Richardson, ducts research and training, first and the agency cut the fine from issued guidance in the 1920s. Since $22,500 to $15,300. Hoeganaes then, committees of industry of- is now contesting the 25 serious ficials and experts have updated

the association’s combustible dust third. He noted a list of concerns, standards regularly. Many experts including inadequate emergency praise the standards, and OSHA lighting and the need to keep exit often points to them as widely rec- routes clear. He didn’t mention ognized practices when citing viola- combustible dust. tions. The department eventually not- But two problems limit the stan- ed dust levels during inspections dards’ reach: They are optional in this January and March. Asked if many areas, and, where they apply, inspectors ever brought up combus- enforcement is often lax or nonex- tible dust with Hoeganaes before istent, experts have found. last year’s accidents, Fire Chief Wil- Some state and local govern- liam Crook said, “If they have, I’m ments have adopted the NFPA stan- not aware of it.” dards as part of their fire codes, The CSB found a similar pattern while others have chosen the Inter- after other accident investigations national Fire Code, which has gen- in Indiana and North Carolina: eral guidance on combustible dust Fire officials had missed dust prob- and references the NFPA codes lems in inspections before deadly without explicitly requiring compa- accidents. nies to follow them. Recognizing dangers that could Even where the rules apply, lead to dust fires and explosions those charged with enforcing them also can be a problem for compa- are typically state or local fire in- nies and their insurers. In investi- spectors. Inspections of indus- gations of four dust explosions that trial plants are rare, the CSB has killed 28 workers, the CSB found found, and inspectors are often ill- insurers had missed serious dust equipped to recognize even glar- hazards during audits in each case. ing dust hazards. “The rank-and- In Gallatin, the insurer Allianz file first line of code enforcement did note the potential risks from iron is totally ignorant of the problem,” dust in a 2008 audit. Hoeganaes com- Cholin said. missioned testing in 2009 and 2010 In Gallatin, the fire depart- that showed its dust was combustible. ment’s senior inspector visited the In August 2010, Hoeganaes hired a Hoeganaes plant in May 2011 — af- company to clean up the dust, ac- ter the first two fires but before the cording to a report by the state in-

spector examining the January 2011 2,800 inspections. Asked for an es- accident. But, the report notes, “it timate of the number of plants that was apparent that the employer was meet the criteria for inspection under not ensuring clean up [sic] was main- the program, though, OSHA said the tained through good housekeeping total was likely “in tens of thousands.” practices between these cleanings.” Applying the program without a Piles of dust up to four inches thick combustible dust standard in place sat on equipment throughout the means inspectors must resort to plant, the inspector found. issuing citations for rules not writ- Such breakdowns point to the ten to address dust. If dust is piling need for an OSHA standard, which up around the plant, for example, could lead to “broader recogni- housekeeping standards might ap- tion and the potential for stronger ply. If wires are exposed, electrical enforcement,” said Guy Colonna, safety rules might form the basis manager of the NFPA division that for a citation. oversees the association’s combus- OSHA can use the “general tible dust standards. duty clause” to cite companies for Still, enforcement by OSHA isn’t exposing workers to well-known a perfect solution. The CSB’s 2006 dangers not addressed by specific study found that OSHA inspectors standards. This approach, however, weren’t adequately trained to rec- often leaves the agency vulnerable ognize dust hazards. to industry challenge. In a statement, OSHA said it de- Consider Hoeganaes: The last veloped a three-and-a-half-day ses- time the plant was inspected by the sion to train its inspectors to rec- Tennessee Occupational Safety and ognize combustible dust hazards in Health Administration before the December 2007. But the agency can 2011 fires was in 2008. The inspec- get to only a fraction of the plants tor, Dave McMurray, visited the plant that may have dust problems. after the agency received informa- Since October 2007, OSHA has tion that a few workers had suffered been targeting plants that may have hearing loss — problems for which dust problems through a special en- he ended up citing the company. forcement program. During that While he was there, however, he time, the agency and its state coun- saw enough iron dust collecting terparts have conducted more than around the plant to cause concern.

“If you put your hand on the rail- tion. Among the legal arguments ings, it would come away black,” the company has raised: State of- McMurray, who is now retired, re- ficials are trying to enforce a com- called in an interview. bustible dust rule that doesn’t exist. Without a combustible dust standard, he felt his only option was to ‘Past time to issue a standard’ see whether workers were breathing levels of dust that might pose Four years ago, Jamie Butler sat on a health risk — a hazard for which a curb outside the burning wreck- there was a standard. The samples, age of the packing building at the however, weren’t above the limit. Imperial Sugar refinery in Port The monitors measured only what Wentworth, Ga., an industrial hub was in the air near the workers at near Savannah. His brother sat be- the time, not what had collected on side him. They’d escaped one of ledges and rafters. the worst dust explosions in U.S. McMurray felt there was little he history. could do. “It’s a whole world of dif- There had been a ball of flame, ference when we have a standard,” Butler recalled, and then fire every- he said. “When we have a specific where — on the walls, on machines, standard, we go for it.” At Hoega- in the air. Sugar dust had exploded naes, he said, “I went as far as I in a conveyor belt, then triggered thought I could.” blasts throughout the plant. Dust After the fires in 2011, state that had built up over the years regulators drew on a variety of fueled the explosions and rained standards to cite Hoeganaes. They down on Butler and his co-workers. alleged electrical safety violations, Butler had found a hole that had shoddy maintenance of the hydro- been blown in the wall and made gen pipe that leaked in May and it, with his brother, to the curb out- an inadequate emergency response side. They talked for a minute or plan, for example. They accused two, before emergency responders the company of allowing dust to loaded Butler into one ambulance build up throughout the plant and and his brother into another. “That failing to train workers on its dan- was the last time I ever saw my gers. brother,” Butler said. Hoeganaes contested every cita- The disaster killed 14 people —

including Butler’s brother and un- off,” CSB chairman Moure-Eraso cle, a longtime plant employee — said recently. “And then we wait and left dozens burned. Butler, now and we wait. And there are more 29 with three children, remained accidents; there are more fatalities. in a coma for months; he has severe And this process continues, and it burns on his head, face, legs and seems to be never-ending.” arms. “Since I got burned, I’ll be in Long rulemaking processes have the hospital on a regular basis, just become the norm for OSHA. For sick, throwing up, dehydrated,” he the 58 significant standards the said recently, sitting in his lawyer’s agency has issued since 1981, the riverfront office. “I don’t sweat how average time from beginning the I used to sweat.” process to finalizing the rule was The blast was the type of catas- almost eight years, a recent study by trophe that can spur reform. Con- the Government Accountability Of- gress held a hearing, and then-Sen. fice found. Barack Obama said in a statement, To issue a significant new rule, “It is past time to issue a standard to federal agencies must navigate a prevent these kinds of accidents.” complicated process that includes Even before Imperial Sugar, multiple rounds of review — both the CSB had investigated a series internally and at the White House’s of deadly dust accidents and rec- budget office — and public com- ommended in 2006 that OSHA is- ment. New laws and executive or- sue a rule to protect workers from ders have added requirements over dust fires and explosions. After the past three decades. investigating the disaster in Port OSHA, however, faces particu- Wentworth, the board again urged lar challenges. The agency must OSHA to act. show that a proposed rule is both This time, OSHA appeared to technically and economically fea- be listening. It launched a special sible for every industry that would enforcement program targeting be affected — a research-intensive companies with unaddressed dust task. If a rule could affect a signifi- problems. In April 2009, the agen- cant number of small businesses, cy announced it was starting the OSHA must convene a panel and rulemaking process. allow them to raise objections to “We felt that our efforts had paid an unpublished rule draft. It is one

of only three federal agencies re- written comments that “no federal quired to do this. intervention in our industry is justi- OSHA is particularly vulnerable fied or required.” to legal challenges after issuing a The American Chemistry Coun- standard. In general, agencies must cil has taken a harder line, arguing prove to a judge that a rule isn’t ar- that a new rule is unnecessary. “We bitrary, capricious or an abuse of believe that the accidents that have discretion. OSHA, however, must occurred might have been prevent- show its rule is supported by “sub- ed if current OSHA regulations stantial evidence in the record and relevant combustible dust con- considered as a whole” — a much sensus standards had been followed higher standard. and enforced,” the council wrote to All of this means addressing the Center. combustible dust is a mammoth Some see the political climate task. OSHA has to research the — in which the phrase “job-kill- dangers of everything from the ing regulation” is never far from coal dust at a power plant to the the discussion — as one explana- wood dust at a sawmill, then show tion for the slow progress. “OSHA that addressing the danger would has its heart in the right place; we be realistic in each case. The rule know that they’re struggling with would affect many small businesses, this,” said Robyn Robbins, a safety and OSHA said in a statement that and health official with the United it plans to convene the required Food and Commercial Workers small-business panel this year. union. “It’s just a shame that people Industry groups generally haven’t make this political.” opposed a rule altogether, instead arguing that the rule shouldn’t ap- Lessons from a previous ply to them. The National Cotton dust fight Council, for example, told OSHA many of its members shouldn’t be Many arguments echo those made included and challenged the ac- 30 years ago during a tussle that curacy of the agency’s list that in- led to a standard now widely concluded past cotton dust fires and sidered a success story. In the late explosions. The American Home 1970s, a series of deadly grain dust Furnishings Alliance insisted in explosions at grain elevators and

similar facilities attracted national whelming evidence supporting the attention. OSHA announced in grain handling standard’s effective- 1980 that it was considering a rule ness in preventing fires and explo- to regulate the handling of grain sions and resulting injuries during dust. a time when grain handling capac- Large industry trade groups and ity increased almost sixty percent.” small grain elevator operators ob- OSHA’s current attempts to ad- jected vociferously. The National dress combustible dust are more Grain and Feed Association called complicated, encompassing many the rule “unwarranted” in com- different industries with different ments to OSHA and said it “could types of dust. But some view the have a substantial economic im- grain dust rule as an example of pact on the grain and feed industry what could be accomplished. without substantially improving the “A general industry standard safety or health of workers.” does have the potential to be at In 1987, OSHA issued the rule. least as successful [as the grain In 2003, the agency reported evi- dust standard] in terms of aware- dence that, in the decade after it ness, but how successful depends took effect, deaths in grain dust ex- on the specifics of the regulation,” plosions dropped by 70 percent and said Bob Zalosh, a consultant who injuries by 60 percent. investigates accidents and advises In 2010, the National Grain and companies on prevention. Feed Association — the same group Some in Congress want OSHA that had sued OSHA to try to block to act now. California Rep. George parts of the rule — noted this “un- Miller and two other House Demo- precedented decline in explosions, crats have introduced a bill that injuries and fatalities at grain han- would require the agency to issue dling facilities” in comments sub- an interim rule within a year. mitted to OSHA. “The fact that workers are killed Nor did meeting the rule’s re- and injured in all too frequent, quirements ruin the industry. The clearly preventable combustible association cited the “economic dust explosions shows that Con- benefit of implementing the grain gress must act,” Miller said in a handling standard” and wrote, “We statement to the Center. “Legisla- firmly believe that there is over- tion is needed to protect workers

because of the years it takes to cut pellets packed so densely that they through the red tape just to get a shouldn’t be able to ignite. Sensors final protection in place.” can detect the first signs of sparks in the pipes, then automatically ‘Fall through the cracks at isolate the area and flood it with a every level’ neutralizing solution. Near work areas, vacuums take In Georgia, the building Jamie But- spilled dust to a vessel outside the ler and his co-workers knew dur- building — a contrast from the ing their time at Imperial Sugar is company’s previous practice of us- long gone, consumed entirely by ing compressed air to clean dust, the inferno of February 2008. In which blew it onto ledges and raf- its place is a modern packing facil- ters where it eventually was shaken ity company officials say stands as loose, fueling explosions. A sign evidence of what they learned from reminds workers, “Your job is not the disaster. The project, which incomplete until your work area is cluded some work on the refinery CLEAN.” itself, took about two years and cost The company has told OSHA it roughly $220 million, vice presi- “strongly support[s]” issuing a com- dent of manufacturing Raylene bustible dust rule. “We believe that Carter said. there is still a low level of knowl- “If there is ever an explosion edge of the extent of hazards of again — and that’s just not going combustible dust in industry,” the to happen — it would never spread company wrote OSHA. from building to building ever Such about-faces often come af- again,” Imperial Sugar health and ter deaths have occurred — and safety official Kathleen Gonzalez company officials, inspectors or said during a recent tour, pointing auditors missed warning signs. The to a system designed to blanket the NFPA’s Colonna said he is frequent- area with water and halt a fire in its ly called to conduct training after tracks. explosions — in Georgia after the Sugar no longer enters the pack- Imperial Sugar catastrophe, and ing building on a conveyor belt — in Kentucky after a 2003 dust ex- the location of the initial explosion plosion killed seven workers. This in 2008. It is shot through pipes in March, the Gallatin Fire Depart-

ment’s two inspectors attended a “They need a set of guidelines,” two-day training seminar on com- Chris Sherburne said. “If there was bustible dust led by the NFPA, said a standard, I think that would have Crook, the department’s chief. made a lot of difference because Meanwhile, dust accidents con- there was so much [dust] there at tinue. In February, after a dust ex- the time.” plosion, OSHA cited a Wisconsin As the gears grind in Washing- company that makes whey prod- ton, she’s raising a teenage son and ucts. In April, the agency issued vi- tending to a 34-acre patch of farm- olations to a New Hampshire wood land. She hasn’t given up on some pellet mill where a dust-fueled fire of the plans she and Wiley made. spread throughout the building. They had always hoped to build a The same month, the agency al- new house on their land to replace leged violations — some of them their double-wide, and in Decem- willful, which OSHA says are in- ber 2010 — about a month before tentional violations or those com- his death — they’d decided to start mitted with indifference to the law the following spring. — at an Illinois pasta manufacturer Chris stuck to the plan, func- where two workers were seriously tioning as her own general con- burned in a sugar dust explosion. tractor. “I decided to just build it “I think the universal theme is and see what happens,” she said that these accidents are a symp- recently. tom of the fact that there isn’t a Last December, Chris and her comprehensive dust standard,” said son moved into their new house. No Daniel Horowitz, the CSB’s man- pictures of Wiley adorn the walls or aging director. “Hoeganaes really mantelpieces. “It’s easier for us not illustrates how problems like this to have stuff in plain view,” Chris can fall through the cracks at every said. When Wiley’s body was cremat- level.” ed, at first the ashes sat on Chris’ bedroom dresser. “After a few days,” A father’s memory she recalled, “I said, ‘Wiley I can’t look at you every day; I can’t do this.’ In Gallatin, dust piled up for years He’s in the closet now.” despite inspections, audits and Some reminders are inescapable. small fires. Chris and her son have kept his

tools and work clothes, keepsakes help him find a clunker and fix it of the man who could fix anything. up. Instead, he now drives his fa- “You could bring him a motor in a ther’s souped-up Dodge Ram 2500. box, and he’d put it back together,” “Every now and then, when I see Chris recalled. it coming up the driveway,” Chris As their son approached driv- said, “for a split second I still think ing age, the plan was for Wiley to it’s Wiley.” n

FOLLOW-UP House bill targets deadly dust explosions By Chris Hamby Published Online: February 15, 2013 group of House Democrats introduced legislation this week that aims to protect workers from combustible dust — a A fire and explosion threat that has killed or injured hundreds in recent decades. Last year, the Center for Public Integrity examined the toll triggered by recent preventable tragedies — and the political and bureaucratic forces that impeded greater protection from a hazard recognized for more than a century. Workers across a range of industries face dust dangers from materials as varied as sugar, coal, wood and plastic. The federal Occupational Safety and Health Administration began the process of issuing a rule to address the hazard in 2009, but its progress has stalled. The new bill, announced Thursday, would compel the agency to issue interim protections within a year and set deadlines for finalizing a permanent rule. “While OSHA has taken some limited steps to protect workers and property from combustible dust explosions, the widely recom-

A sugar dust explosion in 2008 leveled much of the Imperial Sugar packing facility, killing 14 workers and injuring dozens more. AP Photo

mended protections necessary to prevent these explosions are caught up in red tape and special interest objections,” Rep. George Miller, the senior Democrat on the House Committee on Education and the Workforce, said in a statement announcing the bill’s introduction. Standards set by the nonprofit National Fire Protection Associa- tion have existed for decades, but are optional in many areas. En- forcement is often weak or nonexistent. Thursday’s bill would require OSHA to base much of its interim standard on these NFPA guidelines. It would mandate more worker training, a regimen of cleaning and inspections to prevent dust buildups, and work pro- cedures and equipment design to minimize explosion and fire risk.

The new bill would require OSHA to issue an interim standard within a year, then a proposed rule within another 18 months. The agency would then have to finalize the rule within the next three years. The rule could affect a large number of businesses, and many industry groups have pushed back, arguing for exemptions or calling the measure unnecessary. The American Chemistry Council has taken one of the strongest positions opposing the rule, saying in a statement last year to the Center, “We believe that the accidents that have occurred might have been prevented if current OSHA regulations and relevant combustible dust consensus standards had been followed and enforced.” A representative for the trade group did not respond to a request for comment Friday. OSHA has repeatedly set rule deadlines, then moved them back. OSHA is one of only three federal agencies that must convene a panel of potentially affected small businesses to allow them to raise objections to an unpublished rule draft. The agency’s most recent agenda said it hopes to begin this stage in the process in October. A spokesman for OSHA did not respond to a request for comment on Thursday’s legislation. As the rulemaking process has dragged on, fires and explosions have continued. The Center detailed a series of three accidents in 2011, all involving combustible iron dust, that killed five workers at the Hoeganaes Corp. plant in Gallatin, Tenn. OSHA faced a similar situation after a series of high-profile dust explosions at grain elevators in the 1970s. The agency proposed regulating the handling of grain dust, and industry groups objected vociferously. OSHA issued the rule in 1987 and, in a 2003 review, found that deaths in grain dust explosions had dropped by about 70 percent. The primary industry group that opposed the rule recently credited it with reducing deaths and injuries without imposing the devastating economic burden it had originally predicted. n

Tina Hall and her husband, L.V., in 2005. Tina Hall was fatally burned in a workplace accident in Franklin, Ky., two years later. Courtesy of L.V. Hall Kentucky death case: Another black eye for state workplace safety enforcement By Jim Morris Published Online: August 17, 2012

Kentucky’s deletion of round midnight on June 1, 2007, Tina Hall was finishing all violations in worker Aher shift in a place she loathed: death case criticized by the mixing room at the Toyo Automo- tive Parts factory in Franklin, Ky., where victim’s family, feds. flammable chemicals were kept in open containers.

A spark ignited vapors given off safety programs nationwide. In by toluene, a solvent Hall was trans- all, 26 states administer their own ferring from a 55-gallon drum to programs under federal supervi- a hard plastic bin. A flash fire en- sion. Several have been criticized gulfed the 39-year-old team leader, in recent years for capitulating to causing third-degree burns over 90 lawyered-up employers, performing percent of her body. She died 11 subpar inspections and shutting out days later. accident victims’ families. After investigating the accident, Officials in Kentucky didn’t tell the Kentucky Labor Cabinet’s De- Harville and Hall’s husband that the partment of Workplace Standards Toyo violations had been dismissed. cited Toyo for 16 “serious” violations They found out in 2010 only because and proposed a $105,500 fine in No- Ron Hayes, a fellow Alabamian who vember 2007. runs a nonprofit advocacy group for “You’re disappointed because families of fallen workers, had taken you think, that’s all they got fined?” an interest in the case and checked Hall’s sister, Amy Harville, of in regularly with the Department of Moulton, Ala., said in a telephone Workplace Standards. interview. “But then I thought, at Hayes — whose son, Pat, died in least they got 16 violations. I was a Florida grain elevator accident in thinking they’d stick, as severely as 1993 — lodged a formal complaint she was burned.” against Kentucky with the U.S. De- The violations didn’t stick. Ev- partment of Labor’s Occupational ery one of them went away in 2008, Safety and Health Administration, as did the fine, after Toyo’s lawyer which concluded in June 2011 that vowed to contest the enforcement the state had erred. action in court. Last month, in a “Deleting citations in their en- move believed to be unprecedent- tirety sends a signal to employers ed in Kentucky, the Department of that they need only contest to allevi- Workplace Standards reinstated all ate the burden of history,” OSHA’s the violations because, it said, the regional administrator in Atlanta, company hadn’t made promised Cindy Coe, wrote to Hayes. safety improvements. In a written statement, Ken- The case was another black eye tucky’s Department of Workplace for state-run workplace health and Standards said it dismissed the vio-

lations after determining that “the reports about a rash of construc- case would not have withstood legal tion worker deaths in Las Vegas, challenge.” Instead, the department OSHA reviewed the Nevada pro- and Toyo entered into a settlement gram in 2009 and found a long list agreement, which provided for fol- of flaws. Among them: State inspec- low-up inspections. Toyo’s alleged tors weren’t sufficiently trained to failure to meet the terms of that identify construction hazards and agreement led to the reinstatement were discouraged by managers from of the violations last month. issuing “willful” violations — which The reinstatement showed that suggest an employer showed “plain the violations never should have been indifference to the law” and can dropped in the first place, Hayes said. lead to stiff penalties — to avoid “It’s vindication, because we said all protracted court battles. along this was wrong,” he said. OSHA looked at the programs in The president of Toyo Automo- the 25 other states that administer tive Parts did not return calls seek- their own, finding deficiencies such ing comment. In a 2008 legal filing, as uncollected penalties in North Toyo denied responsibility for Tina Carolina and misclassified viola- Hall’s death, calling the accident tions in South Carolina. Kentucky, “the result of unforeseeable, isolat- OSHA found, was taking too long ed acts undertaken by an individual to issue citations and wasn’t making employee.” complainants aware of “specific official findings.” Problems in the states In 2011, the Labor Department’s inspector general reported that Under the Occupational Safety OSHA hadn’t found a suitable way and Health Act of 1970, states that to measure the effectiveness of state choose to regulate workplace health programs. In his response to the IG, and safety must ensure that their OSHA chief David Michaels wrote programs are “at least as effective” that the agency was developing a as the federal one. OSHA pays up to new monitoring system that would half the cost of such programs and involve, among other things, reviews is supposed to keep tabs on them. of state enforcement case files. By some accounts, it hasn’t done Still, Hayes believes that “sys- a particularly good job. After press temic problems” persist. “Oversight

from federal OSHA has been lack- Hall, who lives in Bremen, Ala. “She ing for the past 42 years,” he said. said something about the disposal “There are so many different prob- of chemicals — they weren’t doing lems from state to state.” it right. I’d been wanting her to get Indeed, Hawaii’s program — de- out of that mess.” scribed as “poor” in a 2010 OSHA re- Tina Hall and other team leaders port — has been severely hampered would go into the mixing room to by budget and staffing cuts for the fill plastic bins, known as totes, with past three years. Things got so bad solvents such as toluene. They’d that state officials recently asked the clean gummed-up machine fix- federal government for help. tures in the totes. Team leaders also would fill five-gallon buckets with ‘The Five Commitments’ solvents and carry them to adhesive machines on the factory floor. The In its 2007 annual report, Toyo Tire solvents were used to take residue & Rubber Co., a Japanese conglom- off the machines. erate that makes tires, auto parts Kentucky’s Department of Work- and chemicals in plants around the place Standards would later cite world, lists what it calls “The Five Toyo for obstructing exit routes in Commitments.” the mixing room, not keeping flam- “We make safety our highest pri- mable liquids in covered containers ority in the provision of products when they weren’t being used, failing and services,” reads Commitment to control vapors and having inad- No. 2. equate fire-protection equipment. Tina Hall thought otherwise, ac- On the night of the accident, cording to her husband. At the time Tina Hall was cleaning fixtures by of the accident in June 2007, she was herself when a spark, likely caused trying to transfer out of the Frank- by static electricity, ignited toluene lin plant’s adhesive department be- vapors and set off an explosion in a cause the job required her to spend 55-gallon drum of methyl isobutyl time in the mixing room, where ketone, another solvent. toxic and flammable chemicals were Then a General Motors assembly stored. line worker, L.V. Hall was awakened “She talked about how bad the at home in Auburn, Ky., by a call fumes were in that room,” said L.V. from a Toyo team leader around

midnight. His wife, on fire, had vember 2007, “I was OK with it,” L.V. managed to get outside and roll on Hall said. “I didn’t realize that once the ground. “How she got outside I that’s done, these attorneys can get don’t know,” Hall said. “It was like in there and just do away with it.” an obstacle course to find the exit Documents obtained by the Cen- door.” ter for Public Integrity under the Tina Hall was taken to a local Freedom of Information Act show hospital, then to Vanderbilt Uni- how Toyo’s lawyer, Mark Dreux of versity Medical Center in Nashville, Arent Fox in Washington, D.C., about 45 minutes away. L.V. had a fought the state of Kentucky from brief talk with her before the doc- the beginning. Dreux declined to tors put her into a coma to shield comment on the case. her from the pain. “She said, ‘I did In March 2008, the state offered everything the way I was supposed to reduce the penalty from $105,500 to do it,’” Hall said. His wife drifted to $74,000. Dreux refused. In June off and never regained conscious- 2008, the state proposed a further ness. She died on June 12, 2007. reduction, to $15,000, for three violations. Dreux said no. In November ‘Travesty of justice’ 2008, Dreux got what he wanted: No violations and no fine. Not long afterward Tina Hall’s It was Hayes who first learned, in younger sister, Amy Harville, was di- July 2010, that all the violations had rected to Ron Hayes by an acquain- been deleted. He alerted Harville. tance. Burly, white-bearded and “I was devastated,” she said. “It tenacious, Hayes lives in Fairhope, takes you back all over again, like Ala., and runs the FIGHT Project, Tina was killed for the second time.” which helps families navigate the She called L.V. Hall, who re- bureaucracy of workplace fatal- acted similarly. “I was just shaking ity investigations. Hayes counseled I was so upset,” he said. He called Harville and L.V. Hall as the state’s the Department of Workplace Stan- inquiry into the Toyo accident pro- dards and finally reached “the lady gressed. attorney who was over the case. I When the Department of Work- basically told her, ‘I cannot believe place Standards issued 16 serious vi- y’all dropped every one of those ci- olations against the company in No- tations.’ She said, ‘Well, Mr. Hall, I

am an attorney and there was not Occupational Safety and Health Re- enough evidence.’” view Commission, an appeal body. Hayes knew what to do. He filed In May, a state inspector returned a CASPA — Complaint About State to the Toyo plant in Franklin to see Program Administration — with if the company had done all the OSHA’s Atlanta regional office, call- things it said it would do after Tina ing Kentucky’s dismissal of the cita- Hall’s death — making sure super- tions a “travesty of justice.” visors were trained in the correct After an investigation, Regional way to clean fixtures, for example. Administrator Cindy Coe, in es- It hadn’t. sence, agreed, writing in June of last In a July 5 letter, Susan Draper, year that “the violations were well then director of the Kentucky Labor documented and legally sufficient Cabinet’s Division of Occupational and there was no definitive evidence Safety and Health Compliance, no- in the file that indicated that they tified Ronald Wyans, president of could not be supported.” Deleting Toyo Automotive Parts (USA), that all the citations, Coe wrote, erases the 16 original citations had been an employer’s safety history and de- reinstated, as had the proposed prives regulators of critical infor- $105,500 penalty. The Tina Hall mation should subsequent enforce- case had come full circle. ment actions commence. Sometime in the next few weeks, “It also signals to compliance Amy Harville, L.V. Hall and Hall’s staff that their efforts are for no lawyers expect to meet with Dixon good end, if the point is to drop and Toyo counsel. They expect to everything at the threat of going to learn whether Toyo intends to ac- court,” the administrator wrote. “It cept its punishment or continue further signals to employees in the fighting. workplace that there is no entity on “When somebody gets killed in their side.” one of these workplaces, it shouldn’t In his response to Coe, the com- be this way,” L.V. Hall said. “I had missioner of the Kentucky Labor Ron Hayes on my side and he knew Cabinet, Michael Dixon, wrote that what to do. Most people don’t have the state “does not retreat from liti- Ron. These citations never would gation” but didn’t believe it could have been brought back without defend the case before the Kentucky him.” n

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 7 ©2013 Center for Public Integrity 107 Fishing deaths mount, but government slow to cast safety net for deadliest industry By Ronnie Greene Published Online: August 22, 2012

ARRAGANSETT, R.I. — in an industry beset by a high death “Get your panic out now!” rate and fragile federal net of pro- N Veteran fisherman tection. Fred Mattera stands atop a fishing Commercial fishing is the dead- trawler at the Point Judith Harbor, liest vocation in the United States. seagulls squawking by and a fishy Four years running, from 2007 to mist in the air, and instructs the 2010, the Bureau of Labor Statis- seven mostly young, tattooed men tics ranked commercial fishing as standing before him to pull on life- the most dangerous occupation in safety immersion suits that cover the United States. From 2000 to them from foot to head, to zip up 2010, the industry’s death rate was and plunge feet first into the wa- 31 times greater than the national ter. Then two groups of fishermen workplace average. interlock like centipedes and take And no place, a recent National turns paddling backward until they Institute for Occupational Safety reach a life raft where, going small- and Health report reveals, is more est man first, they pull in one by deadly for commercial fishermen one. than the East Coast. From 2000- This is survival training, and 2009, the NIOSH report shows, the plunge-and-rescue dry run is 165 fishermen died from Florida to meant to gird the fishermen for the Maine. That’s more than Alaska — real thing, which comes too often 133 deaths — which had long been

As safety instructor Fred Mattera looks on, a fisherman jumps into the water in Narragansett, R.I., during a safety drill this month. The immersion training is intended to help curb casualties in the deadliest vocation in the United States, an industry beset by a high death rate and fragile federal net of protection. Jesse Costa/WBUR

viewed as the most brutal place for and the industry, steeped in a tradi- commercial fishing but saw deaths tion of independence on the high dip amid a safety push. It’s a greater seas, has long resisted government death toll than in the Gulf of Mex- intrusion. Yet some longtime fisher- ico, which suffered 116 deaths, or men from Alaska to New England the West Coast, with 83. agree the federal safety net has left The U.S. Coast Guard has been workers vulnerable. granted only spotty powers to safe- “This has been an industry where guard commercial fishing vessels, there just hasn’t been a vigorous

pursuit of safety at the federal lev- sion training in this seaside resort el,” said former congressman James is one piece of a still-in-the works Oberstar, who held fishing safety campaign — and, until full federal hearings in 2007 as chairman of the reform comes, a key ingredient to Committee on Transportation and curbing losses at sea. Infrastructure. “Panic sets in when you don’t Advocates are trying to cast a know what to expect,” said Mattera, new culture of safety. The immer- who scrapped his dreams of going to law school 40 years ago when a roommate took him on a fishing boat, and who now runs a company Key Findings leading safety seminars. “We’re tak- ● One hundred sixty-five fisher- ing that unknown out of it.” men died along the East Coast In this tightly knit Rhode Island from 2000-2009. That’s more community, nearly everyone knows than anywhere else in the someone who died at sea. United States, including Alaska “It’s like being a race car driver, and the Gulf of Mexico. one of those things you don’t want to talk about,” said lobster boat cap- ● The U.S. Coast Guard, which regulates fishing vessels, does tain Norbert Stamps, who took part not have “broad authority” to in the safety session with three crew inspect the boats — only “little members from his boat, the Debbie bits and pieces of authority,” ac- Ann. cording to a former U.S. House “We were all resistant in the begin- of Representatives staffer who ning,” he said of the hands-on drills. helped write safety laws. “You now realize this isn’t fun and games. This is really serious stuff.” ● The U.S. Coast Guard Authoriza- Stamps began fishing at 13 and, tion Act of 2010 requires the after more than four decades on Coast Cuard to inspect fishing the water, said he takes his family vessels’ safety equipment every to services for brethren lost at sea. two years. The law does not “I’m preparing them for the fact requre dockside inspections of that someday, something might hap- the boats themselves. pen,” he said. “You stay at sea long enough, everything happens.”

A decade ago, Mattera tried to And for decades, Congress has rescue a friend’s 22-year-old son stood still. Despite the strikingly from a fishing hold 125 miles out to high death rate among the men and sea. The Rhode Island fisherman, women who live by the boat, the fed- Steven Follet, had collapsed, appar- eral government has never required ently after poisonous gases accumu- inspections of commercial fishing lated in the hold. Airlifted to a Cape boats. The Coast Guard performs Cod hospital, he died. voluntary exams of safety equip- “Believe me, to this day it’s haunt- ment, and Congress recently acted ed me,” Mattera said. “Could I have to make those dockside reviews gotten there five minutes sooner? mandatory. But the law has yet to All these things: My kid’s the same mandate detailed inspections of the age as his. I will never forget coming vessels themselves. in, going to see the family. In their “Fishing vessels are uninspected, eyes I was a hero. In my eyes I was a so the Coast Guard doesn’t have ju- failure. risdiction to go on and look at the “In the end he’s not alive, and I condition of the vessel. There’s no swore to them, promised in his leg- standards that a fishing vessel has to acy we would change this culture of be built to or maintained to. That’s fishery.” much different than a ferry or car- At his office overlooking the go ship,” said Jennifer Lincoln, a docks here, Mattera keeps a small NIOSH epidemiologist based in picture of Follet on the wall near his Alaska who leads the agency’s Com- desk. “It’s always in the back of your mercial Fishing Safety Research and mind,” he said. Design Program. “Every time there’s a vessel loss Inspection push snagged with high numbers of lives lost and in Congress the Coast Guard has done an investigation, one of the recommenda- For decades, safety advocates and tions that always comes back is that government regulators have pushed these vessels should be inspected,” for mandatory inspections of the of- Lincoln said. “There’s industry push ten decades-old boats that take to back: ‘That would be an expensive deep water to bring back scallops, thing to do.’ ” fish, squid and lobster. Pushing for sweeping safety

changes, she said, is “like planting a tree.” From 2000-2010, 545 commercial The government can fishermen died while fishing press for one change, in the U.S. and hope it sprouts 40 into another. NIOSH Occurred from can suggest reform, diving or onshore injuries but has no law-writing 7% power. That rests with 279 Occurred after Congress. a vessel disaster The National Trans- 51% portation Safety Board has argued for vessel inspections and, in 2010, 18% held a forum on fish- 170 Being struck Fishermen by a large wave ing safety. “Fishermen falling % overboard 19 tolerate long absences 31% Vessel from home, inhospi- Instability table environments, Breaking Down and workplaces that the Vessel Disasters are teeming with heavy, In all, 279 fatalities occurred from 148 28% dangerous equipment separate vessel disasters, with severe Triggered while constantly in mo- weather contributing to most losses. by flooding tion,” board member SOURCE: The National Institute for Occupational Safety and Health (NIOSH) Robert L. Sumwalt III said at the hearing. Graphic by Alani Winston “For some, the price paid is even higher: hypothermia, boats sometimes swallowed by the loss of limbs, and even death.” sea. Another 30 percent involved From 2000 to 2010, 545 commer- fishermen falling overboard. Oth- cial fishermen died in the U.S., re- er deaths came from accidents on ported NIOSH, part of the Centers board, or while crew were diving or for Disease Control and Prevention. injured on shore. More than half of these deaths oc- Atlantic scallop fishermen suf- curred after a vessel disaster, with fered some of the highest death

tolls, with a fatality rate more than 100 times U.S. commercial fishing deaths the national average by region, 2000-2009, 504 total* from 2000-2009, and As this map shows, the East Coast suffered the some of the industry’s highest fishing death toll in a recent 10-year period. most notable disasters. In December 2004, vast swells rolled the 83 West New Bedford, Mass., Coast scalloping boat North- 16% ern Edge on its side, 165 plunging the crew of East Coast six into frigid waters 33% 45 miles off Nantuck- 116 et. One man survived, Gulf of Mexico making the Northern 23% 133 *Includes 6 fatalities that occurred in Edge New England’s Alaska Hawaii, and 1 on a U.S. commercial fishing deadliest fishing trag- 26% vessel transiting to Canadian waters. edy since the sinking SOURCE: The National Institute for Occupational Safety and Health (NIOSH) of Gloucester, Mass.’s Andrea Gail in 1991, a Graphic by Alani Winston case that inspired The Perfect Storm book and movie. shuck and shuck, you would not be- “I often wonder what is the true lieve the monotony. You are in con- price of a pound of scallops,” fisher- stant pain. … You are bringing a man Christopher Gaudiello said at steel cage swinging in the seas. Man, the funeral for Northern Edge vic- that stuff hits you, you are a dead tims. man or you are breaking hands, you Mattera said the work can be are cracking skulls.” brutal. “If you went scalloping for There’s a human cost to the in- 10 days and stood in that box for 18 dustry push back and congressional hours a day, day after day after day, inaction, experts say. you would not believe how fatigued Richard Hiscock, a longtime ma- you are,” Mattera said. “You cannot rine safety advocate from Vermont compare it to anything. Shuck and who worked as a U.S. House of Rep-

resentatives staffer in helping to write safety The most hazardous fisheries laws, said government in the U.S., based on overall is too often “reactive to fatalities from 2000-2009: casualties.” Marine safety laws Number of deaths in each category 55 on the books, he said, 44 “have been what I 39 described as the lit- 25 26 26 tle Dutch boy going 21 around putting his fin-

ger in the dike,” His- Alaska West Alaska Northeast Alaska Alaska Gulf of cock said. “Every time sole Coast cod multi- salmon scallop Mexico fishery Dungeness fishery species fishery fishery shimp there’s a major casualty crab groundfish fishery there will be a lot of fishery fisheries hubbub and there will SOURCE: The National Institute for Occupational Safety and Health (NIOSH) be an investigation to see what we can do to Graphic by Alani Winston improve the existing statutes and plug a loophole. task force issued Living to Fish, Dy- “And they’ve been doing this ing to Fish, a report citing the indus- since 1838.” try’s high casualty rate and lack of Hiscock draws a contrast between deep reform. the Federal Aviation Administra- “Despite long-standing recognition, which has broad power to en- tion of the serious hazards of com- sure airplanes fly safely, and the mercial fishing, a long succession Coast Guard. “Congress has given of proposed laws were not enacted,” the Coast Guard little bits and piec- the report concludes. “Many fisher- es of authority, not the broad au- men accept that fishing is danger- thority,” he said. ous, and lives are often lost. Many of The Coast Guard’s website in- those harvesting the bounty of our cludes a Hiscock report, “The Trag- ocean frontier staunchly defend the edy of Missed Opportunities,” that independent nature of their profes- details failed reform attempts dat- sion, and vehemently oppose out- ing years. In 1999, a Coast Guard side interference.”

Indeed, many fishermen have fiercely op- The highest death rates per posed government reg- 100,000 full-time equivalent ulations — challenging, works, 2000-2009 for instance, fish catch quotas some say hasten How the fishing industry’s death rate far exceeds dangers at sea. the national workplace average of 4 deaths per 100,000 workers:

Reform’s West Coast Atlantic Northwest Piecemeal Rollout Dungeness crab scallop multispecies fishery fishery groundfish fishery Strides have come, but slowly. 310 425 600 In 1988, Congress fatalities per fatalities per fatalities per passed the Commercial 100,000 FTEs 100,000 FTEs 100,000 FTEs Fishing Industry Vessel Safety Act, requiring SOURCE: The National Institute for Occupational Safety and Health (NIOSH) fishing boats to carry survival craft, personal Graphic by Alani Winston flotation devices and other safety equipment on board. numbers in the 1980s. “There have The regulations went into ef- been improvements based on the fect in 1991. A year later, the Coast law and safety programs and safety Guard sought authority to inspect initiatives,” he said. fishing boats. Approval never came. “But,” he added, “fishing still re- “Whether the industry was lob- mains the most hazardous occupa- bying enough or Congress didn’t tion in the country.” see the need for it, we just weren’t In 2007, the House Subcommit- given the authority,” said Jack Ke- tee on Coast Guard and Maritime merer, division chief of the U.S. Transportation held hearings, cit- Coast Guard’s Fishing Vessels Divi- ing a string of tragedies from Alaska sion. to Maine that had taken 22 lives in Kemerer said the 1988 law and recent months. subsequent tweaks have helped A core of veteran fishermen, their drop death tolls from even higher spouses and safety advocates told

the panel how they had lost friends He too draws a contrast between to the seas. the FAA’s powers and those handed “If we had regulated airline safety the Coast Guard. “Safety in aviation the same way we have regulated fish- shall be maintained at the high- ing vessel safety, all passengers on an est possible level, not the level in- aircraft would be issued a parachute dustry can afford,” Oberstar said, and be trained in how to use it,” said and flights can be grounded with Jerry Dzugan, executive director of a mechanic’s signature. “That’s the the Alaska Marine Safety Education kind of standard we need for Coast Association. “The fishing vessel safe- Guard inspectors.” ty act focuses on survivability after That standard has not come, but a vessel loss. By anyone’s definition, another reform swell passed with this is a reactive, rather than a pro- the U.S. Coast Guard Authorization active approach to casualties.” Act of 2010. Congress approved an Maine lobster fisherman Robert amendment requiring the Coast Baines described finding two teen- Guard to examine safety equipment age boys — aspiring fishermen — on commercial fishing vessels every drowned in the cold April waters two years. after their boat, inadequate for the Now, fishermen can seek volun- weather conditions, capsized. One tary examinations of their safety boy’s body washed ashore; Baines equipment. If they pass, they get a found the other in the water. “I will sticker. If they fail the so-called “No never forget that unnecessary trag- Fault Exam,” no violation is issued. edy,” he said. When the 1988 law Captains of failed boats do risk ci- passed, he said, the Maine Lobster- tation if they take to the seas and men’s Association opposed safety happen to be boarded by the Coast requirements for state registered Guard. The 2007 congressional vessels. “Times have changed,” said hearing, however, revealed that less Baines, chair of Maine’s Commer- than 10 percent of the commercial cial Fishing Safety Council. fishing fleet took advantage of the Oberstar, then the transportation voluntary program. committee chair, concluded that the But even that voluntary review government needed a “much more couldn’t ensure fishermen knew vigorous program” and national how to use the equipment. “That’s standards to safeguard the industry. like taking your car in to go in for a

safety sticker, and then you get into To some, having equipment exit and you don’t buckle up and you ams but not the vessel inspections is drive down the highway,” said Rod- like checking a car’s seat belts and ney Avila, a New England fisherman air bags, but never getting around to and safety advocate. the engine and frame. Under the new rules, which could go into effect later this year or next, Who is to blame? the Coast Guard will check to ensure safety equipment is up to date and “That’s the $64,000 question,” His- boats have proper life preservers, cock said. “It’s a shared responsi- survival suits, life rafts, flares, alarms bility. Congress has never had the and documentation. The Coast courage to do it, and the industry Guard has not yet decided what con- has never pushed for it.” sequences would follow a failed exam Kemerer said the exam could be — but one possibility is that the boat a step toward more extensive inspec- would not be allowed to sail. tions one day. The stakes, he said, The rules also call for enhanced warrant it. “When a serious emer- training of fishermen and lay the gency develops … the fishermen, if groundwork for safety compliance they haven’t practiced getting into programs for older or substantially their life suit or how to deploy a life changed vessels. raft, they are facing death,” he said. Still, the pending mandatory “Sometimes you only have a matter dockside exams do not call for of minutes.” Coast Guard inspections of the ves- Still, a question begs: If inspec- sels themselves. That would entail a tions came, who would pay for them “cradle-to-grave program” in which in an industry with approximately the Coast Guard issues a certificate 20,000 federally documented fish- of inspection, re-inspects the boat ing boats and some 50,000 state reg- every year and conducts an out of istered vessels? water inspection every five years. “We’re talking about hundreds There’s a big difference, the of inspectors that would be needed, Coast Guard’s Kemerer said, be- but right now with the budget cli- tween an exam and a fuller inspec- mate the way it is, there’s no way we tion. “Safety would certainly be im- could get the number of inspectors,” proved,” he said. said Kemerer. “It would be great to

have it. The challenge would be: access lifesaving gear,” a Coast How do we accomplish it?” Guard report found. Hiscock, the former House official, questions just how hard the “Everyone thinks it’s never going Coast Guard has pushed for a full to happen to them, that’s the prob- vessel inspection program. “They’re lem,” said Avila, who served on the not up there lobbying for inspec- New England Fishery Management tions constantly,” he said. Council. “A lot of fishermen have never set off flares … A lot of fisher- Deaths at Sea men have been fishing for 40 years and they may not have inflated a life In a stretch of the U.S. where sea- raft. Most people don’t read [the in- food is king, tragedies continue. structions] until you need it. Up and down the East Coast, “And when you need it, you have a fishermen set out to make a living, minute or two until the boat sinks.” but then lose their lives. Some were Avila is among the reform ad- unprepared for the catastrophe con- vocates in New Bedford, a city of fronting them, government records 95,000 some 60 miles south of Bos- show. ton founded by whalers. Fishing remains the city’s lifeblood and, occa- • In March 2009, the 76-foot fish- sionally, a cause of mourning. ing vessel Lady Mary sank in 210 A string of New Bedford fishing feet of water 65 miles off the New boats sank in frigid, rough waters Jersey coast, killing six crew mem- beginning in 2004. bers. The NTSB said flooding, When the Northern Edge went triggered by a hatch mistakenly down that winter, the sole survivor left open during rough weather, was a crew member who had taken sank the ship. safety training in Portugal. That • In January 2009, the Patriot survivor, Pedro Furtado, later filed a sank 14 miles east of Gloucester, lawsuit and contended the boat op- drowning its two crew members. erator improperly stored life safety “The Coast Guard attributes the suits in an engine room — where vessel’s loss to a rapid event, most the crew couldn’t reach them in likely a capsizing, that did not al- emergency. low the crew time to respond or In January 2007, New Bedford’s

75-foot Lady of Grace — battered by A fisherman for more than five 40-knot gales, and taking on ice — decades, Avila said he felt invulner- went missing at sea as it staggered to able to tragedy. After all, he rea- escape the weighty chill and return soned, he always spent money for safely to harbor. safety equipment. On January 28, five days after “Even though I had all the best Lady of Grace set out to lure fish and equipment, I didn’t know how to use scallops, the Coast Guard found the it,” he told the NTSB forum in 2010. vessel submerged in 56 feet of water “And right then and there, a light at the bottom of Nantucket Sound. bulb went off and I started looking Like so many New England fishing at all my fellow fishermen in my port boats, Lady of Grace was workman- one by one, who had started fishing like, not sleek, and aged — built 29 with me, and they were in the same years earlier, its blue facade dotted boat — different vessels, but same with black marks. boat. They had the best equipment, Divers recovered the bodies of but they didn’t have the knowledge the captain, a fisherman for 25 to use it.” years, and another crew member, Avila got a wakeup call when he in the business for 27 years. The flew to Alaska for safety training bodies of the other two men did himself. “I thought I knew every- not surface. Heavy ice literally sank thing there was to know about it the boat, the Coast Guard conclud- until I sat in his class. And then I ed, drowning the men before they scratched my head the first, maybe could reach port. Once more, the the second day and I said, ‘Boy, I re- Catholic Church held solemn funer- ally know nothing about this,’” he als, and the close-knit Portuguese told the NTSB. community prayed for families left Now, like his friend Mattera, he fatherless. leads drills that prepare fishermen Avila knew everyone on that boat. for the worst — and get them inti- “I lost a lot of my friends that mately acquainted with equipment year, and it wasn’t a good feeling,” that could save their lives. The he said. “I was already into safety a best safety equipment is useless, he little bit before that happened but learned, unless you know how to that just confirmed it. I just dedi- operate it: How to quickly zip into cated myself to the safety program.” a life suit. How to inflate a life raft,

send a mayday call, plug a gaping NIOSH intends to use the same leak on a boat taking on water. With targeted approach in the East Coast, help miles away and unforgiving Gulf Coast and West Coast, using waves pounding, fishermen have its region-by-region breakdown as scant moments to act. a guide. “What’s that one or two “The problem with a boat, when things we need to focus on to inter- something happens or breaks, you vene so that fatalities start decreas- are out in the middle of the ocean,” ing?” Lincoln asked. said Mattera, the long-time fisher- Lasting reform, she said, requires man from Rhode Island. “It’s not industry buy in and a focused, not like you are out at the curb and can “one-size-fits-all mentality.” Having call AAA.” fishermen help lead safety drills Using the life-saving gear can is one piece of the puzzle. “If the mean the difference between death training can be led by the fisher- and survival. men, then they already have cred- Lincoln, the NIOSH official from ibility by the people they are trying Alaska, said getting into an immer- to train,” Lincoln said. sion suit increases odds of survival The potential for tragedy is com- by 7 percent. Getting into a life raft, pounded by the economics of an in- she said, increases survival chances dustry that experiences steep price by 15 percent. swings — and feels the domino ef- In Alaska, a safety campaign sup- fect of a still-shaky economy. Look- ported by industry helped lower the ing to save money, some captains death totals. There, NIOSH studied set out with fewer hands on deck, the industry’s high fatality rate and leading to fatigue during the long focused on the sectors, such as the days on the water. They stay out in crab fishery, with the highest num- dangerous weather to lure the extra bers. “NIOSH would look at the fish that will reel in a bigger bounty. fishing data for the entire state, and And, they put off housekeeping. we identified a hazardous fishery “When you have economic hard- and then we worked with the Coast ship, a lot of times the first thing Guard and crab fishermen,” Lin- you neglect is the safety equipment,” coln explained. “What can we do Mattera said. to prevent these fatalities from hap- “Stretching it out,” he calls it. “It’s pening?” like having a home and knowing you

should paint your home every 10 years. And when 10 years comes it costs you $10,000 to paint it and you already have a second mortgage. You either do it yourself, which ends up being half-ass, or you wait.” Mattera said he and Avila had been complacent before tragedy spurred them to act. “Now we’re like pains in the asses to everybody because we’re so committed to this,” New England fisherman Mike Gallagher said Mattera, who until re- takes part in a safety drill in Rhode Island cently owned an 84-foot trawl- this month. A decade ago, Gallagher found a er, Travis & Natalie, named fishing friend, who had been missing at sea, after his now-adult children. dead on his boat. Jesse Costa/WBUR After a boat goes down, Avila said, everyone starts pointing fingers. At the boat owner, gher, recalled finding a friend dead the government, the regulations. His on a boat in 2002. The man, fish- goal is to shift from the blame game ing alone, had not returned at day’s to a culture where fishermen are pre- end, and Gallagher searched for pared for chaos at sea. “If you go out him the next morning. Trapped by fishing and you’re not prepared for equipment onboard, the fisherman any disaster, that’s like you going into was dead from head trauma. a gunfight with a pea shooter.” “I used to fish alone back then,” In Rhode Island this month, Mat- said Gallagher. “I never went alone tera played the role of man over- after that.” n board in another drill. Using their might and a yellow lifeline, two About this story: Our story about men pulled him back aboard. “Like dangers in the commercial fishing a swordfish,” Mattera said, “235 industry was jointly reported by the pounds.” Center for Public Integrity, WBUR in One of the rescuers, Mike Galla- Boston and NPR News.

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 8 ©2013 Center for Public Integrity 121 Worker suffocations persist as grain storage soars, employers flout safety rules By Jim Morris and Howard Berkes Published Online: March 24, 2013

T. CARROLL, Ill. — Will Piper and Alex MPacas were being buried alive. It was July 28, 2010, just before 10 a.m., and the young men strained to breathe as wet corn piled up around them in Bin No. 9 at the Haasbach LLC grain storage facility. A co-worker, Wyatt Whitebread, had already been pulled under. The ordeal in Bin No. 9 played out over 13 hours as hundreds of townspeople maintained a vigil outside. In the end, Whitebread, 14, and Pacas, 19, were dead. Piper, 20, avoided suffocation by inches. Will Piper and Annette Pacas kneel at Whitebread, compact and the grave of Pacas’s son, Alex, one of athletic, was happy to have sum- two young workers who suffocated in a mer work. Pacas, slight and mu- grain bin in Mt. Carroll, Ill., in July 2010. sical, was an aspiring electrical Piper narrowly avoided death in the same engineer just days away from re- incident. John W. Poole/NPR

turning to classes at Hamilton Tech- his brothers graduate high school. nical College in Davenport, Iowa. And then he spouted off the Lord’s He’d started at Haasbach the day Prayer very quickly, and shortly af- before. ter that one last chunk of corn came “He prayed for his life,” survivor flowing down and went around his Piper said of Pacas’s last moments. face.” “He said all he wanted to do is see The three had been hired to keep

Key Findings ● At least 179 grain entrapment deaths have occurred at U.S. commercial storage sites since 1984, a CPI-NPR analysis of Occupational Safety and Health Administration data shows. ● Initial OSHA fines imposed on employers in these cases totaled $9.2 million but were reduced by almost 60 percent, to $3.8 million, the analysis shows. ● The five largest fines, which ranged from $530,000 to $1.6 million, were cut by 50 to 97 percent. ● Since 2001, there have been at least 19 fatal and non-fatal grain entrapment incidents that drew “willful” OSHA citations, which trigger consideration of federal criminal charges. Eight of these cases were referred to prosecutors. Three resulted in charges and one is under review. ● At least 663 people have died in U.S. grain entrapment incidents since 1964, according to Purdue University professor William Field. Another 283 people were engulfed but survived. The worst year for fatal entrapments was 2010, when 26 people died. ● A re-analysis of entrapment data by Field — based on additional cases found by CPI and NPR — concluded that 52 percent of the 946 entrapments with known locations occurred on farms, most of which aren’t regulated by OSHA, and 48 percent at commercial facilities, which are. Field, whose work is often referenced by OSHA and industry, had previously reported that 70 percent of the incidents occurred on farms.

corn flowing in the bin, one of 13 in instances of employer misconduct, the Haasbach complex on Mill Road no one has gone to jail. in Mt. Carroll, population 1,700. Twenty-six people died in en- They’d been sent in with pick axes trapments in 2010, the worst year in and shovels that morning to break decades. At least 498 people have up corn piled 10 to 24 feet high in suffocated in grain bins since 1964, the bin and knock clumps from the according to data analyzed for the walls. No one had told them they Center and NPR by William Field, needed to wear safety harnesses — a professor of agricultural and bio- stored in a red shed nearby — to logical engineering at Purdue Uni- keep from sinking. versity. “I had no idea that someone At least 165 more people drowned could get trapped and die in the in wagons, trucks, rail cars or other corn,” Piper told investigators with grain storage structures. Almost 300 the Department of Labor’s Occupa- were engulfed but survived. Twenty tional Safety and Health Adminis- percent of the 946 people caught in tration. grain were under 18. Grain storage in the United “At some point we’re going to States is surging, in part because have to decide whether these in- of the boom in biofuels. Yet at cidents are just accidental … [or] worksites, farmers and commercial somebody’s really making hor- operators keep making the same rendous decisions that approach a mistakes. Workers, some of them criminal level,” said Field, who has young, keep drowning in grain or studied entrapments since 1978 and getting hurt. served as an expert witness in grain- The practice known as “walking death lawsuits and as an industry down grain” is illegal. Federal pen- and OSHA consultant. “It’s inten- alties for employers who permit or tional risk-taking on the part of the require it, however, are routinely managers or someone in a supervi- pared. Since 1984, OSHA has cut sory capacity that ends up in some initial fines for grain-entrapment horrific incidents. The bottom line deaths by nearly 60 percent overall, is if you ask them why they did it, it an analysis of enforcement data by was because it was more profitable the Center for Public Integrity and to do it that way.” NPR shows. And even in the worst After the Mt. Carroll accident,

OSHA sought to make an example facility at the time of the accident, of the farming families that owned Consolidated Grain and Barge Co. Haasbach by proposing a $555,000 “I guess I’m vengeful,” said Gary fine for 25 alleged safety violations. Whitebread, a large-animal veteri- The Labor Department’s Wage narian. “I want [the defendants’] life and Hour Division tacked on a to be affected like mine. I want them $68,125 fine for the illegal employ- not to be able to go about their daily ment of Wyatt Whitebread and business like nothing happened.” three others who were too young “You know, if nothing happens of to be working in a hazardous set- this, then boys that age are expend- ting like a grain bin. OSHA sent its able,” said Carla Whitebread, a high case to the Department of Justice school Spanish teacher. “There’s and the state’s attorney in Carroll no recourse for it. It didn’t hurt the County, Ill., for possible criminal company at all. And if nothing else prosecution. happens, then why not hire 14-, 15, Although Haasbach paid the full 16-year-old boys and just put them amount for the child labor viola- in there ... what’s the difference? It’s tions, the OSHA fine was reduced to not going to cost you anything.” $200,000. The Justice Department Wyatt Whitebread was 14 when declined to prosecute, according he died inside Bin No. 9 at the Haas- to a Labor Department document bach LLC grain storage facility in provided to the Center in response Mt. Carroll. John W. Poole/NPR to a Freedom of Information Act Bin No. 9 at Haasbach LLC, request. The state’s attorney “indi- where two workers died and a third cated lack of interest” in pressing barely survived. John W. Poole/NPR charges, the document says. Haasbach has been dissolved. Its Panic in Bin No. 9 officers declined through their lawyer to comment. Until Haasbach LLC acquired it in In an interview at their home, 2005, the grain-storage complex Wyatt Whitebread’s parents spoke of where Wyatt Whitebread and Alex their lingering disquiet. They have Pacas died had been owned and op- brought a wrongful-death lawsuit erated by Consolidated Grain and against the principals of Haasbach Barge, a Louisiana firm with grain and the company that leased the operations in 70 locations, mostly in

Wyatt Whitebread was 14 when he died inside Bin No. 9 at the Haasbach LLC grain storage facility in Mt. Carroll. John W. Poole/NPR

the Midwest. The complex, about 10 it back to Consolidated, which han- miles east of the Iowa line, has a stor- dled the weighing and inspection of age capacity of 2 million bushels. the corn and dictated its condition. Haasbach was formed by three Haasbach’s and Consolidated’s corn farming families in northwestern Il- was intermingled. linois; two of them, the Haases and The corn crop stored in the sum- the Harbachs, had operational con- mer of 2010, harvested the year be- trol of the Mt. Carroll facility. After fore, was unusually wet, making it taking charge — “We purchased it prone to clumping. People had to for the storage of our grain rath- be sent into the bins to break it up; er than building more storage at the Haasbach manager, Matthew home,” Willard Harbach explained Schaffner, needed extra help. in a deposition — Haasbach leased That summer, Schaffner’s daugh-

ter, Marti Jean, loaded trucks and the bottom of the bin with the aim cleaned out bins at Haasbach for $8 of improving the corn’s flow. an hour. Then 15, M.J., as she was “It created kind of a quicksand called, recruited her friend, Wyatt effect,” Piper said. “So we worked Whitebread, to work in the bins. He around it and we were aware of it, started July 19. Will Piper started and after a while … Wyatt ended up the next day. At Piper’s suggestion, Matt Schaffner brought on Alex Pacas — known to friends as Paco — on July 27. “Our job was to break up the rotten chunks of corn that prevented the corn from flowing into the center of the bin,” Piper said in an interview. “The training I received was just from Wy- att, telling me how to break up the corn, the best way Bin No. 9 at Haasbach LLC, where two workers died that he did it. Later that day and a third barely survived. John W. Poole/NPR Matt came up and just kind of expressed to stay away from the center hole in the bin so that getting caught up in it and started we didn’t get sucked up into that. screaming for help. Me and Alex “But there was no safety training went in after him, and we each or anything like that.” grabbed one side of him under his On July 28, Piper, Pacas, White- armpits and started dragging him bread and a fourth worker, 15-year- out, and got pretty close to the edge old Chris Lawton, showed up around of the quicksand and then we start- 7 a.m. and were sent into Bin No. 9. ed sinking in with him.” It was a hot, humid day. Conditions Lawton scrambled out of the bin inside the bin were oppressive. and went for help; he was so dis- About 9:45 a.m., Matt Schaffner traught he could barely speak. M.J. opened the second of three holes in Schaffner turned off the conveyor

that was running under the bin and on Pacas and a bottomless plastic making matters worse by drawing bucket a firefighter had jammed down the corn. She told her father over his head to keep the corn away that Piper, Pacas and Whitebread from his face. The rescuers began were stuck. vacuuming away the corn, a pro- “And it was just me and Alex cess that took about six hours. They standing there up to our chests completely, just trapped in the corn,” Piper said. “And Wyatt was underneath. I was hopeful that he was still alive, but at this point I’m pretty sure that he suffocated pretty quickly. The pressure underneath the corn was just too great.” Matt Schaffner climbed into the bin and began digging frantically to reach Wyatt. “After, like, 30 sec- onds of digging he realized that he wasn’t getting anywhere and there was no hope,” Piper said. “So he set Lisa Jones, whose children were his shovel down and I told him to friends of the Mt. Carroll victims, says go back outside so that the rescuers the 2010 accident still reverberates in knew what bin to go in.” the small town. John W. Poole/NPR Schaffner climbed out of the bin. The corn kept flowing around Piper and Pacas. “After a little bit [Pacas’s] were able to yank Piper out by the hand was sticking up above the arms at about 4 p.m. He was put on grain and I could just see his scalp, stretcher and airlifted to a hospital and his hand stopped moving,” Pip- in Rockford, 60 miles away. er said. “And the corn was up to my Outside the Haasbach complex, chin at that point. And it was slowly a crowd was gathering. “We just trickling down … and I was about to sat on the grass, crying, and just be covered, too.” waited and more people came,” Piper believes he was saved by said Lisa Jones, a mother of six who the two inches of height he had knew Whitebread, Pacas and Piper.

“One of the things as a mom I’ve really struggled with is that my son died in terror. He didn’t die in peace.”

“Church people came and brought indentations all over his skin from food and water.” corn.” Teenagers, many of them White- “The chaplain called us over and bread’s classmates at West Carroll he said they got Will out and he was High School, filled the parking lot face to face with Alex and Alex is de- at the Land of Oz, a convenience ceased,” Annette Pacas said. It took store across the highway. another six hours for Alex’s and Wy- Jones stayed with Pacas’s mother, att’s bodies to be recovered. Annette, as the hours passed. Jones’s “One of the things as a mom husband, Matt, a funeral home own- I’ve really struggled with is that my er and the Carroll County coroner, son died in terror,” Pacas said. “He was getting regular updates on the didn’t die in peace.” rescue effort and relayed the infor- Gary Whitebread fixates on a de- mation to his wife by cell phone. tail he missed in the days prior to “We knew it wasn’t good,” Lisa Jones his son’s death. said. Rescuers cut a series of trian- After Wyatt broached the idea of gular-shaped holes into the side of working at Haasbach, Gary drove to the steel bin, near the bottom, to the site. He saw workers sweeping help drain the corn. As it spilled out corn from a near-empty bin; that, he onto the ground, volunteers shov- understood, was what Wyatt would eled it away. be doing. He allowed Wyatt to take Word came that one of the work- the job. ers was alive, though “they didn’t In the Whitebread household, know which one,” Jones said. “And Gary did the laundry. During the so all of the families were just sitting brief period Wyatt worked at Haas- there, waiting, and then, finally, we bach, “my washer would be full of knew Will was alive. And then they corn,” Gary said. “And I’d reach in brought Will out and … he had, like, his pockets and there’d be corn in

his pockets. And that should have ing, ‘Wyatt!’ And he’d just smile real been a red light to me. I mean, if big and then you weren’t mad any- you’re sweeping an empty bin out or more.” standing in corn maybe up to your The OSHA investigation into knees, you’re not going to have corn the Mt. Carroll accident began the in your pockets.” evening of July 28 and culminated Piper, the survivor, continues to not quite six months later with the struggle. “I guess the incident itself issuance of three citations alleging wasn’t the worst part about it,” he 25 violations by Haasbach, includ- said. “It was the fact that I lost Wy- ing failing to train the four young att and Alex. … They were both like workers in Bin No. 9 in “safe work family, like brothers, to me.” practices” and failing to turn off the Tall and thin, with close-cropped conveyor under the bin. red hair, Piper was a self-described Twelve violations were classified “band geek” in high school who as willful, suggesting Haasbach ei- held jobs at the Dairy Queen in Mt. ther disregarded or was “plainly Carroll, the Metform Machine Com- indifferent” to the law. An internal ponents factory in nearby Savanna OSHA document obtained by the and a Minnesota ski resort before Center and NPR offered justifica- signing on at Haasbach. He and the tion for the willful violations: The dark-haired Pacas, also a musician, people in charge of Haasbach had were inseparable. worked around grain for 30-plus “He was the one person I shared years, the document says, and had everything with,” Piper said. His heard about grain entrapments. goal is to raise money for a perma- All told, OSHA wanted Haasbach nent headstone for Pacas’s grave at to pay $555,000 in penalties.As of- the Oak Hill Cemetery; a teeter- ten happens, the final amount was ing, weather-beaten plastic marker whittled down. stands there today. A Center-NPR analysis of OSHA Wyatt Whitebread, younger and data shows that 179 people died in sandy-haired, was a mischievous grain entrapments at commercial charmer. “He would gather people facilities — bins, rail cars, etc. — to play baseball or soccer or blow from 1984 through 2012. The fines up my backyard,” Lisa Jones said, initially proposed in these cases to- laughing. “I spent a lot of time say- taled $9.2 million but were cut to

$3.8 million, a reduction of 59 percent. Given that some of these cases are still open, the fines could drop lower still. The five largest fines, which ranged from $530,000 to $1.6 million, were cut by 50 to 97 percent. Haasbach wound up paying $200,000 for the violations in Mt. Carroll, a 64-percent discount. In an interview, OSHA chief David Michaels explained: “We had them open their books and we determined that $200,000 ‘Buried in Grain’ was the appropriate fine. Nearly 180 people — including 18 teenagers — The company also agreed have been killed in grain-related entrapments to go out of business and at federally regulated facilities across 34 states to notify OSHA if they ever since 1984, records show. Their employers went back into business, were issued a total of $9.2 million in fines, so we could conduct very though regulators later reduced the penalties strict oversight of them.” overall by 59 percent. Carla Whitebread was See the details and fine for each incident at: unimpressed. http://apps.npr.org/buried-in-grain/ “I mean, for the company, that amount of money doesn’t make any difference at all,” bach Family Partnership received she said. Indeed, data compiled by $6.5 million in federal farm subsi- the Environmental Working Group, dies from 1995 through 2011, Haas a nonprofit research organization, and his son $1.4 million. show that the seven-member Har- “When I first saw the fine of

half a million, I bawled,” Annette as “a commercial grain buyer” and Pacas said. “A half a million dol- suggested that it bore responsibility lars and you killed two kids and ru- for the job site. “Whatever has got ined a third. And now it’s down to to be done with the grain, Consoli- [$200,000] … It’s disgusting.” dated calls the shots,” he said. The Whitebreads, Annette Pacas Another partner, Willard Har- and Will Piper have lawsuits pend- bach, testified that he knew safety ing against Haasbach and its lessee, harnesses were kept on site but Consolidated Grain and Barge. In thought they were used to protect court documents, each defendant workers from falls, not to keep them blames the other for the accident. from sinking into piles of corn. Both Haasbach partner Robert Haas he and Haas said they were unaware faulted Consolidated for storing that teenagers, some underage, corn with a moisture content ex- worked in the bins. ceeding 15 percent. “I now know that it’s illegal” to al- “They would always put grain in low a 14-year-old to work in a com- the bins in Mt. Carroll at 16 percent,” mercial bin, Harbach said in a de- Haas told Kevin Durkin, lawyer for position taken by Durkin. Harbach the Whitebread and Pacas families, added, incorrectly, that if Haasbach in a deposition. “You get over 15 you were a farm entity — which, in his almost know you’re going to have eyes, it was — employing a 14-year- problems. [The corn] starts to rot. old “would not be illegal.” The Fair It will mold. It will stand up. It will Labor Standards Act prohibits chil- just, you know, do everything that dren younger than 16 from working you don’t want it to do.” in hazardous settings on farms. Haas said he considered the facil- Haasbach maintains that the fam- ity a “farm entity,” beyond OSHA’s ilies of Whitebread and Pacas are jurisdiction. Under questioning by entitled only to workers’ compensa- Department of Labor lawyer De- tion, not damages, because comp is nise Hockley-Cann, however, he the exclusive remedy for employees acknowledged that no crops or live- under Illinois law. Should this argu- stock had ever been raised on the ment prevail, each family would re- property. ceive only funeral expenses, capped In the Labor Department deposi- at a certain amount. Gary White- tion, Haas described Consolidated bread said he understood that Wy-

“The harnesses that would have saved these kids were in a shed on the property, collecting dust and cobwebs.”

att’s death would be worth $5,000 what was happening: He and other under workers’ comp — not enough workers were entering bins without to pay for the funeral. harnesses. “They’re not stupid,” Pip- In its answer to the lawsuits, Con- er said. “They watch us climb the lad- solidated — whose representatives ders. What else would we be doing?” declined to be interviewed for this Matt Schaffner told the Labor story — denied that it managed the Department’s Hockley-Cann that Mt. Carroll facility, although it kept he did the hiring and handed out a small office there and had employ- work assignments at Haasbach. He ees on site. testified that he cautioned Wyatt “The danger of ‘walking down Whitebread, Alex Pacas, Will Piper grain’ without employing proper and Chris Lawton to stay away from safety precautions was known to the center of the inverted cone in- Consolidated Grain and Barge and side any of the bins and to wear dust its employees involved in grain han- masks. dling and grain storage,” the com- Schaffner spent about five min- pany stated in a court document. utes on safety training for each of “However, Consolidated Grain and the workers, he said: “It was a pretty Barge was not involved in grain han- straightforward job.” The harnesses dling in the operation of Bin No. 9 hanging in the nearby shed weren’t on the date of the occurrence.” discussed, Schaffner said. Consolidated contended that Annette Pacas finds this inex- Whitebread’s and Pacas’s negligence cusable. “The harnesses that would contributed to their deaths, Piper’s have saved these kids were in a shed negligence to his near-suffocation. on the property, collecting dust and In his own deposition, Will Piper cobwebs,” she said. said there was no way the Consoli- Pacas’s sister, Catherine Rylatt, dated employees could have missed was so shaken by the accident that

Alex Pacas’s aunt, Catherine Rylatt, became a grain-safety advocate after the accident in Mt. Carroll. John W. Poole/NPR

she formed the Grain Handling they just quit doing it. I don’t know Safety Coalition and speaks regular- why they wouldn’t have done it,” ly at agricultural conferences. She she said. “And I can’t believe that believes the Haasbach partners got they put the boys in there, being so off lightly. young.” “If the criminal case is gone, I Said her husband: “Anybody that think it’s a missed opportunity and worked in that office that knew kids it pisses me off,” said Rylatt, who were going into that bin without lives near Dallas. safety equipment should be held Carla Whitebread, a retired Army responsible. This is a multi-, multi- major and helicopter pilot, said she failure thing.” understood that when Consolidat- Alex Pacas’s aunt, Catherine Ry- ed owned the operation, prior to latt, became a grain-safety advocate selling it to Haasbach in 2005, the after the accident in Mt. Carroll. company used its safety equipment. John W. Poole/NPR “And to the best of my knowledge, Lisa Jones, whose children were on the day that Haasbach took over friends of the Mt. Carroll victims,

says the 2010 accident still rever- It would serve five years’ probation. berates in the small town. John W. OSHA characterized the case as Poole/NPR a victory. Victim advocate Ron Hayes, who ‘Cost of Doing Business’ believes the criminal case against Tempel should have resulted in jail OSHA’s Michaels says the grain stor- time, sees it as a failure. Authorities age industry was on the agency’s ra- “had the perfect opportunity to send dar even before Mt. Carroll. “We’ve a clear message out to the grain fa- been very, very hard on this indus- cilities and CEOs of this country that try,” he said. “We now do triple the we will not stand by and let you con- number of inspections that we were tinue to kill our workers,” he said. doing four years ago. We continue For Hayes, it’s personal. Around to issue fines in excess of $100,000 1:30 p.m. on Oct. 22, 1993, he got a over and over again.” call at the X-ray clinic he managed On May 29, 2009, 14 months be- in Mobile, Ala. His 19-year-old son, fore the Haasbach accident, 17-year- Patrick, had suffocated in a Florida old Cody Rigsby suffocated in a grain bin. When Hayes and his wife, grain bin in Haswell, Colo. Like Dot, arrived at the scene, around 5 Wyatt Whitebread and Alex Pacas, p.m., “they had just taken Pat’s body Rigsby became entrapped while to the morgue,” Hayes said. “And, walking down the grain; three other you know, I was really surprised be- teenagers, exposed to the same haz- cause the company was still working. ard, made it out alive. And I felt like this was a major disas- OSHA proposed a $1.6 million ter and I couldn’t understand why fine against the bin’s owner, Tempel they were still working and didn’t Grain Elevators LLC of Wiley, Colo. feel like there was anything wrong.” The U.S. attorney’s office in Denver Pat Hayes had been sent into the brought criminal charges against bin, operated by Showell Farms Inc., Tempel, and a plea agreement was with two other men to “walk down” reached in 2011: the company would the corn — keep it flowing. A screw- pay $50,000 to settle the OSHA like device known as an auger, used case and another $500,000 — all to move corn out of the bin and into of which would go to Rigsby’s fam- trucks, was running at the time, ily — to close out the criminal case. loosening the pile. Pat Hayes sank

in up to his knees, and his co-workers weren’t able to pull him out as the corn began to cover him. Showell Farms paid a $42,000 fine for Pat Hayes’s death, 92 percent less than the $530,000 recommended by the OSHA inspector in the case. What began as willful violations were downgraded to “serious” ones, a move an OSHA review- er later deemed inappropriate. “After a careful in-depth review of this case,” the agency’s William Mason wrote in a confidential 1994 memorandum, “it is my strong be- lief that willful violations occurred.” See more than 100 documents The Labor secretary at the time, relating to the grain bin accident on Robert Reich, publicly apologized the Center’s website. to Ron Hayes. Hayes left the X-ray clinic and became a full-time advocate for families of workers killed on the job. In the Occupational Safety and Health that capacity he met with Michaels Act of 1970, an employer who com- and three other top OSHA officials mits flagrant violations that cause or in October 2010, three months after contribute to a worker’s death faces the Mt. Carroll accident. at most six months behind bars, a “And in that meeting, [OSHA misdemeanor. By comparison, some chief of staff] Deb Berkowitz says, environmental crimes — polluting a ‘Ronnie, can you help us figure out river or killing an endangered ani- how we can stop these workplace mal, for instance — are felonies. deaths and injuries?’” Hayes re- “Sending a 14-year-old into a called. “I said, ‘The only way you’re grain bin without proper safety going to fix this is to put somebody equipment should be as unaccept- in prison.’ ” able as discharging a pollutant into That has proven difficult. Under a waterway that kills fish,” said Jane

Barrett, a former federal prosecutor linois, had no comment on the Haas- who now teaches at the University of bach case, a spokesman said. Carroll Maryland School of Law. County State’s Attorney Scott Brink- Labor Department data show meier declined to be interviewed. that there have been at least 19 fa- Brinkmeier could have sought tal and non-fatal grain entrapment involuntary manslaughter charges incidents since 2001 that drew will- against the Haasbach partners, said ful citations, which trigger consid- J. Steven Beckett, a professor at the eration of federal charges. Eight University of Illinois College of Law. of these cases were referred to fed- “I think it’s a case that should eral prosecutors. Three resulted in have been prosecuted,” Beckett said. charges and guilty pleas, though no “Somehow, these deaths are just a jail time; one is still under review. cost of doing business.” n Gary Shapiro, the acting U.S. attorney for the Northern District of Il- Chris Hamby contributed to this story.

FOLLOW-UPs Rethinking OSHA exemption for farms By Jim Morris and Howard Berkes Published Online: March 24, 2013 hould farms be regulated? Corn storage on farms and in commercial structures doubled Sbetween 1978 and 2010, climbing from 5.4 billion bushels to a record 10.93 billion bushels, according to the U.S. Department of Ag- riculture. With growth has come tragedy: worker entrapment deaths in corn or other grains — wheat, barley, soybeans — hit a recent peak in 2010, a Center for Public Integrity-NPR investigation found. In at least 51

incidents that year, 26 bodies were recovered. More than two-thirds of the entrapments occurred on farms, as did four of six incidents involving workers under 16. Commercial operations are overseen by the U.S. Occupational Safety and Health Administration. Most farms aren’t — but perhaps should be, some say. “We’ve got farmers who are building more space and bigger space, and it’s going to cause more issues,” Jeff Adkisson, executive vice president of the Grain and Feed Association of Illinois, which represents commercial operators, said at a grain bin safety conference in Cedar Rapids, Iowa, last fall. “I think it’s time for industry, for government, for all of us to pause and have the conversation again about who is exempt and who is not exempt from some of the standards.” Adkisson and others in the grain-storage industry have said for years that the bulk of entrapments occur on farms. This is based largely on the work of Purdue University professor William Field, who has put 70 percent of the incidents with reported locations on farms, 30 percent at commercial facilities. But the Center and NPR found 60 fatal and five non-fatal cases in an OSHA enforcement database that were not included in Field’s studies. All occurred at commercial operations. In response, Field redid his numbers. He found that 52 percent of the entrapments with known locations took place on farms, 48 percent at commercial facilities. The number of commercial grain bins in the U.S. has plummeted, from a peak of 15,305 in 1979 to 8,801 at the end of 2012, according to records kept since 1978. Commercial storage capacity rose from 6.99 billion bushels to 10.2 billion bushels during the same period. On-farm grain storage increased from a low of 10.9 billion bushels in 1997 to 13 billion bushels today, according to records kept since 1987. USDA data show that about 306,000 farms have one or more storage structures, Field said. “Some of those may have 20 structures,” he said. “So we’re talking about several million facilities.”

Randy Gordon, president of the National Grain and Feed Associa- tion, said his group and its state affiliates have redoubled safety efforts. “The OSHA standards, we think, are very adequate to address this danger,” he said. “There was an unfortunate spike [in deaths] that occurred but we have hopefully turned that corner now and we’re on the downward trend.” Farms — most of which are unregulated by OSHA — remain the great unknown: Are their owners doing enough to prevent grain entrapments? Do they know how? Bringing them into the fold wouldn’t be easy. During a question-and-answer session at the Cedar Rapids conference, Tiffin, Iowa, farmer James Meade rose. “The bottom line to me is, don’t pass a law that I won’t obey because I won’t obey it,” Meade said, clearly exercised. “I’ll tell anybody that. I’ll tell the OSHA guy that comes up to my place I’m not going to do it.” The statement drew murmurs of disapproval — and no applause — from the audience. Meade’s sentiment was echoed by thousands of farmers in 2011 and 2012 in response to a proposed Department of Labor rule that would have limited the work activities of children on farms beyond existing restrictions on hazardous jobs — no driving tractors, for example. Federal law already includes age restrictions for grain-bin work on farms (no one younger than 16) and at commercial sites (no one younger than 18 for certain tasks). The rulemaking, according to the department’s Wage and Hour Division, was driven by studies showing that “children are significantly more likely to be killed while performing agricultural work than while working in all other industries combined.” This written comment was typical: “From your bureaucratic over- reach in an area of family farming life that the government has NO business being in, you are trampling my rights … YOU don’t love my child any more than I do … You people are nuts!” Chastened, the department announced the withdrawal of the rule

last April. “To be clear,” it said in a statement, “this regulation will not be pursued for the duration of the Obama administration.” Catherine Rylatt, who became a well-traveled grain-safety advocate after her 19-year-old nephew, Alex Pacas, died in an Illinois bin in 2010, has grown weary of employer rationalization and resistance. At a conference in St. Louis last month, Rylatt tried to impart her safety message to an 18-year-old member of the Future Farmers of America. The young man pushed back, saying he didn’t think farmers would follow even the simplest of rules imposed by government. “The kid is 18, and he’s already got the attitude of a 60-year-old farmer,” Rylatt said. “It’s scary, is what it is.” n New federal scrutiny in wake of Center and NPR grain bin ‘drownings’ report By Howard Berkes Published Online: March 29, 2013 ongress, the Occupational Safety and Health Administra- tion and the Justice Department are beginning to respond to Cthe NPR-Center for Public Integrity Series on hundreds of per- sistent and preventable deaths in grain storage bins and weak enforcement by federal agencies. Two federal officials familiar with the case say that the Justice De- partment is again considering criminal charges in the incident in Mt. Carroll, Ill.,in 2010, in which 14-year-old Wyatt Whitebread and 19-year-old Alex Pacas suffocated in thousands of bushels of corn. Will Piper, 20, survived but was unable to save his friends and co-workers. The owner of the grain bin, Haasbach LLC, was initially fined $555,000 but OSHA cut the fine by more than 60 percent.

NPR/CPI obtained Labor Department documents that showed the Justice Department initially declined to file criminal charges in the case, despite multiple willful violations and what one former OSHA official called “the worst of the worst” cases. The officials now tell NPR that the Justice Department asked the Labor Department to again provide the Mt. Carroll case files. The request was made in January when NPR and CPI were pressing the agency to respond to questions about the case. “They’re taking another look” at the Mt. Carroll incident, one source said. “They should reconsider,” says Annette Pacas, Alex’s mother. “It was a crime. They killed two kids. It should be prosecuted as a crime.” Wyatt Whitebread’s mother Carla is hoping criminal charges will follow. “Unless that happens this kind of thing is not going to stop,” White- bread says. Haasbach LLC has declined comment given wrongful death and injury lawsuits filed by Piper, the Whitebreads and Annette Pacas. A spokesman for Gary Shapiro, the acting U.S. attorney in the Northern District of Illinois, said he couldn’t comment, citing agency policy. Another source briefed about OSHA’s response says the NPR/CPI series prompted an internal warning to agency officials. NPR/CPI reported that OSHA has routinely slashed fines and erased its most serious citations even when willful violations of law result in worker deaths. Senior agency staffers were told this week that the NPR/CPI series has put grain bin violations under scrutiny and requires more “thinking” about penalty reductions in cases with willful citations and fatalities. An OSHA spokesman declined comment. Congress is also beginning to respond to the NPR/CPI series. Three Democratic senators cited the NPR/CPI findings in announcing their support for the newly-reintroduced Protecting America’s Workers Act (PAWA).

“Whether working on a factory floor, on an oil rig, or in a grain bin, our workers and their families need to know that they will be safe and protected at the workplace,” said Sen. Tom Harkin (D-Io- wa), chair of the Senate Health, Education, Labor and Pensions committee. “And when violations do occur — especially those leading to injury and death — our laws need to be enforced, with lawbreakers held responsible.” Sen. Bob Casey (D-Pa.), chair of the Senate Employment and Work- place Safety subcommittee, said, “Updating our workplace safety laws and enforcement tools will reduce the number of work related injuries and deaths.” PAWA makes felony charges possible when repeated and willful violations result in a worker’s death or serious injury. The bill also calls for tougher penalties. “No worker should be put in a position of mortal danger, especially those who are untrained and ill-equipped,” said Sen. Patty Murray (D- Wash.), the chief sponsor of PAWA. “The evidence is clear that neither current criminal penalties, nor the paltry level of civil penalties allowed for under law, are sufficient to stop those employers who repeatedly violate the law and put workers in danger that leads to their death.” Under current law, workplace deaths are misdemeanors with convictions bringing no more than six months in prison. NPR/CPI reported that criminal prosecutions are rare in grain bin deaths and no one has gone to jail. Federal prosecutors decline worker death cases because they have felony crimes with more serious punishment com- peting for their attention. Finally, NPR and CPI have been inundated with responses from lis- teners and readers. Many offered to respond to the plea of Mt. Carroll survivor Will Piper, who said he wanted to raise money for a headstone for his friend, Alex Pacas. One anonymous donor pledged to pay the entire costs of a headstone. There’s also a newly announced effort in Mt. Carroll to erect a memorial to Pacas and Whitebread in their favorite city park. n

Alan White, a 47-year-old foundry worker from Buffalo, N.Y., suffers from silicosis, a debilitating lung disease caused by exposure to silica dust. Harry Scull OSHA rules on workplace toxics stalled By Jim Morris Published Online: June 4, 2012

t 58, retired machinist pick up his newspaper is a grind. Bruce Revers is tethered “This is a hell of a thing to live Ato his oxygen machines — with,” Revers, of Orange, Calif., a wall unit when he’s at home, a said of his worsening lung disease. portable tank when he’s out. The “There’s nothing I can do without simple act of walking to the curb to my air.”

His undoing was beryllium, a the United States, according to gov- light and versatile metal to which ernment estimates. Silica, pulver- he was exposed in a Southern Cali- ized and inhaled by construction fornia factory that makes high-tech workers, foundry workers and min- ceramics for the space, defense and ers, threatens more than 2 million. automotive industries. His bosses Obsolete exposure limits, dating to tried to keep the place clean and the early 1970s, are on the books well-ventilated, Revers says, and he for both substances. wore a respirator to shield his lungs Apart from the suffocating, from the fine metallic dust. None- chronic lung ailments they cause theless, he was diagnosed with — berylliosis and silicosis — be- chronic beryllium disease in 2009. ryllium and silica are classified as He will not recover. “known human carcinogens” by the The federal standard in place to International Agency for Research protect workers like Revers from on Cancer. beryllium is based on an Atomic “Shameful,” Dr. Cecile Rose, Energy Commission calculation a physician with National Jewish crafted by an industrial hygienist Health in Denver who treats sili- and a physician in the back of a cosis victims, said of OSHA’s silica taxi in 1949. For the last 12 years, limit. an effort to update that standard “Woefully outdated,” her col- has been mired in delay. A plan to league, Dr. Lisa Maier, who sees Re- address another toxic hazard — vers and other berylliosis patients, silica, a mineral that also damages said of the beryllium cap. the lungs — has been tied up even Revers, who worked around be- longer: 15 years. ryllium from 1983 to 1995, recalls The sluggishness is symptom- hearing warnings about the met- atic of a bigger problem: the Oc- al’s potency but said, “I didn’t re- cupational Safety and Health Ad- ally worry about it. Back then, I just ministration’s inability to act with cared about the job.” He learned he urgency on well-known workplace had berylliosis only after he had his hazards. gall bladder removed in 2009. Beryllium, used in everything “I’ve gotten progressively worse,” from missiles to golf clubs, threat- Revers said. “I’m on oxygen 24-7.” ens as many as 134,000 workers in OSHA officials declined inter-

view requests from the Center for OSHA is broken,” Sen. Tom Har- Public Integrity. In a written state- kin, an Iowa Democrat who chairs ment, the agency said it remains the Senate Committee on Health, “committed to protecting workers” Education, Labor and Pensions, from beryllium and silica. “How- said at a hearing on the GAO audit. ever, numerous steps in the regula- It takes OSHA twice as long as tory process mean OSHA cannot is- the Department of Transportation sue standards as quickly as it would and five times as long as the Securi- like.” ties and Exchange Commission to “These days the backlash against put out a rule, Harkin said. “The even the simplest efforts to protect Reagan administration issued new workers is withering,” said Rena [worker health and safety] rules at Steinzor, a professor at the Univer- a rate four times faster than the sity of Maryland School of Law and current administration,” he said. president of the Center for Progres- To be sure, OSHA has hurdles to sive Reform, a left-leaning think clear. Court decisions in industry tank. “OSHA hasn’t made a serious lawsuits say the agency must prove run at regulating chemicals in the significant risk before adopting workplace in a couple of decades.” costly rules. The White House Of- fice of Management and Budget ‘Broken’ process often serves as a bottleneck; the silica rule, for example, can’t be for- The Government Accountability mally proposed until it’s extricated Office reported in April that it takes from OMB’s Office of Information OSHA nearly eight years, on aver- and Regulatory Affairs, where it’s age, to issue a health or safety stan- been under review for more than dard. After issuing 47 significant 15 months instead of the 90 days rules, covering threats as diverse as allowed by executive order. Given asbestos and logging, in the 1980s industry objections, it stands little and ‘90s, the agency has produced chance of being dislodged before only 11 since 2000, the GAO found. the presidential election. Some of these aren’t new rules at all The beryllium rule has yet to but tweaks to existing rules, known make it to OMB. as technical amendments. The day of the Harkin hearing, “The standard-setting process at four workers, eight worker advocates

An unprotected restoration worker generates a cloud of silica dust while cutting masonry on a school in Michigan. Tom Ward

and seven relatives of people killed who suffers from silicosis. “He said, on the job had a one-hour meeting ‘I’m so sorry,’ ” White recounted a with Cass Sunstein, director of the few days later. Office of Information and Regula- Still, no one expects the process tory Affairs, and other White House to change anytime soon. Chuck officials. The visitors’ aim was to put Gordon, a lawyer who retired from a human face on the sterile process the Department of Labor in 2008 of rulemaking. after spending 32 years in the so- It seemed to work. One OMB licitor’s office, believes OSHA isn’t staffer started crying after hearing pushing hard enough. the family members’ stories, several “People say OMB holds things attendees said. Sunstein shook the up, and sometimes they do, but the hand of Alan White, a 47-year-old fact is you can fight OMB,” Gordon foundry worker from Buffalo, N.Y., said. “We did it all the time in the

Reagan and Clinton years. We’d ne- for six workplace poisons: benzene, gotiate and make a few compromis- arsenic, cotton dust, lead, a pesti- es, but we’d often win on the ma- cide known as DBCP and acrylo- jor issues. You can put pressure on nitrile, an industrial chemical. In them if the assistant secretary [of 1989 the agency ambitiously sought labor for occupational safety and to update exposure limits for 428 health] is willing to take them on.” air contaminants at once, only to An OMB spokeswoman did not have a court strike down the rule respond to interview requests. three years later. Crackdowns on silica and beryl- Today? Paralysis. lium could cost the affected industries hundreds of millions of dol- ‘Stop Silicosis’ lars. Companies would have to pay for respirators, health screenings, Alan White’s pique was aroused re- exposure assessments and dust- cently when he viewed, on YouTube, control equipment. a 1938 Labor Department film But the price of inaction on these called “Stop Silicosis.” The grainy, and other workplace toxics is stag- black-and-white video features Fran- gering. A recent study put the cost ces Perkins, Franklin D. Roosevelt’s of fatal and non-fatal workplace ill- secretary of labor, who says silicosis nesses in the U.S. at $58 billion for can be prevented if safety measures a single year. are “conscientiously adopted.” It The human costs are higher still. shows how dust from tools like jack- Each year, an estimated 50,000 peo- hammers — “widow-makers” — can ple die from occupational diseases. be controlled with water. That’s roughly 10 times the number The film was made in the wake of workers who die from traumatic of the Hawk’s Nest Tunnel disas- injuries. More than 400,000 people ter, in which hundreds of mostly a year get sick from on-the-job ex- African-American workers died of posures. silicosis in short order after drill- “The government — of course ing through silica-laden rock near they’re going to drag their feet,” Gauley Bridge, W.Va. Revers said. “That’s a given.” White hadn’t heard about Hawk’s It’s worse than Revers knows. In Nest when he took a job as a gen- 1978 alone, OSHA issued standards eral helper at the Buffalo foundry

in 1995. He was happy to have the work; a single parent, he’d been laid off from a food packaging plant the year before and had been on public assistance for nine months. The foundry, where molten copper and brass are poured into molds, was full of dust. Silica was routinely knocked loose from brick Online Video: ‘Stop Silicosis,’ a 1938 furnace linings and other equip- Dept. of Labor film. ment; clouds of it hung in the air. Dust masks were available but the workers almost never used them. do my best to refrain from getting “You didn’t wear masks,” White mad,” he said, knowing now that his said. “You either took the heat and disease was probably preventable. the dust, or you didn’t work there.” White attended the Senate hear- He took it for 16 years. He took ing in April and put a written state- it even after he grew short of breath ment into the record. “If there were and a doctor told him an X-ray better OSHA rules for silica,” he showed “something fuzzy” in his wrote, “I may not be sick today.” lungs. He didn’t want to forego Silicosis is hardly a new phe- wages that once reached $92,000 a nomenon. It was documented by year with overtime. the Greeks and the Romans centu- In 2011, White reluctantly ab- ries ago. The National Institute for sorbed a pay cut and transferred to Occupational Safety and Health, a less dusty part of the plant. Asked NIOSH, warned in 1974 that the why he stays at all, he replied, “I silica exposure limit was too high have two mortgages.” and recommended that sandblast- Easily winded and unable to ex- ing, which can lead to prodigious ercise, White, a new grandfather, silica exposures, be banned. won’t get better. The best he can Industry demurred. A group hope for is a gradual loss of lung calling itself the Silica Safety As- function, as opposed to the rapid sociation formed in Houston; its deterioration experienced by the purpose, according to internal Hawk’s Nest workers. “I’m going to documents, was to prevent a “crip-

pling restriction” on sandblasting, that used hydraulic fracturing, or used in the petrochemical indus- fracking, exceeded the current — try to treat storage tanks and other lenient — silica limit. The drillers equipment prior to painting. pump sand, which is virtually 100 No ban was imposed. In fact, percent silica, along with fluids, OSHA made no attempt to adjust into dense shale formations to cre- its silica regulations until 1997, ate fissures and get at oil or gas de- when it floated an “advance no- posits. Dust ensues. tice of proposed rulemaking” that Industry isn’t giving in. In a would cut the exposure limit in statement, the American Chem- half and require that controls such istry Council called a new silica as water be used to quell dust. This rule “unnecessary,” saying it “could triggered more objections from threaten tens of thousands of jobs. industry, which maintained that We believe the right approach is to silicosis was no longer a significant improve enforcement and ensure threat to American workers. that the current standard is met, The proposal stayed within the not to cut the standard in half.” Labor Department until February The National Stone, Sand & 2011, when it was sent to OMB’s Of- Gravel Association concurred, say- fice of Information and Regulatory ing “the scientific evidence is clear Affairs. It was the subject of nine that the existing [exposure limit] is meetings there last year, seven of protective of health.” which included representatives of Not true, says Dr. Kathleen Kre- industry groups. Two included la- iss, a physician with the NIOSH bor or public health officials. Division of Respiratory Disease In a statement to the Center for Studies. The new limit OSHA is Public Integrity, OSHA called silica considering — 50 micrograms of “one of the most pervasive hazards silica per cubic meter of air, half found in the workplace” and said it of what’s allowed now — has itself “anticipates that the proposed rule been shown “not to be protective will be published soon.” over a lifetime of exposure,” Kreiss In April, NIOSH researchers re- said in an interview. ported that almost half the air sam- While the number of silicosis ples they took in 2010 and 2011 at cases has declined in recent de- 11 oil and natural gas drilling sites cades, the Centers for Disease Con-

trol and Prevention estimated in he said. “There will be a surge in it 2008 that between 3,600 and 7,300 among masons in this country.” cases still occur each year. The Silicosis isn’t the only worry. Dr. decline has been less pronounced Ian Greaves, a physician and pro- among workers 15 to 44 years old, fessor of public health at Temple suggesting that “intense overexpo- University, said recent studies show sures” to silica are still occurring, that even modest silica exposures the CDC said. heighten the risk of lung cancer. “Now, it seems like the highest “It appears that any degree of lung exposures are in construction,” fibrosis increases the risk,” Greaves said Pam Susi, a program director said. with the union-affiliated Center for Construction Research and Train- ‘Try to breathe through ing. Many contractors still don’t a straw’ use water or exhaust systems to suppress silica-rich dust, Susi said. Glenn Bell, 64, was diagnosed with Tom Ward sees this firsthand. chronic beryllium disease in 1993 Ward, 43, of Woodhaven, Mich., after working 25 years as a machin- became a union bricklayer 22 years ist at the Department of Energy’s ago and a training director for his Y-12 nuclear weapons production local in 2010. At construction sites plant in Oak Ridge, Tenn. He’d de- throughout Michigan he sees work- veloped breathing problems in the ers cutting or grinding masonry 1980s but was treated as an asth- and concrete with no respiratory matic for years before getting the protection and no engineered con- correct diagnosis. trols, generating huge dust clouds. Having berylliosis, Bell said re- The dust could be knocked down cently, is “like being on a roller with water or sucked up with vacu- coaster. On a good day I still have ums, Ward said, but almost no one quite a bit of difficulty breathing. A bothers. bad day would be when my breath- Ward, whose father died of sili- ing gets a lot worse. As a friend of cosis at 39 after sandblasting for mine described it, go outside in cold several years, fears he’ll contract weather and run around your house the disease. “It’s my generation eight times, as fast as you can. Then that’s going to come down with it,” try to breathe through a straw.”

Recognizing beryllium’s ex- OSHA acknowledged in a state- treme toxicity, even in tiny doses, ment that its existing regulations the DOE in 1999 lowered the expo- “may not be adequate to prevent sure limit for government and con- the occurrence of chronic beryl- tract workers by 90 percent. lium disease.” The agency said it OSHA didn’t force private-sector is “hopeful” it can push through a employers to do the same, despite beryllium rule mirroring the one ample evidence that its exposure adopted by the DOE 13 years ago. ceiling was too high and was mak- Such a rule has the backing ing workers sick. of both the United Steelworkers “Today the federal government union, which represents several finds itself in the somewhat em- thousand beryllium-exposed work- barrassing position of explaining ers, and Ohio-based Materion why the employees of DOE and its Brush, the nation’s only producer contractors are now protected by of pure beryllium. Known until re- a workplace rule ten times more cently as Brush Wellman, the com- restrictive than the one covering pany for years denied that beryl- workers in the private sector,” for- lium posed any significant risk and mer DOE assistant secretary David fought OSHA’s attempts to tighten Michaels, then with George Wash- the standard in the late 1970s. ington University, wrote in his 2008 Now, even Materion Brush agrees book about corporate influence on that the standard is too weak. “We science, Doubt is Their Product.. are hopeful OSHA’s proposed stan- Now head of OSHA, Michaels dard will reflect the collective ex- declined to talk about beryllium, pertise of organized labor and the which is used to make cell phones, beryllium industry,” the company scientific equipment, airplane said in a statement. brakes and many other products. “Beryllium is no longer contro- Not everyone blames him for the versial,” said Gordon, the retired rulemaking snag. “He’s tried hard Labor Department lawyer. “If you to make changes,” said Steinzor, of move quickly, industry will become the University of Maryland. Citing more cooperative because they see OMB’s glacial review pace, she said: you moving forward. You get into “He’s been shut down by the White the rhythm of doing things as op- House.” posed to not doing things.” n

3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 10 ©2013 Center for Public Integrity 151 Landmark worker death case continues against UCLA chemistry professor By Jim Morris Published Online: July 27, 2012

OS ANGELES — Sheri Sangji is on L fire. The 23-year-old research associate, a Pomona College graduate raised in Pakistan, has accidentally pulled the plunger out of a syringe while conducting an experiment in the Molecular Sciences Build- ing at UCLA. The syringe contains a solution that combusts upon contact with air. The solution spills onto Sangji’s hands and Sheri Sangji at her graduation from Pomona torso, and she is instantly College in May 2008. Courtesy of the Sangji family aflame. She isn’t wearing a lab coat; no one told her she has to. Her synthetic rub- superheated gases given off by her ber gloves provide no protection as burning polyester sweater, a pro- the fire burns through her hands cess that accelerates as she runs to the tendons. She inhales toxic, and screams.

It’s December 29, 2008, mid-after- California’s Board of Regents will noon. The UCLA campus is mostly be prosecuted for the fire in Room quiet for the holidays, but chemistry 4221. Harran will be the first Amer- professor Patrick Harran’s team is ican university professor to be ac- working. Harran is in his office, one cused of a felony in connection floor up from Room 4221, where at with the death of a worker. Poor his direction Sheharbano “Sheri” lab safety practices at UCLA will be Sangji has been trying to produce a chemical that holds promise as an appetite suppressant. She is unsupervised. Two postdoctoral fellows from China are nearby when Sangji catches fire. One runs upstairs to summon Harran, the other tries to smother the fire with his lab coat. He doesn’t think to put Sangji under an emergency shower a few feet away. By now, deep burns cover A photo of the accident scene in Room 4221 of almost half her body. UCLA’s Molecular Sciences Building. Harran finds Sangji “sitting on the floor,” her clothes “either caked to her or brought to light, and researchers burned off,” he later tells an inves- around the world will take notice. tigator. “Sheri was a young girl who was After 18 days, on January 16, working in a laboratory in one of 2009, Sangji succumbs to her the largest and most prestigious wounds at the Grossman Burn Cen- universities in the world,” says ter in Sherman Oaks, Calif. Sangji’s older sister, Naveen, a sur- Harran and the University of gical resident in Boston. “There

should be no safer place for some- At the time of Sheri Sangji’s one to go to work. Instead, she nev- death, California’s Division of Oc- er got to come back home.” cupational Safety and Health, Cal/ OSHA, already had begun an in- * * * quiry into the accident at UCLA. Sangji’s death and the prosecution That May the university was cited of Harran and the UC regents have for four violations; it paid a $31,875 had far-reaching effects. Faculty fine. members, department heads and In December 2009, Cal/OSHA’s deans at research institutions have Bureau of Investigations, which followed the developments with looks into all worker fatalities in consternation: Might they, too, the state, recommended that Pat- be criminally liable if something rick Harran and UCLA be charged happened in one of their labs? A with involuntary manslaughter and federal investigation revealed that felony labor code violations. “Dr. there had been at least 120 lab accidents at universities between 2001 and 2011. On Friday, the criminal case against the regents was dropped after they agreed to adopt a lengthy list of safety measures and establish a $500,000 scholarship in Sangji’s name. The case against Harran, who faces up Online Video: ‘Tragedy at UCLA to 4½ years in jail, continues. His arraignment was post- poned until September 5. Harran,” investigator Brian Bau- Naveen Sangji wants to see dendistel concluded in a 95-page Harran behind bars. “If this were report, “permitted Victim Sangji to a regular person out on the street work in a manner that knowingly who got drunk and killed some- caused her to be exposed to a seri- one,” she says, “he would be going ous and foreseeable risk of serious to jail.” injury or death.”

Harran, 42, did not respond to in- trict attorney’s office for prosecu- terview requests from the Center for tion, as is Cal/OSHA’s practice when Public Integrity and the Center for it believes it has evidence of gross Investigative Reporting. In a 2009 employer misconduct. The DA filed statement to the Los Angeles Times, a felony complaint in December he called Sangji’s death a “tragic ac- 2011, focusing on the labor code vio- cident” and explained, “Sheri was an lations. Chemists and safety consul- experienced chemist and published tants were stunned. researcher who exuded confidence “The district attorney got the and had performed this experiment attention of every research institu- before in my lab. Sheri had previous tion in the United States,” says Har- experience handling pyrophorics, ry Elston, editor of the Journal of chemicals that burn upon exposure Chemical Health and Safety. to air, even before she arrived at UCLA.… However, it seems evident, ‘A scientist’s scientist’ based on mistakes investigators tell us were made that day, I underes- Sheri Sangji was raised in Kara- timated her understanding of the chi, Pakistan, and graduated from care necessary when working with Pomona College in California in such materials.” May 2008. A superior student and UCLA officials declined inter- athlete, she earned a degree in view requests, pointing to a writ- chemistry but had no plans to enter ten statement issued by university the field. “She was a very dynamic Chancellor Gene Block in January. person with lots of interests, a lot “Sheri Sangji’s death was strongly of spark,” says her sister Naveen, felt by everyone at UCLA, and we 29, also a Pomona graduate. “She were deeply saddened by the loss was interested in the environment, of a member of our community,” women’s rights, minorities’ rights.” Block wrote. “I made a pledge then Sheri took a job with a pharma- that we would go above and beyond ceutical company in Pasadena, hop- existing policies and regulations to ing to save money for law school. become a model of campus safety. She was intrigued by an ad Harran And we have.” placed for a research associate at Baudendistel referred the Harran UCLA. The idea of moving to Los case to the Los Angeles County dis- Angeles and working for a “rising

star” in organic chemistry appealed journals with very well-known re- to her, Naveen says. searchers.… She stood out.” Harran The job interview took place in acknowledged, however, that Sangji September 2008. Harran was im- did not receive “generalized safety pressed. Sangji “was very familiar training. I believe my assistant told with analytical instrumentation of me that it was not offered for her the type that I really wanted her to category per se, although we were focus on, which was great,” he told going to follow up on that.” He also investigator Baudendistel. “I asked said that no fire-resistant clothing her if she was comfortable with was available to lab employees at general techniques and properties the time of the accident. of organic chemistry. And I asked Harran had come to UCLA as a her if she worked with air-sensitive tenured professor the previous July, materials…. Just how generally having been recruited from the comfortable she was in the labora- University of Texas Southwestern tory. That’s what we spent most of Medical Center in Dallas, where our time on, and she left. And, you he’d spent nearly 11 years and won know, I loved her. I thought she was a number of honors, including the fabulous.” AstraZeneca Excellence in Chemis- Sangji began work in the UCLA try Award and the Pfizer Award for Molecular Sciences Building on Oc- Creativity in Organic Synthesis. tober 13. Four days later, Harran “He was literally the first chemist watched her perform a small-scale we succeeded in hiring,” says Steven experiment using tert-Butyllithium McKnight, chairman of the bio- solution, a chemical its manufac- chemistry department at UT South- turer, Sigma-Aldrich, describes as western. “He was articulate and per- follows: “Reacts violently with water. sonable and easy to communicate Contact with water liberates extreme- with, unlike many of the candidates. ly flammable gases. Spontaneously Most of the equivalent scientists flammable in air. Causes burns.” didn’t have the fearlessness or forti- Sangji did a “great job” on the tude to go to a department that had experiment, Harran told Bau- no history in chemistry.” dendistel, and had knowledge of Harran “built a very strong labo- chemistry beyond her years. “She ratory and proceeded to make a had published in top peer-reviewed number of really nice discoveries

in the field of synthetic chemistry,” Wheatley conducted an annual in- McKnight says. Harran and a col- spection of the fourth-floor labs. league, Xiaodong Wang, developed Wheatley found a number of defi- a chemical that causes cancer cells ciencies, one particularly relevant to kill themselves. They published a to events that would soon unfold: paper on the breakthrough in Sci- “Eye protection, nitrile [synthetic ence magazine. rubber] gloves and lab coats were A graduate of Skidmore College not worn by laboratory personnel.” and Yale, Harran was “a scientist’s In an email on November 5, scientist,” McKnight says. “He really Wheatley asked Harran when they wanted to dig in and make discover- could meet to discuss the findings. ies of consequence. When he went “Is it possible to wait until we get to UCLA it was a heartbreaker.” settled on the 5th floor?” Harran re- In a 2006 interview with the Pro- plied a week later. “That would make ceedings of the National Academy for a better meeting — our labs on 4 of Sciences, Wang, who has since re- are overcrowded and disorganized. turned to his native China, offered I wasn’t planning to be in tempo- a glimpse of life at UT Southwest- rary space for this long.” Wheatley ern. “Nothing is ever good enough, agreed to the postponement. and you’re only as good as your last On December 29, a Monday, paper, which I think is great,” Wang Sheri Sangji reported for work in was quoted as saying. Room 4221. Harran wanted her to replicate the chemical reaction A violent reaction she’d performed on October 17, but on a scale three times larger. UCLA pursued Harran aggressively, Around 3 p.m., Sangji was using a offering him a budget of $3.2 million 60-millileter plastic syringe with a to set up a state-of-the-art organic 2-inch needle to transfer tert-Bu- chemistry lab on the fifth floor of tyllithium from a 100-ml bottle to the Molecular Sciences Building. a glass flask. He and his team were given tempo- The needle was too short; Sigma- rary space on the fourth floor while Aldrich recommends using one at renovations were made upstairs. least a foot long. This, investiga- On October 30, 2008, UCLA tor Baudendistel theorized, forced chemical safety officer Michael Sangji to tilt the bottle of tert-Butyl-

lithium or lay it on its side, awkward- In an interview with a deputy ly withdrawing the liquid with one UCLA fire marshal, Harran de- hand while holding the bottle with scribed what he saw in Room 4221 the other. Had the needle been long before the paramedics arrived. enough, she could have clamped the “Sheri was, you know, she was in bottle, upright, to the workbench, shock … she was shaking. I asked her a less risky procedure. Safer still what happened. She didn’t tell me would have been the “cannula trans- much. She just said there was a fire, fer” method, in which a liquid is pushed by an inert gas like nitrogen from one container to another through a tube. Sangji inadvertently pulled out the plunger of the syringe, spilling the solution and triggering a flash fire. Had she been wearing a fire- resistant lab coat, her burns might have been less severe. In fact, she was wearing no lab coat, not even a cotton one. An investigator holds a melted syringe after a fire At the time there that severely burned UCLA lab worker Sheri Sangji. was no university policy requiring such protection. “That policy has been put in and she just kept asking, ‘Where are place since the accident,” Harran they, where are they, where are they?’ told Baudendistel. Requisition … She wanted water on her arms, forms from the UCLA Department and she was holding her hands out of Chemistry and Biochemistry like this, and the skin was separating. show that fire-resistant lab coats It was awful.” were, in fact, ordered, at a cost of Sangji was taken to Ronald Rea- $45.05 each. gan UCLA Medical Center. Harran

finished the experiment she had details of the experiment Sheri was started — at the request of the Los doing that day. We obviously asked Angeles and UCLA fire departments, him questions about why she was do- which feared another conflagration, ing this experiment, this dangerous he said. Shortly after 4 p.m. Pacific experiment, without supervision. time, Naveen Sangji’s cellphone rang My uncle, because of his engineer- in Boston. Then a medical student ing background, asked specifically at Harvard, she recognized Sheri’s about training and about why she number and assumed her sister was wasn’t given fire-resistant protective calling to tell her about another law equipment before doing this experi- school acceptance letter. They had ment. Harran refused to answer.” been coming regularly. Sheri’s friends began a vigil. “I It was a hospital social worker, had thought she would survive,” using Sheri’s phone. “She told me says Aakash Kishore, a lab assistant Sheri had been in an accident and in the UCLA psychology depart- described what happened,” Naveen ment at the time and now a gradu- says. “As a medical student I could ate student. “I remember reassur- understand the gravity of what she ing Naveen.” Kishore and others was saying.” She caught a flight to showed up at the burn center almost Los Angeles early the next morning. every day during the 18 days Sheri Naveen went straight from the was there. About two dozen of her airport to the Grossman Burn Cen- friends and relatives were waiting ter, to which Sheri had been trans- in the parking lot the day she died. ferred. “Her arms were suspended “Her dad came outside and let us from the ceiling to keep them in a know that she was gone,” Kishore certain position, all wrapped with says. “He looked very weak.” bandages,” Naveen says. “The only part of her that I could see was her Willful violations face, which was unwrapped.” Naveen encountered Harran In the months to follow, Naveen at the burn center on New Year’s pressed UCLA officials for details Eve. “He came to the hospital and on the accident. She found the re- spoke with me and my uncle, who is sponses wanting. The university, she a structural engineer,” Naveen says. felt, was trying to make it appear that “[Harran] explained some of the Sheri was an experienced chemist,

and that the fire was her fault. On investigators returned to gather evi- June 17, 2009, replying to an email dence. “We shouldn’t have touched Naveen had sent two days earlier, anything,” he said. Chancellor Block recalled “the el- In November 2007 — 13 months egant and successful way” Sheri had before Sangji was hurt and eight performed the tert-Butyllithium ex- months before Harran came to periment the previous October. UCLA — a graduate chemistry stu- Although Cal/OSHA had issued dent named Matthew Graf spilled four citations to UCLA in May, a bottle of ethanol near an open Block wrote, “The campus believes flame; some of the alcohol splashed … that many corrective measures or- on his shirt and he caught fire. Graf dered by our inspectors were taken wasn’t wearing a lab coat and sus- before the tragic accident, though tained second-degree burns to his they were not properly document- hands and torso. He spent a week at ed.” Cal/OSHA, he noted, “found the Grossman Burn Center, the same no willful violations of regulations place Sangji died, and underwent or laws by UCLA personnel. Neither surgery to repair his hands. Cal/ [chemistry department chair Al] OSHA learned about the accident Courey nor Dr. Harran were in the nearly two years after the fact and cit- lab the day of the tragedy and did ed UCLA for failing to report it; the not have the opportunity to remind university is contesting the citation. Sheri to put on her lab coat.” In Naveen Sangji’s view, the fine In his interview with the deputy UCLA paid for her sister’s death was fire marshal, however, Harran — the insufficient. She was relieved and lab’s principal investigator, or PI — gratified when Cal/OSHA’s Bau- admitted that his safety policies were dendistel issued his report in De- less than rigid. Harran said he “never cember 2009, recommending that explicitly” told his senior employees, Harran and UCLA be charged with such as postdoctoral fellows, to make felonies. sure subordinates were wearing pro- Baudendistel concluded that tective equipment. In the same inter- “the laboratory safety policies and view, Harran said that he and the fel- practices utilized by UCLA prior to lows erred by cleaning up potentially Victim Sangji’s death were so de- dangerous items in Room 4221 im- fective as to render the University’s mediately after the accident, before required Chemical Hygiene Plan

Baudendistel sent the Harran case to the Los Angeles County district attorney. This was not unprecedented: from 2001 through 2011, Cal/OSHA made 486 such re- 486 ferrals statewide, mostly in worker death cases; 174 resulted in crimi- Referrals to district attorneys nal charges. “You know, we have put owners of companies, supervisors, foremen in jail,” says Cal/OSHA chief El- len Widess. “That is noticed. We’re definitely looking for these cases to 174 make … an impression, leave noth- Resulted in criminal charges ing unspoken and unclear about the severity of the punishment that will be meted out.” and Injury and Illness Prevention Still, Harran wasn’t a foreman Program essentially non-existent.” on a trenching job or the owner There had been “a systemic break- of a roofing company. He was an down of overall laboratory safety award-winning chemistry professor practices at UCLA,” he wrote. with the backing of a powerful uni- Indeed, on Dec. 22, 2008, one versity. week before Sangji was burned, an- It took two years. On Dec. 27, other graduate chemistry student, 2011, the DA filed a felony com- Jonah Chung, was completing a reac- plaint against Harran and the UC tion when “the reaction pot detonat- regents. The allegation: “willful ed, causing glass, hot oil, and chemi- violation of an occupational safety cals to strike his face and torso,” and health standard causing the Baudendistel wrote. Chung, who sus- death of an employee.” tained burns to his torso, arms and face and cuts to his neck and fore- Hard questions head, “was not wearing a lab coat, gloves, nor appropriate eye protec- Chemists in academia and private tion … at the time of the incident.” industry already had been debat-

ing the Sangji case; bloggers and their life, there should be conse- journal editors had written about quences,” he says. “UCLA has dou- it. The filing of the complaint took bled down. It sends an incredibly the discussion to another level. disconcerting message.” Uncomfortable questions fol- “The PI has to be actively in- lowed: Why were academic labs volved in safety, as does the presi- more dangerous than those in in- dent of the university, the provost, dustry? Were some principal inves- the dean — everyone who super- tigators so obsessed with publish- vises other people,” says James ing papers, securing grants and Kaufman, a former Dow Chemical winning prizes that they’d lost sight researcher who runs the nonprofit of their responsibility to keep em- Laboratory Safety Institute, a train- ployees and students from being ing organization near Boston. “The hurt? dog sled can’t go any faster than “Each lab is like an island where the lead dog.” the PI is king,” says Paul Bracher, a Following the Sangji accident, postdoctoral researcher in chemistry and another at Texas Tech University at Caltech who writes a blog called that badly injured a graduate chemis- ChemBark. “He provides for the lab, try student in January 2010, the U.S. brings in grants, decides how the Chemical Safety Board began an in- money is spent. There are a lot of de- vestigation of lab safety at academic mands on their time, and the safety institutions. In a report last fall, the stuff a lot of times gets lost in the board, which can make recommen- shuffle. I’ve never heard of anyone dations but can’t regulate, said it had getting fired for being unsafe.” documented 120 incidents at univer- Bracher — whose trachea was sity labs since 2001 and identified pierced by flying glass 12 years ago “safety gaps” that threatened more after a fellow undergraduate at than 110,000 graduate students and New York University mishandled a postdoctoral researchers in the U.S. reactive chemical — says he’s sur- “Fiefdoms” in academia were prised UCLA has stood by Harran partly to blame, the board found. so steadfastly, given the evidence “At some academic institutions, that’s come out. “When something PIs may view laboratory inspections like this happens, much like a by an outside entity as infringing drunk driver when someone loses upon their academic freedom.” At

Texas Tech, “some PIs saw the no- The American Chemical Society, tification of safety violations to the a professional association for chem- [department] Chair as ‘building ists, assembled a task force after a case’ against them, felt that the the Texas Tech blast and recently safety inspections inhibited their unveiled a draft report that recom- research, and considered recommends ways to change the “safety mended safety changes outside culture” in academia. The study, their control because they could its authors wrote, was prompted by not ‘babysit’ their students.” “devastating incidents in academic The board recommended that laboratories and observations, by the U.S. Occupational Safety and many, that university and college Health Administration — whose graduates do not have strong safety 1990 lab standard emphasizes the skills.” need to protect researchers from UCLA, for its part, has created carcinogens and other health haz- a Center for Laboratory Safety ards — make clear that physical which, Chancellor Block said in hazards also must be controlled. his January statement, will “iden- And it urged Texas Tech to revamp tify and institute best practices in its lab safety program by document- safety, going beyond the minimum ing and acting on near-misses that requirements of outside agencies so could portend more serious acci- that we can hold our laboratories dents. to even higher standards. We also Board officials believe the mes- dramatically increased the number sage is getting out — not only of lab inspections, strengthened to universities but also to grant- our policy on the required use of makers such as the Department of personal protective equipment and Homeland Security, which funded developed a hazard-assessment tool the work on explosive materials that labs must update annually or that led to the Texas Tech accident. whenever conditions change.” “DHS changed its requirements The real-world impacts of these after this incident,” says board in- changes remain to be seen. “I think vestigator Cheryl MacKenzie, de- the university is trying,” says Rita manding that grantees’ labs under- Kern, a staff research associate in go independent safety audits before the UCLA Department of Medicine funds are released. who sits on the health and safety

committee of University Profes- resident at Massachusetts General sional & Technical Employees — Hospital, Naveen Sangji remains Communications Workers of Amer- an advocate for her younger sister, ica Local 9119, the union to which now 3½ years departed. “My sister Sheri Sangji belonged at the time had her whole life ahead of her,” of her death. “Some things have Naveen says. “She would be gradu- changed, but it’s like turning a big ating from law school right now.” boat in the middle of the ocean. It Her parents live in Toronto. Her doesn’t turn very fast.” father, a small businessman, “has Indeed, following inspections in almost completely stopped social- August 2009 and February 2010 — izing,” Naveen says. Her mother, a eight and 14 months, respectively, af- Montessori teacher, was “complete- ter the fire that killed Sangji — Cal/ ly destroyed” by the accident and OSHA cited UCLA for 16 lab safety immerses herself in her work. They violations, five classified as “serious” go to the cemetery on Sundays. and one as “repeat serious.” The uni- “Sheri was a very brave person,” versity paid a $36,690 fine. Naveen says, a trait that became evi- Ryan Marcheschi, a postdoc- dent at the burn center. toral fellow in the UCLA chemi- “Before my parents came into cal engineering department who the room, she asked me to cover works with flammable and explo- her up with the sheets so that they sive compounds, says the university wouldn’t be distressed at seeing all has “tightened up” on safety since the bandages; her concern was for the Sangji accident, though much them. When my dad arrived, he put of this has come in the form of in- his hand on hers lightly through creased paperwork. the sheet and she screamed because When he learned that the crim- it was so painful. And we couldn’t inal complaint had been filed touch her anywhere except her against Harran, “I thought it was face. But her thoughts were, even as extreme,” Marcheschi says. “But she lay critically injured, for other then I thought, maybe that’s what’s people.” n needed to make policies change.” This story was produced in * * * collaboration with the Center for Despite her grueling schedule as a Investigative Reporting.

Breast cancer victim Carol Bristow, 54, has worked as a machine operator in a plastic auto parts factory in Windsor, Ontario, for 23 years. Study spotlights high breast cancer risk for plastics workers By Jim Morris Published Online: November 19, 2012

INDSOR, Ontario — For Pungent fumes and dust that caused more than three decades, nosebleeds, headaches, nausea and Wworkers, most of them dizziness. Blobs of smelly, smolder- women, have complained of dread- ing plastic dumped directly onto the ful conditions in many of this city’s floor. “It was like hell,” says one wom- plastic automotive parts factories: an who still works in the industry.

The women fretted, usually in carbonate water bottles and other private, about what seemed to be an products has unnerved some con- excess of cancer and other diseases sumers — plus solvents, heavy met- in the factories across the river from als and flame retardants. Detroit. “People were getting sick, Sandy Knight, who worked at two but you never really thought about Windsor plastics plants from 1978 the plastic itself,” said Gina DeSan- to 1998, had a breast cancer scare tis, who has worked at a plant near in 2000, when she was 41. The can- Windsor for 25 years. cer was at Stage III — “invasive and Now, workers like DeSantis are the fast-growing,” said Knight, 53, who focal point of a new study that ap- now works at a Ford parts distribu- pears to strengthen the tie between tion center near Toronto. She had breast cancer and toxic exposures. a single mastectomy and, following The six-year study, conducted by 10 years of hormonal treatment, is a team of researchers from Canada, in remission. the United States and the United Asked if she believed her disease Kingdom, examined the occupation- was work-related, Knight said, “I’m al histories of 1,006 women from On- suspicious of it because of all the ex- tario’s Essex and Kent counties who posures we had.” She remembers the had the disease and 1,146 who didn’t. “nauseating kind of odor,” the burn- Adjustments were made for smoking, ing eyes and headaches, all the wom- weight, alcohol use and other life- en with cancer, sterility and miscar- style and reproductive factors. riages. She’s upset that little seems to The results, published online today have changed at some plants. in the journal Environmental Health, “Why am I speaking to people to- are striking: Women employed in the day, in 2012, who are doing the same automotive plastics industry were al- processes I did in 1980?” Knight most five times as likely to develop asked. “It just seems like we’re fight- breast cancer, prior to menopause, as ing the same battle. A lot of these women in the control group. chemicals should be removed from These workers may handle an ar- the workplace.” ray of carcinogenic and endocrine- The study population included disrupting chemicals. They include women who had worked at more than the hardening agent bisphenol A 40 plastics factories in the Windsor (BPA) — whose presence in poly- area. But the implications are broad-

er: Workers in similar plants around they’re clearly based on Canadian the world are exposed to many of the groups, go well beyond Canada,” same chemicals. So are members of said another of the Windsor study’s the public, who encounter the sub- co-authors, Andrew Watterson, stances — albeit in lower doses — in director of the Centre for Public the course of their daily lives. Health and Population Health Re- “These workplace chemicals are search at the University of Stirling now present in our air, water, food in Scotland. “They’re going to be and consumer products,” said one significant for plastics workers in of the two principal investigators, Europe, India, China, Africa, the James Brophy, an adjunct faculty United States. The chemicals will member at the University of Wind- have the same toxic effects. The sor and a former occupational same diseases will develop.” health clinic director. “If we fail to Even minuscule amounts of endo- take heed then we are doing so at crine-disrupting chemicals like BPA our own peril.” can be worrisome, Watterson said. Jeanne Rizzo, president of the “This research is raising big questions Breast Cancer Fund, a San Francis- both about what the [workplace] stan- co-based group that has pressed for dards are and even about what hap- more research into environmental pens if conditions are very good, with causes of a disease that claimed near- low-level exposures,” he said. ly 40,000 lives in the United States In a written statement, a spokes- last year, called the Windsor study woman for the U.S. Occupational “a very powerful piece of work. The Safety and Health Administration, piece that’s really been missing for said, “We look forward to reading this female breast cancer is occupation.” paper … and plan to explore how we In the United States, an estimat- may use the findings in protecting ed 150,000 female workers in the workers from hazardous exposures.” plastics and synthetic rubber indus- The American Chemistry Coun- tries are likely exposed to many of cil, the main chemical industry trade the same chemicals as the women in association in the United States, Windsor, including polyvinyl chlo- questioned the study’s conclusions, ride, or PVC, plastic; acrylonitrile; saying it includes “no actual deter- formaldehyde and styrene. mination of [worker] exposures.” “I think the findings, although The study’s estimates of risk seem

to be based on a small sample and are “statistically very uncertain,” the council said in its statement. “The well-established risk factors for breast cancer are not chemical exposures, but rather a combination of lifestyle and genetic factors,” the council wrote. Barry Eisenberg, a spokesman for another U.S. trade group, the Soci- ety of the Plastics Industry, declined The General Motors building in downtown Detroit was wrapped to comment on the study, saying, “We in pink in recognition of National don’t have the expertise.” Eisenberg Breast Cancer Awareness Month in declined to answer general questions October. Health questions are being about worker and consumer health, raised about toxic chemicals used by although his group has had an Occu- suppliers of plastic parts to GM and pational Health and Environmental other automakers. Issues Committee since 1985. The Canadian Plastics Industry Association did not respond to re- The Big Three U.S. automakers quests for comment. The president expressed varying degrees of con- of the Canadian Automotive Parts cern about conditions in the parts Manufacturers’ Association de- plants. clined to comment. General Motors said its suppliers are “independent businesses which Life in the factories must meet the Health and Safety legislation in the jurisdictions in Modern cars and trucks are loaded which they operate.” Ford said it with plastics: bumpers, door pan- “requires suppliers to ensure that els, license-plate brackets. Dozens our products — no matter where of factories in and around Windsor they are made — are manufactured make these parts from plastic pel- under conditions that demonstrate lets melted and shaped in injection respect for the people who make molding machines. The parts are them.” And Chrysler said that while then shipped to auto manufacturers. its suppliers are “responsible for

their own legal compliance,” its poli- journal New Solutions. “All you’re cies “restrict us from using suppliers going to do with general ventilation who we learn do not comply with is just dilute it.” our requirements or environmental Carol Bristow got into the indus- and health and safety laws.” try in 1989, having grown impatient Conditions in some of the Wind- with a dead-end cashier’s job at the sor plants have improved, workers A&P. “I never felt working in a fac- say. In years past, for example, hot tory would be my calling,” Bristow plastic would be removed from the said. “The first six months I would molding machines and dumped on come home in tears and in pain, al- the floor, where it might lie for up most praying to God that I wouldn’t to an hour. Some companies have get my seniority because it seemed altered this process, known as purg- like the wrong place to be. But the ing, requiring that the reeking muck money kept coming in, and you just be put into covered barrels. adjusted.” Others have relocated grinding In 1992, when she was 34, Bris- machines — bladed devices that tow was diagnosed with cancer in chew up scrap plastic and spit out her right breast, which was removed huge quantities of dust — to isolated along with about 20 lymph nodes. areas to reduce worker exposures. She kept working and developed Workers say, however, that a lack endometriosis, a painful condition of local ventilation — vacuums that in which cells from the lining of the can suck up fumes and dust straight uterus grow outside the uterine cav- from the molding and grinding ma- ity. Some studies have linked endo- chines and direct them outside — is metriosis with exposure to chemi- still the norm at many facilities. cals such as dioxin, a byproduct of The machines disgorge “pretty PVC incineration and chlorine pro- toxic stuff — either carcinogenic or duction. Bristow underwent a hys- endocrine-disrupting chemicals,” terectomy in 2001. said Robert DeMatteo, a retired As all of this was going on, Bris- health and safety director for the tow was being tormented by bladder Ontario Public Service Employees infections. Benign tumors were re- Union and lead author of an article moved from her bladder in 2010 and on the plastics industry scheduled again in August of this year. “I’ll have for publication early next year in the to be scoped every three months for

the rest of my life,” she said, referring Keith, Brophy and a physician to a procedure called cystoscopy, in put together a health questionnaire, which a tube-like viewing device is which was circulated at five plants. inserted through the urethra into the Reports of nosebleeds, headaches bladder. One study found that women and nausea came back. Some opera- who had worked in the plastics indus- tors said the fumes had made them try had a more than threefold risk of pass out at their machines. “The developing bladder cancer. level of symptoms was pretty horri- Why does Bristow stay? fying,” Brophy said. The pay, she explained, is a re- In 1981, the CBC broadcast a doc- spectable $22 an hour, with ben- umentary, “Dying for Work,” which efits, in a tough economy. “Who’s highlighted conditions in the Wind- going to hire me?” she asked. sor plants. “We thought that would The owner of Bristow’s factory, really start the ball rolling” toward which bought the facility in 2001, says better ventilation and other im- it is unaware of any worker health provements, Keith said. “Absolutely concerns and has a “consistently nothing happened.” strong track record — recognized by Keith and Brophy lost contact workers and regulators — of protect- with the plastics workers for more ing its employees’ health and safety.” than a decade, until several turned up at their occupational health ‘Horrifying’ symptoms clinic in 1993 to report that they had had miscarriages or difficulty James Brophy and his partner, Mar- conceiving. Keith, Brophy and clinic garet Keith, both PhDs with back- staff developed a second question- grounds in occupational health, naire for circulation in the plants. began studying Ontario plastics “We found a lot of acute symptoms workers in the late 1970s. as well as reproductive problems “It wasn’t something we chose to and some cancers,” Keith said. be interested in,” Keith said. “We Around the same time, Keith had people come to us” — notably, a and Brophy convinced officials at union official from a Windsor plant the Windsor Regional Cancer Cen- concerned about what seemed to be ter to begin collecting work histo- an abundance of disease among fe- ries of cancer patients. This led to male workers. an initial study, completed in 1999,

Canadian James Brophy is among a dozen co-authors of a new study that found strikingly high risks of breast cancer among female workers in the automotive plastics industry in Windsor, Ontario.

which found an increased risk of cer Foundation-Ontario Region, ex- breast cancer among women who amined a population twice as large farmed. A subsequent study, fin- and featured a more detailed ques- ished in 2002, looked at the work tionnaire. Workers in the plastics histories of 564 women with breast industry, it found, are exposed to a cancer and 599 who didn’t have the brew of carcinogenic and estrogenic disease. Again, a strong association chemicals, also known as endocrine between farming and breast cancer disruptors, which interfere with was noted; an even stronger link was the hormone system and can cause found among women who’d farmed tumors, birth defects and devel- and then gone to work in the auto opmental disorders. This complex industry. mixture, Brophy said, may be more The new study, funded by groups dangerous than any one compound. including the Canadian Breast Can- The study found that, in addition

to the plastic workers, women who serious health problems, yet there’s worked in food canning and agricul- nary a mention of the risk that blue- ture and at bars, casinos and race- collar workers bear, particularly tracks had elevated breast cancer women,” Brophy said. “They’re just risks. The highest risk for pre-meno- not on the radar. Had we paid more pausal women — nearly six times attention to them, the harm these that of the controls — was found in substances cause would have been canning, an industry in which work- seen much sooner and we might ers may be exposed to BPA in epoxy have prevented them from becom- can linings and pesticides released ing so ubiquitous in the environ- from food during cooking. ment.” The primary risk factor associ- The President’s Cancer Panel, an ated with agriculture is pesticide advisory committee in the United exposure, the study found. Wom- States attached to the National Can- en who work at bars, casinos and cer Institute, reported in 2010 that racetracks are exposed to tobacco “the true burden of environmental- smoke, it noted, and also subjected ly induced cancer has been grossly to “disruption of circadian rhythms underestimated.” The panel singled and decreased melatonin produc- out BPA as one of the chemicals that tion resulting from night work,” may be causing “grievous harm.” which other research has shown to The research in Windsor but- be associated with breast cancer. tresses other recent work on breast In general, breast cancer is an cancer and chemicals. A French older woman’s disease; a 60-year-old study in 2011, for example, found has a greater chance of developing elevated risks among women who the disease than does a 30-year-old. worked in plastics, rubber and tex- Many of the victims in the Windsor tile manufacturing. A study from plastics factories are in their 30s, Mexico in 2010 found that the pres- 40s and 50s, say six current and for- ence of metabolites of phthalates mer workers, from multiple plants, — softening agents for plastics that interviewed by the Center for Public have endocrine-disrupting proper- Integrity. ties — in urine was “positively asso- “We’re sitting here after three de- ciated” with the disease. A 2007 pa- cades, and you see the weight of the per from U.S. researchers identified evidence that these substances pose 216 chemicals that had been associ-

ated with mammary gland tumors that many workers seem unwilling in animals. to confront their bosses with health The lone American co-author of questions. Too often, she said, a the Windsor study, Robert Park of woman disappears from the factory the National Institute for Occupa- floor and her co-workers don’t learn tional Safety and Health, said he was until much later that another case of “surprised by how strong the findings breast cancer has been diagnosed. were. There was a lot of confirmation The Ontario Ministry of Labor of prior concerns, which is always the is committed to the prevention of goal but not always achieved by these work-related diseases, a spokesman kinds of studies.” said in a statement. The ministry uses a multifaceted approach that ‘Race to the bottom’ includes health and safety inspection “blitzes” and the updating of The Canadian plastics workers say exposure limits, the spokesman they have little faith in their coun- wrote. “We make decisions on the try’s system of workplace regulation. latest science and we welcome any Factory inspections are haphazard, report that will bring a better under- they say, and chemical standards in standing of occupational exposures many cases are weak, meaning few to ensure that workers are protected overexposures — by the legal defi- from unsafe exposure levels.” nition, anyway — are cited. Condi- There is also deep dissatisfaction tions improve incrementally, if at with workplace regulation in the all. United States. Adam Finkel, former “It’s a race to the bottom,” said director of health standards pro- Sari Sairanen, national health and grams for OSHA, said the vast ma- safety director for the Canadian jority of exposure limits enforced by Auto Workers union, which repre- the agency in American workplaces sents about 4,000 workers in parts are based on scientific data from plants, some of which make plastics. the 1960s or earlier, even though an “For the worker, there’s the fear of estimated 150 workers die each day losing your job or the fear of retri- of work-related diseases. bution from your employer if issues Limits for only 16 substances are raised.” have been updated, a consequence Bristow, a union member, said of industry challenges and hesitancy

Sari Sairanen, national health and safety director for the Canadian Auto Workers union, says workers in some plastics factories are reluctant to raise health concerns, fearing retaliation. “It’s a race to the bottom,” Sairanen says of conditions inside some of the plants.

on OSHA’s part. There are no limits ting more pessimistic as the years go for BPA. The limits that do exist for by,” said Finkel, who runs the Penn chemicals used in plastics — say, vi- Program on Regulation, a research nyl chloride, an ingredient in PVC center at the University of Pennsyl- — were designed to address cancer vania Law School. and acute symptoms, not the sort of In its statement, OSHA acknowl- hormonal damage that can occur edged, “Many of our current Per- when women of childbearing age missible Exposure Limits are out of receive low-level exposures. Only 18 date and inadequately protective, percent of OSHA inspections last and we do not have limits for many year focused on potential health, as other chemicals. OSHA is currently opposed to safety, hazards. examining ways to strengthen our “It’s a terrible record, and I’m get- efforts related to workplace chemi-

cal exposures, as well as ways to re- by the White House Office of Man- spond to the identification of new, agement and Budget for nearly a year. emerging hazards.” A proposal to add BPA, phthalates The U.S. Environmental Protec- and a certain class of flame retar- tion Agency’s record on chemicals dants to an EPA “chemicals of con- — like OSHA’s — is thin. cern” list has been at the OMB for Chemicals found in the workplace more than 900 days. The EPA says — among them BPA and phthal- that these chemicals “may present an ates — also may pose health risks unreasonable risk to human health to the general public. Of the more and/or the environment” and wants than 80,000 chemicals registered to use its authority under the law to for use today, however, the EPA has list them, a step that would, among required only about 2 percent to other things, require producers to undergo even basic testing. At the notify the EPA when they exported root of the problem is the Toxic Sub- the chemicals, and the EPA to notify stances Control Act of 1976, which the recipient governments. puts the onus on the EPA to prove Industry groups such as the U.S. that a chemical is harmful before it Chamber of Commerce oppose the can be banned or its use restricted. action, saying it amounts to an un- This burden is almost insurmount- warranted blacklisting. ably high; the EPA has banned nar- An EPA spokesman did not re- row uses of only five chemicals since spond to requests for comment. An the law was passed. OMB spokesman declined to com- The Obama EPA has begun to ment. disallow claims of “confidential The U.S. Food and Drug Admin- business information” that for de- istration no longer allows the use of cades enabled companies to conceal BPA in baby bottles or infant-train- the identities of chemicals when ing cups. The FDA acted, however, they submitted health and safety only after receiving a petition from data, even if significant risks had the American Chemistry Council, been flagged. which said that manufacturers of Industry, however, is fighting an these products had already aban- attempt by the EPA to extend its an- doned the chemical to meet con- ti-secrecy policy to new chemicals; a sumer preference. “The agency con- proposed rule has been under review tinues to support the safety of BPA

for use in products that hold food,” he worries about the women in the an FDA spokeswoman said in a writ- plastics plants, who soak up BPA and ten statement. other chemicals on the job. The Canadian government “There seems to be widespread didn’t wait for an industry petition. concern about consumer exposures It banned BPA in baby bottles two but almost no concern for the most years ago, based on concerns about highly exposed population — the the chemical’s toxicity. blue-collar workers,” he said. “These Brophy, one of the researchers in women remain invisible and their Windsor, approves of the ban. But cancer risk largely ignored.” n

FOLLOW-UPs Union demands protection for workers, after breast cancer linked to auto plastics industry By Jennifer Quinn, Robert Cribb, Julian Sher and Jim Morris Published Online: November 20, 2012 INDSOR, Ontario — When some women walk onto a factory floor, punch their time card at a food processing facil- Wity, or start their shift at the foundry, they are literally dying to go to work, union members and health care advocates say. A study that showed women working in those industries have a higher risk for breast cancer raised calls for protection of those workers. And after the study’s principal researchers presented the results of their work to about 40 people here Monday, the reaction was anger, rather than fear. “We have to say enough is enough,” said Terry Weymouth, a skills co-ordinator with the Canadian Auto Workers. “We are not dying because we need jobs.

“It’s time we stand up and say this is not right,” she said. “We should be mad. One in nine women are diagnosed with breast cancer.” The six-year study, published Monday in the journal Environmen- tal Health, examined the occupational histories of 1,006 women in Essex and Kent counties who had breast cancer, and another 1,146 who did not. The researchers, who came from Can- ada, the U.S., and the U.K., took into account factors like smoking, weight, alcohol use and other lifestyle and reproductive factors. The women in the study worked in auto parts plants, casinos, food canning factories, on farms, and in metal- working plants. The researchers Margaret Keith, a researcher behind a study that found that women linked breast cancer to the auto plastics industry, who work in the auto- called the issue of women’s health in industry “a motive plastics indus- no-go area.” She said that more work needs to be try were almost five done to ensure parity with their male counterparts. times as likely to de- James Fassinger for the Toronto Star velop breast cancer, prior to menopause, as women in a control group. Lead researcher James Brophy called the work “a local study that has far-reaching implications.” Margaret Keith, another of the principal researchers, said the issue of women’s health in industry is “a no-go area,” and said that more

work needs to be done to ensure parity with their male counterparts. The story has prompted concern that the rights of women in some industries are taken less seriously than their male counterparts Advocates for women working in auto parts plants say this study will have an impact far beyond the science it presents: it will break the silence on an issue that has long been the subject of uneasy whispers. “There’s the fear of losing your job or the fear of retribution from your employer if issues are raised,” said Sari Sairanen, national health and safety director for the CAW, which represents about 4,000 workers in parts plants, some of which make plastics. About 91,000 Canadians work in the plastics trade, according to Industry Canada and — with a 37 per cent female workforce — it has the highest proportion of women of any other manufacturing sector. Sandra Palmaro, the CEO of the Ontario wing of the Ontario Breast Cancer Foundation — a funder of the study — was in Windsor for the presentation and said the next step is for the research community to accept, and endorse, the findings. The Ontario Ministry of Labour has 430 inspectors who conduct health and safety inspection blitzes and provides an annual update of exposure limits that restrict the amount and duration of a worker’s exposure to approximately 725 chemical and biological agents. A ministry spokesperson said companies are obliged to do their own monitoring of toxic chemical levels to ensure the levels fall within safety standards. In some cases, the ministry conducts its own testing to ensure compliance. But even minuscule amounts of endocrine-disrupting chemicals can be worrisome, said Andrew Watterson, director of the Centre for Public Health and Population Health Research at the University of Stirling in Scotland. “This research is raising big questions both about what the [workplace] standards are and even about what happens if conditions are very good, with low-level exposures,” he said.

Bob DeMatteo, health and safety director at the Ontario Public Ser- vice Employees Union for 30 years, questions whether ministry oversight protects workers from toxic chemicals that can wreak havoc even at low levels in the body. “You can’t control it with a threshold,” he said. “You have to regulate it like asbestos — either substitute it or completely control and contain it.” There is also deep dissatisfaction with workplace regulation in the United States where regulation takes place at the federal level. Adam Finkel, former director of health standards programs for the U.S. Occupational Safety and Health Administration, said the vast majority of exposure limits enforced by the agency in American workplaces are based on scientific data from the 1960s or earlier, even though an estimated 150 workers die each day of work-related diseases. “It’s a terrible record, and I’m getting more pessimistic as the years go by,” said Finkel, who runs the Penn Program on Regulation, a research center at the University of Pennsylvania Law School. Limits for chemicals used in plastics are typically designed to address cancer and acute symptoms, not the sort of hormonal damage that can occur when women of childbearing age receive low-level exposures. In its statement, OSHA acknowledged, “Many of our current Per- missible Exposure Limits are out of date and inadequately protective, and we do not have limits for many other chemicals. OSHA is currently examining ways to strengthen our efforts related to workplace chemical exposures, as well as ways to respond to the identification of new, emerging hazards.” In both Ontario and the U.S., there are no occupational exposure limits for BPA — the controversial chemical banned by Health Canada for use in baby bottles in 2010. The chemical is seen to have a negli- gible risk for adults. A Statistics Canada survey two years ago found that 91 per cent of Canadians had the substance in their bodies. n

U.S. report urges deeper look into breast cancer’s environmental links By Jim Morris Published Online: February 12, 2013 new federal advisory panel report makes a forceful case for more research into environmental causes of breast can- A cer, which was diagnosed in 227,000 women, killed 40,000 and cost more than $17 billion to treat in the United States last year. Compiled by the congressionally mandated Interagency Breast Cancer and Environmental Research Coordinating Committee, the report notes that most cases of breast cancer “occur in people with no family history,” suggesting that “environmental factors — broadly defined — must play a major role in the etiology of the disease.” Yet only a fraction of federal research funding has gone toward examining links between breast cancer and ubiquitous chemicals such as the plastic hardening agent bisphenol A; the herbicide atrazine; and dioxin, a byproduct of plastics manufacturing and burning, says the report, prepared for Health and Human Services Secretary Kathleen Sebelius and released today. “Prevention needs to be as important as other investments that are made in screening, treatment and access to care,” Jeanne Rizzo, co-chair of the committee and president of the San Francisco-based Breast Cancer Fund, said in an interview. “There really is a problem, and until we address it we’re going to continue to have a quarter of a million new cases every year.” The report’s release comes three months after a Center for Public Integrity article detailing a study of female plastic automotive parts workers in Windsor, Ontario. That study found that women employed in the chemical-intensive industry were nearly five times as likely to de-

Breast cancer kills 40,000 women in the United States each year. A new federal report urges that more funding go toward research into environmental causes of the disease. Kevin Wolf/AP

velop breast cancer, prior to menopause, as women in a control group. “That was essentially an uncontrolled human study,” Rizzo said of the Windsor workers. “We can’t do that. We need to learn from animal studies.” Asked to comment Monday, a spokesman for the Department of Health and Human Services said, “We look forward to reviewing the report.” At least 216 chemicals, including endocrine-disrupting substances like bisphenol A, have been associated with mammary gland tumors in animals. Endocrine-disrupting chemicals, or EDCs, are used to make plastics and pesticides and found in products such as furniture, metal food cans and cosmetics. “National survey data show that many of these chemicals are pres-

ent in the blood or urine of children and adults in the United States,” the committee’s report says, “and some EDCs are present in 100 percent of the people sampled.” Exposure to such compounds early in life can be especially dangerous, the report says All told, some 84,000 chemicals are registered for use in the Unit- ed States. But complete toxicological screening data are available for only 7 percent of these substances, says the report, which calls for “enhanced testing of chemicals, especially classes of chemicals combined together as a mixture, for effects on the mammary gland and breast …” Environmental exposures, moreover, have gotten relatively little attention from researchers. The National Institutes of Health spent almost $2.4 billion on 2,910 breast cancer research projects from fiscal year 2008 through fiscal year 2010, the report says. But only about 27 percent of these projects had to do with prevention, and just 10 percent could be considered “environmental health research.” Of the $2.8 billion appropriated by Congress from 1992 through 2012 for the Department of Defense Breast Cancer Research Program, 75 percent went toward “basic biology and treatment research, with only 3 percent for prevention and cancer control projects,” the report says. The committee recommends that researchers prioritize “chemicals that are produced in high volumes for which there is biologically plau- sible evidence of their role in the development of breast cancer.” It also suggests that regulators improve oversight of “cosmetics and personal care products as well as household cleaning and food con- tainment products,” and step up environmental monitoring, especially of “underserved and under-researched groups as well as ‘fenceline’ communities that are in close proximity to industry or waste sites.” Spokespeople for the Environmental Protection Agency and the American Chemistry Council, the chemical industry’s main trade association, did not respond to requests for comment Monday. n

Farmworkers pick tomatoes in Immokalee, Fla. during the 2006 spring season. Luis M. Alvarez/AP Farmworkers plagued by pesticides, red tape By Ronnie Greene Published Online: June 25, 2012

ASHVILLE, Tenn. — La- grant suddenly turned ill. Her nose boring in the blackberry began to bleed, her skin developed Nfields of central Arkansas, a rash, and she vomited. the 18-year-old Mexican immi- The doctor told her it was most

likely flu or bacterial infection, but scope of the environmental perils farmworker Tania Banda-Rodri- in the fields. guez suspected pesticides. Under The Environmental Protection federal law, growers must promptly Agency administers a Worker Pro- report the chemicals they spray. tection Standard meant to regulate It took the worker, and a Tennes- pesticides and protect workers and see legal services lawyer helping her, handlers. Yet the agency maintains six months to learn precisely what no comprehensive database to chemical doused those blackberry track pesticide exposure incidents fields. The company ignored her nationwide. requests for the information. The In 1993, the Government Ac- Arkansas State Plant Board initially countability Office (then called refused to provide records to her the General Accounting Office) lawyer, saying it didn’t respond to warned that the lack of data could out-of-state requests. An Arkansas lead to a “significant underestima- inspector, dispatched after the com- tion of both the frequency and the plaint, didn’t initially discern what severity of pesticide illnesses.” pesticides were used the day the Nearly 20 years later, the EPA worker became ill, records show. can still only guess at the scope When answers finally arrived — of pesticide-related ailments in an the fungicide was Switch 62.5WG, a industry where many workers, toil- chemical that can irritate the eyes ing in the shadows, are reluctant to and skin — Banda-Rodriguez had speak up. The EPA often hands en- already left Arkansas to follow the forcement of pesticide regulations season to Virginia and ultimately to states, which receive and inves- returned to Mexico. She never tigate few formal complaints each learned whether the pesticide sick- year, federal records show. ened her. “The system in place to address The episode is as telling a snap- pesticide exposure is horrible. It’s shot today as it was six years ago for dysfunctional,” said Caitlin Berb- one of America’s most grueling and erich, an attorney with Southern lowest-paying vocations. Pesticides Migrant Legal Services, a Nashville can endanger farmworkers, but nonprofit that provides free legal thin layers of government protect services to farmworkers in six south- them and no one knows the full ern states. “It just doesn’t work at all.”

The EPA “estimates that 10,000-20,000 physician-diagnosed pesticide poisonings occur each year among the approximately 2 million U.S. agricultural workers.”

Some top state regulators agree the mountains touch the clouds and the full toll of pesticides on farm- road signs warn of falling rock, the workers is not documented. Yet re- migrant farmworkers complained forms requiring more complete dis- to state regulators. When it hap- closure of pesticide use have been pened again, they say, they snapped caught up in EPA red tape. videos with their cell phones. The EPA did not respond to The tomato farm’s response, the repeated requests for comment workers say in an ongoing federal and written questions, sent by the lawsuit: to fire them on the spot, Center for Public Integrity over pile them on a bus and route them the last month, about its pesticide back to Mexico. The company de- oversight. The EPA “estimates that nies any wrongdoing or retaliation. 10,000-20,000 physician-diagnosed In Florida in late 2009, farm- pesticide poisonings occur each worker Jovita Alfau, working in an year among the approximately 2 open-air plant nursery in a rural million U.S. agricultural workers,” swath of south Miami-Dade Coun- federal records show. ty, said she became dizzy and weak, Yet when workers do complain — with numbness in her mouth, and as in the case in Arkansas — securing vomited. hard information can be daunting. Alfau said she had been told Sometimes, workers say, they pay to tend to hibiscus plants at the a price for speaking up. Homestead nursery less than 24 When pesticides were sprayed hours after they had been sprayed near them in 2010 in the tomato with the pesticide endosulfan. The fields outside the city of Newport, grower sent workers out too soon in a patch of east Tennessee where after the spraying, Alfau said in a

lawsuit, violating the Worker Pro- is putting pesticides in the fields. Af- tection Standard, and did not tell ter that happens, people feel sick,” her when pesticides were applied, said Yolanda Gomez, who began provide protective gear or tell her picking Florida oranges when she how to protect herself. was nine and spent more than 30 Endosulfan is so toxic that, by years following the harvest from summer 2010, the EPA banned its Florida to Washington State. “When use, saying the pesticide “poses you go to the field you go clean, and unacceptable risks to agricultural when you come out of the field you workers and wildlife.” can see your eyes are very red.” Several days after falling ill, Al- Raised in a family of farmwork- fau went to the doctor but was not ers, with a father who once carried asked about pesticides, said her law- signs for Cesar Chavez, Gomez is yer, Karla Martinez of the Migrant now a community organizer for the Farmworker Justice Project. Alfau, Farmworker Association of Florida, a legal U.S. resident and Mexican in Apopka near Orlando. Farm- native, said she has been unable to workers frequently trek into the of- work regularly since. fice complaining of pesticide-relat- Power Bloom Farms and Grow- ed illnesses, she said. ers denies wrongdoing, but agreed “When you tell them, ‘Let’s this month to settle Alfau’s case make this paper and put your name for $100,000, court records show. on it so we can make a difference,’ Under terms of the settlement, they just won’t do it,” Gomez said. the company could also pay up “‘I don’t have any papers. I have to to $75,000 total to other affected work. This is the only way I can feed workers in a case that also included my family.’ They don’t see another wage abuse allegations. The com- way out of the system.” pany did not respond to an inter- The system, she said, “should view request. care about the human side of the Farmworkers who have spent de- worker.” cades in the fields say one constant remains: Workers have little voice Bottom of the food chain when it comes to pesticides. “We have to run to the cars and The battle over pesticides is a mi- close the windows because the plane crocosm of the larger struggle for

laborers at the bottom rung of the formation triggers another prob- economic food chain. lem: It’s hard to hold government “There’s this disenchantment,” and industry accountable when said attorney Adriane Busby, who there is no benchmark from which focuses on pesticide safety policy to judge. for the nonprofit Farmworker Jus- In its 2006 report, the EPA set tice in Washington, D.C. “They just goals of gathering more complete don’t believe anything will happen information and creating a more if they go above and beyond in re- consistent means of tracking in- porting things. They don’t believe cidents. Among its recommenda- in the system protecting them.” tions: To “prepare a report on oc- For farmworkers, just getting cupational incidents.” clear answers about pesticides is a Six years later, asked whether struggle. No one, the EPA included, such a report has been prepared, has a full picture of the problem. the EPA did not respond. An EPA slideshow report in Instead of maintaining its own 2006, for instance, opened with a database, the EPA depends on states question: How many occupational to report complaints. But those an- pesticide incidents are there each nual reports list minuscule num- year in the United States? bers. In 2011, for instance, North The slide listed multiple possibil- Carolina listed a total of five inves- ities, from 1,300 to 300,000. Each tigations based on complaints — for number could be true, the report the entire state. South Carolina, an- said — it just depends upon the other major agricultural producer, source. One number came from reported zero. Tennessee: 3. the Poison Control Center, another Florida, the nation’s second-big- from EPA estimates and yet another gest agricultural state after Califor- from the Council of State and Ter- nia, reported 61 complaint-based ritorial Epidemiologists. investigations that year. This uncertainty, even the EPA But Gregory Schell, managing admits, can carry real consequenc- attorney with the Migrant Farm- es. As its slide noted, the lack of ac- worker Justice Project in Lake curate information “inhibits clear Worth, near West Palm Beach, Fla., problem identification.” said just a fraction of the pesticide Advocates say the dearth of in- incidents are reported.

“Workers view these exposures as an occupational hazard. Even when they do complain, there’s an unwillingness to come forward.”

His guess: “One-tenth of 1 per- The official count doesn’t recent, in Florida.” flect reality, agrees Andy Rackley, In 2005, Schell surveyed labor- director of agricultural environ- ers who worked for a grape tomato mental services for Florida’s De- grower in northern Florida that partment of Agriculture and Con- season. Nearly one in four said they sumer Services. “I would say we had been directly sprayed with pes- probably don’t have a good handle ticides or other chemicals. Just un- on it,” Rackley said. “It’s probably der half said they had encountered not as big as some people say it is drift from nearby fields. Thirty-six but it’s probably bigger than what percent said they had become sick our complaint investigation files or nauseous from pesticides, and would indicate.” more than four of 10 said they de- Rackley believes growers should veloped skin rashes or irritation. be required to more fully disclose Had those numbers been extrap- where farmworkers are when pes- olated out for a state with 200,000 ticides are being sprayed. “Where farmworkers, there would have been were the workers at the same time, thousands of complaints, not dozens. were they harvesting in the same “Workers view these exposures as fields?” he asked. “That won’t keep an occupational hazard. Even when anybody who’s intent on hiding they do complain, there’s an unwill- something from doing something, ingness to come forward,” Schell but it certainly raises the stakes.” said. “One [reason] is their immi- Growers log their pesticide use, gration status. The other is the em- and many track workers’ activities ployer can and will fire them. — but there’s no rule requiring one “It is like pulling teeth for us to report tying the two, Rackley said. get people to file pesticide com- “EPA has been working on a rule plaints.” to do that for at least eight years,

maybe longer,” he said, “but we still ers on pesticide safety — empower- don’t have it.” ing workers, giving growers a level Language barriers add another of comfort, and building trust be- hurdle. tween the two. “Listen, the growers Pesticide warning labels are not need the workers and the workers required to be in Spanish, though need the growers, that’s the bot- eight of every 10 farmworkers are tom line,” he said. In recent years, foreign born and most of the na- records show, the EPA has provided tion’s agricultural workforce comes funding from $25,000 to a nonprof- from Mexico. it to help reduce farmworker pesti- On average, according to the cide exposures in New Jersey to up U.S. Department of Labor’s Na- to $1.2 million over five years to tional Agricultural Workers Sur- help train clinicians working with vey, crop workers had not ad- farmworkers. vanced beyond the seventh grade. Forty-four percent said they could A conflict in Tennessee not speak English and 53 percent could not read the language. When Workers who speak up sometimes farmworkers can’t read safety in- find themselves immersed in con- structions, they face higher risks of flict. exposure, say advocates who have In Newport, Tenn., tomato grow- pushed the EPA to require bilin- er Fish Farms hired workers under gual labeling. the federal government’s H-2A With a scarcity of hard data, ad- temporary agricultural program, vocates are sometimes left to cite in which legal foreign workers can decades-old reports as proof of be brought in when industry lacks pesticide’s perils. One report, from local laborers for the job. the U.S. Bureau of Labor Statistics, At Fish Farms, 15 workers con- said farmworkers suffer the highest tend in an ongoing lawsuit, pes- rate of chemical-related illness of ticides were sprayed in the fields any occupational group, at 5.5 per while they worked and close to 1,000. The report date: 1987 their trailer homes, in a secluded Florida’s Rackley believes the stretch of a city of almost 7,000 EPA should more fully fund quali- whose commercial strip includes fied advocacy groups to train work- Debbie’s Drive Inn, For Heaven’s

Some laborers told the state they had lost fingernails that season, and said pesticides were sprayed 30 feet away from them.

Cake & Bakery and the Newport On August 23, 2010, the Labor Plain Talk newspaper. Department conducted an on-site In July 2010, aided by Southern investigation — leading to a skir- Migrant Legal Services, the labor- mish. Two Fish Farms bosses “im- ers complained to the pesticides peded” the inspectors’ discussions administrator of the Tennessee De- with the workers, the federal law- partment of Agriculture, “citing fre- suit says, and two others “arrived quent exposure to pesticides while brandishing firearms.” working at Fish Farms, physical Fish Farms disputes that account symptoms, and the absence of medi- in its response to the lawsuit. In- cal care,” according to the lawsuit. stead, the company said, one work- Some laborers told the state they er “held a knife in a threatening had lost fingernails that season, and manner.” The company fired him said pesticides were sprayed 30 feet and filed an aggravated assault away from them. charge. The worker said he had That August, the workers turned been using the knife to cook with to the Knoxville Area Office of the and did not threaten anyone. The Wage and Hour Division of the U.S. state dropped the charge. Department of Labor, contending On September 5, 2010, the work- the company skirted federal and ers said, pesticides were again state pay and housing laws. The sprayed close to their trailers. This workers said they had to wash their time, they took out their cell phones clothes in a nearby river, and that and began taking video of tractors their trailers were insect-infected passing by. Fish Farms bosses again and overcrowded, with holes in the turned out. walls. The company said the housing Workers said they retreated to met federal standards, and any viola- their trailers, but, according to their tions were caused by the workers. lawsuit, a Fish Farms boss kicked in

one door and two bosses yelled ob- After the lawsuit was filed, Fish scenities, including “f---ing Mexi- Farms tried to get the case dis- cans.” Farm bosses snatched their missed, saying the former H-2A cell phones, loaded workers on a workers lacked legal standing. A bus and arranged their return to judge denied the farm’s request last Mexico, the suit said. month,calling its argument “com- This May, Fish Farms referred a pletely unsubstantiated and devoid reporter’s inquiry to the company’s of merit.” The company continues Knoxville attorney, Jay Mader. The to seek the case’s dismissal. lawyer did not respond to three in- Ultimately, the Tennessee De- terview requests, but the company partment of Agriculture investi- challenges the workers’ account in gated the pesticide complaints. In a formal response to the lawsuit November 2010, months after the filed this month. workers had returned to Mexico, On the September day workers the state cited Fish Farms for using began taking video footage, Fish pesticides inconsistent with label- Farms said, the laborers were actu- ing, and for not displaying specific ally trying to “fabricate evidence of information about pesticides used. improper pesticide spraying.” The The civil fine imposed: $425, decision to fire them was warranted which Fish Farms paid that same for “excessive absences,” the compa- month. “The department considers ny wrote, and because the farmwork- this matter to be closed,” the state ers “knowingly engaged in behavior wrote. that falsely portrayed Fish Farms as being out of compliance with local, Maze of red tape state, and federal law.” A Fish Farms boss “may have The case in Arkansas opens a win- briefly removed” cell phones in his dow into the maze farmworkers en- face, but returned them. The com- ter when they think they’ve been pany said it paid for lodging and poisoned by pesticides. bus tickets for the workers to return Banda-Rodriguez, the 18-year- to Mexico. There were “heated ex- old farmworker toiling in the black- changes,” the company admitted, berry fields in Judsonia, Ark., said but executives said they could not she started getting sick one day in recall the exact words. June 2006. A short time later, she

reached out to attorney Melody faxed to her a complaint form to Fowler-Green of Southern Migrant fill out. Fowler-Green said it was Legal Services about another mat- the first time she was told she had ter, involving immigration. Later, to submit that paperwork. the worker mentioned her sickness. Along with a complaint, the law- In October 2006, Fowler-Green yer filed an open records request to sent a certified letter asking the obtain the Plant Board’s investiga- grower, Gillam Farms, to tell her tive file. what pesticides were used the day That same month, a lawyer for the woman became ill. She cited Gillam Farms questioned the pesti- the EPA’s Worker Protection Stan- cides inquiry in a letter to the state. dard, which mandates disclosure. “My client intends to cooperate Gillam Farms did not respond, the with any legitimate investigation lawyer said in a letter to the EPA by the Plant Board,” wrote attor- the following year. ney Byron Freeland. “However, we Gillam Farms did not respond are concerned that the Plant Board to two interview requests from the is being used by a former Gillam Center for Public Integrity. Farms employee and her attorney In Arkansas, the EPA defers reg- to harass Gillam in an attempt to ulation to the state Plant Board. gain information for a spurious In November 2006, after not hear- claim.” ing back from the grower, Fowler- That April, Fowler-Green said, Green contacted the state and said the Plant Board finally told her she was told her phone call consti- the pesticide that had been used: tuted a complaint. Switch 62.5WG, a fungicide made In January 2007, a state official by the Swiss conglomerate Syngen- told her an investigator had visited ta that kills diseases on crops rang- the farm “but failed to gather in- ing from blackberries to turnip formation regarding the pesticide greens. used on the fields when my client But the agency still hadn’t turned became ill,” Fowler-Green wrote over its investigative case file. the EPA. “I was not offered any co- “It is the opinion of the Arkansas herent explanation for this failure.” Attorney General’s Office that the She followed up again in Feb- state FOIA [Freedom of Informa- ruary 2007, when the Plant Board tion Act] does not apply to persons

outside the state,” Plant Board Di- water.” He said the Plant Board is rector Darryl Little wrote the Nash- back to full staffing. ville attorney that July. Asked about his initial records Only when she threatened to sue response, Little said he was simply did the board provide the informa- applying the law. “The way it’s writ- tion. ten states that the records are open All told, it took the lawyer six to the citizens of the state,” Little months to learn the name of the said. “But my take on it is, the only pesticide Banda-Rodriguez en- thing you’re going to do is make countered — and 10 months to get somebody mad and they’re going to a copy of the state’s investigative call someone they know in Arkan- file. By that time, the farmworker sas and they are going to get the was back in Mexico. records.” In an interview, Plant Board Di- His ultimate call, he said: “Give rector Little said the agency was them the records. And that’s what hamstrung because the initial com- we did.” plaint did not arrive until months In the end, the Plant Board con- after the worker became sick. Nor- cluded it had insufficient evidence mally, he said, the department aims to determine whether the worker to move as quickly as possible to had been exposed to pesticides, gather evidence. or whether the Worker Protection “It was frustrating figuring out Standard had been violated. what we could do to help this lady When Fowler-Green complained since it had been such a long time to the EPA, the federal agency re- since this incident occurred,” Little plied that Arkansas’ review was said. proper. The EPA does not meddle Yet the director acknowledged in state public records disputes, an that his office, once contacted, official said — and, if anything, the moved slowly. worker should have filed her com- “We were extremely short-hand- plaint sooner. ed in that division at the time and I If it took a lawyer this long to am sure we were slow — there’s no obtain basic information, Fowler- question about that,” he said. “We Green thought, imagine the diffi- were struggling in our division at culty farmworkers face. that time to keep our nose above “Yes, of course complaints

should be made right away,” said tor Lisa Jackson last November and Fowler-Green, who recently took calling for reforms, including: a job with another law firm. “But ● Expanded training requirements whether it’s a month, two months for agricultural workers and pes- or three months, the worker still ticide handlers; should have a right to the name of the pesticide that was applied.” ● Strict limits on when workers can Advocates wage longshot cam- re-enter the fields after spraying, paigns. Southern Migrant Legal and more complete information Services has four lawyers handling provided about the pesticides farmworker cases in six states. they encounter; Yet the federal Worker Protec- ● Rules mandating special areas for tion Standard meant to protect workers to change into their work laborers has gone 20 years since a clothes, store clean clothing, and thorough revamping. shower at day’s end, so they don’t Farmworker Justice and the carry pesticide residues home. nonprofit environmental law firm Earthjustice are pressing for up- Asked about the suggestions, the grades, writing to EPA Administra- EPA did not respond. n

FOLLOW-UP Farmworker advocates press EPA to update pesticide rules By Ronnie Greene Published Online: July 17, 2013 aying they are plagued by pesticides but protected by only a thin layer of government regulation, farmworkers and their ad- Svocates are pressing the Environmental Protection Agency to update rules that are two decades old, and, critics say, dangerously dated. Farmworker advocates from Florida to California were in Wash-

ington Monday and Tuesday to press the EPA and members of Con- gress to tighten rules meant to protect agricultural laborers from pesticides in the fields. Their target: The Worker Protection Standard, a set of EPA rules meant to reduce the risk of pesticide-related injuries for some 2.5 million agricultural workers and pesticide handlers at 600,000 agricultural establishments nationwide. Yet, even as the perils of pesticides have become better known, EPA protections have not been seriously updated in 20 years. And, the Center for Public Integrity reported last year, the federal agency can only guess at the number of pesticide-related injuries for workers who often toil in the shadows. In addition, the Center found, the EPA often hands off pesticide enforcement to the states — which receive and investigate modest numbers of complaints each year. The mix of old regulations and thin enforcement leads to tangible problems for laborers in the fields, advocates say. “For me it’s gut-wrenching to sit across from someone, look at their face, hear their stories, and what can we do? It’s terrible,” said Jeannie Economos, Pesticide Safety and Environmental Health Proj- ect Coordinator for the Farmworker Association of Florida. Recently, Economos said, an undocumented worker — a woman about 30 years old and employed by a Florida plant nursery — came to complain about verbal abuse by her boss. As they talked, she said, the worker said she had trouble breathing for days after working near pesticides. “She sat in front of me and she shook the whole time, and she said she shakes all the time because she is exposed to pesticides,” Economos said. Citing such cases, worker rights and pesticide safety groups are pressing the EPA to enhance protections. Among their suggestions, they are asking the EPA to: ● Provide more frequent and thorough pesticide safety training for farmworkers;

● Ensure that agricultural laborers receive information about specific pesticides they handle, and protective equipment limiting exposure; ● Mandate medical monitoring of workers handling pesticides that affect the nervous system. “Farmworker families are exposed to pesticides in the form of residues on workers’ tools, clothes, shoes, and skin. The close proximity of agricultural fields to residential areas also results in aerial drift of pesticides into farmworkers’ homes, schools, and playgrounds,” Earthjustice, a nonprofit public interest law organization, said in a statement this week. “Research shows that children are especially vulnerable to harms from these exposures, even at very low levels.” Such groups have long pressed for reform. In 2011, for instance, Earthjustice and Farmworker Justice sent then-EPA Administrator Lisa Jackson a 31-page letter seeking “long-overdue revisions” to rules. Now, farmworker advocates say they expect the EPA to soon issue recommended updates to the Worker Protection Standard. Antici- pating that, the advocates are pressing the agency and members of Congress for substantive changes. “We feel it’s about time that they do this, and we’re really concerned that what the EPA has proposed does not get watered down in the process,” Economos said. In a statement to the Center Wednesday afternoon, the EPA confirmed it is revamping the Worker Protection Standard. Among other areas, the EPA said it is examining the minimum age for handlers, personal protective equipment and ways to “improve enforcement capability.” “The proposed rule intends to reduce the risk of adverse effects to worker health from the use of agricultural pesticides,” the agency said, adding that it intends to release proposed amendments in the spring of 2014. n

A fire smokes near a Texas fertilizer plant that exploded Wednesday. LM Otero/AP As critics press for action, Chemical Safety Board investigations languish By Jim Morris and Chris Hamby Published Online: April 17, 2013

Editor’s note, April 18: An explosion and issues safety recommendations, says Wednesday at a fertilizer plant north it expects a “large investigative team” of Waco, Texas, killed between five and to arrive at the scene this afternoon. 15 people, authorities say, and injured As the Center for Public Integrity more than 160. The U.S. Chemical reported Wednesday, the board has Safety Board, an independent agency been criticized for failing to complete that investigates chemical accidents investigations in a timely manner.

n April 2, 2010, an ex- cal Safety Board — an independent plosion at the Tesoro Corp. agency modeled after the National Ooil refinery in Anacortes, Transportation Safety Board — Wash., killed five workers instantly launched investigations. Like the and severely burned two others, NTSB, the Chemical Safety Board who succumbed to their wounds. is supposed to follow such probes Eighteen days later, the Deepwa- with recommendations aimed at ter Horizon drilling rig blew up in preventing similar tragedies. the Gulf of Mexico, killing 11 work- Yet three years after Tesoro and ers and unleashing a massive oil Deepwater Horizon, both inqui- spill. ries remain open — exemplars of In both cases, the U.S. Chemi- a chemical board under attack for

The section of the Tesoro refinery in Anacortes, Wash., where a heat exchanger blew up on April 2, 2010, killing seven workers. The U.S. Chemical Safety Board has been criticized for failing to finish its investigation of the accident. U.S. Chemical Safety Board

what critics call its sluggish inves- were told to expect news from the tigative pace and short attention CSB on the tragedy’s second anni- span. A former board member calls versary. The date came and went. the agency “grossly mismanaged.” “Then we were told, ‘Six more The number of board accident months,’ ” she said. reports, case studies and safety bul- In a recent conference call letins has fallen precipitously since with the families, board officials 2006, an analysis by the Center for pledged to finish the Tesoro report Public Integrity found. Thirteen by the end of 2013 — more than 3 board investigations — one more ½ years after the accident, Gumbel than five years old — are incom- said. plete. “I think they’re making excuses,” As members of Congress raise she said. “Why aren’t they assign- questions, the Environmental Pro- ing more people so they can get tection Agency’s inspector general the investigation done in a timely is auditing the board’s investigative manner and the families can move process. forward?” “It is unacceptable that after Chairman Rafael Moure-Eraso three long years, the CSB has failed and managing director Daniel to complete its investigation of the Horowitz say the board, which has tragic Tesoro refinery accident,” a $10.55 million annual budget, Sen. Patty Murray, D-Wash., said in is stretched thin and must decide a written statement to the Center. which of the 200 or so “high-con- “The families of the seven victims sequence” accidents that take place and the Anacortes community de- in the United States each year merit serve better, and the CSB must be its attention. held accountable for this ridiculous “We’ve made innumerable pro- delay.” posals over the years … pointing At Tesoro, a tube-like device out the significant discrepancy be- called a heat exchanger came tween the number of serious acci- apart, triggering an inferno that dents and the ones that we can han- melted aluminum 100 feet away. dle from a practical standpoint,” Shauna Gumbel, whose son, Matt, Horowitz said in an interview died 22 days after being burned in with the Center. “We’ve asked for the blast, said the victims’ families a Houston office. We’ve asked for

additional investigators for many said former CSB board member years.” William Wark, whose five-year term Congress, he said, has been un- ended in September 2011. Wark, willing to come up with more money. who accompanied investigators Moure-Eraso, chairman since dispatched to the Tesoro accident, June 2010, said the Tesoro inves- said it’s “embarrassing” that the in- tigation was sidetracked by an ex- vestigation has not been finished. plosion at the Chevron refinery in “The basic, bottom line is the Richmond, Calif., last August that agency is grossly mismanaged,” he created a towering black cloud and said. prompted about 15,000 people in The board has 20 investigators surrounding neighborhoods to — four more than it had in 2008. seek medical evaluation. No one Adjusted for inflation, its budget was killed but 19 workers were ex- has been essentially flat over the posed to noxious hydrocarbon va- past five years. Yet earlier investiga- pors. tions were often completed more “We have to make decisions,” quickly. Moure-Eraso said. “Here we were, The deadliest accident the board running along, working on Tesoro, has investigated was the March 2005 and then this accident happened explosion at the BP refinery in Tex- at Chevron. We decided that it was as City, Texas. Fifteen workers were important to deploy [to Richmond] killed and 180 injured. The board’s because the issues that were raised final report was issued just under were issues that affect the whole re- two years after the accident. finery industry.” A February 2008 blast at the Current and former board mem- Imperial Sugar plant near Savan- bers and staffers, however, contend nah, Ga., killed 14 and injured 36. the agency’s investigations are poor- The final report was issued in 19 ly managed — an allegation the months. EPA’s inspector general is exploring. Gerald Poje, a Bill Clinton ap- “They were jumping from one in- pointee who served on the board vestigation to another, and when a from 1998 to 2004, finds it “pain- new accident occurred they would ful” that more recent investigations pull people off an existing investi- have stagnated. He worries that an gation to go investigate that one,” “erosion of the reputation of the in-

stitution” could cause Congress to investigations it can conduct and question its value. complete in a year are minimal.” “I always considered the board Still, Taylor wrote, “Given the to be in a race against time,” Poje CSB’s current budget [then about said. “When an event occurs, peo- $9 million], the average number of ple want to know instantaneously four root-cause investigations com- why it happened, how it happened pleted per year is exceptional.” and what can be done to prevent Authorized for five members, it from happening again. Unfortu- the board currently has three, with nately, over time, people begin to a fourth awaiting confirmation. Its forget and feel less obligated to pay staff numbers 39. The NTSB, by attention to recommendations.” comparison, had more than 400 people and a budget of $102 mil- Falling productivity lion in fiscal year 2012. The chemical board appeared to The Chemical Safety Board had a hit its stride under Carolyn Merritt, rocky start. a George W. Bush appointee who Created by Congress in amend- served as chair from 2002 to 2007 ments to the Clean Air Act in 1990, and died of cancer in 2008. the board wasn’t up and running In 2006 the board released nine until 1998. It was a relative weak- products — three full reports, three ling among government agencies, case studies and three safety bulle- starved of funding and mistrusted tins. In 2007 it put out eight, includ- by industry. ing a widely praised, 341-page re- “Upon reflection as a former port on the BP-Texas City explosion. board member, it appears that Production has trended down neither administration nor Con- ever since. Last year, the board re- gressional support for the CSB leased two case studies. So far this has ever been very strong,” Andrea year, it has issued one full report Kidd Taylor, now a lecturer at Mor- and one case study. On Monday, it gan State University in Baltimore, released an interim report on the wrote in the journal New Solutions August 2012 Chevron accident. in 2006. “[F]unding for this small “It depends, ultimately, what agency has been limited … So the Congress expects the agency to agency’s growth and the number of do,” the board’s Horowitz said. “If

they expect us to look at all 200 of these high-con- Dwindling Productivity sequence accidents, then that’s a larger problem. With the resources that we have — which, like every 7.5 other agency, are finite — we do tremendous good. “Would we like to do more? Would we like to do 5 it faster? Sure.” Horowitz and Moure- Eraso say they are eager to complete the Tesoro 2.5 investigation, which has consumed about 7,100 hours of staff time and 0 $700,000 over the past

three years. But, they say, 1998199920002001200220032004200520062007200820092010201120122013 Deepwater Horizon, an inquiry requested by two Full Case Safety reports studies bulletins members of Congress that has cost nearly $4 million The number of Chemical Safety Board to date, required a diver- products — full reports, case studies and sion of staff. safety bulletins — has fallen steeply since 2006. “We’ve spent $4 million Source: Center for Public Integrity analysis. that we really didn’t have, and we’ve committed, at times, over half our investigative of the accident in April 2010, inves- staff,” Horowitz said. Investigators, tigators had drafted urgent recom- he said, have prepared a 400-page mendations for the company as well draft report that’s “the most compre- as a refining industry trade group hensive we’ve ever done.” and the Occupational Safety and The Tesoro inquiry progressed in Health Administration. Those rec- fits and starts. Within a few months ommendations were never issued.

“The board at that time didn’t Team members have since been feel that they went far enough,” pulled into the Deepwater Horizon Horowitz said. “They were compa- and Chevron investigations, among ny-specific. We didn’t feel they went others. The current leader, Dan Til- to the real heart of the problems, lema, spent months examining the which are broader than Tesoro and failed blowout preventer implicated reflect aging infrastructure in re- in the Gulf oil spill, a process that fineries [and] use of antiquated has cost about $1 million. materials and systems.” When the Tesoro report finally A year earlier, however, the comes out, Horowitz said, it will re- board had issued urgent recom- flect an exhaustive inquiry. mendations stemming from a re- “We engaged top metallurgists lease of potentially lethal hydroflu- from the National Institute of Stan- oric acid from the Citgo refinery in dards and Technology and we are Corpus Christi, Texas. They were undertaking complex modeling to no broader than the draft Tesoro understand process conditions in- recommendations. side the heat exchanger,” he said. “Well, look, it was a different “The investigative team has been board, and they make their deci- continuing to obtain documents sions on what recommendations and interviews from Tesoro.” they want to ultimately issue,” Horowitz said. ‘Management problem’ The board’s investigation of the Citgo accident, which occurred in The United Steelworkers union, July 2009, is unfinished. “That’s which represents workers in refiner- a case we hope to get back to,” ies, chemical plants and other haz- Horowitz said. ardous settings, has been among Soon after the draft Tesoro rec- the board’s more vocal critics. ommendations were shelved, sever- At a public meeting in January, al experienced investigators — in- on an explosion that killed five at cluding Rob Hall, who was leading a Hawaii fireworks storage facility, the Tesoro team — left the board. Steelworkers official Mike Wright In the fall of 2011, an almost entire- observed that “our workplaces have ly new team essentially had to start been the subject of more CSB inves- over. tigations than any other union or

The Deepwater Horizon drilling rig on fire in the Gulf of Mexico in April 2010. Some question the U.S. Chemical Safety Board’s decision to investigate the accident in light of other federal inquiries and a lengthy case backlog at the CSB. Still incomplete, the investigation has cost about $4 million. U.S. Coast Guard

corporation. We are your biggest man cost of the delays,” he said. stakeholder and, perhaps, your big- “Families and co-workers feel aban- gest fan.” doned by the board, and even aban- Investigative delays “severely doned by their government.” compromise the board’s mission,” The union didn’t blame the said Wright, the union’s director of board’s investigators, Wright said. health, safety and environment. “This is a management problem.” “Perhaps even worse is the hu- The EPA’s inspector general is

looking into this very subject. In is a very tough job. You are asking May 2012, the IG notified Moure- somebody to deploy for weeks at Eraso that it planned an audit “to a time wherever the accident hap- determine whether CSB’s investiga- pened, to be away from their fami- tive process can be more efficient lies, to deal with very unsavory situ- to enable more investigative work.” ations. You have to deal with people Three months later the IG re- getting killed, places destroyed. … leased the results of another au- It’s not for weak hearts.” dit, finding that the board did not press regulators, such as OSHA, Where to deploy? and industry hard enough to make sure its recommendations were ad- The board’s choice of investigative opted. As of December 2010, the targets has been a point of conten- IG said, more than a third of the tion. 588 recommendations issued by Why, the Steelworkers ask, did the board were still open; almost the board follow up on an ink plant a quarter of these had been open explosion in East Rutherford, N.J., more than five years. The board that injured seven workers last Oc- says 29 percent of its recommenda- tober but not a hydrofluoric acid tions are open today. release that killed a union member “We are kind of full-time employ- in December at the Valero Energy ment device for the IG,” Moure-Era- Corp. refinery in Memphis? so said. “I don’t think that they are Hydrofluoric acid, a toxic gas competent to basically understand that can rapidly travel long dis- how we work or understand how we tances in a ground-hugging cloud, conduct investigations.” is used at about 50 U.S. refiner- The board was dealt a substan- ies. “We have been harping on tial blow in 2011, when four investi- how dangerous it is for quite some gators quit. Two of them, Hall and time,” said Kim Nibarger, a health John Vorderbrueggen, had been and safety specialist with the Steel- team leaders; both, now with the workers. NTSB, declined comment. The union thought the Valero Asked if he thought the depar- accident afforded a “golden oppor- tures reflected dissatisfaction, tunity” for the board to reinforce Moure-Eraso said: “Investigator the need for “inherently safer tech-

nologies,” Nibarger said. “They said argued against it. “It was offshore. they were too busy.” It was something that we had abso- Horowitz said the board was lutely no business being in,” Wark asked to go to New Jersey by one said. “They insisted on doing it any- of the state’s senators, Frank Laut- way. They spent a lot of the agency’s enberg. No one in the Tennessee budget on that.” congressional delegation urged the “I don’t think there’s anything board to look into Valero. they’re going to say that’s going “We screen [accidents] very care- to improve offshore drilling right fully,” Horowitz said. “We look at now,” said Wright, whose term ex- the specific consequences — the pired the same day as Wark’s in number of deaths and injuries and 2011. “Yet we have managed to in- things like that, the number of vest $4 million in as many years and community evacuations. We look at I am at a loss as to what value will be qualitative factors, one of which is added by continuing to look at this requests from Congress and from incident now, particularly when the our authorizing committees to in- Interior Department has changed a vestigate these issues.” number of regulations already.” Poje recalls fielding congressio- Horowitz pointed out that the nal requests when he was on the board, then chaired by John Bre- board. “Sometimes,” he said, “you sland, was asked to investigate the have to answer back, ‘Thank you so disaster in early June 2010 by Reps. much for your interest. We wish we Henry Waxman, D-Calif., and Bart were resourced to meet this priority Stupak, D-Mich. Bresland agreed. for your community but we aren’t.’ ” Moure-Eraso assumed the chair- Debate continues over whether manship days later, having been the board should have investigated handed a record-high caseload. the April 2010 Deepwater Hori- Bresland declined to be inter- zon accident, already addressed in viewed. at least a half-dozen other federal “We told Congress at that time inquiries, including one by a presi- that we needed additional resourc- dential commission. es to conduct that work,” Horowitz Former board members Wark said, referring to $5.6 million in and William Wright, both appoint- supplemental funding sought by ed by George W. Bush, said they Moure-Eraso. “Well, those resourc-

es were never provided.” 30,000-foot view, wrote a good re- The investigation was slowed by port, but looked in broad strokes. rig owner Transocean’s refusal to The regulators looked at technical comply with board subpoenas for issues. We are looking at the effec- records, lead investigator Cheryl tiveness of those standards, and MacKenzie said in a statement to we’ll have a lot of recommendations the Center. “It took nearly two years for improvement that we think will of steady effort to get the issue be- make a safer industry.” fore a federal court, and only this William Wright said the board month did a decision finally come should have focused instead on fin- down in the CSB’s favor,” MacKen- ishing long-overdue reports, like zie said. Tesoro, and delving into more re- Nonetheless, Horowitz said, cent accidents, like Valero. the investigation, which should be “That’s kind of why we were put completed this summer, was worth in business in the first place,” he doing. said. “The public’s not being well “We’re the agency that’s going to served by an agency that was cre- look in detail and depth at industry ated to improve chemical safety if standards,” he said. “The presiden- it fails to put out timely reports on tial oil spill commission took the significant chemical incidents.” n

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3PREVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Hard Labor | Article 14 ©2013 Center for Public Integrity 207 Warehouse worker lawsuit targets Walmart By Jim Morris and Adithya Sambamurthy Published Online: November 30, 2012

IRA LOMA, Calif. — Walmart knows exactly what is hap- Lawyers alleging wage pening and is ultimately responsible Mtheft from mostly immi- for stealing millions of dollars from grant Latino contract workers at the low-wage warehouse workers a Southern California warehouse who move Walmart merchandise.” complex took steps today to add A court document filed today in Walmart as a defendant in an ongo- Los Angeles claims, “Recent discov- ing federal lawsuit. ery has established that Walmart The move is expected to draw bears ultimate responsibility for the the nation’s largest retailer into a violations of state and federal law case in which it had, heretofore, committed against plaintiff ware- been tangentially involved — and house workers,” who “perform hard raises questions about the human physical labor for long hours with cost of Walmart’s tightly controlled little pay under hot, hazardous, supply chain, which relies heavily and dust-filled conditions, unload- on contractors and subcontractors. ing and loading trucks destined for “Walmart employs a network of Walmart stores and distribution cen- contractors and subcontractors who ters throughout the United States.” have habitually broken the law to The class-action lawsuit, filed in keep their labor costs low and profit October 2011, accuses the owner of margins high,” Michael Rubin, a the Mira Loma warehouse complex, lawyer for the workers, contended in Schneider Logistics Transloading a written statement to the Center for and Distribution, and two staffing Public Integrity and the Center for agencies of cheating contract work- Investigative Reporting. “We believe ers out of pay.

Walmart trailers parked outside the Schneider Logistics warehouse in Mira Loma, Calif. Lawyers alleging wage theft from mostly immigrant Latino contract workers at the Southern California warehouse complex took steps to add Walmart as a defendant in an ongoing federal lawsuit. Adithya Sambamurthy/Center For Investigative Reporting

In an email, Walmart spokesman third party logistics facilities that Dan Fogleman said, “We disagree we use have raised some concerns with [Rubin’s] characterization. about their work environment. While we have a set of quality stan- “Even though the workers aren’t dards that must be met, the third par- employed by us, we take these types ty service providers we utilize are re- of allegations very seriously,” the sponsible for running their day-today statement said. “The fact is, we hold business. They manage their people our service providers to high stan- completely independent of us.” dards and want to ensure that work- In a statement earlier this month, ers throughout our supply chain are Fogleman said “some workers at treated with dignity and respect.”

Walmart officials planned to be- was not cited by the state, said in a gin audits of warehouses such as statement that it “played no role in Schneider “within days,” accord- determining the rate or method of ing to the statement. “In the mean- pay” that led to the violations. time, company representatives have By adding Walmart — the ware- made multiple visits — including house’s only customer — to the some that were unannounced — to lawsuit, lawyers for the workers are the facilities where the bulk of the concerns have been raised.” The lawsuit alleges that Schneider and staffing agencies Pre- mier Warehousing Ven- tures LLC and Impact Logistics Inc. conspired to “cover up the extent of their wrongdoing by failing to keep mandatory payroll records, fal- sifying records of hours David Acosta is among more than 200 warehouse worked and compensa- workers included in the class-action lawsuit. tion owed, and conceal- Adithya Sambamurthy/Center For Investigative ing, denying and/or Reporting misrepresenting to the workers the amount of their earnings and on what basis seeking to prove that the company these earnings were calculated.” pressured Schneider to hold down The staffing agencies have costs by underpaying subcontrac- agreed to pay a collective $450,000 tors. As many as 1,800 workers in in fines and back wages to settle Southern California could receive citations issued by California la- back pay and damages as a result of bor officials, who raided the ware- the case, and the impacts could be house the same month the lawsuit felt in other warehouse centers as was filed last year. Schneider, which well.

Schneider employee David panies that, in turn, often further Acosta, among the more than 200 subcontract the work to still other plaintiffs in the lawsuit, questions entities or individuals,” the report whether Walmart could have been says. oblivious to the problems in Mira The Mira Loma warehouse has Loma — which he and other work- been on regulators’ radar for more ers describe as long, unpredictable than a year. hours and unpaid wages. Responding to worker com- “Walmart is responsible,” Acosta plaints about inaccurate pay stubs, said in an interview. “They want to investigators with the California Di- wipe their hands clean of the situ- vision of Labor Standards Enforce- ation. But they make or break con- ment raided the complex Oct. 12, tractors.” 2011. The agency cited Schneider’s One Walmart employee has an two labor suppliers at the time, Pre- office in the Schneider warehouse mier and Impact, for failing to pro- and participates in daily operation- vide employees with statements deal meetings and audits, court docu- tailing the hours they had logged, ments allege. their hourly pay, deductions and other wage-related information. ‘Pervasive labor abuses’ The state proposed a $601,000 penalty against Premier, $499,000 This is not the first time Walmart’s against Impact. outsourcing has come under scru- Premier and Impact were using tiny. In a report last June, the Na- an indecipherable “group piece- tional Employment Law Project, a rate” system to compensate work- New York-based legal and policy- ers, investigators found. Workers analysis center, alleged “pervasive say they virtually always lost money labor abuses” within Walmart’s sup- in the arrangement, compared to ply chain. what they would have made had “These worker rights viola- they been paid by the hour. tions are largely the product of “We found that workers were be- Walmart’s signature and aggressive ing denied the very basic right to practice of ‘outsourcing’ elements know what they had earned for the of its warehousing, transportation, work that they were doing,” Cali- and goods-delivery systems to com- fornia Labor Commissioner Julie

Su, who ordered the raid, said in kept behind barbed wire and un- an interview. “We found that work- der armed guard at an apartment ers were being denied minimum complex in suburban El Monte. She wage, were not being paid overtime sued the shop owner and won more hours.” than $4 million in back wages for Premier — which no longer con- the encaged Thai workers — as well tracts with Schneider — and Im- as a group of Latino workers who pact agreed to pay $175,000 and sewed in a “front shop” and were $140,000 in fines, respectively, to being shorted on pay. settle the cases. In addition, Pre- “We have seen in many industries mier will pay $75,000 in back wag- that this type of subcontracting can es to 151 workers; Impact will pay give rise to really horrible labor $60,000 to 283 workers. abuses,” Su said. “There becomes a Neither Premier nor Impact re- question about who’s ultimately responded to emails and phone calls sponsible for the workers and who seeking comment. In its statement, has the legal obligation to ensure Schneider said it was unaware of that labor laws are complied with.” the violations prior to the raid. The construction of mega-ware- “Our contracts clearly indicate houses near Interstate 10, east of that the vendors are exclusively re- Los Angeles, began in the late sponsible for the material aspects 1990s. Today, similar clusters of of the employment, including hir- blocks-long buildings anchor sec- ing, discipline, onsite management, tions of Chicago, northern New training, determining rates of pay, Jersey and other urban areas. Some timekeeping and compliance,” serve only Walmart; others have Schneider said. multiple customers. California’s Su said she brooks Mistreatment of workers in these no tolerance for employers who facilities is endemic, a product of exploit low-wage, immigrant work- fierce competition for contracts ers. Her views were hardened in the with Walmart and other retailers, mid-1990s, when, while working as a said Juan De Lara, an assistant pro- lawyer with the Asian-Pacific Amer- fessor of American studies and eth- ican Legal Center in Los Angeles, nicity at the University of Southern she represented 72 garment work- California who has researched the ers from Thailand who had been industry. “Walmart essentially dis-

tances itself from conditions inside to the staffing agency,” said Gua- these warehouses,” De Lara said. dalupe Palma, a director of Ware- In interviews and written declara- house Workers United, an advocacy tions, current and former workers at group funded largely by the labor Schneider said they were required to consortium Change to Win. “The perform various tasks for which they workers are bounced between the were not paid. They might be called warehouse and the agencies and to work and told to wait for hours the problem never gets resolved. in case they were needed, they said, They get terminated if they’re in- only to be sent home without pay. jured or complain about hours Those who complained were told, missing from their paychecks.” “If you don’t like it you can hit the U.S. District Judge Christina door,” Impact worker Juan Chavez Snyder, who is presiding over the said in a declaration. lawsuit, has made several rulings Jesus Sauceda, 33, worked con- favorable to the plaintiffs. In Feb- struction until the weak economy ruary, for example, Snyder blocked forced him out of a job. He went to the termination of about 100 Pre- work for Impact in Mira Loma in mier workers, who were absorbed late 2011 and said he was surprised by Schneider. at the conditions in the Schneider The judge issued an order in De- warehouse. “Everything you do, cember 2011 that effectively ended they want more,” Sauceda said. “I’d the piece-rate system and forced rather work outside in the heat.” the two temp agencies to pay hour- Sauceda injured his shoulder ly wages, maintain accurate payroll while lifting a box — a warehouse records and disclose on each pay- worker might move as many as stub how pay was calculated. 4,000 a day, he says — and has seen Neither of these rulings touched co-workers get hurt as well because Walmart directly. But, lawyer Ru- “they don’t have the time to work bin asserts, the retailer “is respon- properly. One guy’s back is messed sible for the ultimate plight of the up; he’s always in pain, always tak- workers.” n ing painkillers.” “When there’s a problem with This story is a collaboration by the pay or working conditions, a com- Center for Public Integrity and the pany like Schneider will hand it off Center for Investigative Reporting.

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