Chris Hamby stories from The Center for Public Integrity

'Retail exemption' shields some fertilizer facilities from stringent safety inspections, rules

Texas,United States — 2013-05-03T11:16:41-04:00

The Texas fertilizer plant that blew up on April 17, killing at least 15 people, appears to have been claiming an arcane exemption that allowed it to avoid targeted workplace inspections and safety requirements and enter a “streamlined prevention program” with environmental regulators, a government spokesman confirmed.

The owner of the facility near Waco, West Chemical and Fertilizer, apparently determined that the exemption — a few words advocated by industry groups, including The Fertilizer Institute, as part of a 20-year-old regulation — applied. In the wake of the deadly blast in West, Texas, last month, the Occupational Safety and Health Administration is investigating whether this claim was justified, an OSHA spokesman said.

By claiming the exemption, the company became subject to other, less stringent requirements and avoided certain OSHA and Environmental Protection Agency rules.

West Chemical and Fertilizer did not respond to requests for comment.

The interlocking web of company-claimed exceptions has implications beyond a small town in Central Texas. Sites across a host of industries housing large amounts of dangerous chemicals could claim they sell primarily to end users and avoid stricter regulation, though the number of facilities invoking this exemption is unclear. A representative for a company storing toxic chlorine gas, for example, wrote to OSHA in 2005 to clarify that the exemption applied to the site.

“It’s a major flaw,” said Bryan Haywood, an Ohio consultant who advises companies on the safe use of dangerous substances. “This incident’s going to get a lot of people’s interest into how people are squirming out of [stricter requirements].”

Closely related OSHA and EPA rules require facilities using large quantities of hazardous substances to take preventive steps and plan for accidents. West Chemical and Fertilizer had enough anhydrous ammonia — a chemical that attacks the eyes, skin and respiratory system — to require it to follow OSHA’s Process Safety Management standard, issued more than two decades ago.

But the standard contains what is known as the “retail exemption.” The Fertilizer Institute spoke out in favor of the exemption while the rule was being developed. Soon after the rule became final, the institute asked OSHA to confirm that it would not apply to facilities that store and blend fertilizer and sell it primarily to end users, often farmers.

OSHA responded that a fertilizer facility could indeed avoid the strictures of the rule as long as more than half of the company’s sales were to end users. OSHA, however, does not check on the validity of an exemption unless it inspects the site, an agency spokesman confirmed.

The Fertilizer Institute said in a statement to the Center for Public Integrity that it agreed with OSHA when the agency concluded in 1992 that retail facilities “did not present the same degree of hazard to employees as other workplaces covered by the proposal.”

But the institute added, “While the cause of the West, Texas, explosion has yet to be determined, we will re-examine our stance if necessary when the report on the cause is made final.”

OSHA is also investigating whether the West plant was covered by a legislative rider that makes sites with fewer than 10 employees in industries with low reported injury rates off-limits for regular inspections, an agency spokesman said. The site had not been inspected since 1985.

Invocation of the “retail exemption” can begin a chain reaction of less stringent standards. The EPA’s program for designating the risk posed by a facility relies, in part, on the site’s standing with OSHA. The amount of anhydrous ammonia stored at West Chemical and Fertilizer normally would have placed the facility in the EPA category requiring extensive preventive measures and accident-response plans. But because the site claimed the OSHA exemption, it qualified for a “streamlined prevention program” under the EPA’s Risk Management Plan program, known as RMP.

The agency said in a statement that it “reviewed the RMP from the facility to determine the RMP was complete and correct.” Asked whether it verified the basis for placing the site in a lower-risk category — its exemption from the OSHA rule based on its sales records — the EPA did not respond.

This EPA designation, along with the site’s lack of a history of accidents or recent inspections, removed it from a list of facilities subject to an OSHA special inspection program targeting locations using large amounts of hazardous substances, such as anhydrous ammonia.

It is unclear how many facilities enjoy more relaxed regulation as a result of their self-designation as retailers, but Haywood said the number could be large. “A lot of these businesses like in West, Texas, they’re everywhere,” he said. “They’re in every small farming community in the country.”

As critics press for action, Chemical Safety Board investigations languish

2013-05-01T21:35:26-04:00

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

On April 2, 2010, an explosion at the Tesoro Corp. oil refinery in Anacortes, Wash., killed five workers instantly and severely burned two others, who succumbed to their wounds.

Eighteen days later, the Deepwater Horizon drilling rig blew up in the Gulf of Mexico, killing 11 workers and unleashing a massive oil spill.

In both cases, the U.S. Chemical Safety Board — an independent agency modeled after the National Transportation Safety Board — launched investigations. Like the NTSB, the Chemical Safety Board is supposed to follow such probes with recommendations aimed at preventing similar tragedies.

Yet three years after Tesoro and Deepwater Horizon, both inquiries remain open — exemplars of a chemical board under attack for what critics call its sluggish investigative pace and short attention span. A former board member calls the agency “grossly mismanaged.”

The number of board accident reports, case studies and safety bulletins has fallen precipitously since 2006, an analysis by the Center for Public Integrity found. Thirteen board investigations — one more than five years old — are incomplete.

As members of Congress raise questions, the Environmental Protection Agency’s inspector general is auditing the board’s investigative process.

“It is unacceptable that after three long years, the CSB has failed to complete its investigation of the tragic Tesoro refinery accident,” Sen. Patty Murray, D-Wash., said in a written statement to the Center. “The families of the seven victims and the Anacortes community deserve better, and the CSB must be held accountable for this ridiculous delay.”

At Tesoro, a tube-like device called a heat exchanger came apart, triggering an inferno that melted aluminum 100 feet away. Shauna Gumbel, whose son, Matt, died 22 days after being burned in the blast, said the victims’ families were told to expect news from the CSB on the tragedy’s second anniversary. The date came and went. “Then we were told, ‘Six more months,’ ” she said.

In a recent conference call with the families, board officials pledged to finish the Tesoro report by the end of 2013 – more than 3 ½ years after the accident, Gumbel said.

“I think they’re making excuses,” she said. “Why aren’t they assigning more people so they can get the investigation done in a timely manner and the families can move forward?”

Chairman Rafael Moure-Eraso and managing director Daniel Horowitz say the board, which has a $10.55 million annual budget, is stretched thin and must decide which of the 200 or so “high-consequence” accidents that take place in the United States each year merit its attention.

“We’ve made innumerable proposals over the years … pointing out the significant discrepancy between the number of serious accidents and the ones that we can handle from a practical standpoint,” Horowitz said in an interview with the Center. “We’ve asked for a Houston office. We’ve asked for additional investigators for many years.”

Congress, he said, has been unwilling to come up with more money.

Moure-Eraso, chairman since June 2010, said the Tesoro investigation was sidetracked by an explosion at the Chevron refinery in Richmond, Calif., last August that created a towering black cloud and prompted about 15,000 people in surrounding neighborhoods to seek medical evaluation. No one was killed but 19 workers were exposed to noxious hydrocarbon vapors.

“We have to make decisions,” Moure-Eraso said. “Here we were, running along, working on Tesoro, and then this accident happened at Chevron. We decided that it was important to deploy [to Richmond] because the issues that were raised were issues that affect the whole refinery industry.”

Current and former board members and staffers, however, contend the agency’s investigations are poorly managed – an allegation the EPA’s inspector general is exploring.

“They were jumping from one investigation to another, and when a new accident occurred they would pull people off an existing investigation to go investigate that one,” said former CSB board member William Wark, whose five-year term ended in September 2011. Wark, who accompanied investigators dispatched to the Tesoro accident, said it’s “embarrassing” that the investigation has not been finished.

“The basic, bottom line is the agency is grossly mismanaged,” he said.

The board has 20 investigators — four more than it had in 2008. Adjusted for inflation, its budget has been essentially flat over the past five years. Yet earlier investigations were often completed more quickly.

The deadliest accident the board has investigated was the March 2005 explosion at the BP refinery in Texas City, Texas. Fifteen workers were killed and 180 injured. The board’s final report was issued just under two years after the accident.

A February 2008 blast at the Imperial Sugar plant near Savannah, Ga., killed 14 and injured 36. The final report was issued in 19 months.

Gerald Poje, a Bill Clinton appointee who served on the board from 1998 to 2004, finds it “painful” that more recent investigations have stagnated. He worries that an “erosion of the reputation of the institution” could cause Congress to question its value.

“I always considered the board to be in a race against time,” Poje said. “When an event occurs, people want to know instantaneously why it happened, how it happened and what can be done to prevent it from happening again. Unfortunately, over time, people begin to forget and feel less obligated to pay attention to recommendations.”

Falling productivity

The Chemical Safety Board had a rocky start.

Created by Congress in amendments to the Clean Air Act in 1990, the board wasn’t up and running until 1998. It was a relative weakling among government agencies, starved of funding and mistrusted by industry.

“Upon reflection as a former board member, it appears that neither administration nor Congressional support for the CSB has ever been very strong,” Andrea Kidd Taylor, now a lecturer at Morgan State University in Baltimore, wrote in the journal New Solutions in 2006. “[F]unding for this small agency has been limited … So the agency’s growth and the number of investigations it can conduct and complete in a year are minimal.”

Still, Taylor wrote, “Given the CSB’s current budget [then about $9 million], the average number of four root-cause investigations completed per year is exceptional.”

Authorized for five members, the board currently has three, with a fourth awaiting confirmation. Its staff numbers 39. The NTSB, by comparison, had more than 400 people and a budget of $102 million in fiscal year 2012.

The chemical board appeared to hit its stride under Carolyn Merritt, a George W. Bush appointee who served as chair from 2002 to 2007 and died of cancer in 2008.

In 2006 the board released nine products — three full reports, three case studies and three safety bulletins. In 2007 it put out eight, including a widely praised, 341-page report on the BP-Texas City explosion.

Production has trended down ever since. Last year, the board released two case studies. So far this year, it has issued one full report and one case study. On Monday, it released an interim report on the August 2012 Chevron accident.

“It depends, ultimately, what Congress expects the agency to do,” the board’s Horowitz said. “If they expect us to look at all 200 of these high-consequence accidents, then that’s a larger problem. With the resources that we have – which, like every other agency, are finite – we do tremendous good.

“Would we like to do more? Would we like to do it faster? Sure.”

Horowitz and Moure-Eraso say they are eager to complete the Tesoro investigation, which has consumed about 7,100 hours of staff time and $700,000 over the past three years. But, they say, Deepwater Horizon, an inquiry requested by two members of Congress that has cost nearly $4 million to date, required a diversion of staff.

“We’ve spent $4 million that we really didn’t have, and we’ve committed, at times, over half our investigative staff,” Horowitz said. Investigators, he said, have prepared a 400-page draft report that’s “the most comprehensive we’ve ever done.”

The Tesoro inquiry progressed in fits and starts. Within a few months of the accident in April 2010, investigators had drafted urgent recommendations for the company as well as a refining industry trade group and the Occupational Safety and Health Administration. Those recommendations were never issued.

“The board at that time didn’t feel that they went far enough,” Horowitz said. “They were company-specific. We didn’t feel they went to the real heart of the problems, which are broader than Tesoro and reflect aging infrastructure in refineries [and] use of antiquated materials and systems.”

A year earlier, however, the board had issued urgent recommendations stemming from a release of potentially lethal hydrofluoric acid from the Citgo refinery in Corpus Christi, Texas. They were no broader than the draft Tesoro recommendations.

“Well, look, it was a different board, and they make their decisions on what recommendations they want to ultimately issue,” Horowitz said.

The board’s investigation of the Citgo accident, which occurred in July 2009, is unfinished. “That’s a case we hope to get back to,” Horowitz said.

Soon after the draft Tesoro recommendations were shelved, several experienced investigators — including Rob Hall, who was leading the Tesoro team — left the board. In the fall of 2011, an almost entirely new team essentially had to start over.

Team members have since been pulled into the Deepwater Horizon and Chevron investigations, among others. The current leader, Dan Tillema, spent months examining the failed blowout preventer implicated in the Gulf oil spill, a process that has cost about $1 million.

When the Tesoro report finally comes out, Horowitz said, it will reflect an exhaustive inquiry.

“We engaged top metallurgists from the National Institute of Standards and Technology and we are undertaking complex modeling to understand process conditions inside the heat exchanger,” he said. “The investigative team has been continuing to obtain documents and interviews from Tesoro.”

‘Management problem’

The United Steelworkers union, which represents workers in refineries, chemical plants and other hazardous settings, has been among the board’s more vocal critics.

At a public meeting in January, on an explosion that killed five at a Hawaii fireworks storage facility, Steelworkers official Mike Wright observed that “our workplaces have been the subject of more CSB investigations than any other union or corporation. We are your biggest stakeholder and, perhaps, your biggest fan.”

Investigative delays “severely compromise the board’s mission,” said Wright, the union's director of health, safety and environment.

“Perhaps even worse is the human cost of the delays,” he said. “Families and co-workers feel abandoned by the board, and even abandoned by their government.”

The union didn’t blame the board’s investigators, Wright said. “This is a management problem.”

The EPA’s inspector general is looking into this very subject. In May 2012, the IG notified Moure-Eraso that it planned an audit “to determine whether CSB’s investigative process can be more efficient to enable more investigative work.”

Three months later the IG released the results of another audit, finding that the board did not press regulators, such as OSHA, and industry hard enough to make sure its recommendations were adopted. As of December 2010, the IG said, more than a third of the 588 recommendations issued by the board were still open; almost a quarter of these had been open more than five years. The board says 29 percent of its recommendations are open today.

“We are kind of full-time employment device for the IG,” Moure-Eraso said. “I don’t think that they are competent to basically understand how we work or understand how we conduct investigations.”

The board was dealt a substantial blow in 2011, when four investigators quit. Two of them, Hall and John Vorderbrueggen, had been team leaders; both, now with the NTSB, declined comment.

Asked if he thought the departures reflected dissatisfaction, Moure-Eraso said: “Investigator is a very tough job. You are asking somebody to deploy for weeks at a time wherever the accident happened, to be away from their families, to deal with very unsavory situations. You have to deal with people getting killed, places destroyed. … It’s not for weak hearts.”

Where to deploy?

The board’s choice of investigative targets has been a point of contention.

Why, the Steelworkers ask, did the board follow up on an ink plant explosion in East Rutherford, N.J., that injured seven workers last October but not a hydrofluoric acid release that killed a union member in December at the Valero Energy Corp. refinery in Memphis?

Hydrofluoric acid, a toxic gas that can rapidly travel long distances in a ground-hugging cloud, is used at about 50 U.S. refineries. “We have been harping on how dangerous it is for quite some time,” said Kim Nibarger, a health and safety specialist with the Steelworkers.

The union thought the Valero accident afforded a “golden opportunity” for the board to reinforce the need for “inherently safer technologies,” Nibarger said. “They said they were too busy.”

Horowitz said the board was asked to go to New Jersey by one of the state’s senators, Frank Lautenberg. No one in the Tennessee congressional delegation urged the board to look into Valero.

“We screen [accidents] very carefully,” Horowitz said. “We look at the specific consequences — the number of deaths and injuries and things like that, the number of community evacuations. We look at qualitative factors, one of which is requests from Congress and from our authorizing committees to investigate these issues.”

Poje recalls fielding congressional requests when he was on the board. “Sometimes,” he said, “you have to answer back, ‘Thank you so much for your interest. We wish we were resourced to meet this priority for your community but we aren’t.’ ”

Debate continues over whether the board should have investigated the April 2010 Deepwater Horizon accident, already addressed in at least a half-dozen other federal inquiries, including one by a presidential commission.

Former board members Wark and William Wright, both appointed by George W. Bush, said they argued against it. “It was offshore. It was something that we had absolutely no business being in,” Wark said. “They insisted on doing it anyway. They spent a lot of the agency’s budget on that.”

“I don’t think there’s anything they’re going to say that’s going to improve offshore drilling right now,” said Wright, whose term expired the same day as Wark’s in 2011. “Yet we have managed to invest $4 million in as many years and I am at a loss as to what value will be added by continuing to look at this incident now, particularly when the Interior Department has changed a number of regulations already.”

Horowitz pointed out that the board, then chaired by John Bresland, was asked to investigate the disaster in early June 2010 by Reps. Henry Waxman, D-Calif., and Bart Stupak, D-Mich. Bresland agreed. Moure-Eraso assumed the chairmanship days later, having been handed a record-high caseload. Bresland declined to be interviewed.

“We told Congress at that time that we needed additional resources to conduct that work,” Horowitz said, referring to $5.6 million in supplemental funding sought by Moure-Eraso. “Well, those resources were never provided.”

The investigation was slowed by rig owner Transocean’s refusal to comply with board subpoenas for records, lead investigator Cheryl MacKenzie said in a statement to the Center. “It took nearly two years of steady effort to get the issue before a federal court, and only this month did a decision finally come down in the CSB’s favor,” MacKenzie said.

Nonetheless, Horowitz said, the investigation, which should be completed this summer, was worth doing.

“We’re the agency that’s going to look in detail and depth at industry standards,” he said. “The presidential oil spill commission took the 30,000-foot view, wrote a good report, but looked in broad strokes. The regulators looked at technical issues. We are looking at the effectiveness of those standards, and we’ll have a lot of recommendations for improvement that we think will make a safer industry.”

William Wright said the board should have focused instead on finishing long-overdue reports, like Tesoro, and delving into more recent accidents, like Valero.

“That’s kind of why we were put in business in the first place,” he said. “The public’s not being well served by an agency that was created to improve chemical safety if it fails to put out timely reports on significant chemical incidents."

Report urges phaseout of deadly acid

2013-04-16T11:09:01-04:00

Oil companies should phase out the use of a highly toxic acid that places millions at risk, a new report from the union representing many refinery workers says.

The report from the United Steelworkers cites data gathered and analyzed by the Center for Public Integrity for a 2011 story that found more than 16 million Americans live in the potential pathway of hydrofluoric acid (HF) if it were released in an accident or a terrorist attack.

The union’s report, drawing on the results of a survey of its local officials at 23 refineries that use the acid, says both regulators and oil companies have failed to ensure that it is handled safely and recommends steps that could protect workers and the public as refineries transition away from HF.

Officials at 18 of the 23 refineries reported a total of 131 accidents or near-misses involving HF during the previous three years.

“There must be a fundamental change in the oil industry’s use of HF,” the report concludes. “[Use of the acid] as it is currently performed in U.S. refineries is a risk too great, but that risk can be reduced and ultimately eliminated.”

The American Fuel and Petrochemical Manufacturers, a trade group, said Monday it had not yet seen the report. However, it said that "refiners have used HF safely for more than 70 years," and "switching from HF may either not be feasible or could simply serve to just shift risk to other parts of the supply chain."

Oil refiners use HF to boost the octane rating of gasoline. The acid is an efficient catalyst, but it also has the potential to form a cloud that can travel long distances, sickening or killing those in its path.

The Center’s 2011 examination found that 50 of the nation’s refineries use HF, despite the existence of safer alternatives. The Steelworkers’ report notes that two options – a solid acid catalyst and an ionic liquid alkylation process – would virtually eliminate the risk. Both have been used in pilot projects, but U.S. companies have yet to adopt either.

Recent HF accidents have sparked concern. Federal investigators have twice deployed to the Citgo refinery in Corpus Christi, Texas, since 2009 in response to accidents that unleashed the acid. Last December, a worker at the Valero refinery in Memphis, Tenn., died after being exposed to HF.

The Steelworkers’ survey asked teams of local union officials to evaluate their refineries’ handling of HF and their ability to respond to an accident. “[Local officials’] overwhelming verdict is that the current measures preventing and mitigating a major HF release are simply not good enough,” the report found.

Local officials rated a number of key safety measures as deficient. Equipment wasn’t properly maintained. Information about the danger wasn’t conveyed adequately to workers, especially those outside the specific area using HF. Emergency response systems and training were lacking.

The report also recommends stronger oversight by regulators. Both the Occupational Safety and Health Administration and the Environmental Protection Agency should better use their authority to police facilities using hazardous substances, the report says.

The report suggests the government address HF and other dangerous substances by requiring companies to consider or use “inherently safer technologies” – substituting less risky substances and processes for more hazardous ones. The issue has been the subject of debate for years, with advocates arguing that such substitutions could be mandated by the EPA under the Clean Air Act or by Congress in the Chemical Facility Anti-Terrorism Standards legislation.

Bill aims to strengthen OSHA workplace enforcement

2013-03-28T16:04:25-04:00

Targeting a law critics chide as dated and weak, Sen. Patty Murray has introduced legislation that would strengthen the 1970 law governing workplace safety.

The bill, called the Protecting America’s Workers Act, addresses regulatory gaps that The Center for Public Integrity has highlighted as part of the ongoing series Hard Labor.

“This legislation is a long-overdue update to the [Occupational Safety and Health] Act, and a good step towards making workplaces safer and healthier across America,” Murray, a Democrat from Washington state, said in a statement. Ten other Democratic senators have signed on as co-sponsors.

Similar legislation has died in previous years amid opposition from industry groups. The Chamber of Commerce and the National Association of Manufacturers did not respond to interview requests Thursday.

The bill would give the Occupational Safety and Health Administration more powerful enforcement tools.

Currently, an employer whose willful violation of the law leads to a worker’s death faces a misdemeanor and a maximum six-month prison sentence. A person could face twice the prison time for harassing a wild burro on public lands. Murray’s bill would make knowing violations that lead to a worker death a felony, punishable by up to 10 years in prison.

The legislation also would increase civil penalties, which have not been changed since 1990. OSHA is one of few federal agencies excluded from a law that allows fines to rise over time with inflation.

A violation deemed “serious” – one that, by OSHA’s definition, “would most likely result in death or serious physical harm” – now carries a maximum fine of $7,000. The bill would raise that amount to $12,000. It also would raise the maximum penalty for willful or repeat violations from $70,000 to $120,000 and allow fines to increase periodically with inflation.

The bill would force employers to correct hazards cited by inspectors, even if they are contesting them. Under current rules, OSHA can’t force an employer to fix a hazard while the citation is being contested – a process that can last years and give employers a bargaining chip to seek reductions in penalties.

Unlike previous versions of the legislation, this year’s bill includes language that would require employers to protect all workers at their sites – not just those they directly employ – and to account for their injuries and illnesses on required logs. Currently, injuries to contractors, who perform some of the most dangerous work in many industries, do not appear on the record of the company owning the worksite where the injury actually occurred.

“You don’t get a full picture of what’s happening at the worksite,” said Peg Seminario, director of safety and health for the AFL-CIO.

Though the legislation may make headway in the Senate, its prospects in the House are likely more dim. “The chances of the bill becoming law are slim because of the anti-regulation Republican majority in the House,” Seminario said.

Other key bill provisions include strengthening protections for whistleblowers, mandating greater communication between OSHA and accident victims or their families and expanding OSHA’s authority to police federal, state and local government workplaces.

House bill targets deadly dust explosions

2013-02-15T14:20:06-05:00

A group of House Democrats introduced legislation this week that aims to protect workers from combustible dust – 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 recommended 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 Association have existed for decades, but are optional in many areas. Enforcement 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 procedures 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.

Report suggests OSHA safeguard contingent workers

2013-01-11T14:30:01-05:00

Workplace safety and health regulators should conduct an enforcement blitz and amend policies to give greater protection to the growing number of vulnerable temporary, or “contingent,” workers, a new report recommends.

The report from the Center for Progressive Reform, a nonprofit research and advocacy group, echoes many of the findings of a December Center for Public Integrity story detailing the increasing use of contingent workers to perform some of the most hazardous, undesirable jobs.

The number of contingent workers has more than doubled during the past two decades, with the current total estimated at more than 2.5 million, according to the U.S. Bureau of Labor Statistics. Recent studies have indicated that contingent workers suffer injuries at higher rates than other employees.

Use of such workers is particularly popular in industries such as farming, construction, warehousing and hotel services, the group’s report says. Unable to outsource these jobs, companies have turned to contingent workers to reduce labor costs, the report says. By using contingent workers, the employer can avoid paying for workers’ health insurance and workers’ compensation costs, eliminating incentives to provide safe workplaces, the CPR researchers say.

Steven Berchem, the chief operating officer of the American Staffing Association, said in a statement, "We have not had an opportunity to review the report, but worker safety is paramount to our members and the American Staffing Association is actively engaged in continual efforts to ensure safe working conditions for temporary and contract employees."

Yet these workers are often assigned to dangerous work and not given the proper training or safety equipment, the new report says.

The Center’s recent story highlighted the case of Carlos Centeno, who worked for a temporary staffing agency and was assigned to the Raani Corp. plant near Chicago. The chemical tank he was cleaning doused him with a 185-degree mixture of water and citric acid, inflicting burns over 80 percent of his body. The company failed to call 911, according to a federal Occupational Safety and Health Administration report obtained by the Center, and more than 98 minutes passed between the time of the accident and Centeno’s arrival at a hospital. He died three weeks later.

Friday’s report urges reforms. OSHA should target companies likely to use contingent workers and conduct “enforcement ‘sweeps,’ ” it said, and the agency should issue rules to ensure temporary laborers receive the proper training and protective equipment.

The report also recommends OSHA revise the criteria for inclusion in its Voluntary Protection Programs, an initiative designed to recognize “model workplaces” and exempt them from regular inspections. Yet a Center series revealed that preventable deaths continue at the so-called VPP sites, with few consequences for employers. Friday’s report suggests OSHA ensure participants don’t use large numbers of contingent workers to perform the most dangerous work.

OSHA did not respond to requests for comment on the recommendations.

Labor secretary leaves legacy of worker protections and unfinished business

2013-01-10T14:01:09-05:00

With her resignation this week, Labor Secretary Hilda Solis leaves behind a department advocates say has adopted a renewed focus on enforcing worker safety laws but been unable to push through a number of long-sought regulations.

The first Hispanic woman to hold the top post at a Cabinet-level agency, Solis said in a letter to department employees that she planned to return to California, where she grew up.

Labor advocates credit her with restoring the department’s commitment to protecting workers, particularly vulnerable populations, and bringing stronger enforcement of worker safety laws. During her tenure, the Occupational Safety and Health Administration and the Mine Safety and Health Administration expanded initiatives to crack down on repeat violators of safety and health laws – sometimes drawing the ire of the business community.

Yet the department hasn’t finalized a host of rules to protect workers that many in the labor community view as long overdue.

As the Center for Public Integrity has reported, a surprising resurgence of black lung disease has affected coal miners in Appalachia. For more than 15 years, experts and the government’s own scientists have pushed to lower the standard for exposure to the dust that causes black lung. In 2010, MSHA proposed a rule that would lower the limit, among other things, but it remains unfinished.

Similarly, OSHA announced in 2009 that it was starting the process of issuing a rule to address combustible dust – a hazard that, as the Center has reported, has killed or injured hundreds of workers during the past two decades. Yet rule development remains in the early stages.

OSHA has also been unable to finish rules to protect workers from harmful substances they breathe. Standards to lower exposures to beryllium and silica, both contaminants that can cause severe lung disease, have been in the works for years but remain incomplete.

“Where the administration has been a real disappointment has been in the regulatory department,” said Peg Seminario, director of safety and health for the AFL-CIO. This inability to finalize new rules, she said, is not the fault of Solis, but of a White House reluctant to issue new regulations.

Rep. George Miller, a California Democrat who has long been an outspoken worker advocate, issued a statement praising Solis as “a tireless advocate for all hardworking Americans.” President Obama cited her work in helping working families recover from the financial crisis.

Even after workplace deaths, companies avoid OSHA penalties

2013-03-29T14:58:24-04:00

SYRACUSE, N.Y. — The temperature outside 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. Equipment was old and in disrepair. Molten steel snaked through the building, and, at any moment, could snag and twist out of control, burning anything in its path. Shafts driving the machines that compress the steel spun at high speeds with no guards to shield employees working nearby. Sometimes, workers said, the torches backfired and burned them.

This was Jack Grobsmith’s domain. He’d worked at Crucible for more than 35 years and had ascended to the position of head roller. He adjusted the equipment and made sure the steel bars came out just the right size. Around the factory, he was known as a jokester with a purpose — showing up at events in character as Crucibella, donning a 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 revolutions per minute. Grobsmith struggled with the hose, which was covered in grease, then slipped on ice coating the area.

The shafts pulled him in, crushed his body and shot him out the other side.

Grobsmith’s assistant roller and longtime friend Rocky Saccone ran over. “It just happened so fast,” recalled Saccone, who retired a few months later. “We pulled him out, and that was it.”

The federal Occupational Safety and Health Administration cited Crucible for more than 70 violations and levied almost $250,000 in fines — high numbers for an agency with relatively little power to impose harsh penalties.

What almost no one outside of OSHA has known until now: The agency never collected a penny for Grobsmith’s death because it failed to file paperwork in time after Crucible filed for bankruptcy.

The company’s bankruptcy case drew significant media coverage because of the economic impact on the community. Yet OSHA, which has an office based in Syracuse, said in a written statement to the Center for Public Integrity that it didn’t learn Crucible was in bankruptcy until March 2010. By then, it was too late to file as a creditor and try to collect. OSHA said collection would have been difficult even if it had filed.

A private equity firm bought the company’s assets and reopened the mill — calling it Crucible Industries — with most of the same management. The penalty simply disappeared.

OSHA never told Grobsmith’s wife, Sue. After hearing the news from a reporter, more than three-and-a-half years after her husband’s death, she fanned herself with her hands. “I’m blown away by the fact that Crucible never paid any fines,” she said several moments later. “OSHA doesn’t feel the need to bring that out?”

Crucible has not responded to repeated requests for comment.

The events in Syracuse are part of the largely untold story of what happens after a workplace death has faded from memory and OSHA struggles to hold employers accountable. Though OSHA trumpets announced penalties as evidence of its commitment to forcing companies to follow the law, what actually happens to these penalties is more complicated.

Even after investigating a death and issuing a penalty, federal OSHA or the state agencies it oversees have failed to collect any of the original fine in one of every 10 cases since 2001, the Center found. In many other cases, regulators have settled for a fraction of the penalty initially imposed.

Overall, the federal and state agencies have collected at least 40 percent of the monetary penalties initially assessed after workplace inspections, forgoing $1.3 billion in the process, a Center data analysis found.

Most overdue debts end up at a private collection agency under contract with the Treasury Department. Yet a Center analysis of Treasury Department data found that only about 12 percent of OSHA debts have been collected in recent years. The penalties OSHA is allowed by law to impose are significantly lower than those assessed by many other enforcement agencies, providing little incentive for the government or collection agencies to prioritize them.

Both OSHA and the Treasury Department can ask the Justice Department to take an employer to court, but data show relatively little money has been collected this way.

Worker advocates say such failures to collect undermine enforcement.

“The penalties matter,” said Peg Seminario, director of safety and health at the AFL-CIO. Not collecting, she said, “basically means that they can violate the law and have very few consequences.”

OSHA does face substantial hurdles. The agency can’t force an employer to fix a hazard while a citation is contested, and litigation can drag for years. OSHA sometimes settles by deleting violations and erasing or reducing penalties — accepting, in some cases, company pledges to make safety improvements.

Even when a penalty becomes final, the agency may not be able to collect. Sometimes an employer disappears or convinces the government it doesn’t have the money. Other times, an employer goes out of business or declares bankruptcy, then forms a new company and continues similar work — a path that is difficult to track and requires legal heavy lifting to combat, OSHA said in a statement.

In its statement, OSHA said it is doing what it can with the authority it has, but it supports legislation that “would give OSHA the tools to impose appropriate penalties to increase deterrence and save lives.”

Data and cases from across the country show how penalties can wither or disappear, even after workers are needlessly killed.

A death, a debt and a drawn-out process

Algo Escalante Cota had worked in the U.S. for less than a year when, during a roofing job, he crashed through a skylight and plummeted almost 20 feet to a concrete floor below.

The fine for his death spent the next six years winding through a bureaucratic maze that led from Alabama to Washington, D.C., to a New York-based private collection agency, then back again. In the end, the government collected $0.

Cota, a 39-year-old native of Mexico, found his way to Birmingham, Ala., where he worked for Tony Wright, owner of roofing contractor Integrity Building Services LLC. Wright found Cota and another worker at a congregating spot that Hispanic workers called “La Tiendita,” an OSHA report said.

“There Mr. Wright knew he could hire Hispanic workers which, compared to American workers, would work for lower wages and who were not trained on the safety and health hazards associated with roofing work,” an OSHA inspector wrote.

Wright brought the men with him on a hot June day in 2005 to repair a leaking roof at a door manufacturing facility in Montgomery. Late in the afternoon of the second day on the job, Cota was lugging two five-gallon buckets of roof sealer when he stepped on a skylight. The fiberglass gave way, and he fell through to the factory floor.

The OSHA inspector cited Wright for failing to cover or guard the skylight and for failing to provide proper fall protection.

Wright had been an officer and co-owner of another business, Superior Roofing Contractors Inc., that had been cited repeatedly for violating fall protection rules. In an interview with the Center, Wright said he negotiated with OSHA on the company’s behalf after at least one of those inspections. The company went out of business, Wright said, and he formed Integrity Building Services.

The scene of Cota’s accident troubled the inspector, records show. Arriving the day after the accident, he spotted pieces of plywood covering two of the skylights, including the one through which Cota fell. There were also stanchions — stands to mark off dangerous areas on the roof — and a poster board containing safety information for temporary workers.

Wright told the inspector the items had been at the scene before Cota’s accident, according to the OSHA report. But the other worker and the plant’s owner said Wright hadn’t brought the items until after the accident. The inspector believed it was “an effort to deceive OSHA.”

In an interview, Wright acknowledged bringing the equipment to the scene after the accident, but insisted, “That was not to fool anybody.” The plywood and stanchions were temporary protection to make sure no one fell in the hole left by Cota’s accident, he said. Asked why he brought the poster board, he said, “That’s been a while. … I don’t know.”

Wright contested all of the citations, which included one classified as “willful” – the most severe type OSHA can allege, signifying that the agency believes the employer intentionally violated the law or acted with “plain indifference” to it.

“The proper safety guidelines were in place,” Wright told the Center, noting that he had spray-painted lines around the skylights. “The proper training had been performed. Daily communication on safety was done. The workman ignored the safety that was in place for him.”

In 2006, the $48,750 penalty for Cota’s death began its trek through the system. The head of the local office that investigated the death urged a Labor Department lawyer to pursue the full penalty to “achieve the appropriate deterrent effect.” When the department filed its complaint in administrative court, Wright did not respond. Upholding the OSHA citations, a judge concluded Wright had acted “with disdain” for the court’s rules.

Wright told the Center he had limited resources and had to pick his battles, so he chose to fight what he viewed as the more serious threat, a lawsuit by Cota’s family.

The waiting game

Faced with such an employer, OSHA has a standard procedure: The local office issues a letter demanding payment, then waits one month. Then the national office issues a similar letter, then waits. When the debt has gone unpaid for 180 days, OSHA refers it to the Treasury Department, which issues its own letter, then waits, usually another month. The department also can try to intercept government payments to the employer, such as tax refunds or payments for contract work.

Ultimately, most OSHA debts end up where Integrity Building Service’s did: a private collection agency. Four companies have contracts with the Treasury Department, and they do the bulk of the work pursuing debtors, said Ronda Kent, a deputy assistant commissioner in the department’s Financial Management Service.

Under the program, the Treasury Department is charged with collecting anything from debts on government loans to penalties assessed by a host of enforcement agencies.

OSHA debts, however, are typically much smaller than those of other enforcement agencies, and it is one of few federal agencies excluded from a law that allows penalties to rise with inflation, with penalties the agency can impose stuck at 1990 levels. A violation deemed “serious” — one that, by OSHA’s definition, “would most likely result in death or serious physical harm” — carries a maximum penalty of $7,000.

“Just because something’s a low dollar amount, it could be a fine that it’s important to collect it because you certainly don’t want repeat offenders,” Treasury’s Kent said. “You don’t want to make it cost-beneficial for the businesses to continue to violate the law.”

There’s no requirement, though, that this attitude trickle down to the private collection agencies. When it is assigned a debt, an agency must send a letter demanding payment. Beyond that, the agency can choose which debts are worth pursuing. “We leave that to them to make those decisions,” Kent said, noting that the agencies are regularly evaluated.

Between the 2006 and 2012 fiscal years, OSHA referred about $131 million in debts to the Treasury Department, but only about $16 million was collected. Data to compare OSHA collections with other agencies was not available.

Likewise, it is relatively rare for an employer to end up in court and be ordered to pay an OSHA debt. During the seven-year period, the Justice Department collected just over $267,000 in OSHA debts referred to it by Treasury. OSHA can also refer debts directly to the Justice Department. Since 2008, the department has collected about $910,000 in debts sent to it by OSHA. For all federal agencies, the Justice Department collected about $15.4 billion between the 2008 and 2011 fiscal years.

“It’s a problem,” said the AFL-CIO’s Seminario, “but the government has limitations in terms of what it can do, both in terms of its authority and in terms of its resources. … It’s making choices. It isn’t necessarily that they’re ignoring these cases.”

Legislation that would increase both civil and criminal penalties was introduced in both houses of Congress in 2009 and 2011. The bills haven’t made it out of committee.

In Cota’s death, the private collection agency Pioneer Credit Recovery called Wright a few times trying to collect, Wright recalled. He told them he was fighting a private lawsuit, and Wright said a Pioneer employee suggested he write a letter and “ask for forgiveness” of the debt. Wright’s lawyer did so.

“Debtor attorney states is in process of settlement agreement in court,” Pioneer reported back to the government. The head of OSHA’s debt collection office replied that getting sued doesn’t mean an employer can avoid paying a penalty. Still, an invitation to negotiate stood out in bold, underlined text: “In an effort to assist the debtor in settling this debt, OSHA is willing to review a reasonable compromise offer for this debt.”

On June 13, 2011, OSHA’s debt collection office said Treasury had deemed the debt “uncollectible.” The case was being closed. Pioneer refused repeated requests for comment, and the Treasury Department declined to answer questions about the specific debt, citing privacy concerns.

“We are disturbed that no penalties were collected in this case,” OSHA responded to a Center inquiry. The agency’s Mobile, Ala., office “has been on alert,” and, if future violations occur, OSHA “will pursue action to the extent of the law to hold this employer accountable.”

Wright, 57, said he still works in the Birmingham area as a consultant to a construction contractor. Integrity Building Services still exists, he said, though it is not taking jobs and is winding down its legal obligations as it prepares to go out of business. The company doesn’t have the assets to pay the OSHA fine, he said.

“Even if we had had the money,” he said, “I would have refused to pay.”

Negotiations, deletions and more deaths in South Texas

Some cases never make it to the collection stage. After OSHA investigates a death and issues citations, it is often faced with a choice: The agency can push to uphold all the violations and penalties, a process that can involve years of litigation. Or it can negotiate a settlement, which often involves reducing penalties or reclassifying violations.

Another option is deleting violations entirely, erasing the penalties that go with them. In more than 600 cases since 2001, OSHA has investigated a death, issued violations carrying a penalty — and then deleted them all, the Center found. That occurred in roughly one in every 20 cases.

In all closed cases since 2001, OSHA has agreed to delete more than 104,000 violations that had an initial fine, erasing more than $240 million in penalties.

“There are occasional instances when, after citations are issued, an employer may present additional evidence to indicate that a citation is not warranted,” OSHA said. “If that evidence, when taken into account, persuades the agency that a citation was not warranted, the citation may be deleted.”

Mark Lies, a partner in the Chicago office of the law firm Seyfarth Shaw LLP, is among the lawyers who specialize in squaring off against OSHA. Lies said he often gets involved soon after an accident occurs and has communications come to him, creating an attorney-client privilege. He sits in on employee interviews with OSHA, if the employee chooses, and reviews OSHA’s requests for documents.

Employers often fight even small OSHA penalties because having a violation on record could open up a company to more severe penalties in the future and haunt it in related civil lawsuits, said Julie Pace, a senior member at the Cavanagh Law Firm in Arizona.

There are many ways to attack an OSHA citation, lawyers say. A lawyer could argue that the OSHA standard cited didn’t apply to the work in question, that no one was actually exposed to the danger or that employee misconduct was to blame, among other defenses.

And if OSHA is unwilling to compromise, Lies said, “it’s very easy for the employer to go to a judge.”

A stark example of a company’s ability to beat back OSHA citations has played out in South Texas.

Gulf Stream Marine loads and unloads ships at ports along the Gulf Coast. In Houston and Brownsville, the company experienced six fatal accidents from 2007 to 2011. OSHA investigated and issued violations in each case, but, in half of them, agreed to delete all of the violations and erase the penalties.

The accidents bore similarities, OSHA records show. In January 2007, a Houston Gulf Stream Marine employee — not certified to drive a fork truck — ran into a security guard with the pipes being carried on the truck, causing fatal chest wounds. Three months later, also in Houston, a bundle of pipes being lifted by crane knocked a worker into the side of a ship. He fell into the water and never surfaced.

In 2008, a worker in Houston was crushed by a truck that came loose from the crane loading it onto a ship. The next year, in Brownsville, a large chain suspended from a crane got stuck, then snapped loose and hit a worker in the head, killing him. An employee in Houston was run over by a truck in 2010, and, the following year, a truck driver in Brownsville was hit with a 40-ton metal beam and killed.

In one case, OSHA deleted two serious violations carrying a $9,800 penalty after Gulf Stream Marine’s safety director sent the agency a map showing the areas of the port leased by the company and the areas controlled by the Port of Brownsville. A spot labeled “incident site” showed the accident occurred just outside the area under Gulf Stream Marine’s control. OSHA noted in the file, “The evidence suggests Gulf Stream Marine … had no controlling authority over safety and health.” The citations vanished.

In another case, OSHA deleted two serious violations carrying a $10,000 fine because “there were issues” with the phrasing of the regulations cited, OSHA told the Center. In a third case, OSHA deleted two serious violations and a $10,000 fine in a settlement. OSHA said it got something in return — a company pledge to adopt a new policy.

Others who have dealt with Gulf Stream Marine have been less forgiving than OSHA. “We’re getting people killed out there for no reason,” said George Gavito, who recently retired as chief of the Port of Brownsville’s police department.

Gavito said he constantly clashed with the company over safety issues. Brownsville is near the Mexican border, and many workers are poor immigrants, he said. “They’re not going to raise hell,” he said.

Lawyer Bill Tinning has battled Gulf Stream Marine twice. In 2005, he represented a worker who was offloading large pipes from a truck when one came loose and crushed his head, leaving him in a vegetative state.

In 2003, he sued on behalf of the family of a worker who had been crushed to death by a load that came loose from a crane Gulf Stream Marine was operating. Tinning alleged in court filings that the company replaced key parts of the crane immediately after the accident, started disposing of the crane even though there was an ongoing OSHA investigation and withheld information about the accident — claiming that one investigator Tinning wanted to depose was a “non-existent person.”

“It was the most outrageous conduct I’ve run across,” Tinning said.

Gulf Stream Marine refused repeated requests for comment. The company contested the violations in each of the six deaths and, in settlement agreements, has denied breaking the law.

OSHA defended its handling of Gulf Stream Marine, saying “violations have been abated that could have lingered for years had we not settled the cases.”

The agency acknowledged, however, that officials in Houston had failed to flag the inspection of the 2008 death as meeting the criteria for the agency’s “Enhanced Enforcement Program.” Had they done so, there would have been required follow-up inspections and perhaps visits to other company sites. These inspections, OSHA said, might have prevented future accidents.

John Newquist, a former assistant regional administrator for OSHA who retired this year, said Gulf Stream Marine’s record and OSHA’s handling of the death cases “should trigger maybe an outside review of it because there’s something wrong.”

“This should never happen,” he said. “It’s an embarrassment if you’ve got fatality cases and citations deleted.”

‘I think about it a lot’

Every Monday morning at 6:30, the management and employees at Crucible Specialty Metals met to talk safety. Speaking for the workers on the mill floor often fell to Rocky Saccone, who embraced the role. “They would say, ‘Rock’s on a roll; let him go,’ ” Saccone recalled. “It would be days or weeks or months before they would address these issues on the mill, and they wonder why you get upset. It was like pulling teeth.”

One issue that repeatedly surfaced, he said, was installing guards to enclose the rotating shafts on the mill — like the ones that crushed Jack Grobsmith. “It should have been corrected years and years ago,” he said.

A few years before Grobsmith’s death, Saccone said he nearly suffered the same fate when the sleeve of his shirt touched an unguarded shaft. “It ripped it right off in about half a second,” he recalled. “All that was left was the collar of my shirt. The rest of the shirt was disintegrated.”

Then, in May 2008, another worker’s shirt was caught in an unguarded bar straightener, federal records show. He was flipped over and injured. OSHA investigated and issued a citation. By that time, OSHA had already cited the company multiple times – in 1997 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 installed guards on similar machines throughout the plant.” Had Crucible done so, “this may have prevented” Grobsmith’s death, OSHA wrote.

In 2009, OSHA’s Syracuse area director authorized the maximum fine for violations related to Grobsmith’s death “to get the necessary deterrent effect,” he wrote in a memo, noting the company’s history of accidents and failure to guard machines.

Three days after a judge approved the settlement between Crucible Specialty Metals and OSHA, a private equity firm finalized its purchase of the company. A few months later, OSHA received a letter, this time on Crucible Industries letterhead, saying it would take longer than initially agreed to fix the problems inspectors found. The company “does not admit it bears responsibility for any citations and penalties … issued to and incurred by the previous owners.” It maintained it was correcting cited hazards “in the interest of providing of Crucible Industries’ employees a safe workplace.”

Both the settlement agreement and the letter were signed by the same person.

Crucible employees said that, with new owners, there have been safety signs both positive and negative. “I want to believe that the people up top want the cultural change and want it to work, but I’m not sure it filtered all the way down,” said Ed Moran, the safety chairman for the United Steelworkers’ local.

After her husband’s death, Sue Grobsmith considered a lawsuit. Because of state workers’ compensation laws, she couldn’t sue Crucible; her lawyer’s only option was to investigate the contractors who installed the equipment. Crucible, however, said it couldn’t find any of the contracts. “Clearly, Crucible … was to blame,” the lawyer wrote to her. “Unfortunately, with all of this evidence against the employer, we still can’t sue them.”

Now 59, Sue works for the local school district and keeps in touch with Jack’s friends from Crucible. One recent fall day, Saccone and Dave Peel, another longtime friend from Crucible, sat with Sue in the living room of the house she and Jack bought 32 years ago, drinking coffee and talking about Jack.

Sue and Jack started dating in 1969, in high school. “Right out of high school, I worked for Allstate Insurance, Jack went to school and we knew we were going to get married,” Sue said. When Jack finished at a two-year college, he planned to go back to school and become a teacher and coach. Yet a summer job at Crucible changed his mind; the promise of a good paycheck enticed him.

They married in 1972 and had three children. As Jack ascended the ranks at Crucible, double shifts became common. He became close with co-workers, sharing barbecues, graduations, weddings.

“He’d have me in tears at times because he’d be so damn funny,” Rocky said. “It could be an old, stale joke that I would still laugh at after 30 years.”

Inevitably, the conversation returned to Jan. 15, 2009. As Rocky described running to Jack’s battered body, Sue’s expression changed. “I didn’t know that you were the first there,” she said, grabbing his hand. “Thanks, Rock.”

Rocky paused, and his eyes welled. “I think about it a lot,” he said. “I still do. I think about it a lot.”

IMPACT: Federal inspectors step up enforcement of rules to prevent black lung

2013-01-25T09:41:44-05:00

A federal enforcement blitz targeting coal mines with potentially dangerous levels of dust found a host of violations 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 Murray 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 Association, 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 Congress 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.

Detroit refinery expansion adds more Canadian crude, brings more worries

Detroit,Michigan,United States — 2012-10-31T06:00:01-04:00

DETROIT — In an economically distressed pocket of southwest Detroit known by its ZIP code — 48217 — the weekend of September 7-9 was one of the worst, pollution-wise, residents like Theresa Shaw could remember.

“I started smelling it on Thursday,” said Shaw, who immediately suspected the Marathon Petroleum Co. refinery a half-mile from her house. “I kept the windows closed because I couldn’t breathe. On Friday, I thought, ‘What the heck are they doing?’ My eyes were just burning, my throat was hurting, my stomach was hurting. I was having migraine headaches.

“The smell, it was like this burning tar, with that benzene and that sulfur. I wanted to scream.”

Shaw retreated to her sister’s house on the north side of town. Responding to citizen complaints, the Michigan Department of Environmental Quality traced the powerful odor to Marathon, which had been cleaning several large vessels, and wrote up the company for a nuisance violation.

Marathon says it is “committed to environmental responsibility” and acted quickly to correct the odor problem, a byproduct of plant maintenance.

Yet the episode further eroded residents’ trust in the company and underscored their fears about a $2.2 billion refinery expansion that will allow Marathon to process more high-sulfur Canadian crude oil.

The build-out, nearly complete, won’t add to the air pollution burden, Marathon promises. In fact, the Ohio-based company vows, emissions of some pollutants will go down and job numbers will go up.

Shaw doesn’t buy it. “They’ve disrespected us in this neighborhood over and over and over again,” she said.

The conflict in southwest Detroit is one piece of a larger environmental struggle being waged in communities nationwide. At the core of the debate: Plans by a number of oil companies to step up refining of heavier, dirtier crude, much of it from Alberta’s tar sands formation, a deposit whose reserves are eclipsed only by the vast Saudi Arabian oil fields.

From the Great Lakes to Texas, people in already polluted neighborhoods are watching warily as refineries grow to accommodate the Canadian oil. Thus far, much of the controversy over tar sands has centered on the environmental damage caused by extraction and the risks of a spill from the proposed Keystone XL pipeline, which would carry the fuel to Gulf Coast refineries.

But the next stage in the process has been largely overlooked: The oil has to be refined somewhere.

Heavy oil from Canada is already reaching Marathon and other refineries. Between 2006 and 2011, imports of such crude more than tripled, a Center for Public Integrity analysis of data from the U.S. Energy Information Administration found.

Some worry that government approval of Keystone XL would accelerate this trend, providing wider access to tar sands. Construction has begun on the southern portion of the pipeline, between Oklahoma and Texas, but the northern section is on hold pending further analysis by the U.S. Department of State. The thick, asphalt-like crude, known as bitumen, requires more processing than lighter forms of oil, which could lead to increases in pollution if not controlled. The burden would fall most often on communities, like southwest Detroit, populated mainly by low-income people of color.

The Environmental Protection Agency expressed concern about this prospect in June 2011. Commenting on a draft State Department environmental assessment of Keystone XL, the EPA urged the department to “provide a clearer analysis of potential environmental and health impacts to communities from refinery air emissions and other environmental stressors.”

Yet the EPA has conducted no evaluations of its own and isn’t keeping track of the refinery expansions around the nation, an agency spokeswoman said in a statement to the Center.

The State Department has looked only at the possible impacts of Keystone XL and maintains there is no evidence that the pipeline’s potential approval has prompted any of the current refinery expansions. The department referred Center inquiries to its published evaluations, one of which says significant expansions should trigger rules requiring refiners to install better pollution control equipment.

Some advocates contend, however, that companies are underestimating the projects’ air impacts in an attempt to avoid such requirements.

“This has all been done very quietly in the regulatory backrooms, and people aren’t aware of it,” said Josh Mogerman, who tracks developments related to tar sands for the Natural Resources Defense Council. “These refineries have a lot of problems, and it’s hard to believe that’s going to get better by moving to process one of the dirtiest fuels on the planet.”

Two trade groups representing the oil industry, the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers, did not respond to interview requests, but both have supported increased use of tar sands, arguing that America would benefit economically and secure a more stable energy source.

‘Sacrifice zones’

Typically, the refinery expansions are unfolding in places that have long suffered from air and water pollution.

At the end of the proposed Keystone XL pipeline, for example, lie hazy Gulf Coast cities dominated by the petrochemical industry. Last year, the mayor of Houston wrote the State Department, expressing concern that oil companies’ easy access to tar sands could lead to further deterioration of air quality. Refineries in nearby Texas City and Port Arthur have expanded or are in the process of doing so.

“These communities become the sacrifice zones,” said Leslie Fields, the Sierra Club’s environmental justice and community partnerships director in Washington, D.C. “They will never be availed of any kind of green, sustainable, clean future. This is where [industries] are forever going to be expanding.”

Health worries abound, with particular concern over asthma and cancer.

In July, the Michigan Department of Community Health announced the preliminary results of a study of 48217 and three other ZIP codes in southwest Detroit: Rates of newly diagnosed cases of cancers of the lung and bronchus were “significantly higher” than those in the rest of the state outside of Wayne County (which includes Detroit), the department said, as were death rates.

“It’s like a Frankenstein lab experiment,” Theresa Landrum, a community leader and cancer survivor, said of the airborne chemicals that pour from industry in or near 48217 — including volatile organic compounds, many of which are carcinogens, and sulfur dioxide, a respiratory irritant. “We actually are lab rats.”

Indeed, data submitted by Marathon to state regulators show that emissions of volatile organic compounds from the refinery increased by 36 percent from 2009 to 2011. The company declined to comment on the increase, saying only that it had obtained “all the necessary permits” for its air emissions from the Michigan Department of Environmental Quality.

The refinery expansion in Detroit had its genesis in 2007, when the City Council agreed to give Marathon a $175 million, 20-year tax abatement. The company played Detroit off against two other cities in which it operated refineries, St. Paul Park, Minn., where it has since sold its plant, and Robinson, Ill. “Overall,” Marathon warned in one communication with the city, “the system of property taxation is more favorable for refinery investment in Illinois and Minnesota, as compared to that in Michigan and the City of Detroit.”

In exchange for the tax break, Marathon promised to create 60 full-time refinery jobs and 75 full-time contractor jobs, which, it said, collectively would add $16.5 million to the annual $74 million payroll. Even with the abatement, Marathon said, the city would reap $230 million in new tax revenue through 2030. In much the same way, the American Petroleum Institute has promoted the use of tar sands as an economic boon to the United States that would lead to thousands of new jobs.

Marathon’s plan was an easy sell in one of America’s most desperate urban areas. Whether it was a good deal remains to be seen.

“It can’t just be about jobs,” said state Rep. Rashida Tlaib, a Democrat who represents the neighborhoods around the refinery. “My residents and I feel that jobs can’t fix cancer. It has to be about the fact that this massive refinery is living next to a very poor, minority community in Detroit with no real protection. When my residents hear sirens, they cross their fingers and hope it’s not some sort of huge explosion.

“They don’t feel like the city or the state has done everything in their power to hold the company accountable.”

City Councilman Kwame Kenyatta said he was annoyed that a Marathon representative failed to appear Oct. 1 before the council’s Public Health and Safety Committee, which was seeking information on a Sept. 5 refinery fire.

“They always have someone at the table when there’s an issue of them applying for a tax credit or some other incentive that they want from the city,” Kenyatta said. “But when it’s time for the citizens to get their questions answered and their safety issues addressed, there’s no one there.”

In a statement to the Center, Marathon said it “did not receive adequate notification” of the Oct. 1 committee meeting. The company attended a rescheduled meeting two weeks later and described the Sept. 5 fire as small, saying one employee suffered minor injuries.

Kenyatta said he agreed to the 2007 tax abatement only after Marathon promised to share some of the economic benefits of the refinery expansion with the community.

“I think that Marathon has not been that good of a corporate neighbor to the people in southwest Detroit,” the councilman said. “There were some promises made to train and hire people from the area. Based on the information I’ve gotten back, that did not happen.”

Asked to comment, a Marathon spokesman referred a Center reporter to the company’s website. The site says that Marathon, in consultation with the Detroit Workforce Development Department, “has created a workshop that will offer assistance to Detroit residents in taking pre-employment tests” and has committed to offering 10 community college scholarships per year for at least 10 years for those interested in refinery operator positions.

Marathon also says it plans to hire “as many Detroit residents … as possible” for the 75 contractor jobs it expects to add once the refinery expansion is completed.

Before it could start its expansion, Marathon had to secure a permit from the Michigan Department of Environmental Quality — the MDEQ.

On paper, the project looked like a winner. Marathon would be able to run more crude through its refinery, which opened in 1959, and new pollution-control equipment would reduce the poisons released into the air. Emissions of sulfur dioxide and volatile organic compounds, for example, would go down compared to current levels, Marathon said, though emissions of hydrogen sulfide — a gas known for its rotten-egg odor and potentially fatal in sufficient concentrations — would increase.

The MDEQ and EPA reviewed the permit and decreed that the project was not big enough to trigger federal “Prevention of Significant Deterioration” rules, which would have forced Marathon to install more controls.

The Sierra Club, invited by residents to intervene, won modest concessions from Marathon in 2008. The company agreed, among other things, to additional air monitoring and further emissions reductions.

“At the time, I think it was the best we could do,” said Rhonda Anderson, a Detroit-based organizer for the Sierra Club’s environmental justice program. “The state had already given them their permit. They didn’t have to do anything.”

The state and the EPA say the pollution projections in Marathon’s permit are credible, but others are skeptical — citing previous industry case studies.

‘Funny math’

Five years ago, residents of Whiting, Ind., heard similar claims from BP: After it completed its nearly $4 billion refinery expansion to allow processing of more heavy crude, emissions of many pollutants would decrease, the company said. The project, BP said, wasn’t big enough to trigger stricter pollution controls.

Staffers with the Natural Resources Defense Council weren’t convinced. After digging through the thousands of pages BP had filed with the state in applying for a permit, the NRDC determined that many of the company’s claims stemmed from “funny math,” said Ann Alexander, a lawyer for the organization. “They both over-counted the reductions and undercounted the increases,” she said.

BP assumed, for example, that the three new flares — devices that burn off waste gases and can be major sources of pollution at refineries — it was installing would produce no emissions, Alexander said.

The EPA agreed with many of the complaints lodged by the NRDC and other environmental groups and intervened in 2009. In May, the EPA announced that it and the groups had reached an agreement with BP. Among other things, the company said it would spend an additional $400 million on pollution control equipment.

“This facility’s expansion is really the poster child for what’s wrong with this system,” Alexander said. “It’s part of a pattern.”

BP spokesman Scott Dean, asked to respond to the allegation, said, “We settled that matter to both parties’ satisfaction.” The Whiting project, scheduled to be completed in the second half of 2013, will allow the refinery to process up to 85 percent heavy crude, compared with the 20 percent it currently processes, Dean said. Overall, he said, emissions should drop.

Pattern of violations

Oil refineries have long been a target of state and federal regulators. Since 2000, the EPA has cracked down on the industry under a special initiative focusing on air pollution, collecting tens of millions of dollars in civil penalties and requiring billions to be spent on pollution-control upgrades.

Marathon is no exception. In April, the EPA and the U.S. Department of Justice announced that the company had agreed to install “state-of-the-art controls” on flares at its six refineries, ultimately keeping 5,400 tons of pollutants from reaching the atmosphere each year. Marathon also will pay a $460,000 fine to settle alleged Clean Air Act and other violations.

The MDEQ has issued 13 air pollution violation notices to the Detroit refinery since 2001. None resulted in penalties because Marathon took quick corrective action, said Wilhemina McLemore, Detroit district supervisor for the MDEQ’s Air Quality Division. “If they’re out of compliance for a short period, they usually resolve whatever the issue is in a timely manner,” McLemore said.

On the other hand, air sampling performed by residents and overseen by Global Community Monitor, an environmental group based in California, in 2010 found high levels of benzene — a carcinogen — and hydrogen sulfide near the refinery. In one case, more than 20 chemicals, including benzene, were detected in a resident’s basement. An EPA investigation traced the contamination to Marathon’s dumping of wastewater into the city sewer system.

“We were shocked to learn they did not have their own discharge pipe into a body of water like, I believe, every other refinery in the United States,” said Denny Larson, Global Community Monitor’s executive director.

An EPA spokesman said Marathon installed “carbon beds and a peroxide system to remove petroleum compounds from the wastewater discharge” in February of last year. Monitoring afterward showed that the technique worked and that benzene concentrations had fallen to “non-detect levels,” the spokesman said.

Larson said he finds it troubling that the state has imposed no fines on Marathon since 2001. He believes the EPA might not have struck this year’s agreement with the company but for the publicity surrounding the 2010 air sampling.

“Enforcement without penalties doesn’t work,” Larson said. “That, obviously, is why the citizens jumped in with their own testing. They weren’t satisfied with the state of Michigan’s opinion that Marathon was a good operator. There’s a complete disconnect between what the state says and the experience of people who have to live along the fence line.”

In Whiting, Global Community Monitor and the Calumet Project, a local environmental group, made a deal with BP — independent of the NRDC lawsuit — that requires the refiner to conduct what’s known as open-path air monitoring. Instead of measuring chemicals within “three inches of air” and possibly missing large releases, Larson said, BP will use ultraviolet rays to scan thousands of feet along its fence line and post the monitoring data on a public website within 24 hours.

No such arrangement is in place in Detroit. Since January, Marathon has operated three monitors on its property and one at an elementary school. The devices have turned up little of concern, apart from elevated particulate levels linked to construction, the MDEQ’s McLemore said.

‘This is our way out’

To some residents of 48217, there’s a simple solution to the perpetual tug-of-war between Marathon and a community grown weary of bad air: buyouts.

Marathon is acquiring homes in a decaying neighborhood called Oakwood Heights, on the north side of Interstate 75, just blocks from the refinery. Among those waiting for their appraisal in late August were Roland and Linda Wahl, who have lived on South Colonial Street for 38 years.

“This was a nice neighborhood,” said Roland Wahl, 68. Now, a number of houses are abandoned, burned out or falling down. “When Marathon announced this buyout,” Wahl said, “I told my wife, ‘Hallelujah, this is our way out.’”

Linda Wahl, 69, said that five of the eight people in the family’s house, including her 11-year-old grandson, have asthma. “At times, [the pollution] has been so bad that we’ve had to close our windows in the summer,” she said. “We’re seniors. We don’t have money for air conditioning.”

People on the other side of I-75 have yet to convince Marathon to relieve them of their homes.

“I want to move,” Theresa Shaw said. When Shaw broached the idea with Marathon a few weeks ago, she was rebuffed. A company representative told her that Marathon was picking up properties only in Oakwood Heights, though Shaw lives about a quarter-mile from the Wahls and breathes the same air.

Shaw doesn’t believe Marathon when it says the air will be cleaner after the bigger refinery goes on line. “I’m allergic to sulfur, and I know sulfur is one of the emissions of that tar sands,” she said. “This is really a disaster.”

IMPACT: OSHA's 'model workplace' program needs reform, report finds

2012-08-21T17:15:40-04:00

So-called “model workplaces” that won exemptions from regular inspections will now face greater scrutiny, amid concern over deaths and safety breakdowns at some plants held up as industry leaders.

A report suggesting reforms, from a task force of the U.S. Occupational Safety and Health Administration, comes more than a year after a Center for Public Integrity series revealed that deadly accidents and serious safety violations at these sites had gone largely unpunished by OSHA.

The report about the agency’s Voluntary Protections Programs, known as VPP, recommends that OSHA overhaul its policies for responding to serious accidents at these sites. Regional officials should thoroughly re-evaluate sites that have such problems, the report said, and they should have broader authority to kick out problem workplaces. The agency also should suspend sites while investigations are ongoing, the report recommended.

"This report will serve as a valuable road map for the agency as we continue to address issues present in VPP," Jordan Barab, OSHA's No. 2 official, said in a statement. "In general, we agree with most of the findings of the report, and have already or will be implementing a number of substantive changes to the program based on the recommendations included."

The association representing companies in the “model workplace” program is holding its annual conference in Anaheim, Calif., and no one from the organization could be reached for comment Monday.

The task force, composed almost entirely of regional and local OSHA officials, identified muddled guidance, inaccurate data and regional inconsistencies that have led to problems within the program.

As the Government Accountability Office has noted, OSHA lacks evidence detailing the program’s effectiveness. The task force acknowledged as much, suggesting ways the agency could better gather information on sites in the program.

The report also suggests OSHA should consider abandoning the initiative known as “VPP Corporate,” which allows certified companies to receive streamlined evaluations at all their sites.

One Center story highlighted the initiative and its second participant, the U.S. Postal Service. At the same time one OSHA branch was approving large numbers of postal service sites into VPP, the agency’s enforcement branch was alleging widespread safety problems at all mail processing centers nationwide – an approach one former OSHA official called “schizophrenic.”

The task force’s report is not the final look at VPP: The Department of Labor’s Office of Inspector General announced earlier this year that it would also look into the program.

GAO report supports science behind black lung rule

2013-01-25T09:41:44-05:00

Research supports an Obama administration plan to reduce coal miners’ exposure to the dust that causes black lung, 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-Calif., 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 using 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.”

State settlement boosts monitoring at massive coal ash dump bordering two states

Pennsylvania,United States — 2012-08-01T06:00:01-04:00

Owners of one of the nation’s largest impoundments of the often-toxic byproducts of burning coal must do more to protect residents from groundwater contamination and stop accepting waste by 2016, under an agreement with Pennsylvania regulators.

The pact focuses on FirstEnergy Corp.’s impoundment, known as Little Blue Run, in southwestern Pennsylvania on the West Virginia border.

Pennsylvania’s complaint and settlement, finalized Friday, came 59 days after environmental groups filed a 60-day notice of intent to sue, alleging that dangerous substances were seeping from the impoundment into the water supply.

The groups filing the notice — the Environmental Integrity Project and Public Justice — praised the state Department of Environmental Protection’s action. But they say the settlement came after the agency for years denied the existence of contamination. Indeed, state officials made such claims when the Center for Public Integrity highlighted problems at the site in 2010.

The agency declined an interview request, but said in a written statement, “We believe this will not only make major strides in environmental projects for that area, but also bring peace of mind to many residents who have expressed concerns about the Little Blue Run impoundment.”

The agency’s action appears to be the first time state regulators have determined that an impoundment of the material known as coal ash could pose an “imminent and substantial threat” to people and the environment, Public Justice lawyer Richard Webster said. The legal action comes as a national debate continues over regulation of the coal ash.

“There are hundreds of other sites all over the country, and we really need a way to tackle this in a comprehensive way and not on a piecemeal basis,” Environmental Integrity Project lawyer Lisa Widawsky-Hallowell said. “It calls attention to the need for federal coal ash regulation.”

The Environmental Protection Agency published a proposed rule to address the handling of coal ash in 2010, but it has yet to be finalized. Many environmentalists believe the rule won’t be released before the coming presidential election, Webster said.

Near Little Blue Run, a 1,700-acre dump that straddles Pennsylvania and West Virginia, residents have long complained of tainted water, dust clouds and foul odors. The area is the final stop for waste after a seven-mile trip by pipeline from the massive Bruce Mansfield power plant in Shippingport, Pa. When the impoundment received its permit in 1974, federal rules didn’t require the use of lining to prevent waste from escaping; current state regulations do.

The state’s complaint says testing near the impoundment revealed toxic substances, including arsenic, in groundwater that flows into nearby streams and is a source for wells.

As part of the agreement, FirstEnergy pledged to increase monitoring of groundwater and air surrounding the dump and to notify the state and take action if contamination was detected. The company also has to stop adding waste to the site by the end of 2016, and it agreed to pay an $800,000 penalty. The company did not respond to a request for comment.

GOP seeks to kill black lung reform

2012-08-17T11:43:04-04:00

House Republicans inserted language in a 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 has highlighted the need for more effective ‘black lung’ disease 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 December, 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 “sympathizes 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 concentrated 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: “Republicans 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."

IMPACT: Labor Dept. assembling expert team on mine dust enforcement after CPI-NPR investigation

2012-08-17T11:43:04-04:00

Federal regulators are assembling a team of lawyers and other experts to consider how to bolster coal mine dust enforcement given systemic weaknesses revealed by an investigation into the resurgence of black lung by the Center for Public Integrity and NPR, according to an internal Labor Department communication.

The effort, involving officials from the Mine Safety and Health Administration (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 communication says.

The investigation by the Center and 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, preserving 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.

Black lung surges back in coal country

2012-10-31T18:59:58-04:00

PRESTONSBURG, Ky. — Ray Marcum bears the marks of a bygone era of coal mining. At 83, his voice is raspy, his eastern Kentucky accent thick and his forearms leathery. A black pouch of Stoker’s 24C chewing tobacco pokes out of the back pocket of his jeans. “I started chewing in the mines to keep the coal dust out of my mouth,” he says.

Plenty of that dust still found its way to his lungs. For the past 30 years, he’s gotten a monthly check to compensate him for the disease that steals his breath — the old bane of miners known as black lung.

In mid-century, when Marcum worked, dust filled the mines, largely uncontrolled. Almost half of miners who worked at least 25 years contracted the disease. Amid strikes throughout the West Virginia coalfields, Congress made a promise in 1969: Mining companies would have to keep dust levels down, and black lung would be virtually eradicated.

Marcum doesn’t have to look far to see that hasn’t happened. There’s his middle son, Donald, who skipped his senior year of high school to enter the mines here near the West Virginia border. At 51, he’s had eight pieces of his lungs removed, and he sometimes has trouble making it through a prayer when he’s filling in as a preacher at Solid Rock Baptist Church.

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 Marcums’ are not supposed to exist. In the hard-won 1969 law, Congress demanded that dust be controlled and new cases of disease be prevented. The idea was that, even if black lung didn’t disappear, there would be a small number of mild cases and virtually no one like Donald and James Marcum, said Dr. Donald Rasmussen, a pioneer in recognizing and diagnosing black lung.

“In 1969, I publicly proclaimed that the disease would go away before we learned more about it,” Rasmussen, now 84 and still diagnosing miners, said in a recent interview at his office in Beckley, W.Va. “I was dead wrong.”

Throughout the coalfields of Appalachia, in small community clinics and in government labs, it has become clear: Black lung is back.

The disease's resurgence represents a failure to deliver on a 40-year-old pledge to miners in which few are blameless, an investigation by the Center for Public Integrity and NPR has found. The system for monitoring dust levels is tailor-made for cheating, and mining companies haven’t been shy about doing so. Meanwhile, regulators often have neglected to enforce even these porous rules. Again and again, attempts at reform have failed.

A Center analysis of databases maintained by the federal Mine Safety and Health Administration found that miners have been breathing too much dust for years, but MSHA has issued relatively few violations and routinely allowed companies extra time to fix problems.

MSHA chief Joe Main issued a statement in response to the findings: “The current rules have been in effect for decades, do not adequately protect miners from disease and are in need of reform. That is why MSHA has proposed several changes to overhaul the current standards and reduce miners' exposure to unhealthy dust.” Similar attempts at reform have died twice before.

From 1968 through 2007, black lung caused or contributed to roughly 75,000 deaths in the United States, according to government data. In the decades following passage of the 1969 law, rates of the disease dropped significantly. Then, in the late 1990s, this trend reversed.

Many of the newer cases have taken a particularly ugly form. While rates of black lung overall have increased, incidence of the most severe, fast-progressing type has jumped significantly. These cases, moreover, are occurring in younger and younger miners. Of particular concern are “hot spots” identified in central Appalachia by the National Institute for Occupational Safety and Health, NIOSH, a government research agency. Though levels of disease are still below what they were before 1970, medical experts and miners’ advocates are alarmed.

“I think any reasonable epidemiologist would have to consider this an epidemic,” said Scott Laney, a NIOSH epidemiologist. “All cases of [black lung] are preventable in this day and age, but these cases of [the most severe form] are just astounding … This is a rare disease that should not be occurring.”

The National Mining Association, the main trade group representing mining companies, disputes some of NIOSH’s data but agrees that black lung’s resurgence is a problem in need of attention. To the association, however, it is primarily a regional phenomenon of central Appalachia — one that doesn’t justify new national rules. What’s needed, the group says, is further study and better enforcement of current standards.

Researchers are struggling to explain what, after years of progress, has caused the backsliding and why black lung, traditionally viewed as an old man’s disease, is striking younger and younger miners and robbing them of their breath faster and faster. They are trying to figure out why men like the Marcums are the new face of black lung.

‘A diabolical torture’

“They call me Lucky,” retired miner James Foster says as he takes off his shirt and presses his chest against an X-ray machine in the back of an RV in Wharton, W.Va. “Worked 37 years in all kinds of mines. Been covered up twice. Been electrocuted.”

His brushes with death aside, he’s here because he fears there may be one hazard he can’t dodge. “I come in here to file for my black lung,” he says. During a recent heart surgery, he says, doctors said they saw what appeared to be signs of the disease.

He’s one of a handful of miners on an April afternoon to move through the RV parked at the fire department in Wharton, in the heart of coal country. Inside, a team of NIOSH workers shepherds them from station to station: medical history, questionnaire, breathing test, chest X-ray. Foster hopes the tests will provide evidence he can use to submit a claim for benefits. Other miners are still working and want to make sure their lungs are clear.

It is from this rolling medical unit, in part, that NIOSH has documented the return of black lung. For decades, miners have been entitled to free X-rays every five years, and this has helped track the drop in the disease’s prevalence. After the data started showing a reversal, NIOSH sent its RV out to gather more data in 2005.

What these researchers found, combined with data from routine medical monitoring, was worrisome: From the 1970s through the 1990s, the proportion of miners with signs of black lung among those who submitted X-rays dropped from 6.5 percent to 2.1 percent. During the most recent decade, however, it jumped to 3.2 percent.

Even more disturbing: Prevalence of the most severe form of the disease tripled between the 1980s and the 2000s and has almost reached the levels of the 1970s.

In a triangle of Appalachia — southern West Virginia, eastern Kentucky and western Virginia — the numbers were even higher. The rolling unit found a disease prevalence of 9 percent in Kentucky from 2005 to 2009, for example.

A wake-up call for some came after the Upper Big Branch explosion in southern West Virginia in April 2010, which killed 29 miners. Of the 24 who had enough lung tissue for an autopsy, 17 had signs of black lung. Some had fewer than 10 years of experience in mines; they ranged in age from 25 to 61.

The disease leaves miners’ lungs scarred, shriveled and black. They struggle to do routine tasks and are eventually forced to choose between eating and breathing.

“No human being should have to go through the misery that dying of [black lung] entails,” said Dr. Edward Petsonk, who treats patients with black lung and works with NIOSH. “It is like a screw being slowly tightened across your throat. Day and night towards the end, the miner struggles to get enough oxygen. It is really almost a diabolical torture.”

Underpinnings of an epidemic

There are theories about why the disease has returned, but no definitive answers. One likely explanation: Miners are breathing a more potent mix of dust. Coal seams are surrounded by rock, much of which contains the mineral silica. When ground up, silica is more toxic to the lungs than coal dust and can cause faster-progressing disease.

With larger coal seams becoming mined out, companies are turning to thinner seams surrounded by more rock. At the same time, because of the price of coal and advances in mining equipment, it now makes more sense economically for companies to cut through large amounts of rock to get at the coal. Companies haul it all out and then separate the rock from the coal at processing plants.

“In central Appalachia, you look at what’s coming out of the mines, and it’s probably 60 percent rock on a good day,” said Rick Honaker, a University of Kentucky professor who consults for mining companies and has seen their data.

NIOSH research suggests this may be having an effect. A particular marker on a chest X-ray is often indicative of silica-related disease. Comparing miners’ X-rays taken from 2000 to 2008 with those taken during the 1980s, researchers found that the proportion bearing these markers had nearly quadrupled and, in central Appalachia, had increased almost eight times over.

Rules are supposed to limit the amount of silica in the air in mines, but a Center analysis of MSHA’s dust sampling database, obtained under the Freedom of Information Act, shows that the agency has long failed to control silica dust.

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 determined to be safe in 1974.

The National Mining Association contends that what appears to be a nationwide increase in black lung is actually a spike in silica-related disease in Appalachia. “The problem here is, look, these people were overexposed to horrendous levels of silica, for God’s sake,” said Bob Glenn, an expert hired by the association. “Why hasn’t something been done?”

To the association, this means there is no need for a new rule on coal dust, just better enforcement of the silica standard.

Another possible explanation for the uptick in disease: The number of hours worked by miners has steadily increased over the past three decades, MSHA data show. Ten- and 12-hour shifts and six- or seven-day workweeks are now common.

“I have stayed [in a mine] sometimes two days and never come out,” said Donald Marcum. Sometimes, he said, “you’d just lay down beside the power box, sleep an hour or two and stay right there.”

Longer hours mean more exposure to dust and less recovery time. The lungs can clear some dust by themselves if given the chance, and many miners said in interviews that they often spit up a mixture of mucus and dust.

At the same time, production has increased, thanks in part to powerful new equipment. A longwall shearer, for example, can carve out huge swaths of coal in little time.

Mark McCowan ran one of these behemoths for the final years of his career. “By the time I was 40 years old, I had mined more coal than most miners mine in a lifetime,” he recalled, sitting in his living room in Pounding Mill, Va. “You would get in some areas of the coal face where, when you mine, you can’t see the hand in front of your face. … I would eat so much dust I would throw up.”

McCowan was diagnosed with black lung at age 40. His disease has progressed to the most severe form; now 47, he finds it harder and harder to breathe. He pointed to a photo of a beaming, blond-haired 2-year-old on his wall — his grandson, Haiden. McCowan sees him two or three times a week and plays with him for as long as his lungs can take. “My biggest fear,” he said, “is I won’t live long enough for him to remember me.”

Decades of cheating

Donald Marcum knew he was at least a passive participant in something that was against the rules, maybe even criminal. Every couple of months, his bosses had to send MSHA five samples showing they were keeping dust levels under control. The man with the greatest potential exposure — often Donald because he was running a continuous mining machine, which chews through coal and rock and generates clouds of dust — was supposed to wear a pump to collect dust for eight hours.

That almost never happened. Most of the time, he said, the mine foreman or someone else would take the pump and hang it in the cleaner air near the mine’s entrance.

When MSHA inspectors showed up to take their own samples, it wasn’t so easy to cheat. Donald would actually wear the pump, but he and his co-workers would mine only about half as much coal as they normally did, generating far less dust.

“We just done what we was told because we needed to feed our families and really didn’t look at what it might be doing to our health,” he said.

Donald’s experience echoed what Center and NPR reporters heard from retired miners throughout West Virginia, Kentucky and Virginia who had worked underground as recently as 2008. Dust pumps ended up in lunchboxes or mine offices. Mine officials stalled regulators who had shown up for a surprise inspection and radioed to the men underground, who fixed the ventilation and cleaned up the work site.

It’s difficult to tell how widespread such practices are, but many former miners described some variation of cheating occurring regularly at almost every mine where they had worked — and a culture of fear fostered by the companies. “We always set and thought, you know, maybe if we didn’t do it this way, that they’d come in and shut the mines down. Then we'd be out of work,” said David Neil, a 52-year-old West Virginia miner with black lung who now drives a coal-hauling truck.

Tim Bailey, a lawyer in Charleston, W.Va., zeroes in on this type of cheating when he sues a coal company on behalf of a miner with black lung. In general, the only option for miners who get the disease is to file a claim with the state or the U.S. Department of Labor to try to get benefits. But Bailey takes a different tack, drawing on a state law that allows workers to sue their employer in cases of knowing exposure to dangerous conditions.

This often amounts to proving that the company manipulated its dust samples. In depositions, miners have described hanging dust pumps in cleaner air or getting advance warnings of inspections. Over the past eight years, he’s handled about 40 such cases. In each case, he said, the coal company eventually settled.

“These are criminal acts,” Bailey said. “What’s different about these black lung cases is that the cheating is such a part of everyday practices.”

Then there are the numbers themselves. For decades, the average sample submitted by a coal company has been far below the limit. NIOSH researchers used a formula to estimate the prevalence of black lung that would be expected based on the dust samples and compared this with the disease rates actually occurring.

What the researchers found was surprising: The two didn’t match up at all. In some areas of the country, there was actually less black lung than they’d predicted. But in central Appalachia, the disease rates were much higher — more than three times the predicted levels in eastern Kentucky, for example.

It was possible, researchers concluded, that the nature of the dust had become more potent. Another possibility: The dust samples reflected the results of rampant cheating.

Many of the games described by miners today remain unchanged from those outlined by miners who testified at a 1978 MSHA hearing. The early 1990s saw the “abnormal white center” scandal, in which MSHA figured out that many coal company officials had blown dust off the sampling filters, leaving a white center, before submitting them. A spate of criminal convictions of companies and some employees and contractors followed. This time period accounted for the bulk of the 185 guilty pleas or convictions for dust sampling fraud between 1980 and 2002, according to data provided by MSHA to the Center and NPR.

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. MSHA did provide data indicating that it had decertified 14 mine officials since 2009, pulling their authority to conduct dust samples.

“I don’t know if any [cheating] is going on today,” said Bruce Watzman, the National Mining Association’s senior vice president for regulatory affairs. “I hope not. We encourage our members to fulfill their obligations under the law.”

Cheating aside, the system for monitoring dust levels is almost designed not to detect problems. Nor has MSHA always been swift to act when violations do surface.

From 2000 to 2011, MSHA received more than 53,000 valid samples — both from companies and its own inspectors — that showed an underground miner had been exposed to more dust than was allowed, yet the agency issued just under 2,400 violations, a Center analysis of MSHA data showed.

This may be attributable, in part, to the way the rules are written. When companies submit five samples to MSHA, some are allowed to be above the limit. Only the average of these five has to be low enough, allowing companies to negate high samples taken from miners enshrouded in dust. What’s more, the pump runs for only eight hours, even if the miner works 10 or 12.

While an inspector is sampling, a company is allowed to mine as little as half the amount of coal it normally does. Companies that typically cared little about hanging curtains to keep air flowing through the mine or making sure water sprays used to suppress dust were working suddenly did when it came time to sample, several miners said.

Even when a company gets caught with samples that are too high, all it has to do to make the citation go away is take five of its own samples that indicate compliance. “The analogy I use is, if I pull you over for speeding, going 80 in a 50,” Bailey said, “and I tell you … here’s a journal, and I want you to record your speed on this same piece of road for the next five days. And, if at the end of those five days, your speed is below the speed limit, then I am going to tear your ticket up.”

Sometimes MSHA has allowed dust citations to go uncorrected for weeks or even months, potentially leaving miners overexposed, a Center analysis of agency data shows. MSHA sets a date by which a violation must be fixed, but, from 2000 to 2011, the agency granted extensions for 57 percent of the violations.

Long extensions have been particularly common in southern West Virginia, one of the key “hot spots” of disease resurgence identified by NIOSH. In this area, which accounted for about 30 percent of the nation’s dust sampling violations, MSHA gave companies an extension about two-thirds of the time and allowed, on average, about 58 extra days to prove compliance.

Asked about these numbers, the agency said in a statement, “The majority of these extensions … are for good reasons such as getting approved dust controls implemented or allowing the operator time to collect additional samples to submit to MSHA.”

A roadmap for reform

Even before the reappearance of black lung, the need for change was apparent. A proposed MSHA rule led to hearings in 1978, during which miners testified to widespread manipulation of dust samples. That proposal stalled and was withdrawn by the Reagan administration.

In 1995, NIOSH reviewed the scientific evidence and concluded that the limits for both coal dust and silica should be cut in half and periodic medical exams for miners should be enhanced. The same year, the secretary of labor appointed a committee to determine how to eliminate black lung.

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 should be adjusted to reflect longer work shifts.

Perhaps its strongest recommendation: “The committee believes that the credibility of the current system of mine operator sampling to monitor compliance with exposure limits has been severely compromised. … One of MSHA’s highest priorities should be to take full responsibility for all compliance sampling.”

In July 2000, MSHA proposed a rule that would have adopted some of these recommendations. Before the rule became final, though, George W. Bush took office, and the rule died.

“It’s really fairly remarkable that we came up with these recommendations back in 1996 during a Democratic administration, and nothing has happened,” said David Wegman, who was chairman of the committee and is now an emeritus professor at the University of Massachusetts Lowell’s School of Health and Environment.

History may be repeating itself. MSHA proposed a rule in 2010 that would cut the overall limit for dust in half and require companies to use continuous personal dust monitors, which would provide real-time measurements. The current pumps have to be sent to a lab, where analysis can take weeks.

Under the rule, the samples would be weighted to account for shifts longer than eight hours, and companies could be cited for a single sample over the limit — rather than an average of five — or a weekly accumulation of exposure above a certain limit. The rule would also expand the free X-ray monitoring program to include lung function tests and medical assessments.

Still, the rule leaves much of the sampling in the hands of the coal companies themselves. Asked why, Main said, “It’s an enormous task for the government to take on.”

Even industry favors MSHA’s taking over all compliance sampling. “We need to get to a point where we remove this cloud of controversy and instill in the minds of everyone that the samples are accurate,” the National Mining Association’s Watzman said.

There isn’t much in the rule that the association supports, however. The real-time dust monitors — a centerpiece of the proposal — are still not accurate enough to be the basis of citations, Watzman argued. Dennis O’Dell, safety director for the United Mine Workers of America, said the few problems with the monitors are “little things that can be tweaked.” The union favors the proposed rule, though it would like to see portions of it changed.

All of this may be moot. A presidential election is approaching, and many fear a change in administrations could mean what it meant in the early 1980s and the early 2000s: the death of reform.

‘I never said nothing’

In coal country, weakness is a sin. Mining is just about the only career choice, and one generation often follows another underground.

Convincing a miner to go to a clinic, get an X-ray or file a claim for benefits can be a challenge. “They're not going to come and complain about how they feel, just because that's part of our culture,” said Debbie Wills, sitting in the clinic in tiny Cedar Grove, W.Va., where she helps miners get evaluated and file for black lung benefits.

At the same time, fear is almost as deeply rooted. Many miners don’t want their employers to know they have signs of black lung — or even that they’ve been X-rayed. Anita Wolfe, who runs NIOSH’s surveillance program and is often out with the RV that screens miners, said she has seen men approaching on foot from miles away because they didn’t want anyone to see their cars parked nearby.

Thanks to a rule MSHA issued in 1980, a miner whose X-ray shows signs of black lung receives a letter that requires his employer to transfer him to a less dusty job and pay him the same as before. The miner alone sees the letter, and he can use it whenever he wants.

Only about 30 percent of the nearly 3,000 letters issued to miners since 1980 have been used, according to MSHA data provided to the Center and NPR.

Sometimes miners avoid screening because they just don’t want to know. A diagnosis of black lung would likely mean having to leave the mines — the best-paying job around and the only way they know to provide for their families. “It's very known throughout the coal community there's no cure for this,” Wills said. “They want to pretend like everything's OK until they just can't do it anymore.”

All of this has led NIOSH to believe that the resurgence of black lung may actually be worse than its numbers reveal. “We know that there is disease out there that we are not identifying because miners are avoiding participation based upon disease status,” NIOSH epidemiologist Laney said.

Take James Marcum: He spent his last semester of high school taking a class at the University of Kentucky because he already had enough credits to graduate. His father, having filed for black lung benefits a few years earlier, encouraged him to go to school and stay out of the mines.

Nonetheless, James took a summer job at a mine to earn money for college. “I started earning them $800-a-week paydays and said, ‘Why would I want to go to college when I’m earning this kind of money?’ ” he recalled, standing in the shadow of Dewey Dam at the family’s annual picnic at Jenny Wiley State Park in Prestonsburg, Ky.

He spent about 90 percent of his 20-year mining career, he estimated, operating a continuous miner. In 1991, the motor of the machine he was running caught fire, and smoke overcame him.

When doctors examined him and took X-rays, they found what appeared to be black lung. James kept the news to himself and didn’t file for benefits, afraid he’d lose his job if he did. “It was good money,” he said. “I had my kids to raise, and I just had to work. … I never said nothing. I just went on and done my job.”

About six years later, James found himself back in the hospital. He’d been caught between two pieces of the continuous miner and injured his back. Alone in that section of the mine when the accident happened, he finished his shift and went to the hospital the next morning.

Doctors again took X-rays, and, this time, his lungs were so bad he had to see a specialist. A biopsy confirmed that he had black lung.

Since then, breathing has become more and more difficult for him, especially during the past year. “I miss hunting bad,” he said. “I used to take my boys hunting. But I just ain’t able no more. … I ain’t got the air to do it.”

The youngest of the three Marcum brothers, he has shown the worst decline in lung function. At the family’s picnic, while Donald socialized and Thomas talked to their father, Ray, over plates of fried chicken, coleslaw and potato salad, James sat quietly.

He glanced at his oldest son, 26, who now works in a mine. Without realizing it, James paraphrased his father: “I tried to get him out. He won’t come out. He loves the job.”

Unchecked dust explosions kill, injure hundreds of workers

GKN Plc — 2013-02-15T12:50:40-05:00

GALLATIN, Tenn. — Small fires were a part of the job at the Hoeganaes Corp. metal powder plant 30 miles northeast of Nashville. By early 2011, some workers later told investigators, they had become practiced in beating down the flames with gloved hands or a fire extinguisher.

The company’s own product fueled the fires. Scrap metal rolls into the rust-colored plant on the town’s industrial periphery and is melted, atomized and dried into a fine iron powder sold to makers of car parts. Sometimes, powder leaked from equipment and coated ledges and rafters. Under the right conditions, it smoldered.

Wiley Sherburne, a 42-year-old plant electrician, sometimes told his wife how this dust piled up everywhere, she recalled. On quieter weekend shifts, he said he could hear the telltale popping sound of dust sparking when it touched live electricity.

In the early morning of January 31, 2011, Sherburne was called to check out a malfunctioning bucket elevator that totes dust through the plant. Near his feet, electrical wires lay exposed. When the machine restarted, the jolt knocked dust into the air. A spark — likely from the exposed wires, investigators later concluded — turned the dust cloud into a ball of flame that engulfed Sherburne and a co-worker.

“He’s burned over 95 percent of his body,” doctors told Sherburne’s wife, Chris, when she arrived at the Vanderbilt University Medical Center’s burn unit. “He’s not going to live.” Her husband died two days later.

The fires at the Hoeganaes plant were not over. Another struck in March, then a third in May. In all, five workers died in accidents that shook this small community. Each man left behind a wife and children. One had four children under 11. Another became a grandfather the day before an explosion caused fatal burns.

Each blaze here involved combustible dust, a little-noticed danger that has killed or injured at least 900 workers across the country during the past three decades. The fuel has varied, but the effects have been similarly devastating. In Gallatin, it was iron. In Port Wentworth, Ga., sugar. In Kinston, N.C., plastic. Elsewhere, dust from substances as varied as wood, nylon fiber, coal and flour sparked fires and explosions.

Since 1980, more than 450 accidents involving dust have killed nearly 130 workers and injured another 800-plus, according to a Center for Public Integrity analysis of data compiled by the federal Occupational Safety and Health Administration and the U.S. Chemical Safety Board. Both agencies, citing spotty reporting requirements, say these numbers are likely significant understatements.

Yet a push to issue a rule protecting workers from the danger has stalled in the face of bureaucratic hurdles, industry pushback and political calculations, the Center for Public Integrity found.

OSHA, in a statement, said it must “make difficult decisions as to how to best allocate the agency’s limited rulemaking resources.” While addressing dangers like combustible dust and dangerous substances breathed by workers are important, OSHA said, it “has placed a great deal of emphasis on broad rulemaking efforts that have the potential to result in fundamental changes [for] safety and health in the workplace.”

Representatives for Hoeganaes refused interview requests from the Center for Public Integrity. In a legal filing, the company has denied violating safety standards at the Tennessee plant where Wiley Sherburne died.

‘All of a sudden one day, boom’

A dust fire is, in a sense, the result of a perfect storm. The powder has to form a cloud in a confined area and touch an ignition source, such as a spark, flame or overheated pipe. “It’s this unlikeliness that leads people to the false sense of security that it can’t occur,” said John Cholin, an engineer who has investigated dust accidents for 30 years and has a consulting firm.

Often, workers don’t know that the dust lurking on flat surfaces could, when dispersed in a cloud, fuel a violent explosion. But experts, worker safety advocates and government officials have been sounding alarms for years.

Steve Sallman, a health and safety official with the United Steelworkers union, still thinks about the dust fire 20 years ago that severely burned two of his co-workers at an Iowa plant making tires for agricultural vehicles. “It bothers me to this day because it was preventable,” he said.

Hindsight in the wake of dust explosions has often revealed missed warning signs. Rarely does a company develop a dust problem overnight.

“It goes along for years with the dust building up, building up, and everything’s fine, nobody’s harmed, nobody thinks anything about it,” said Sandra Bennett, an official at the Tennessee Occupational Safety and Health Administration, which investigated the Hoeganaes accidents. “All of a sudden, one day, boom.”

Standards to address the danger have existed for more than 85 years, but following them is voluntary for many plants. Where they do apply, enforcement is so haphazard that the association that sets the standards believes this policing duty should be placed in OSHA’s hands.

The agency seems to agree. In 2009, OSHA announced it was starting the process of issuing a rule to address combustible dust.

Three years later, the process is still stuck in its early stages, and OSHA has given up on making significant progress this year, moving the topic to its list of “long-term actions.” Some experts point to key impediments OSHA faces: the potential cost of the sweeping rule, an anti-regulatory political climate and an increasingly drawn-out rulemaking process.

Top agency officials refused to explain the rule’s status. In a statement, OSHA said, “Prevention of worker injuries and fatalities from combustible dust remains a priority for the agency.” But, the statement said, developing the rule is “very complex,” and “could affect a wide variety of industries and workplace conditions. As a result it has been moved to long-term action to give the agency time to develop the analyses needed to support a cost-effective rule.”

News of OSHA’s decision reached Chris Sherburne at the end of January, around the first anniversary of her husband’s death. “I just couldn’t believe it,” she said. “You put it on the back burner, and that’s where it’s going to stay.”

Her frustration is shared by victims’ families who have seen other health and safety rules similarly stalled, shelved or eviscerated. Whether it’s combustible wood dust at a sawmill, disease-inducing beryllium at an aluminum smelter or lung-wrecking silica at an iron foundry, OSHA allows workers to face conditions that many experts and even the government’s own scientists consider unsafe.

OSHA’s statement said it is “committed to protecting workers,” but that “numerous steps in the regulatory process mean OSHA cannot issue standards as quickly as it would like.”

Not the first time

Documented dust explosions have been killing workers since the late 1800s or earlier, and technical publications discussing the hazard date to the early 20th century.

The Chemical Safety Board, an independent federal agency, has examined a handful of major dust accidents and identified disturbing trends. The board, however, can’t issue or enforce rules. Among the catastrophic accidents the board investigated, each plant also had a history of small dust fires that did little or no damage and prompted little concern.

“You have to consider all those fires as close calls for something that could kill somebody,” the board’s chairman, Rafael Moure-Eraso, said in an interview. “Hoeganaes is precisely the case in point.”

At the Gallatin plant, periodic small dust fires ignited in certain areas, investigators found. Some employees told state inspectors they put out blazes once or twice a month; others said the fires came about once a week.

Because the fires had done little damage, workers had come to accept them as part of the job, investigators found. That changed the January day a dust cloud ignited and fatally burned Wiley Sherburne and Wayne Corley.

Two months later, investigators found, a worker accidentally knocked loose dust that had collected on a furnace and was engulfed in flames. He leaped off a ladder to safety and survived.

Then, on May 27, sparks triggered an explosion of hydrogen gas leaking from a pipe, investigators determined. The blast knocked dust loose from the rafters, and some of it ignited as it rained down on workers. “There was so much dust in the air that you could only see the areas where it was burning,” one employee told investigators. Three workers died, and two more were injured.

Last year was not the first time Hoeganaes had experienced the deadly potential of its iron dust. The May accident in particular bore “striking similarities” to one that occurred in 1992 at the company’s plant in Riverton, N.J., said the CSB’s lead investigator, Johnnie Banks.

Twenty years later, Jeffrey Richardson remembers that accident well. It left him with third-degree burns covering 97 percent of his body. He has one ear and one hand, though it has no fingers. His body is covered with skin grown in a lab; it heals slowly and tears easily.

“They said my foot and my eyelids were the only place where I wasn’t burned,” he recalled recently. “I still to this day have a nurse come every day to dress wounds that I still have ongoing.”

As in the May 2011 accident, a hydrogen explosion shook the building, and burning dust fell from the rafters. Richardson recalls it covering him as he struggled to find an escape route. “I could hear it sizzling and cracking,” he said.

The company contested the 10 serious violations OSHA issued for the fire that burned Richardson, and the agency cut the fine from $22,500 to $15,300. Hoeganaes is now contesting the 25 serious violations and $122,900 in fines assessed by the Tennessee regulators after the 2011 accidents in Gallatin.

Optional standards, lax enforcement

Many plants already are required to follow rules addressing combustible dust — at least in theory.

The National Fire Protection Association, a nonprofit group that sets an array of standards and conducts research and training, first issued guidance in the 1920s. Since then, committees of industry officials and experts have updated the association’s combustible dust standards regularly. Many experts praise the standards, and OSHA often points to them as widely recognized practices when citing violations.

But two problems limit the standards’ reach: They are optional in many areas, and, where they apply, enforcement is often lax or nonexistent, experts have found.

Some state and local governments have adopted the NFPA standards as part of their fire codes, while others have chosen the International Fire Code, which has general guidance on combustible dust and references the NFPA codes without explicitly requiring companies to follow them.

Even where the rules apply, those charged with enforcing them are typically state or local fire inspectors. Inspections of industrial plants are rare, the CSB has found, and inspectors are often ill-equipped to recognize even glaring dust hazards. “The rank-and-file first line of code enforcement is totally ignorant of the problem,” Cholin said.

In Gallatin, the fire department’s senior inspector visited the Hoeganaes plant in May 2011 — after the first two fires but before the third. He noted a list of concerns, including inadequate emergency lighting and the need to keep exit routes clear. He didn’t mention combustible dust.

The department eventually noted dust levels during inspections this January and March. Asked if inspectors ever brought up combustible dust with Hoeganaes before last year’s accidents, Fire Chief William Crook said, “If they have, I’m not aware of it.”

The CSB found a similar pattern after other accident investigations in Indiana and North Carolina: Fire officials had missed dust problems in inspections before deadly accidents.

Recognizing dangers that could lead to dust fires and explosions also can be a problem for companies and their insurers. In investigations of four dust explosions that killed 28 workers, the CSB found insurers had missed serious dust hazards during audits in each case.

In Gallatin, the insurer Allianz did note the potential risks from iron dust in a 2008 audit. Hoeganaes commissioned testing in 2009 and 2010 that showed its dust was combustible. In August 2010, Hoeganaes hired a company to clean up the dust, according to a report by the state inspector examining the January 2011 accident. But, the report notes, “it was apparent that the employer was not ensuring clean up [sic] was maintained through good housekeeping practices between these cleanings.” Piles of dust up to four inches thick sat on equipment throughout the plant, the inspector found.

Such breakdowns point to the need for an OSHA standard, which could lead to “broader recognition and the potential for stronger enforcement,” said Guy Colonna, manager of the NFPA division that oversees the association’s combustible dust standards.

Still, enforcement by OSHA isn’t a perfect solution. The CSB’s 2006 study found that OSHA inspectors weren’t adequately trained to recognize dust hazards.

In a statement, OSHA said it developed a three-and-a-half-day session to train its inspectors to recognize combustible dust hazards in December 2007. But the agency can get to only a fraction of the plants that may have dust problems.

Since October 2007, OSHA has been targeting plants that may have dust problems through a special enforcement program. During that time, the agency and its state counterparts have conducted more than 2,800 inspections. Asked for an estimate of the number of plants that meet the criteria for inspection under the program, though, OSHA said the total was likely “in tens of thousands.”

Applying the program without a combustible dust standard in place means inspectors must resort to issuing citations for rules not written to address dust. If dust is piling up around the plant, for example, housekeeping standards might apply. If wires are exposed, electrical safety rules might form the basis for a citation.

OSHA can use the “general duty clause” to cite companies for exposing workers to well-known dangers not addressed by specific standards. This approach, however, often leaves the agency vulnerable to industry challenge.

Consider Hoeganaes: The last time the plant was inspected by the Tennessee Occupational Safety and Health Administration before the 2011 fires was in 2008. The inspector, Dave McMurray, visited the plant after the agency received information that a few workers had suffered hearing loss — problems for which he ended up citing the company.

While he was there, however, he saw enough iron dust collecting around the plant to cause concern. “If you put your hand on the railings, it would come away black,” McMurray, who is now retired, recalled in an interview.

Without a combustible dust standard, he felt his only option was to see whether workers were breathing levels of dust that might pose a health risk — a hazard for which there was a standard. The samples, however, weren’t above the limit. The monitors measured only what was in the air near the workers at the time, not what had collected on ledges and rafters.

McMurray felt there was little he could do. “It’s a whole world of difference when we have a standard,” he said. “When we have a specific standard, we go for it.” At Hoeganaes, he said, “I went as far as I thought I could.”

After the fires in 2011, state regulators drew on a variety of standards to cite Hoeganaes. They alleged electrical safety violations, shoddy maintenance of the hydrogen pipe that leaked in May and an inadequate emergency response plan, for example. They accused the company of allowing dust to build up throughout the plant and failing to train workers on its dangers.

Hoeganaes contested every citation. Among the legal arguments the company has raised: State officials are trying to enforce a combustible dust rule that doesn’t exist.

‘Past time to issue a standard’

Four years ago, Jamie Butler sat on a curb outside the burning wreckage of the packing building at the Imperial Sugar refinery in Port Wentworth, Ga., an industrial hub near Savannah. His brother sat beside him. They’d escaped one of the worst dust explosions in U.S. history.

There had been a ball of flame, Butler recalled, and then fire everywhere — on the walls, on machines, in the air. Sugar dust had exploded in a conveyor belt, then triggered blasts throughout the plant. Dust that had built up over the years fueled the explosions and rained down on Butler and his co-workers.

Butler had found a hole that had been blown in the wall and made it, with his brother, to the curb outside. They talked for a minute or two, before emergency responders loaded Butler into one ambulance and his brother into another. “That was the last time I ever saw my brother,” Butler said.

The disaster killed 14 people — including Butler’s brother and uncle, a longtime plant employee — and left dozens burned. Butler, now 29 with three children, remained in a coma for months; he has severe burns on his head, face, legs and arms. “Since I got burned, I’ll be in the hospital on a regular basis, just sick, throwing up, dehydrated,” he said recently, sitting in his lawyer’s riverfront office. “I don’t sweat how I used to sweat.”

The blast was the type of catastrophe that can spur reform. Congress held a hearing, and then-Sen. Barack Obama said in a statement, “It is past time to issue a standard to prevent these kinds of accidents.”

Even before Imperial Sugar, the CSB had investigated a series of deadly dust accidents and recommended in 2006 that OSHA issue a rule to protect workers from dust fires and explosions. After investigating the disaster in Port Wentworth, the board again urged OSHA to act.

This time, OSHA appeared to be listening. It launched a special enforcement program targeting companies with unaddressed dust problems. In April 2009, the agency announced it was starting the rulemaking process.

“We felt that our efforts had paid off,” CSB chairman Moure-Eraso said recently. “And then we wait and we wait. And there are more accidents; there are more fatalities. And this process continues, and it seems to be never-ending.”

Long rulemaking processes have become the norm for OSHA. For the 58 significant standards the agency has issued since 1981, the average time from beginning the process to finalizing the rule was almost eight years, a recent study by the Government Accountability Office found.

To issue a significant new rule, federal agencies must navigate a complicated process that includes multiple rounds of review — both internally and at the White House’s budget office — and public comment. New laws and executive orders have added requirements over the past three decades.

OSHA, however, faces particular challenges. The agency must show that a proposed rule is both technically and economically feasible for every industry that would be affected — a research-intensive task. If a rule could affect a significant number of small businesses, OSHA must convene a panel and allow them to raise objections to an unpublished rule draft. It is one of only three federal agencies required to do this.

OSHA is particularly vulnerable to legal challenges after issuing a standard. In general, agencies must prove to a judge that a rule isn’t arbitrary, capricious or an abuse of discretion. OSHA, however, must show its rule is supported by “substantial evidence in the record considered as a whole” — a much higher standard.

All of this means addressing combustible dust is a mammoth task. OSHA has to research the dangers of everything from the coal dust at a power plant to the wood dust at a sawmill, then show that addressing the danger would be realistic in each case. The rule would affect many small businesses, and OSHA said in a statement that it plans to convene the required small-business panel this year.

Industry groups generally haven’t opposed a rule altogether, instead arguing that the rule shouldn’t apply to them. The National Cotton Council, for example, told OSHA many of its members shouldn’t be included and challenged the accuracy of the agency’s list that included past cotton dust fires and explosions. The American Home Furnishings Alliance insisted in written comments that “no federal intervention in our industry is justified or required.”

The American Chemistry Council has taken a harder line, arguing that a new rule is unnecessary. “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,” the council wrote to the Center.

Some see the political climate — in which the phrase “job-killing regulation” is never far from the discussion — as one explanation for the slow progress. “OSHA has its heart in the right place; we know that they’re struggling with this,” said Robyn Robbins, a safety and health official with the United Food and Commercial Workers union. “It’s just a shame that people make this political.”

Lessons from a previous dust fight

Many arguments echo those made 30 years ago during a tussle that led to a standard now widely considered a success story. In the late 1970s, a series of deadly grain dust explosions at grain elevators and similar facilities attracted national attention. OSHA announced in 1980 that it was considering a rule to regulate the handling of grain dust.

Large industry trade groups and small grain elevator operators objected vociferously. The National Grain and Feed Association called the rule “unwarranted” in comments to OSHA and said it “could have a substantial economic impact on the grain and feed industry without substantially improving the safety or health of workers.”

In 1987, OSHA issued the rule. In 2003, the agency reported evidence that, in the decade after it took effect, deaths in grain dust explosions dropped by 70 percent and injuries by 60 percent.

In 2010, the National Grain and Feed Association — the same group that had sued OSHA to try to block parts of the rule — noted this “unprecedented decline in explosions, injuries and fatalities at grain handling facilities” in comments submitted to OSHA.

Nor did meeting the rule’s requirements ruin the industry. The association cited the “economic benefit of implementing the grain handling standard” and wrote, “We firmly believe that there is overwhelming evidence supporting the grain handling standard’s effectiveness in preventing fires and explosions and resulting injuries during a time when grain handling capacity increased almost sixty percent.”

OSHA’s current attempts to address combustible dust are more complicated, encompassing many different industries with different types of dust. But some view the grain dust rule as an example of what could be accomplished.

“A general industry standard does have the potential to be at least as successful [as the grain dust standard] in terms of awareness, but how successful depends on the specifics of the regulation,” said Bob Zalosh, a consultant who investigates accidents and advises companies on prevention.

Some in Congress want OSHA to act now. California Rep. George Miller and two other House Democrats have introduced a bill that would require the agency to issue an interim rule within a year.

“The fact that workers are killed and injured in all too frequent, clearly preventable combustible dust explosions shows that Congress must act,” Miller said in a statement to the Center. “Legislation is needed to protect workers because of the years it takes to cut through the red tape just to get a final protection in place.”

‘Fall through the cracks at every level’

In Georgia, the building Jamie Butler and his co-workers knew during their time at Imperial Sugar is long gone, consumed entirely by the inferno of February 2008. In its place is a modern packing facility company officials say stands as evidence of what they learned from the disaster. The project, which included some work on the refinery itself, took about two years and cost roughly $220 million, vice president of manufacturing Raylene Carter said.

“If there is ever an explosion again — and that’s just not going to happen — it would never spread from building to building ever again,” Imperial Sugar health and safety official Kathleen Gonzalez said during a recent tour, pointing to a system designed to blanket the area with water and halt a fire in its tracks.

Sugar no longer enters the packing building on a conveyor belt — the location of the initial explosion in 2008. It is shot through pipes in pellets packed so densely that they shouldn’t be able to ignite. Sensors can detect the first signs of sparks in the pipes, then automatically isolate the area and flood it with a neutralizing solution.

Near work areas, vacuums take spilled dust to a vessel outside the building — a contrast from the company’s previous practice of using compressed air to clean dust, which blew it onto ledges and rafters where it eventually was shaken loose, fueling explosions. A sign reminds workers, “Your job is not complete until your work area is CLEAN.”

The company has told OSHA it “strongly support[s]” issuing a combustible dust rule. “We believe that there is still a low level of knowledge of the extent of hazards of combustible dust in industry,” the company wrote OSHA.

Such about-faces often come after deaths have occurred — and company officials, inspectors or auditors missed warning signs. The NFPA’s Colonna said he is frequently called to conduct training after explosions — in Georgia after the Imperial Sugar catastrophe, and in Kentucky after a 2003 dust explosion killed seven workers. This March, the Gallatin Fire Department’s two inspectors attended a two-day training seminar on combustible dust led by the NFPA, said Crook, the department’s chief.

Meanwhile, dust accidents continue. In February, after a dust explosion, OSHA cited a Wisconsin company that makes whey products. In April, the agency issued violations to a New Hampshire wood pellet mill where a dust-fueled fire spread throughout the building. The same month, the agency alleged violations – some of them willful, which OSHA says are intentional violations or those committed with indifference to the law – at an Illinois pasta manufacturer where two workers were seriously burned in a sugar dust explosion.

“I think the universal theme is that these accidents are a symptom of the fact that there isn’t a comprehensive dust standard,” said Daniel Horowitz, the CSB’s managing director. “Hoeganaes really illustrates how problems like this can fall through the cracks at every level.”

A father’s memory

In Gallatin, dust piled up for years despite inspections, audits and small fires.

“They need a set of guidelines,” Chris Sherburne said. “If there was a standard, I think that would have made a lot of difference because there was so much [dust] there at the time.”

As the gears grind in Washington, she’s raising a teenage son and tending to a 34-acre patch of farmland. She hasn’t given up on some of the plans she and Wiley made. They had always hoped to build a new house on their land to replace their double-wide, and in December 2010 — about a month before his death — they’d decided to start the following spring.

Chris stuck to the plan, functioning as her own general contractor. “I decided to just build it and see what happens,” she said recently.

Last December, Chris and her son moved into their new house. No pictures of Wiley adorn the walls or mantelpieces. “It’s easier for us not to have stuff in plain view,” Chris said. When Wiley’s body was cremated, at first the ashes sat on Chris’ bedroom dresser. “After a few days,” she recalled, “I said, ‘Wiley I can’t look at you every day; I can’t do this.’ He’s in the closet now.”

Some reminders are inescapable. Chris and her son have kept his tools and work clothes, keepsakes of the man who could fix anything. “You could bring him a motor in a box, and he’d put it back together,” Chris recalled.

As their son approached driving age, the plan was for Wiley to help him find a clunker and fix it up. Instead, he now drives his father’s souped-up Dodge Ram 2500. “Every now and then, when I see it coming up the driveway,” Chris said, “for a split second I still think it’s Wiley.”

IMPACT: Citizens sue Iowa plant over air pollution

Muscatine,Iowa,United States — 2012-04-24T09:20:19-04:00

In the Mississippi River town of Muscatine, Iowa, concerns about a corn processing plant that belches smoke and ash over the South End neighborhood have festered for years.

On Monday, those living in the plant’s shadow took a step that, until recently, would have seemed unlikely at best: They sued the plant’s owner, Grain Processing Corp. — a vital piece of the town’s economy and a political force in Iowa.

For years, the lawsuit alleges, residents have put up with constant pollution that has damaged their property and affected their health. The Center for Public Integrity detailed the persistent haze hanging over the community and the company’s long history of run-ins with regulators as part of its “Poisoned Places” series with NPR last year.

“We’ve reached a tipping point in Muscatine,” said Tony Buzbee, a Houston lawyer with a history of winning high-profile environmental cases who has agreed to represent the residents. “I think that you’re going to see hundreds and hundreds of people who have the courage to stand up and say, ‘We’re in the right, and we’re not going to take it anymore.’ ”

Buzbee joins Jim Larew, who was general counsel to former Gov. Chet Culver, and Des Moines lawyer Andrew Hope in representing the residents, who are seeking to make the case a class action that anyone living within three miles of the plant could join.

The petition filed Monday, Buzbee said, is “just the tip of the iceberg.” He plans to file hundreds more cases. “It’s going to cost a lot of money,” he said. “It’s going to be a big fight.”

Grain Processing Corp. spokesperson Janet Sichterman said the company, known as GPC, hadn’t received a copy of the lawsuit and had no comment on it.

Before filing suit, Buzbee commissioned tests of the air near the plant, which sits just across the street from the neighborhood known as the South End. Levels of one compound, acetaldehyde, were “dangerously high,” the petition alleges. The finding is crucial, Buzbee said, because, unlike some of the pollutants in Muscatine’s air, acetaldehyde could come from only one place: GPC.

As the Center documented, GPC reported releasing more acetaldehyde — a substance the Environmental Protection Agency considers a probable carcinogen — than almost any plant in the country in 2010. A state inspector has repeatedly noted a “blue haze” coming from some of the plant’s smokestacks that could indicate the presence of acetaldehyde. The state began studying these and other toxic emissions from GPC in 2010, but the effort has since been placed on hold.

The lawsuit says GPC “has used, and continues to use, worn machineries, outdated manufacturing technologies and outdated pollution-abating technologies while at the same time increasing production.” As the Center found, regulators have allowed GPC to avoid upgrading its pollution-control equipment, even as many of its competitors have modernized.

For example, a state inspector unsuccessfully pushed his bosses to make GPC install a baghouse — a large structure to house filters that would remove pollutants from smoke leaving a stack. The company already owned the device but, after regulations requiring it were vacated, refused to hook it up.

GPC also faces potential enforcement cases from both state and federal regulators. The day after the Center’s first story about Muscatine, the state filed a lawsuit, alleging that GPC had released more air pollution than allowed for at least the previous 18 months. The allegations relate to the same air pollution rules that the company had agreed not to violate as part of a settlement agreement with the state in 2006.

In March, the EPA sent GPC a notice of violation, accusing the company of repeatedly violating air pollution rules between 2007 and 2011 and failing to report episodes when pollution exceeded allowed limits. Though the agency would not elaborate on the allegations, the Center has reported that a state inspector began raising concerns as early as 2008 that GPC appeared to be misusing exemptions to conceal frequent violations.

GPC has announced that it plans to spend about $100 million to upgrade much of the plant, including some pollution control equipment. Some of the work is scheduled to be finished in 2014. But state regulators have said the improvements may not go far enough to ensure the area meets EPA standards designed to protect public health.

Treasury Department review of Solyndra loan was rushed, report says

2012-04-04T18:08:51-04:00

The Energy Department kept Treasury Department officials in the dark until late in the government's review of the $535 million loan to now-bankrupt solar panel maker Solyndra, triggering a rushed consultation that may have left concerns unresolved, a new audit released Wednesday found.

The audit by the Treasury Department’s inspector general found that Treasury officials had raised serious concerns about the terms of the loan, but there was no documentation of whether they were addressed. The report’s findings of hurried reviews and ignored warning signs echo previous iWatch News reporting on Solyndra.

The loan, originally touted as a model of President Obama’s green energy program, has become a political weapon. “The Treasury report echoes what our investigation has shown over and over; Solyndra was a bad bet from the beginning that was rushed out the door while every red flag was ignored,” Republican Reps. Fred Upton and Cliff Stearns said in a statement Wednesday.

Though the Energy Department arranged the loan, it was actually processed by the Federal Financing Bank, a government lending institution under Treasury’s control. The newly released audit found that Treasury was not involved in the process until the loan negotiations were largely complete.

Treasury officials raised concerns about the terms of the loan, including the fact that it included a 100 percent guarantee, rather than a partial guarantee, auditors found. After a conference call with Energy Department officials, one Treasury official wrote, in an email uncovered by auditors, “we pressed on certain issues … but the train really has left the station on this deal.”

IMPACT: After years of complaints, EPA steps in at Iowa plant

Iowa,United States — 2012-03-28T17:01:45-04:00

For years, people living in the Mississippi River town of Muscatine, Iowa, have complained about the ash and smoke blowing into their neighborhood from a corn processing plant. State regulators have brought enforcement cases against the company, but the town’s South End neighborhood remains under a haze.

On Tuesday, the U.S. Environmental Protection Agency stepped in, alleging years of violations of air pollution rules at the plant owned by Grain Processing Corp. The letter issued to the company, known as GPC, doesn’t impose penalties, but puts it on notice that the EPA is considering an enforcement case.

GPC spokesman Janet Sichterman said company officials are reviewing the notice and “aren’t in a position to make a comment on it now.”

The action comes as the company is battling the Iowa attorney general, who has alleged separate violations of air and water pollution rules in a lawsuit. A group of citizens, calling themselves Clean Air Muscatine, has filed a petition to intervene in that case, saying the state’s previous actions against GPC have failed to protect people living near the facility.

The plant, which processes corn into ethanol, beverage alcohol and corn syrups and starches, was highlighted last year in the Center for Public Integrity series “Poisoned Places.” In 2010, the facility released more lead — a toxic metal that can damage the nervous system — than any plant in the state and more acetaldehyde — a probable carcinogen — than almost any plant in the country, state and federal data show.

The EPA’s notice of violation contains few details, but it alleges that, between 2007 and 2011, GPC repeatedly violated air pollution limits and failed to report many excess pollution episodes as its permit required.

EPA regional officials refused to discuss specifics of the alleged violations, but the Center reported last year on GPC’s handling of “excess emissions.” When companies release more pollution than their permit allows, they are supposed to call state regulators, then file a written report. Companies can avoid this reporting requirement, however, under certain circumstances.

As far back as 2008, a state inspector began raising concerns about the company’s use of reporting requirement exemptions. Over time, he uncovered evidence indicating that GPC was misusing exemptions to avoid reporting constant violations, state reports and correspondence show. He brought the information to his bosses at the Iowa Department of Natural Resources, but they haven’t pursued an enforcement case.

The EPA would not confirm that this issue is the subject of the violation notice, but a spokesman said the violations did involve excess pollution episodes that the company never reported. GPC’s Sichterman previously told the Center the company had stopped using some exemptions and had better trained its workers to avoid exceeding pollution limits.

GPC now must respond to the EPA’s notice, which also included written questions related to water pollution. Then, the agency will decide from among its options, which include settling with the company, filing an administrative enforcement case or referring the issue to the Justice Department. “Part of that can hinge on whether the company acknowledges that they are violations or whether they would want to challenge them,” EPA spokesman Chris Whitley said.

The notice says the EPA could seek penalties of up to $37,500 for each day the company was in violation.

GPC also faces potential penalties from a lawsuit filed by the Iowa attorney general that accuses the company of releasing more pollution than allowed from one of its dryers, which is used to cook corn.

The EPA’s allegations relate to different equipment: the company’s six coal-fired boilers, which release ash and gases through one tall smokestack. Residents have long complained about the ash; they point to it covering their cars and homes and worry about its effects on their health.

GPC has announced a $100 million project that will upgrade portions of the plant and improve pollution control, but state regulators have said the improvements may not go far enough to prevent the area from being classified by the EPA as in violation of air quality standards designed to protect public health.