Jim Morris stories from The Center for Public Integrity

'Chemicals of Concern' list still wrapped in OMB red tape

2013-05-15T08:27:55-04:00

For anyone anxious about toxic chemicals in the environment, Sunday marked a dubious milestone.

It has been three years since the “chemicals of concern” list landed at the White House Office of Management and Budget. The list, which the Environmental Protection Agency wants to put out for public comment, includes bisphenol A, a chemical used in polycarbonate plastic water bottles and other products; eight phthalates, which are used in flexible plastics; and certain flame-retardant compounds called polybrominated diphenyl ethers, or PBDEs.

The EPA wants to highlight these chemicals because “they may present an unreasonable risk to human health and/or the environment,” the agency says.

But any such listing must first be vetted by the OMB’s Office of Information and Regulatory Affairs, OIRA.

The EPA proposal arrived at OIRA on May 12, 2010. There it remains — a symbol, some say, of a broken regulatory system.

“It’s far past time for the OMB to conclude its review of the EPA’s proposal to list chemicals of concern,” Sen. Frank Lautenberg, D-N.J., said in a statement to the Center for Public Integrity. “Americans deserve access to information about the chemicals found in products throughout their homes that might pose a risk to their health.”

In a statement, OMB spokeswoman Ari Isaacman Astles wrote, “The Administration is committed to chemical safety and when it comes to complex safety rules, it is critical that we get them right.”

An EPA spokeswoman said only that the agency’s list, which has been challenged by companies such as ExxonMobil and Dow Chemical, “remains in interagency review.”

By executive order, OIRA is supposed to review proposed rules within 90 days of receiving them, with the possibility of a single, 30-day extension. That’s four months, maximum.

Why has the chemicals of concern list been at OIRA for three years? No one is saying.

Yet in a draft of an upcoming law review article, former EPA official Lisa Heinzerling, a law professor at Georgetown University, offers some clues.

Heinzerling lays some blame on recently departed OIRA director Cass Sunstein, now teaching at Harvard Law School. In his new book, “Simpler: The Future of Government,” Sunstein makes clear “how much power he wielded” at OIRA — with the authority to make sure that some rules " ‘never saw the light of day, ’ ” Heinzerling writes.

Sunstein did not respond to an invitation to comment. President Obama has nominated Howard Shelanski, director of the Federal Trade Commission’s Bureau of Economics and a former law clerk for U.S. Supreme Court Justice Antonin Scalia, to replace him at OIRA.

Problems at the office have become entrenched, Heinzerling argues.

“Many outside observers believe that there is in fact a deadline for OIRA review,” she writes. “Not only is there no deadline for OIRA review, but OIRA itself controls the agency’s ‘requests’ for extensions. In this way, it comes to pass that rules can remain at OIRA for years.”

EPA rules seem to draw extra scrutiny. “EPA receives more sustained attention from OIRA than any other federal agency,” Heinzerling writes. Fifteen of the 22 EPA rules under review have been at OIRA for more than a year.

What’s so threatening about the chemicals of concern list?

The American Chemistry Council, a trade group, did not respond to requests for comment.

In a statement to the Center last year, however, the group said, “We are concerned that EPA is creating a list of 'chemicals of concern' for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. ... It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter.

“Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Richard Denison, a senior scientist at the Environmental Defense Fund, said publication of the list would not restrict commerce and is within the EPA’s authority.

“OIRA has deprived the public of the right to even comment by refusing to allow EPA to issue the proposed rule,” Denison said. “The debate is being squelched by an office that doesn’t have any real scientific expertise and certainly shouldn’t have the ability to override the authority that Congress gave EPA.”

OSHA strengthens protections for temp workers

2013-04-29T16:45:31-04:00

Federal regulators today announced new measures to protect 2.5 million temporary workers in America amid evidence such laborers are hurt more often than regular employees.

In December, the Center for Public Integrity and WBEZ/Chicago Public Media highlighted the case of temporary worker Carlos Centeno, who was badly burned in a Chicago-area factory in November 2011 and died three weeks later. Occupational Safety and Health Administration records obtained by the Center concluded that Centeno’s bosses refused to call 911 as his skin peeled and he screamed for help.

OSHA said today it had sent a memo to regional administrators “directing field inspectors to assess whether employers who use temporary workers are complying with their responsibilities” under the law.

“Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations,” the agency said in a press release. “Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand.”

As the Center/WBEZ story noted, recent research indicates temporary workers are more prone to injury than permanent ones due to often-subpar safety training and the feeling among some employers that temps are expendable. Last year, for example, researchers who studied nearly 4,000 amputations among workers in Illinois found that five of the 10 employers with the highest number of incidents were temporary staffing agencies.

The new OSHA memo, written by enforcement director Thomas Galassi, says the agency has received “a series of reports of temporary workers suffering fatal injuries during the first days on a job. In some cases, the employer failed to provide safety training or, if some instruction was given, it inadequately addressed the hazard, and this failure contributed to their death.”

Centeno was employed by a staffing agency at the time he was burned. A co-worker wound up driving him to a clinic after a delay of at least 38 minutes. Centeno didn’t make it to a hospital burn center until an hour after that.

OSHA recommended that the host employer, Raani Corp., which makes personal-care products, be criminally prosecuted for the accident. The agency has proposed a $473,000 civil fine against Raani, which is appealing. In court filings in a lawsuit brought by Centeno’s family, the company denies fault.

Centeno, a 50-year-old immigrant from Mexico, was among 4,693 workers who suffered fatal, work-related injuries in 2011. Three more workers died in 2011 than in 2010, according to the U.S. Bureau of Labor Statistics. Worker deaths in 2010 also rose when compared to the previous year: 4,690 died in 2010, while 4,551 died in 2009.

Workplace deaths up slightly in 2011

2013-04-25T12:30:02-04:00

As investigators unravel what caused a Texas fertilizer plant explosion last week that killed 14, the U.S. Bureau of Labor Statistics reported today that 4,693 workers died on the job in 2011, three more than in 2010.

The fatal injury rate for 2011, the most recent year with complete data, was 3.5 deaths per 100,000 full-time equivalent workers. That is down slightly from 2010.

According to the BLS, 1,937 workers died in transportation incidents; 710 through “contact with objects and equipment”; 681 from “falls, slips [and] trips”; and 419 from “exposure to harmful substances or environments.”

“The Texas plant explosion is the kind of catastrophe that really grabs the public’s attention,” said Tom O’Connor, executive director of the National Council for Occupational Safety and Health, an umbrella organization for a network of nonprofit groups around the country. “But that’s about the same number of people who die every day in the U.S., in ways that are much quieter and hidden from public view.”

On average, 13 workers a day are killed on the job in the United States and many more are injured. On April 17, the same day the fertilizer plant blew up in West, Texas, a dozen contract workers were injured when a fire broke out at the ExxonMobil refinery in Beaumont, about 300 miles to the southeast; seven suffered severe burns.

This year, for the first time, the BLS fatality report has a separate category for contract workers, who may not be afforded the same protections as regular employees. Five hundred forty-two died in 2011, the bureau found, accounting for 12 percent of all fatal injuries. Texas had the highest number of contractor deaths – 56 – followed by Florida (51) and California (42).

“Looking through the BLS data, you see some really simple, easily preventable causes of death: people falling off roofs, people dying in trench cave-ins, people falling off ladders, people dying in confined spaces,” O’Connor said. “The total death toll is far greater than what we see from a handful of catastrophic incidents. It seems that the public just sort of accepts that as a risk of going to work.

“We believe people shouldn’t have to risk their lives to get a job.”

Stephanie Moulton, a 25-year-old social worker at a Massachusetts group home, died at the hands of a schizophrenic client on Jan. 20, 2011. She was among 468 workplace homicide victims that year, according to the BLS.

Moulton’s death motivated her mother, Kim Flynn of Peabody, Mass., to press for a state law that would require mental health facilities to provide “panic buttons” to workers. In a report this week, O’Connor’s group recommends that the Occupational Safety and Health Administration issue a sweeping injury and illness prevention standard that would require employers to identify and address hazards, including the potential for violence.

In Flynn’s view, both the owner of the home in which her daughter worked and OSHA – which proposed a $7,000 fine in the case – “dropped the ball.”

The BLS data release comes three days before Workers Memorial Day, a union-sponsored event honoring those who die on the job.

“Many job hazards are unregulated and uncontrolled,” says the AFL-CIO. “Some employers cut corners and violate the law, putting workers in serious danger and costing lives. Workers who report job hazards or job injuries are fired or disciplined. Employers contract out dangerous work to try to avoid responsibility.”

OSHA, records show, had not inspected the now-demolished Texas fertilizer plant since 1985. “OSHA is so understaffed and underfunded that federal inspectors can inspect each workplace on average of one each 131 years,” the AFL-CIO said in its 2012 “Death on the Job” report.

As they have in the past, Democrats in Congress introduced legislation this year to strengthen the Occupational Safety and Health Act of 1970, whose criminal and civil penalties for employer misconduct are considered lenient by critics.

Under the act, an employer whose willful disregard for the law leads to a worker death faces at most a misdemeanor charge, with a maximum sentence of six months in jail. Such cases are rarely prosecuted. The maximum fine for a “serious” violation, which could lead to death or serious injury, is $7,000.

Other laws, in contrast, are far stricter. Last month, the owner of a bio-diesel fuel company was sentenced to 188 months in prison – 15½ years – fined $175,000 and ordered to pay almost $55 million in restitution after pleading guilty to wire fraud, money laundering and making false statements to the Environmental Protection Agency in violation of the Clean Air Act.

“The fact remains that penalties for harming workers are often the cost of doing business for some employers, if they get inspected at all,” Rep. George Miller, D-Calif., said in a statement last week. “Congress needs to work together to increase these outdated penalties and give real teeth to the law so that workers and communities can remain safe while trying to make a living.”

Fertilizer trade group opposed stricter security rules

Texas,United States — 2013-05-01T21:35:26-04:00

Like many, the Fertilizer Institute, a trade group, has extended its condolences to the people of West, Texas, where a blast at a fertilizer plant Wednesday evening killed at least a dozen and injured about 200.

The Washington-based institute, however, has lobbied against legislation that would require high-risk chemical facilities – including some of its members – to consider using safer substances and processes to lower the risk of catastrophic accidents and make such facilities less inviting to terrorists.

Senate records show that the institute has spent $7.4 million on lobbying since 2006, some of it in opposition to legislation like a 2009 bill that passed the House but never became law.

A spokeswoman for the institute did not respond to requests for comment Friday from the Center for Public Integrity. The organization says on its website that it supports existing rules enforced by the Department of Homeland Security and opposes any expansion of the rules “to mandate inherently safer technologies.”

In a 2011 letter to the chairman and ranking member of the House Homeland Security Committee, the institute and nine other groups maintained that “America’s agricultural industry has limited resources available to address all security related matters and it is very important that those resources are spent wisely to coincide with the appropriate level of risk for each particular facility…”

The groups said they supported continuation of the Homeland Security Department’s Chemical Facility Anti-Terrorism Standards (CFATS) program, begun in 2007, and “oppose any federal requirement to use inherently safer technology (IST)… If an IST requirement is put in place for the nation’s agricultural industry it could jeopardize the availability of lower-cost sources of fertilizers or certain agricultural pesticides used by farmers and ranchers.”

(An example of IST: Replacing poisonous chlorine gas at a water treatment plant with ultraviolet light).

CFATS sets broad security standards for chemical facilities and requires them to prepare “vulnerability assessments,” which are reviewed by federal regulators.

Environmentalists, worker advocates and others say the program is riddled with loopholes. It bars the Homeland Security Department, for example, from requiring any “particular security measure,” exempts thousands of facilities and doesn’t allow for unannounced inspections.

A September 2012 report by the Government Accountability Office raised questions about the department’s management of CFATS, pointing to an internal memo in 2011 that claimed the program suffered from “a lack of planning, poor internal controls, and a workforce whose skills were inadequate to fulfill the program’s mission…”

Sen. Frank Lautenberg, D-N.J., has introduced legislation again this year to close the CFATS loopholes. Rick Hind, legislative director for Greenpeace, argues that the Environmental Protection Agency already has the power to do so.

The EPA should steer chemical companies “toward disaster prevention rather than risk management by giving facilities a requirement to reduce the consequences of a catastrophe like [the Texas explosion],” Hind said. “They would be free to choose how they reduced those consequences.”

In the months after the Sept. 11, 2001, terrorist attacks, the EPA drafted legislation along the lines of what Hind described. The Bush White House shot it down.

Christine Todd Whitman, the EPA’s administrator at the time, joined others last year in urging the agency to use its authority under the Clean Air Act to address shortcomings in CFATS, saying “millions of Americans [are] at risk.”

An EPA spokeswoman did not respond to requests for comment Friday.

It’s unclear whether West Fertilizer Co., the plant that blew up this week, is among the 4,458 facilities nationwide that the Homeland Security Department considers high-risk.

The company stored anhydrous ammonia, a toxic gas that becomes flammable under certain conditions. More than 10.5 billion pounds of the chemical is kept at 7,378 facilities nationwide, according to data compiled by The Right-to-Know Network, a project of the nonprofit Center for Effective Government.

The West plant also stored ammonium nitrate, which can explode spectacularly if combined with fuel and set aflame. The compound was used by domestic terrorists to blow up the federal building in Oklahoma City in 1995 and all but wiped out Texas City, Texas, in a port accident in 1947.

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."

U.S. asbestos imports condemned by health experts, activists

United States — 2013-04-04T14:05:57-04:00

More than 50 countries have banned asbestos, a toxic mineral used in building materials, insulation, automobile brakes and other products.

The United States isn’t one of them. Last year, according to the U.S. Geological Survey, 1,060 metric tons — more than 2.3 million pounds — came into the country, all of it from Brazil. “Based on current trends,” the USGS says, “U.S. asbestos consumption is likely to remain near the 1,000-ton level …”

Public health experts and anti-asbestos activists find this distressing.

Linda Reinstein, who lost her husband to mesothelioma, an especially virulent form of cancer tied to asbestos exposure, said she’s “appalled and disgusted that the United States still allows the importation of asbestos to meet so-called manufacturing needs.

“We’ve known for decades that safer substitutes exist,” said Reinstein, president of the California-based Asbestos Disease Awareness Organization. “We’re facing a public health crisis where more than 30 Americans die every day from preventable, asbestos-caused diseases.”

To mark National Asbestos Awareness Week, Reinstein plans to hold a press conference in Washington today to highlight U.S. investment firms she says hold stakes in Brazilian asbestos mining and production. “It’s time we protect public health over the profits of these companies,” she said.

The World Health Organization estimates that 107,000 people worldwide die of asbestos-related diseases each year. A Center for Public Integrity investigation, done in tandem with the BBC in 2010, revealed that the global asbestos industry, with help from scientists and lobbyists, continues to aggressively market its wares in developing nations, putting millions at risk of disease. Russia remains the world’s biggest asbestos producer, followed by China and Brazil.

Asbestos use in the United States has plummeted from its peak of 803,000 metric tons in 1973. Still, attempts at a ban have failed. The Environmental Protection Agency tried in 1989 but was thwarted by an industry court challenge.

The USGS says the chlor-alkali industry — a segment of the chemical industry that makes chlorine and a caustic soda called sodium hydroxide – accounted for about 57 percent of domestic asbestos consumption in 2012. Forty-one percent of the imported asbestos went into roofing products and the rest into “unknown applications.”

In a statement, the American Chemistry Council, a trade association, said, "The chlor-alkali production processes that involve the use of asbestos are strictly regulated" by the EPA and the Occupational Safety and Health Administration.

“Diaphragms made of asbestos are a critical separation medium in the chlorine manufacturing process," the council said. "Chlorine is essential for manufacturing life-saving medicines, producing solar cells, and providing safe drinking water."

Chlorine producers "work to manage the risks and potential adverse effects to human health and the environment," the trade group said. "Workers potentially exposed to asbestos are protected by wearing appropriate personal protective equipment and following strict work processes. Employees in the chlor-alkali industry are given annual medical examinations to determine whether an employee has incurred any adverse effects due to any possible exposure.”

Nonetheless, authorities such as the International Agency for Research on Cancer and the International Labor Organization warn that there is no safe level of asbestos exposure.

Richard Lemen, an adjunct professor at Emory University’s Rollins School of Public Health and a retired assistant U.S. surgeon general, said that until the U.S. bans asbestos, “Americans are still at risk of developing highly preventable asbestos-related disease.”

Rethinking OSHA exemption for farms

2013-04-16T08:48:03-04:00

Should farms be regulated?

Corn storage on farms and in commercial structures doubled between 1978 and 2010, climbing from 5.4 billion bushels to a record 10.93 billion bushels, according to the U.S. Department of Agriculture.

With growth has come tragedy: worker entrapment deaths in corn or other grains — wheat, barley, soybeans — hit a recent peak in 2010, a Center for Public Integrity-NPR investigation found. In at least 51 incidents that year, 26 bodies were recovered. More than two-thirds of the entrapments occurred on farms, as did four of six incidents involving workers under 16.

Commercial operations are overseen by the U.S. Occupational Safety and Health Administration. Most farms aren’t — but perhaps should be, some say.

“We’ve got farmers who are building more space and bigger space, and it’s going to cause more issues,” Jeff Adkisson, executive vice president of the Grain and Feed Association of Illinois, which represents commercial operators, said at a grain bin safety conference in Cedar Rapids, Iowa, last fall. “I think it’s time for industry, for government, for all of us to pause and have the conversation again about who is exempt and who is not exempt from some of the standards.”

Adkisson and others in the grain-storage industry have said for years that the bulk of entrapments occur on farms. This is based largely on the work of Purdue University professor William Field, who has put 70 percent of the incidents with reported locations on farms, 30 percent at commercial facilities.

But the Center and NPR found 60 fatal and five non-fatal cases in an OSHA enforcement database that were not included in Field’s studies. All occurred at commercial operations.

In response, Field redid his numbers. He found that 52 percent of the entrapments with known locations took place on farms, 48 percent at commercial facilities.

The number of commercial grain bins in the U.S. has plummeted, from a peak of 15,305 in 1979 to 8,801 at the end of 2012, according to records kept since 1978. Commercial storage capacity rose from 6.99 billion bushels to 10.2 billion bushels during the same period.

On-farm grain storage increased from a low of 10.9 billion bushels in 1997 to 13 billion bushels today, according to records kept since 1987. USDA data show that about 306,000 farms have one or more storage structures, Field said. “Some of those may have 20 structures,” he said. “So we’re talking about several million facilities."

Randy Gordon, president of the National Grain and Feed Association, said his group and its state affiliates have redoubled safety efforts. “The OSHA standards, we think, are very adequate to address this danger,” he said. “There was an unfortunate spike [in deaths] that occurred but we have hopefully turned that corner now and we’re on the downward trend.”

Farms — most of which are unregulated by OSHA — remain the great unknown: Are their owners doing enough to prevent grain entrapments? Do they know how?

Bringing them into the fold wouldn’t be easy.

During a question-and-answer session at the Cedar Rapids conference, Tiffin, Iowa, farmer James Meade rose.

“The bottom line to me is, don’t pass a law that I won’t obey because I won’t obey it,” Meade said, clearly exercised. “I’ll tell anybody that. I’ll tell the OSHA guy that comes up to my place I’m not going to do it.” The statement drew murmurs of disapproval — and no applause — from the audience.

Meade’s sentiment was echoed by thousands of farmers in 2011 and 2012 in response to a proposed Department of Labor rule that would have limited the work activities of children on farms beyond existing restrictions on hazardous jobs — no driving tractors, for example. Federal law already includes age restrictions for grain-bin work on farms (no one younger than 16) and at commercial sites (no one younger than 18 for certain tasks).

The rulemaking, according to the department’s Wage and Hour Division, was driven by studies showing that “children are significantly more likely to be killed while performing agricultural work than while working in all other industries combined.”

This written comment was typical: “From your bureaucratic overreach in an area of family farming life that the government has NO business being in, you are trampling my rights … YOU don’t love my child any more than I do … You people are nuts!”

Chastened, the department announced the withdrawal of the rule last April. “To be clear,” it said in a statement, “this regulation will not be pursued for the duration of the Obama administration.”

Catherine Rylatt, who became a well-traveled grain-safety advocate after her 19-year-old nephew, Alex Pacas, died in an Illinois bin in 2010, has grown weary of employer rationalization and resistance.

At a conference in St. Louis last month, Rylatt tried to impart her safety message to an 18-year-old member of the Future Farmers of America. The young man pushed back, saying he didn’t think farmers would follow even the simplest of rules imposed by government.

“The kid is 18, and he’s already got the attitude of a 60-year-old farmer,” Rylatt said. “It’s scary, is what it is.”

CORRECTION: An earlier version of this story reported that no one under 18 may legally work in a commercial grain bin. In fact, while some work in commercial bins is off limits to those under 18, there is no blanket prohibition against 16- and 17-year-olds working in such facilities. All work in grain bins is off limits to children under 16.

Worker suffocations persist as grain storage soars, employers flout safety rules

2013-04-23T11:57:39-04:00

MT. CARROLL, Ill. — Will Piper and Alex Pacas were being buried alive.

It was July 28, 2010, just before 10 a.m., and the young men strained to breathe as wet corn piled up around them in Bin No. 9 at the Haasbach LLC grain storage facility. A co-worker, Wyatt Whitebread, had already been pulled under.

The ordeal in Bin No. 9 played out over 13 hours as hundreds of townspeople maintained a vigil outside. In the end, Whitebread, 14, and Pacas, 19, were dead. Piper, 20, avoided suffocation by inches.

Whitebread, compact and athletic, was happy to have summer work. Pacas, slight and musical, was an aspiring electrical engineer just days away from returning to classes at Hamilton Technical College in Davenport, Iowa. He’d started at Haasbach the day before.

“He prayed for his life,” survivor Piper said of Pacas’s last moments. “He said all he wanted to do is see his brothers graduate high school. And then he spouted off the Lord’s Prayer very quickly, and shortly after that one last chunk of corn came flowing down and went around his face.”

The three had been hired to keep corn flowing in the bin, one of 13 in the Haasbach complex on Mill Road in Mt. Carroll, population 1,700. They’d been sent in with pick axes and shovels that morning to break up corn piled 10 to 24 feet high in the bin and knock clumps from the walls. No one had told them they needed to wear safety harnesses — stored in a red shed nearby — to keep from sinking.

“I had no idea that someone could get trapped and die in the corn,” Piper told investigators with the Department of Labor’s Occupational Safety and Health Administration.

Grain storage in the United States is surging, in part because of the boom in biofuels. Yet at worksites, farmers and commercial operators keep making the same mistakes. Workers, some of them young, keep drowning in grain or getting hurt.

The practice known as "walking down grain" is illegal. Federal penalties for employers who permit or require it, however, are routinely pared. Since 1984, OSHA has cut initial fines for grain-entrapment deaths by nearly 60 percent overall, an analysis of enforcement data by the Center for Public Integrity and NPR shows. And even in the worst instances of employer misconduct, no one has gone to jail.

Twenty-six people died in entrapments in 2010, the worst year in decades. At least 498 people have suffocated in grain bins since 1964, according to data analyzed for the Center and NPR by William Field, a professor of agricultural and biological engineering at Purdue University.

At least 165 more people drowned in wagons, trucks, rail cars or other grain storage structures. Almost 300 were engulfed but survived. Twenty percent of the 946 people caught in grain were under 18.

“At some point we’re going to have to decide whether these incidents are just accidental … [or] somebody’s really making horrendous decisions that approach a criminal level,” said Field, who has studied entrapments since 1978 and served as an expert witness in grain-death lawsuits and as an industry and OSHA consultant. “It’s intentional risk-taking on the part of the managers or someone in a supervisory capacity that ends up in some horrific incidents. The bottom line is if you ask them why they did it, it was because it was more profitable to do it that way.”

After the Mt. Carroll accident, OSHA sought to make an example of the farming families that owned Haasbach by proposing a $555,000 fine for 25 alleged safety violations.

The Labor Department’s Wage and Hour Division tacked on a $68,125 fine for the illegal employment of Wyatt Whitebread and three others who were too young to be working in a hazardous setting like a grain bin. OSHA sent its case to the Department of Justice and the state’s attorney in Carroll County, Ill., for possible criminal prosecution.

Although Haasbach paid the full amount for the child labor violations, the OSHA fine was reduced to $200,000. The Justice Department declined to prosecute, according to a Labor Department document provided to the Center in response to a Freedom of Information Act request. The state’s attorney “indicated lack of interest” in pressing charges, the document says.

Haasbach has been dissolved. Its officers declined through their lawyer to comment.

In an interview at their home, Wyatt Whitebread’s parents spoke of their lingering disquiet. They have brought a wrongful-death lawsuit against the principals of Haasbach and the company that leased the facility at the time of the accident, Consolidated Grain and Barge Co.

“I guess I’m vengeful,” said Gary Whitebread, a large-animal veterinarian. “I want [the defendants’] life to be affected like mine. I want them not to be able to go about their daily business like nothing happened.”

“You know, if nothing happens of this, then boys that age are expendable,” said Carla Whitebread, a high school Spanish teacher. “There’s no recourse for it. It didn’t hurt the company at all. And if nothing else happens, then why not hire 14-, 15, 16-year-old boys and just put them in there ... what’s the difference? It’s not going to cost you anything.”

Panic in Bin No. 9

Until Haasbach LLC acquired it in 2005, the grain-storage complex where Wyatt Whitebread and Alex Pacas died had been owned and operated by Consolidated Grain and Barge, a Louisiana firm with grain operations in 70 locations, mostly in the Midwest. The complex, about 10 miles east of the Iowa line, has a storage capacity of 2 million bushels.

Haasbach was formed by three farming families in northwestern Illinois; two of them, the Haases and the Harbachs, had operational control of the Mt. Carroll facility. After taking charge — “We purchased it for the storage of our grain rather than building more storage at home,” Willard Harbach explained in a deposition — Haasbach leased it back to Consolidated, which handled the weighing and inspection of the corn and dictated its condition. Haasbach’s and Consolidated’s corn was intermingled.

The corn crop stored in the summer of 2010, harvested the year before, was unusually wet, making it prone to clumping. People had to be sent into the bins to break it up; the Haasbach manager, Matthew Schaffner, needed extra help.

That summer, Schaffner’s daughter, Marti Jean, loaded trucks and cleaned out bins at Haasbach for $8 an hour. Then 15, M.J., as she was called, recruited her friend, Wyatt Whitebread, to work in the bins. He started July 19. Will Piper started the next day. At Piper’s suggestion, Matt Schaffner brought on Alex Pacas — known to friends as Paco — on July 27.

“Our job was to break up the rotten chunks of corn that prevented the corn from flowing into the center of the bin,” Piper said in an interview. “The training I received was just from Wyatt, telling me how to break up the corn, the best way that he did it. Later that day Matt came up and just kind of expressed to stay away from the center hole in the bin so that we didn’t get sucked up into that.

“But there was no safety training or anything like that.”

On July 28, Piper, Pacas, Whitebread and a fourth worker, 15-year-old Chris Lawton, showed up around 7 a.m. and were sent into Bin No. 9. It was a hot, humid day. Conditions inside the bin were oppressive.

About 9:45 a.m., Matt Schaffner opened the second of three holes in the bottom of the bin with the aim of improving the corn’s flow.

“It created kind of a quicksand effect,” Piper said. “So we worked around it and we were aware of it, and after a while … Wyatt ended up getting caught up in it and started screaming for help. Me and Alex went in after him, and we each grabbed one side of him under his armpits and started dragging him out, and got pretty close to the edge of the quicksand and then we started sinking in with him.”

Lawton scrambled out of the bin and went for help; he was so distraught he could barely speak. M.J. Schaffner turned off the conveyor that was running under the bin and making matters worse by drawing down the corn. She told her father that Piper, Pacas and Whitebread were stuck.

“And it was just me and Alex standing there up to our chests completely, just trapped in the corn,” Piper said. “And Wyatt was underneath. I was hopeful that he was still alive, but at this point I’m pretty sure that he suffocated pretty quickly. The pressure underneath the corn was just too great.”

Matt Schaffner climbed into the bin and began digging frantically to reach Wyatt. “After, like, 30 seconds of digging he realized that he wasn’t getting anywhere and there was no hope,” Piper said. “So he set his shovel down and I told him to go back outside so that the rescuers knew what bin to go in.”

Schaffner climbed out of the bin. The corn kept flowing around Piper and Pacas. “After a little bit [Pacas’s] hand was sticking up above the grain and I could just see his scalp, and his hand stopped moving,” Piper said. “And the corn was up to my chin at that point. And it was slowly trickling down … and I was about to be covered, too.”

Piper believes he was saved by the two inches of height he had on Pacas and a bottomless plastic bucket a firefighter had jammed over his head to keep the corn away from his face. The rescuers began vacuuming away the corn, a process that took about six hours. They were able to yank Piper out by the arms at about 4 p.m. He was put on stretcher and airlifted to a hospital in Rockford, 60 miles away.

Outside the Haasbach complex, a crowd was gathering. “We just sat on the grass, crying, and just waited and more people came,” said Lisa Jones, a mother of six who knew Whitebread, Pacas and Piper. “Church people came and brought food and water.”

Teenagers, many of them Whitebread’s classmates at West Carroll High School, filled the parking lot at the Land of Oz, a convenience store across the highway.

Jones stayed with Pacas’s mother, Annette, as the hours passed. Jones’s husband, Matt, a funeral home owner and the Carroll County coroner, was getting regular updates on the rescue effort and relayed the information to his wife by cell phone. “We knew it wasn’t good,” Lisa Jones said. Rescuers cut a series of triangular-shaped holes into the side of the steel bin, near the bottom, to help drain the corn. As it spilled out onto the ground, volunteers shoveled it away.

Word came that one of the workers was alive, though “they didn’t know which one,” Jones said. “And so all of the families were just sitting there, waiting, and then, finally, we knew Will was alive. And then they brought Will out and … he had, like, indentations all over his skin from corn.”

“The chaplain called us over and he said they got Will out and he was face to face with Alex and Alex is deceased,” Annette Pacas said. It took another six hours for Alex’s and Wyatt’s bodies to be recovered.

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

Gary Whitebread fixates on a detail he missed in the days prior to his son’s death.

After Wyatt broached the idea of working at Haasbach, Gary drove to the site. He saw workers sweeping corn from a near-empty bin; that, he understood, was what Wyatt would be doing. He allowed Wyatt to take the job.

In the Whitebread household, Gary did the laundry. During the brief period Wyatt worked at Haasbach, “my washer would be full of corn,” Gary said. “And I’d reach in his pockets and there’d be corn in his pockets. And that should have been a red light to me. I mean, if you’re sweeping an empty bin out or standing in corn maybe up to your knees, you’re not going to have corn in your pockets.”

Piper, the survivor, continues to struggle. “I guess the incident itself wasn’t the worst part about it,” he said. “It was the fact that I lost Wyatt and Alex. … They were both like family, like brothers, to me.”

Tall and thin, with close-cropped red hair, Piper was a self-described “band geek” in high school who held jobs at the Dairy Queen in Mt. Carroll, the Metform Machine Components factory in nearby Savanna and a Minnesota ski resort before signing on at Haasbach. He and the dark-haired Pacas, also a musician, were inseparable.

“He was the one person I shared everything with,” Piper said. His goal is to raise money for a permanent headstone for Pacas’s grave at the Oak Hill Cemetery; a teetering, weather-beaten plastic marker stands there today.

Wyatt Whitebread, younger and sandy-haired, was a mischievous charmer. “He would gather people to play baseball or soccer or blow up my backyard,” Lisa Jones said, laughing. “I spent a lot of time saying, ‘Wyatt!’ And he’d just smile real big and then you weren’t mad anymore.”

Aftermath: citations and litigation

The OSHA investigation into the Mt. Carroll accident began the evening of July 28 and culminated not quite six months later with the issuance of three citations alleging 25 violations by Haasbach, including failing to train the four young workers in Bin No. 9 in “safe work practices” and failing to turn off the conveyor under the bin.

Twelve violations were classified as willful, suggesting Haasbach either disregarded or was “plainly indifferent” to the law. An internal OSHA document obtained by the Center and NPR offered justification for the willful violations: The people in charge of Haasbach had worked around grain for 30-plus years, the document says, and had heard about grain entrapments.

All told, OSHA wanted Haasbach to pay $555,000 in penalties.As often happens, the final amount was whittled down.

A Center-NPR analysis of OSHA data shows that 179 people died in grain entrapments at commercial facilities — bins, rail cars, etc. — from 1984 through 2012. The fines initially proposed in these cases totaled $9.2 million but were cut to $3.8 million, a reduction of 59 percent. Given that some of these cases are still open, the fines could drop lower still.

The five largest fines, which ranged from $530,000 to $1.6 million, were cut by 50 to 97 percent.

Haasbach wound up paying $200,000 for the violations in Mt. Carroll, a 64-percent discount.

In an interview, OSHA chief David Michaels explained: “We had them open their books and we determined that $200,000 was the appropriate fine. The company also agreed to go out of business and to notify OSHA if they ever went back into business, so we could conduct very strict oversight of them.”

Carla Whitebread was unimpressed.

“I mean, for the company, that amount of money doesn’t make any difference at all,” she said. Indeed, data compiled by the Environmental Working Group, a nonprofit research organization, show that the seven-member Harbach Family Partnership received $6.5 million in federal farm subsidies from 1995 through 2011, Haas and his son $1.4 million.

“When I first saw the fine of half a million, I bawled,” Annette Pacas said. “A half a million dollars and you killed two kids and ruined a third. And now it’s down to [$200,000] … It’s disgusting.”

The Whitebreads, Annette Pacas and Will Piper have lawsuits pending against Haasbach and its lessee, Consolidated Grain and Barge. In court documents, each defendant blames the other for the accident.

Haasbach partner Robert Haas faulted Consolidated for storing corn with a moisture content exceeding 15 percent.

“They would always put grain in the bins in Mt. Carroll at 16 percent,” Haas told Kevin Durkin, lawyer for the Whitebread and Pacas families, in a deposition. “You get over 15 you almost know you’re going to have problems. [The corn] starts to rot. It will mold. It will stand up. It will just, you know, do everything that you don’t want it to do.”

Haas said he considered the facility a “farm entity,” beyond OSHA’s jurisdiction. Under questioning by Department of Labor lawyer Denise Hockley-Cann, however, he acknowledged that no crops or livestock had ever been raised on the property.

In the Labor Department deposition, Haas described Consolidated as “a commercial grain buyer” and suggested that it bore responsibility for the job site. “Whatever has got to be done with the grain, Consolidated calls the shots,” he said.

Another partner, Willard Harbach, testified that he knew safety harnesses were kept on site but thought they were used to protect workers from falls, not to keep them from sinking into piles of corn. Both he and Haas said they were unaware that teenagers, some underage, worked in the bins.

“I now know that it’s illegal” to allow a 14-year-old to work in a commercial bin, Harbach said in a deposition taken by Durkin. Harbach added, incorrectly, that if Haasbach were a farm entity — which, in his eyes, it was — employing a 14-year-old “would not be illegal.” The Fair Labor Standards Act prohibits children younger than 16 from working in hazardous settings on farms.

Haasbach maintains that the families of Whitebread and Pacas are entitled only to workers’ compensation, not damages, because comp is the exclusive remedy for employees under Illinois law. Should this argument prevail, each family would receive only funeral expenses, capped at a certain amount. Gary Whitebread said he understood that Wyatt’s death would be worth $5,000 under workers’ comp – not enough to pay for the funeral.

In its answer to the lawsuits, Consolidated — whose representatives declined to be interviewed for this story — denied that it managed the Mt. Carroll facility, although it kept a small office there and had employees on site.

“The danger of ‘walking down grain’ without employing proper safety precautions was known to Consolidated Grain and Barge and its employees involved in grain handling and grain storage,” the company stated in a court document. “However, Consolidated Grain and Barge was not involved in grain handling in the operation of Bin No. 9 on the date of the occurrence.”

Consolidated contended that Whitebread’s and Pacas’s negligence contributed to their deaths, Piper’s negligence to his near-suffocation.

In his own deposition, Will Piper said there was no way the Consolidated employees could have missed what was happening: He and other workers were entering bins without harnesses. “They’re not stupid,” Piper said. “They watch us climb the ladders. What else would we be doing?”

Matt Schaffner told the Labor Department’s Hockley-Cann that he did the hiring and handed out work assignments at Haasbach. He testified that he cautioned Wyatt Whitebread, Alex Pacas, Will Piper and Chris Lawton to stay away from the center of the inverted cone inside any of the bins and to wear dust masks.

Schaffner spent about five minutes on safety training for each of the workers, he said: “It was a pretty straightforward job.” The harnesses hanging in the nearby shed weren’t discussed, Schaffner said.

Annette Pacas finds this inexcusable. “The harnesses that would have saved these kids were in a shed on the property, collecting dust and cobwebs,” she said.

Pacas’s sister, Catherine Rylatt, was so shaken by the accident that she formed the Grain Handling Safety Coalition and speaks regularly at agricultural conferences. She believes the Haasbach partners got off lightly.

“If the criminal case is gone, I think it’s a missed opportunity and it pisses me off,” said Rylatt, who lives near Dallas.

Carla Whitebread, a retired Army major and helicopter pilot, said she understood that when Consolidated owned the operation, prior to selling it to Haasbach in 2005, the company used its safety equipment. “And to the best of my knowledge, on the day that Haasbach took over they just quit doing it. I don’t know why they wouldn’t have done it,” she said. “And I can’t believe that they put the boys in there, being so young.”

Said her husband: “Anybody that worked in that office that knew kids were going into that bin without safety equipment should be held responsible. This is a multi-, multi-failure thing.”

‘Cost of Doing Business’

OSHA’s Michaels says the grain storage industry was on the agency’s radar even before Mt. Carroll. “We’ve been very, very hard on this industry,” he said. “We now do triple the number of inspections that we were doing four years ago. We continue to issue fines in excess of $100,000 over and over again.”

On May 29, 2009, 14 months before the Haasbach accident, 17-year-old Cody Rigsby suffocated in a grain bin in Haswell, Colo. Like Wyatt Whitebread and Alex Pacas, Rigsby became entrapped while walking down the grain; three other teenagers, exposed to the same hazard, made it out alive.

OSHA proposed a $1.6 million fine against the bin’s owner, Tempel Grain Elevators LLC of Wiley, Colo. The U.S. attorney’s office in Denver brought criminal charges against Tempel, and a plea agreement was reached in 2011: the company would pay $50,000 to settle the OSHA case and another $500,000 — all of which would go to Rigsby’s family — to close out the criminal case. It would serve five years’ probation.

OSHA characterized the case as a victory.

Victim advocate Ron Hayes, who believes the criminal case against Tempel should have resulted in jail time, sees it as a failure. Authorities “had the perfect opportunity to send a clear message out to the grain facilities and CEOs of this country that we will not stand by and let you continue to kill our workers,” he said.

For Hayes, it’s personal. Around 1:30 p.m. on Oct. 22, 1993, he got a call at the X-ray clinic he managed in Mobile, Ala. His 19-year-old son, Patrick, had suffocated in a Florida grain bin. When Hayes and his wife, Dot, arrived at the scene, around 5 p.m., “they had just taken Pat’s body to the morgue,” Hayes said. “And, you know, I was really surprised because the company was still working. And I felt like this was a major disaster and I couldn’t understand why they were still working and didn’t feel like there was anything wrong.”

Pat Hayes had been sent into the bin, operated by Showell Farms Inc., with two other men to “walk down” the corn – keep it flowing. A screw-like device known as an auger, used to move corn out of the bin and into trucks, was running at the time, loosening the pile. Pat Hayes sank in up to his knees, and his co-workers weren’t able to pull him out as the corn began to cover him.

Showell Farms paid a $42,000 fine for Pat Hayes’s death, 92 percent less than the $530,000 recommended by the OSHA inspector in the case. What began as willful violations were downgraded to “serious” ones, a move an OSHA reviewer later deemed inappropriate.

“After a careful in-depth review of this case,” the agency’s William Mason wrote in a confidential 1994 memorandum, “it is my strong belief that willful violations occurred.” The Labor secretary at the time, Robert Reich, publicly apologized to Ron Hayes.

Hayes left the X-ray clinic and became a full-time advocate for families of workers killed on the job. In that capacity he met with Michaels and three other top OSHA officials in October 2010, three months after the Mt. Carroll accident.

“And in that meeting, [OSHA chief of staff] Deb Berkowitz says, ‘Ronnie, can you help us figure out how we can stop these workplace deaths and injuries?’” Hayes recalled. “I said, ‘The only way you’re going to fix this is to put somebody in prison.’ ”

That has proven difficult. Under the Occupational Safety and Health Act of 1970, an employer who commits flagrant violations that cause or contribute to a worker’s death faces at most six months behind bars, a misdemeanor. By comparison, some environmental crimes – polluting a river or killing an endangered animal, for instance – are felonies.

“Sending a 14-year-old into a grain bin without proper safety equipment should be as unacceptable as discharging a pollutant into a waterway that kills fish,” said Jane Barrett, a former federal prosecutor who now teaches at the University of Maryland School of Law.

Labor Department data show that there have been at least 19 fatal and non-fatal grain entrapment incidents since 2001 that drew willful citations, which trigger consideration of federal charges. Eight of these cases were referred to federal prosecutors. Three resulted in charges and guilty pleas, though no jail time; one is still under review.

Gary Shapiro, the acting U.S. attorney for the Northern District of Illinois, had no comment on the Haasbach case, a spokesman said. Carroll County State’s Attorney Scott Brinkmeier declined to be interviewed.

Brinkmeier could have sought involuntary manslaughter charges against the Haasbach partners, said J. Steven Beckett, a professor at the University of Illinois College of Law.

“I think it’s a case that should have been prosecuted,” Beckett said. “Somehow, these deaths are just a cost of doing business.”

Chris Hamby contributed to this story.

U.S. report urges deeper look into breast cancer's environmental links

United States — 2013-02-12T12:43:16-05:00

A new federal advisory panel report makes a forceful case for more research into environmental causes of breast cancer, which was diagnosed in 227,000 women, killed 40,000 and cost more than $17 billion to treat in the United States last year.

Compiled by the congressionally mandated Interagency Breast Cancer and Environmental Research Coordinating Committee, the report notes that most cases of breast cancer “occur in people with no family history,” suggesting that “environmental factors — broadly defined — must play a major role in the etiology of the disease.”

Yet only a fraction of federal research funding has gone toward examining links between breast cancer and ubiquitous chemicals such as the plastic hardening agent bisphenol A; the herbicide atrazine; and dioxin, a byproduct of plastics manufacturing and burning, says the report, prepared for Health and Human Services Secretary Kathleen Sebelius and released today.

“Prevention needs to be as important as other investments that are made in screening, treatment and access to care,” Jeanne Rizzo, co-chair of the committee and president of the San Francisco-based Breast Cancer Fund, said in an interview. “There really is a problem, and until we address it we’re going to continue to have a quarter of a million new cases every year.”

The report’s release comes three months after a Center for Public Integrity article detailing a study of female plastic automotive parts workers in Windsor, Ontario. That study found that women employed in the chemical-intensive industry were nearly five times as likely to develop breast cancer, prior to menopause, as women in a control group.

“That was essentially an uncontrolled human study,” Rizzo said of the Windsor workers. “We can’t do that. We need to learn from animal studies.”

Asked to comment Monday, a spokesman for the Department of Health and Human Services said, “We look forward to reviewing the report.”

At least 216 chemicals, including endocrine-disrupting substances like bisphenol A, have been associated with mammary gland tumors in animals. Endocrine-disrupting chemicals, or EDCs, are used to make plastics and pesticides and found in products such as furniture, metal food cans and cosmetics.

“National survey data show that many of these chemicals are present in the blood or urine of children and adults in the United States,” the committee’s report says, “and some EDCs are present in 100 percent of the people sampled.” Exposure to such compounds early in life can be especially dangerous, the report says

All told, some 84,000 chemicals are registered for use in the United States. But complete toxicological screening data are available for only 7 percent of these substances, says the report, which calls for “enhanced testing of chemicals, especially classes of chemicals combined together as a mixture, for effects on the mammary gland and breast …”

Environmental exposures, moreover, have gotten relatively little attention from researchers.

The National Institutes of Health spent almost $2.4 billion on 2,910 breast cancer research projects from fiscal year 2008 through fiscal year 2010, the report says. But only about 27 percent of these projects had to do with prevention, and just 10 percent could be considered “environmental health research.”

Of the $2.8 billion appropriated by Congress from 1992 through 2012 for the Department of Defense Breast Cancer Research Program, 75 percent went toward “basic biology and treatment research, with only 3 percent for prevention and cancer control projects,” the report says.

The committee recommends that researchers prioritize “chemicals that are produced in high volumes for which there is biologically plausible evidence of their role in the development of breast cancer.”

It also suggests that regulators improve oversight of “cosmetics and personal care products as well as household cleaning and food containment products,” and step up environmental monitoring, especially of “underserved and under-researched groups as well as ‘fenceline’ communities that are in close proximity to industry or waste sites.”

Spokespeople for the Environmental Protection Agency and the American Chemistry Council, the chemical industry’s main trade association, did not respond to requests for comment Monday.

Inspector General to review EPA's 'Watch Lists'

2013-02-06T12:05:39-05:00

The Environmental Protection Agency’s inspector general has begun a review of the EPA’s use of internal watch lists to target enforcement of federal pollution laws. The watch lists first came to light as part of a 2011 investigation by The Center for Public Integrity and NPR.

The inspector general is exploring “potential improvements in the protection of human health and the environment by ensuring the EPA is enforcing environmental laws and cleaning up communities,” the IG’s office wrote last month to Cynthia Giles, the EPA’s assistant administrator for the Office of Enforcement and Compliance Assurance.

The watch lists include allegedly chronic violators of the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act, which governs the handling of hazardous waste.

The EPA began to post the previously secret lists online in the fall of 2011 in response to a Freedom of Information Act request filed by the Center as part of the “Poisoned Places” investigation.

The project revealed that – two decades after Congress sought to crack down on chemicals that can cause cancer, brain damage and other ailments – toxic air pollutants continued to plague parts of the United States. The reports found that there were some 1,600 “high priority violators” of the Clean Air Act – nearly 400 of which were on the EPA’s watch list – and that federal and state regulators sometimes had trouble keeping tabs on oil refineries, power plants, steel mills and other industrial facilities that showered communities with contaminants.

In several recent reports, the EPA IG has raised questions about the agency’s enforcement practices. In 2009, the inspector general found that “in many instances EPA and States are not addressing high priority violations … in a timely manner.” A 2011 report concluded that “EPA does not administer a consistent national enforcement program” and that state enforcement programs – which the EPA oversees – are “underperforming.”

Now, the IG is exploring how effectively the EPA is using the polluter watch lists.

Asked to respond Tuesday, the EPA sent an emailed statement to the Center saying only that it is “aware of the Inspector General's Annual Plan and looks forward to cooperating fully with its review of the EPA Watch List.”

Lois Gibbs, executive director of the Center for Health, Environment and Justice, an advocacy group in Falls Church, Va., said the EPA too often defers to states on enforcement matters – a recipe for inaction.

“In a state like New York that’s not such a bad deal, because New York is more aggressive,” said Gibbs, who lived near the Love Canal toxic waste dump in Niagara Falls, N.Y., in the late 1970s and led efforts to link residents’ health problems with chemicals in the dump. “But when you’re talking about a pro-corporate state like Texas or Ohio, that’s where the EPA is really needed. That’s when the EPA is supposed to step up to the plate.”

Walmart added to lawsuit alleging wage theft at California warehouse

California,United States — 2013-01-14T12:07:18-05:00

A federal judge ruled Thursday that Walmart can be added to a lawsuit alleging widespread wage theft at a Southern California warehouse.

Lawyers for contract workers at the Schneider Logistics warehouse in Mira Loma, Calif. – whose sole customer is Walmart – had moved to add the retailer to the case in November.

Thursday's ruling by U.S. District Judge Christina Snyder will force Walmart to defend itself against allegations that Schneider, at Walmart’s behest, cheated as many as 1,800 low-wage workers out of millions of dollars.

Walmart fought becoming a late addition to the case, but Snyder wrote that the plaintiffs had a “good faith explanation that they did not seek to name Walmart as a defendant until this stage of the litigation because they only recently uncovered evidence in discovery that justifies a lawsuit against Walmart.”

The lawsuit, filed in October 2011, claims that Schneider and two staffing agencies, Premier Warehousing Ventures LLC and Impact Logistics Inc., failed to keep proper payroll records, falsified time sheets and misled workers about the amount of money they had earned.

All three companies have denied the allegations. The staffing agencies, however, agreed to pay a collective $450,000 in fines and back wages to settle citations issued by California labor officials after a warehouse raid last year. Schneider was not cited by the state.

Walmart spokesman Dan Fogleman did not immediately respond to a request for comment Thursday. Last November, he said: “While we have a set of quality standards that must be met, the third party service providers we utilize are responsible for running their day-to-day business. They manage their people completely independent of us.”

'They were not thinking of him as a human being'

2013-04-25T12:10:57-04:00

CHICAGO — By the time Carlos Centeno arrived at the Loyola University Hospital Burn Center, more than 98 minutes had elapsed since his head, torso, arms and legs had been scalded by a 185-degree solution of water and citric acid inside a factory on this city’s southwestern edge.

The laborer, assigned to the plant that afternoon in November 2011 by a temporary staffing agency, was showered with the solution after it erupted from the open hatch of a 500-gallon chemical tank he was cleaning. Factory bosses, federal investigators would later contend, refused to call an ambulance as he awaited help, shirtless and screaming. He arrived at Loyola only after first being driven to a clinic by a co-worker.

At admission Centeno had burns over 80 percent of his body and suffered a pain level of 10 on a scale of 10, medical records show. Clad in a T-shirt, he wore no protective gear other than rubber boots and latex gloves in the factory, which makes household and personal-care products.

Centeno, 50, died three weeks later, on December 8, 2011.

A narrative account of the accident that killed him — and a description of conditions inside the Raani Corp. plant in Bedford Park, Ill. — are included in a U.S. Occupational Safety and Health Administration memorandum obtained by the Center for Public Integrity. The 11-page OSHA memo, dated May 10, 2012, argues that safety breakdowns in the plant warrant criminal prosecution — a rarity in worker death cases.

The story behind Centeno’s death underscores the burden faced by some of America’s 2.5 million temporary, or contingent, workers — a growing but mostly invisible group of laborers who often toil in the least desirable, most dangerous jobs. Such workers are hurt more frequently than permanent employees and their injuries often go unrecorded, new research shows.

Raani’s “lack of concern for employee safety was tangible” and injuries in its factory were “abundant,” Thomas Galassi, head of OSHA’s Directorate of Enforcement Programs, wrote in the memo to David Michaels, assistant secretary of labor for occupational safety and health.

Raani managers failed to put Centeno under a safety shower after he was burned and did not call 911 even though his skin was peeling and he was clearly in agony, Galassi wrote. “It took a minimum of 38 minutes before [Centeno] arrived at a local occupational health clinic … after having been transported by and in the vehicle of another employee while he shivered in shock and yelled, ‘hurry, hurry!’ ”

A clinic worker called an ambulance, which, according to Chicago Fire Department records, arrived at 2:26 p.m. Centeno was in “moderate to severe distress with 70-80% 1st and mostly 2nd degree burns to head, face, neck, chest, back, buttocks, arms and legs,” the records show. Paramedics administered morphine.

“The EMT’s were horrified and angered at the employer, for not calling 911 at the scene and further delaying his care by transferring him to a clinic instead of a hospital,” Galassi’s memo says.

John Newquist, who retired from OSHA in September after 30 years with the agency, said the case was among the most disturbing he encountered as an assistant regional administrator in Chicago.

“I cannot remember a case where somebody got severely burned and nobody called 911,” said Newquist, a former compliance officer who investigated more than 100 fatal accidents during his career. “It’s beyond me.”

On May 15, OSHA proposed a $473,000 fine against Raani for 14 alleged violations, six of which are classified as willful, indicating “plain indifference” toward employee safety and health. No decision has been made on whether the case will be referred to the Department of Justice for possible prosecution, agency spokesman Jesse Lawder said. OSHA hadn’t inspected the Raani factory for 18 years prior to the accident.

Centeno’s family has filed a wrongful-death lawsuit against Raani and a workers’ compensation claim against the temp agency that employed him, Ron’s Staffing Services Inc.

“It’s just wrong, what happened,” Centeno’s 26-year-old son, Carlos Jr., said of Raani managers’ actions after his father’s accident. “They were not thinking of him as a human being.”

Raani is appealing the OSHA citations. H. Patrick Morris, a lawyer for the company, did not answer questions about the alleged violations. Morris said, however, that while Centeno was “a good worker and nice person,” the company has “good and valid defenses” to the allegations in the family’s lawsuit. Raani has yet to file court documents outlining its position.

Jeffrey Kehl, a lawyer for Ron’s Staffing, declined to comment.

‘I wanted him to quit’

Carlos Centeno came to Chicago from Mexico City in 1994. He was joined six years later by his partner, Velia Carbot, and Carlos Jr. A daughter, Alma, stayed behind.

The family settled in Humboldt Park, a working-class neighborhood on the city’s northwest side. A second daughter, Melanie, was born in 2001.

Centeno held jobs as a bartender, newspaper deliveryman and forklift driver at a warehouse. In June 2010, after being laid off by the warehouse, he put in an application at the Ron’s Staffing office on West 63rd Street, not far from Midway International Airport. He was sent to the nearby Raani Corp. factory, which makes products ranging from shampoos, styling gels and deodorant sticks to dishwashing liquids and household cleaners. His starting pay was $8.25 an hour.

Raani, founded in 1983 by Rashid A. Chaudary, a Pakistani chemist-turned-entrepreneur, has about 150 employees, roughly 40 percent of whom are contingent workers, according to the May 2012 OSHA memo. Centeno cleaned the tanks in which the factory’s products are mixed. His work clothes became so rank, he had his own laundry basket at the family’s apartment, partner Carbot said; about six months before the fatal accident, chemicals splashed in his right eye and he couldn’t see out of it for three days, she said.

“I wanted him to quit,” Carbot, speaking in Spanish, said. “But, at the same time, we knew he hadn’t found another job yet, and expenses continued, unfortunately, and he had to work.”

The OSHA memo describes a factory in which workers were often hurt and injuries were not properly recorded. An OSHA inspection on December 9, 2011, the day after Centeno died, revealed, for example, that workers “were handling chemicals including, but not limited to, corrosives and acids while wearing only medical grade latex gloves,” the memo says.

Workers were seen putting their hands directly into streams of chemicals poured from drums, OSHA enforcement director Galassi wrote. “Another significant hazard [to] which employees are exposed, as evidenced by the fatality, was the high temperature (nearly boiling) water and cleaning solutions used for cleaning tanks, process lines and floors. Employees interacted with high temperature liquids wearing only latex gloves and tee-shirts.”

A manager explained that thick, black gloves were kept in the maintenance department “because they were expensive and the employees stole them,” Galassi wrote. The manager said, however, that “any employee could obtain the black gloves if so desired.”

A review of Raani’s medical files turned up five injuries, apart from Centeno’s, that had occurred since 2010 but had not been entered in OSHA logs, as required by federal law, Galassi wrote. Injuries “involving chemical exposure to eyes, high temperature liquid burns and cuts had been a common occurrence for years,” his memo says. One worker who had been burned and whose skin was peeling was told by a manager “to leave it alone, it wasn’t dangerous.”

Another was burned so badly he needed skin grafts, but the incident wasn’t recorded even though CEO Chaudary “stated he was aware of the injury,” Galassi wrote. On January 27, 2012, more than two months after Centeno was scalded, a worker performing a similar tank-cleaning procedure received severe burns to his left leg. He was handed a written notice from management. “You are hereby warned to be careful in the future,” it said in part.

“Instead of issuing the appropriate [protective gear] to its workers and ensuring its usage, Raani Corporation has chosen to blame their employees outright for their injuries and non-compliance,” Galassi wrote.

Two managers “admitted to witnessing [Centeno] with his shirt off and speaking with him” shortly after he was burned, the memo says. “Both managers agreed the injured employee’s skin was burned, damaged, wrinkled and parts were ‘peeling.’ ”

The managers not only failed to call 911 — they made Centeno wait while one filled out paperwork before allowing him to be taken to a local clinic, Galassi wrote. The co-worker who drove Centeno about four miles to the MacNeal Clearing Clinic said “he was asked to lie on his written statement and write that Carlos Centeno was acting fine, conscious and talking on the drive to the clinic. Even after the incident, company officials have not concluded that 911 should have been called immediately.”

Chaudary, who was not on the scene the day of the accident — November 17, 2011 — told an OSHA inspector that the “wrong valve opened” on the tank Centeno was cleaning, according to the memo, but insisted that “if Carlos Centeno had lived, the decision to not call an ambulance would have been the right call.”

Centeno’s co-workers, however, “provided signed statements of the severity of the injury and the extreme delayed response in seeking medical care,” Galassi wrote.

Chaudary did not respond to requests for comment.

Not long after he was doused with the hot water-citric acid mixture, Centeno called Velia Carbot, asking for Carlos Jr. He sounded agitated and had trouble speaking, Carbot said, but would not explain what had happened.

Carbot went across the street and got Carlos Jr., who called his father’s cell phone. It was answered by a co-worker, Samuel Meza, who said Carlos Sr. had been burned at work. “He was like, ‘I’m taking him to the clinic,’ ” Carlos Jr. said.

Meza called Carlos Jr. after he arrived at the MacNeal Clearing Clinic. While they talked, Carlos Jr. said, “I could hear that the nurse in the clinic was telling him, ‘Why are you bringing him here? … He needs to go to the emergency room.’ ”

Carbot and Carlos Jr. began driving to the clinic, 13 miles south of Humboldt Park, but diverted west to Loyola Hospital when Meza told them that’s where Centeno would be heading.

Carlos Jr. and Carbot got there first, watching ambulance after ambulance pull up. “I remember just walking up to all the ambulances and it was someone else,” Carlos Jr. said. “It wasn’t my dad. It just makes you more anxious.”

At 3:08 p.m., more than 98 minutes after he had been burned, Carlos Sr. made it to Loyola. “When they finally opened the doors and I saw it was him, I could just see he was in pain,” Carlos Jr. said. “He was trying to hide it. He saw my mom and I could see his eyes started to tear.”

Carlos Centeno Sr. died three weeks later, on December 8. OSHA, which learned of his death from the Cook County medical examiner, began its inspection of Raani the next day. Its last visit to the plant had been in 1993, when, responding to a worker complaint, it cited the company for six alleged violations — including failing to protect workers from unexpected energizing or startup of machines — and proposed a $9,500 fine. Raani settled the case for $6,500 in 1994.

In an emailed statement, OSHA said no follow-up inspection was conducted. This is “not unusual,” the agency said, “as long as we receive documentation from the employer that the violations were corrected.”

Dangers of temp work

The use of contingent workers by U.S. employers has soared over the past two decades. In 1990, according to the U.S. Bureau of Labor Statistics, there were about 1.1 million such workers; as of August 2012, the number was 2.54 million, down slightly from pre-recession levels but climbing.

The American Staffing Association, a trade group, says the hiring of contingent workers allows employers to staff up at their busiest times and downsize during lulls. Temporary work enables employees to have flexible hours and “provides a bridge to permanent employment,” the group says on its website.

Recent research, however, suggests a dark side to contingent work.

A study published this year of nearly 4,000 amputations among workers in Illinois found that five of the 10 employers with the highest number of incidents were temp agencies. Each of the 10 employers had between six and 12 amputations from 2000 through 2007. Most of the victims lost fingertips, but some lost legs, arms or hands.

The researchers, from the University of Illinois at Chicago School of Public Health, called the glut of amputations a “public health emergency,” inflicting psychological and physical harm and costing billions.

Another study, published in 2010, found that temp workers in Washington State had higher injury rates than permanent workers, based on a review of workers’ compensation claims. In particular, temp workers were far more likely to be struck by or caught in machinery in the construction and manufacturing industries.

“Although there are no differences in the [OSHA] regulations between standard employment workers and temporary agency employed workers, those in temporary employment situations are for the most part a vulnerable population with few employment protections,” wrote the researchers, with the Washington State Department of Labor and Industries.

In fact, experts say, there’s little incentive for host employers to rigorously train and supervise temp workers because staffing agencies carry their comp insurance. If an agency has a high number of injuries within its workforce, it — not the host employer — is penalized with higher premiums.

“This is really about an abdication of responsibility,” said Tom Juravich, a professor at the University of Massachusetts, Amherst, who has studied the temp worker phenomenon. “If some of the jobs in your facility are undesirable and dangerous, you outsource them to people who won’t complain. If you have a direct worker who’s injured, you have an obligation to him through workers’ comp. If he’s a contingent worker, you don’t have that obligation.”

As part of a three-year study, researchers in Canada interviewed temp workers and managers at temp agencies and client companies. “To be frank,” one agency manager confided, “clients hire us to have temps do the jobs they don’t want to do.” Co-author Ellen MacEachen, of the University of Toronto and the Institute for Work and Health, said, “Even if [temp workers] are not cheaper, they’re more disposable. … You can get rid of them when you want, and you don’t pay benefits.”

Bureau of Labor Statistics numbers say contingent workers’ injuries are declining. Yet, new evidence suggests these injuries are undercounted.

In a BLS-funded project completed last summer, officials with the Washington State Department of Labor and Industries interviewed 53 employers who had used temp workers. Only one-third said they would enter a temp worker injury in their OSHA log, as the law requires. The others said they wouldn’t or claimed ignorance. “A lot of them just didn’t know” the rules, said Dr. David Bonauto, the department’s associate medical director.

The executive director of the Chicago Workers’ Collaborative, which advocates for temp workers, says OSHA should target employers known to make heavy use of staffing agencies.

“The rise of the staffing industry is partially to give companies a greater distance from regulation,” said Leone José Bicchieri. “OSHA needs to come up with different approaches for this rapidly growing sector” — meeting with temp workers offsite, for example, so they’re not intimidated by supervisors.

Temp workers are often reluctant to report injuries because they are so easily replaced, Bicchieri said.

“They have no power to speak up,” he said. “The whole temp industry was created so the client company has less liability. We need to put workplace injuries back on the plate of the client company.”

Stephen Dwyer, the American Staffing Association's general counsel, cautioned against an OSHA crackdown on temp agencies. "To the extent that efforts become heavy-handed, there can be a disincentive, then, to using temporary workers," Dwyer said, to the detriment of the workers, client employers and "the overall economy."

In a statement, OSHA said it “feels strongly that temporary or contingent workers must be protected. They often work in low wage jobs with many job hazards — and employers must provide these workers with a safe workplace.”

The agency said it has brought a number of recent enforcement actions against employers for accidents involving temp workers. In June, for example, OSHA cited Tribe Mediterranean Foods for 18 alleged violations following the death of a worker at its plant in Taunton, Mass. The worker — not properly trained, according to OSHA — was crushed by two rotating augers while cleaning a machine used to make hummus. The case was closed after Tribe agreed to fix hazards and pay a $540,000 fine.

“While some employers believe they are not responsible for temporary workers … OSHA requires that employers ensure the health and safety of all workers under their supervision,” the agency said

Weak law, few prosecutions

Although the Galassi memo recommends criminal action in the Centeno case, employers in America are rarely prosecuted for worker deaths.

The Occupational Safety and Health Act of 1970 is exceptionally weak when it comes to criminal penalties. An employer found to have committed flagrant violations that led to a worker’s death faces, at worst, a misdemeanor punishable by six months in jail.

By comparison, a violation of the Endangered Species Act carries a maximum sentence of one year.

“It should not be the case that a facility that commits willful violations of the worker safety laws faces only misdemeanor charges when a worker dies because of those violations,” said David Uhlmann, a law professor at the University of Michigan and former chief of the Justice Department’s Environmental Crimes Section.

“The company involved as well as any responsible corporate officials should face felony charges that carry significant financial penalties for the company and the possibility of lengthy jail terms for the individuals," Uhlmann said. "Anything less sends a terrible message about how we value the lives of American workers.”

Federal prosecutors are generally unenthusiastic about worker cases, said Jordan Barab, second-in-command at OSHA. The Justice Department “often says, ‘You know, we’re not going to spend all these resources just to prosecute a misdemeanor,’ ” Barab said.

At Justice, Uhlmann made creative use of environmental statutes to get around the OSH Act. In one case, a worker at an Idaho fertilizer plant named Scott Dominguez nearly died after being sent into a steel storage tank containing cyanide-rich sludge. Dominguez had been ordered into the 25,000-gallon tank without protective equipment by the plant’s owner, Allan Elias, who had refused to test the atmosphere inside the vessel.

Dominguez collapsed and sustained brain damage from the cyanide exposure. Prosecutors charged Elias with three felony counts under environmental laws, including the Resource Conservation and Recovery Act, which governs the handling and disposal of hazardous waste.

Because Elias had fabricated a confined-space entry permit indicating it was safe for workers to enter the tank, he also was charged with one count under a section of Title 18 of the United States Code, for making a false statement to, or otherwise conspiring to defraud, government regulators.

After a jury trial in 1999, Elias was convicted on all counts and sentenced to 17 years in prison.

Environmental statutes don’t always apply in worker death or injury cases. The accident that mortally wounded Carlos Centeno, for example, appears not to have involved hazardous waste, or air or water pollution.

Charges under Title 18 remain a possibility, Uhlmann said. Nonetheless, he said, the OSH Act needs revision. Congress came close to adding felony provisions to the law in 2010 but failed amid pushback from the business community.

“Accidents are not criminal,” Uhlmann said. “What are criminal are egregious violations of the worker safety laws that result in not just deaths but serious injuries.”

Sen. Tom Harkin, an Iowa Democrat who chairs the Senate Health, Education, Labor and Pensions Committee, is a co-sponsor of the Protecting America’s Workers Act, which would enhance criminal and civil penalties for OSHA violations.

“In every other walk of life, if a person engages in willful conduct that results in someone else’s death, we throw the book at them,” Harkin said in a statement. “But if someone dies on the job, the rules are different. Even intentional lawbreaking that kills a worker brings no more than a slap on the wrist.”

Whether a bulked-up worker-protection law would have improved conditions at the Raani Corp. is a matter of speculation. According to Thomas Galassi’s memo, the accident that ultimately killed Carlos Centeno merited only a one-line entry in the company’s files, stating that an internal committee would investigate.

During the inspection after Centeno’s death, a newly hired Raani manager asked OSHA officials to help him convince his superiors to train and provide safety gear to workers, Galassi wrote. The manager had concluded that those above him had “no respect for the hazards of the chemicals on site or human life.”

Warehouse worker lawsuit targets Walmart

Wal-Mart Stores, Inc. — 2013-01-25T09:41:44-05:00

MIRA LOMA, Calif. – Lawyers alleging wage theft from mostly immigrant Latino contract workers at a Southern California warehouse complex took steps today to add Walmart as a defendant in an ongoing federal lawsuit.

The move is expected to draw the nation’s largest retailer into a case in which it had, heretofore, been tangentially involved – and raises questions about the human cost of Walmart’s tightly controlled supply chain, which relies heavily on contractors and subcontractors.

“Walmart employs a network of contractors and subcontractors who have habitually broken the law to keep their labor costs low and profit margins high,” Michael Rubin, a lawyer for the workers, contended in a written statement to the Center for Public Integrity and the Center for Investigative Reporting. “We believe Walmart knows exactly what is happening and is ultimately responsible for stealing millions of dollars from the low-wage warehouse workers who move Walmart merchandise.”

A court document filed today in Los Angeles claims, "Recent discovery has established that Walmart bears ultimate responsibility for the violations of state and federal law committed against plaintiff warehouse workers," who "perform hard physical labor for long hours with little pay under hot, hazardous, and dust-filled conditions, unloading and loading trucks destined for Walmart stores and distribution centers throughout the United States."

The class-action lawsuit, filed in October 2011, accuses the owner of the Mira Loma warehouse complex, Schneider Logistics Transloading and Distribution, and two staffing agencies of cheating contract workers out of pay.

In an email, Walmart spokesman Dan Fogleman said, "We disagree with [Rubin's] characterization. While we have a set of quality standards that must be met, the third party service providers we utilize are responsible for running their day-today business. They manage their people completely independent of us."

In a statement earlier this month, Fogleman said “some workers at third party logistics facilities that we use have raised some concerns about their work environment.

“Even though the workers aren’t employed by us, we take these types of allegations very seriously,” the statement said. “The fact is, we hold our service providers to high standards and want to ensure that workers throughout our supply chain are treated with dignity and respect.”

Walmart officials planned to begin audits of warehouses such as Schneider “within days,” according to the statement. “In the meantime, company representatives have made multiple visits – including some that were unannounced – to the facilities where the bulk of the concerns have been raised.”

The lawsuit alleges that Schneider and staffing agencies Premier Warehousing Ventures LLC and Impact Logistics Inc. conspired to “cover up the extent of their wrongdoing by failing to keep mandatory payroll records, falsifying records of hours worked and compensation owed, and concealing, denying and/or misrepresenting to the workers the amount of their earnings and on what basis these earnings were calculated.”

The staffing agencies have agreed to pay a collective $450,000 in fines and back wages to settle citations issued by California labor officials, who raided the warehouse the same month the lawsuit was filed last year. Schneider, which was not cited by the state, said in a statement that it “played no role in determining the rate or method of pay” that led to the violations.

By adding Walmart – the warehouse’s only customer – to the lawsuit, lawyers for the workers are seeking to prove that the company pressured Schneider to hold down costs by underpaying subcontractors. As many as 1,800 workers in Southern California could receive back pay and damages as a result of the case, and the impacts could be felt in other warehouse centers as well.

Schneider employee David Acosta, among the more than 200 plaintiffs in the lawsuit, questions whether Walmart could have been oblivious to the problems in Mira Loma – which he and other workers describe as long, unpredictable hours and unpaid wages.

“Walmart is responsible,” Acosta said in an interview. “They want to wipe their hands clean of the situation. But they make or break contractors.”

One Walmart employee has an office in the Schneider warehouse and participates in daily operational meetings and audits, court documents allege.

‘Pervasive labor abuses’

This is not the first time Walmart’s outsourcing has come under scrutiny. In a report last June, the National Employment Law Project, a New York-based legal and policy-analysis center, alleged “pervasive labor abuses” within Walmart’s supply chain.

“These worker rights violations are largely the product of Walmart’s signature and aggressive practice of ‘outsourcing’ elements of its warehousing, transportation, and goods-delivery systems to companies that, in turn, often further subcontract the work to still other entities or individuals,” the report says.

The Mira Loma warehouse has been on regulators’ radar for more than a year.

Responding to worker complaints about inaccurate pay stubs, investigators with the California Division of Labor Standards Enforcement raided the complex Oct. 12, 2011. The agency cited Schneider’s two labor suppliers at the time, Premier and Impact, for failing to provide employees with statements detailing the hours they had logged, their hourly pay, deductions and other wage-related information. The state proposed a $601,000 penalty against Premier, $499,000 against Impact.

Premier and Impact were using an indecipherable “group piece-rate” system to compensate workers, investigators found. Workers say they virtually always lost money in the arrangement, compared to what they would have made had they been paid by the hour.

“We found that workers were being denied the very basic right to know what they had earned for the work that they were doing,” California Labor Commissioner Julie Su, who ordered the raid, said in an interview. “We found that workers were being denied minimum wage, were not being paid overtime hours.”

Premier – which no longer contracts with Schneider – and Impact agreed to pay $175,000 and $140,000 in fines, respectively, to settle the cases. In addition, Premier will pay $75,000 in back wages to 151 workers; Impact will pay $60,000 to 283 workers.

Neither Premier nor Impact responded to emails and phone calls seeking comment. In its statement, Schneider said it was unaware of the violations prior to the raid.

“Our contracts clearly indicate that the vendors are exclusively responsible for the material aspects of the employment, including hiring, discipline, onsite management, training, determining rates of pay, timekeeping and compliance,” Schneider said.

California’s Su said she brooks no tolerance for employers who exploit low-wage, immigrant workers. Her views were hardened in the mid-1990s, when, while working as a lawyer with the Asian-Pacific American Legal Center in Los Angeles, she represented 72 garment workers from Thailand who had been kept behind barbed wire and under armed guard at an apartment complex in suburban El Monte. She sued the shop owner and won more than $4 million in back wages for the encaged Thai workers – as well as a group of Latino workers who sewed in a “front shop” and were being shorted on pay.

“We have seen in many industries that this type of subcontracting can give rise to really horrible labor abuses,” Su said. “There becomes a question about who’s ultimately responsible for the workers and who has the legal obligation to ensure that labor laws are complied with.”

The construction of mega-warehouses near Interstate 10, east of Los Angeles, began in the late 1990s. Today, similar clusters of blocks-long buildings anchor sections of Chicago, northern New Jersey and other urban areas. Some serve only Walmart; others have multiple customers.

Mistreatment of workers in these facilities is endemic, a product of fierce competition for contracts with Walmart and other retailers, said Juan De Lara, an assistant professor of American studies and ethnicity at the University of Southern California who has researched the industry. “Walmart essentially distances itself from conditions inside these warehouses,” De Lara said.

In interviews and written declarations, current and former workers at Schneider said they were required to perform various tasks for which they were not paid. They might be called to work and told to wait for hours in case they were needed, they said, only to be sent home without pay. Those who complained were told, “If you don’t like it you can hit the door,” Impact worker Juan Chavez said in a declaration.

Jesus Sauceda, 33, worked construction until the weak economy forced him out of a job. He went to work for Impact in Mira Loma in late 2011 and said he was surprised at the conditions in the Schneider warehouse. “Everything you do, they want more,” Sauceda said. “I’d rather work outside in the heat.”

Sauceda injured his shoulder while lifting a box – a warehouse worker might move as many as 4,000 a day, he says – and has seen co-workers get hurt as well because “they don’t have the time to work properly. One guy’s back is messed up; he’s always in pain, always taking painkillers.”

“When there’s a problem with pay or working conditions, a company like Schneider will hand it off to the staffing agency,” said Guadalupe Palma, a director of Warehouse Workers United, an advocacy group funded largely by the labor consortium Change to Win. “The workers are bounced between the warehouse and the agencies and the problem never gets resolved. They get terminated if they’re injured or complain about hours missing from their paychecks.”

U.S. District Judge Christina Snyder, who is presiding over the lawsuit, has made several rulings favorable to the plaintiffs. In February, for example, Snyder blocked the termination of about 100 Premier workers, who were absorbed by Schneider.

The judge issued an order in December 2011 that effectively ended the piece-rate system and forced the two temp agencies to pay hourly wages, maintain accurate payroll records and disclose on each paystub how pay was calculated.

Neither of these rulings touched Walmart directly. But, lawyer Rubin asserts, the retailer “is responsible for the ultimate plight of the workers.”

Union demands protection for workers, after breast cancer linked to auto plastics industry

Ontario,Canada — 2012-11-20T14:20:36-05:00

WINDSOR, Ontario — When some women walk onto a factory floor, punch their time card at a food processing facility, or start their shift at the foundry, they are literally dying to go to work, union members and health care advocates say.

A study that showed women working in those industries have a higher risk for breast cancer raised calls for protection of those workers.

And after the study’s principal researchers presented the results of their work to about 40 people here Monday, the reaction was anger, rather than fear.

“We have to say enough is enough,” said Terry Weymouth, a skills co-ordinator with the Canadian Auto Workers. “We are not dying because we need jobs.

“It’s time we stand up and say this is not right,” she said. “We should be mad. One in nine women are diagnosed with breast cancer.”

The six-year study, published Monday in the journal Environmental Health, examined the occupational histories of 1,006 women in Essex and Kent counties who had breast cancer, and another 1,146 who did not.

The researchers, who came from Canada, the U.S., and the U.K., took into account factors like smoking, weight, alcohol use and other lifestyle and reproductive factors. The women in the study worked in auto parts plants, casinos, food canning factories, on farms, and in metalworking plants.

The researchers found that women who work in the automotive plastics industry were almost five times as likely to develop breast cancer, prior to menopause, as women in a control group.

Lead researcher James Brophy called the work “a local study that has far-reaching implications.”

Margaret Keith, another of the principal researchers, said the issue of women’s health in industry is “a no-go area,” and said that more work needs to be done to ensure parity with their male counterparts.

The story has prompted concern that the rights of women in some industries are taken less seriously than their male counterparts

Advocates for women working in auto parts plants say this study will have an impact far beyond the science it presents: it will break the silence on an issue that has long been the subject of uneasy whispers.

“There’s the fear of losing your job or the fear of retribution from your employer if issues are raised,” said Sari Sairanen, national health and safety director for the CAW, which represents about 4,000 workers in parts plants, some of which make plastics.

About 91,000 Canadians work in the plastics trade, according to Industry Canada and — with a 37 per cent female workforce — it has the highest proportion of women of any other manufacturing sector.

Sandra Palmaro, the CEO of the Ontario wing of the Ontario Breast Cancer Foundation — a funder of the study — was in Windsor for the presentation and said the next step is for the research community to accept, and endorse, the findings.

The Ontario Ministry of Labour has 430 inspectors who conduct health and safety inspection blitzes and provides an annual update of exposure limits that restrict the amount and duration of a worker’s exposure to approximately 725 chemical and biological agents.

A ministry spokesperson said companies are obliged to do their own monitoring of toxic chemical levels to ensure the levels fall within safety standards.

In some cases, the ministry conducts its own testing to ensure compliance.

But even minuscule amounts of endocrine-disrupting chemicals can be worrisome, said Andrew Watterson, director of the Centre for Public Health and Population Health Research at the University of Stirling in Scotland.

“This research is raising big questions both about what the [workplace] standards are and even about what happens if conditions are very good, with low-level exposures,” he said.

Bob DeMatteo, health and safety director at the Ontario Public Service Employees Union for 30 years, questions whether ministry oversight protects workers from toxic chemicals that can wreak havoc even at low levels in the body.

“You can’t control it with a threshold,” he said. “You have to regulate it like asbestos — either substitute it or completely control and contain it.”

There is also deep dissatisfaction with workplace regulation in the United States where regulation takes place at the federal level.

Adam Finkel, former director of health standards programs for the U.S. Occupational Safety and Health Administration, said the vast majority of exposure limits enforced by the agency in American workplaces are based on scientific data from the 1960s or earlier, even though an estimated 150 workers die each day of work-related diseases.

“It’s a terrible record, and I’m getting more pessimistic as the years go by,” said Finkel, who runs the Penn Program on Regulation, a research center at the University of Pennsylvania Law School.

Limits for chemicals used in plastics are typically designed to address cancer and acute symptoms, not the sort of hormonal damage that can occur when women of childbearing age receive low-level exposures.

In its statement, OSHA acknowledged, “Many of our current Permissible Exposure Limits are out of date and inadequately protective, and we do not have limits for many other chemicals. OSHA is currently examining ways to strengthen our efforts related to workplace chemical exposures, as well as ways to respond to the identification of new, emerging hazards.”

In both Ontario and the U.S., there are no occupational exposure limits for BPA — the controversial chemical banned by Health Canada for use in baby bottles in 2010. The chemical is seen to have a negligible risk for adults.

A Statistics Canada survey two years ago found that 91 per cent of Canadians had the substance in their bodies.

Study spotlights high breast cancer risk for plastics workers

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

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

The women fretted, usually in private, about what seemed to be an excess of cancer and other diseases in the factories across the river from Detroit. “People were getting sick, but you never really thought about the plastic itself,” said Gina DeSantis, who has worked at a plant near Windsor for 25 years.

Now, workers like DeSantis are the focal point of a new study that appears to strengthen the tie between breast cancer and toxic exposures.

The six-year study, conducted by a team of researchers from Canada, the United States and the United Kingdom, examined the occupational histories of 1,006 women from Ontario’s Essex and Kent counties who had the disease and 1,146 who didn’t. Adjustments were made for smoking, weight, alcohol use and other lifestyle and reproductive factors.

The results, published online today in the journal Environmental Health, are striking: Women employed in the automotive plastics industry were almost five times as likely to develop breast cancer, prior to menopause, as women in the control group.

These workers may handle an array of carcinogenic and endocrine-disrupting chemicals. They include the hardening agent bisphenol A (BPA) — whose presence in polycarbonate water bottles and other products has unnerved some consumers — plus solvents, heavy metals and flame retardants.

Sandy Knight, who worked at two Windsor plastics plants from 1978 to 1998, had a breast cancer scare in 2000, when she was 41. The cancer was at Stage III — “invasive and fast-growing,” said Knight, 53, who now works at a Ford parts distribution center near Toronto. She had a single mastectomy and, following 10 years of hormonal treatment, is in remission.

Asked if she believed her disease was work-related, Knight said, “I’m suspicious of it because of all the exposures we had.” She remembers the “nauseating kind of odor,” the burning eyes and headaches, all the women with cancer, sterility and miscarriages. She’s upset that little seems to have changed at some plants.

“Why am I speaking to people today, in 2012, who are doing the same processes I did in 1980?” Knight asked. “It just seems like we’re fighting the same battle. A lot of these chemicals should be removed from the workplace.”

The study population included women who had worked at more than 40 plastics factories in the Windsor area. But the implications are broader: Workers in similar plants around the world are exposed to many of the same chemicals. So are members of the public, who encounter the substances — albeit in lower doses — in the course of their daily lives.

“These workplace chemicals are now present in our air, water, food and consumer products,” said one of the two principal investigators, James Brophy, an adjunct faculty member at the University of Windsor and a former occupational health clinic director. “If we fail to take heed then we are doing so at our own peril.”

Jeanne Rizzo, president of the Breast Cancer Fund, a San Francisco-based group that has pressed for more research into environmental causes of a disease that claimed nearly 40,000 lives in the United States last year, called the Windsor study “a very powerful piece of work. The piece that’s really been missing for female breast cancer is occupation.”

In the United States, an estimated 150,000 female workers in the plastics and synthetic rubber industries are likely exposed to many of the same chemicals as the women in Windsor, including polyvinyl chloride, or PVC, plastic; acrylonitrile; formaldehyde and styrene.

“I think the findings, although they’re clearly based on Canadian groups, go well beyond Canada,” said another of the Windsor study’s co-authors, Andrew Watterson, director of the Centre for Public Health and Population Health Research at the University of Stirling in Scotland. “They’re going to be significant for plastics workers in Europe, India, China, Africa, the United States. The chemicals will have the same toxic effects. The same diseases will develop.”

Even minuscule amounts of endocrine-disrupting chemicals like BPA can be worrisome, Watterson said. “This research is raising big questions both about what the [workplace] standards are and even about what happens if conditions are very good, with low-level exposures,” he said.

In a written statement, a spokeswoman for the U.S. Occupational Safety and Health Administration, said, “We look forward to reading this paper … and plan to explore how we may use the findings in protecting workers from hazardous exposures.”

The American Chemistry Council, the main chemical industry trade association in the United States, questioned the study’s conclusions, saying it includes “no actual determination of [worker] exposures.” The study’s estimates of risk seem to be based on a small sample and are “statistically very uncertain,” the council said in its statement.

“The well-established risk factors for breast cancer are not chemical exposures, but rather a combination of lifestyle and genetic factors,” the council wrote.

Barry Eisenberg, a spokesman for another U.S. trade group, the Society of the Plastics Industry, declined to comment on the study, saying, “We don’t have the expertise.” Eisenberg declined to answer general questions about worker and consumer health, although his group has had an Occupational Health and Environmental Issues Committee since 1985.

The Canadian Plastics Industry Association did not respond to requests for comment. The president of the Canadian Automotive Parts Manufacturers’ Association declined to comment.

Life in the factories

Modern cars and trucks are loaded with plastics: bumpers, door panels, license-plate brackets. Dozens of factories in and around Windsor make these parts from plastic pellets melted and shaped in injection molding machines. The parts are then shipped to auto manufacturers.

The Big Three U.S. automakers expressed varying degrees of concern about conditions in the parts plants.

General Motors said its suppliers are “independent businesses which must meet the Health and Safety legislation in the jurisdictions in which they operate.” Ford said it “requires suppliers to ensure that our products — no matter where they are made — are manufactured under conditions that demonstrate respect for the people who make them.” And Chrysler said that while its suppliers are “responsible for their own legal compliance,” its policies “restrict us from using suppliers who we learn do not comply with our requirements or environmental and health and safety laws.”

Conditions in some of the Windsor plants have improved, workers say. In years past, for example, hot plastic would be removed from the molding machines and dumped on the floor, where it might lie for up to an hour. Some companies have altered this process, known as purging, requiring that the reeking muck be put into covered barrels.

Others have relocated grinding machines — bladed devices that chew up scrap plastic and spit out huge quantities of dust — to isolated areas to reduce worker exposures.

Workers say, however, that a lack of local ventilation — vacuums that can suck up fumes and dust straight from the molding and grinding machines and direct them outside — is still the norm at many facilities.

The machines disgorge “pretty toxic stuff – either carcinogenic or endocrine-disrupting chemicals,” said Robert DeMatteo, a retired health and safety director for the Ontario Public Service Employees Union and lead author of an article on the plastics industry scheduled for publication early next year in the journal New Solutions. “All you’re going to do with general ventilation is just dilute it.”

Carol Bristow got into the industry in 1989, having grown impatient with a dead-end cashier’s job at the A&P. “I never felt working in a factory would be my calling,” Bristow said. “The first six months I would come home in tears and in pain, almost praying to God that I wouldn’t get my seniority because it seemed like the wrong place to be. But the money kept coming in, and you just adjusted.”

In 1992, when she was 34, Bristow was diagnosed with cancer in her right breast, which was removed along with about 20 lymph nodes. She kept working and developed endometriosis, a painful condition in which cells from the lining of the uterus grow outside the uterine cavity. Some studies have linked endometriosis with exposure to chemicals such as dioxin, a byproduct of PVC incineration and chlorine production. Bristow underwent a hysterectomy in 2001.

As all of this was going on, Bristow was being tormented by bladder infections. Benign tumors were removed from her bladder in 2010 and again in August of this year. “I’ll have to be scoped every three months for the rest of my life,” she said, referring to a procedure called cystoscopy, in which a tube-like viewing device is inserted through the urethra into the bladder. One study found that women who had worked in the plastics industry had a more than threefold risk of developing bladder cancer.

Why does Bristow stay?

The pay, she explained, is a respectable $22 an hour, with benefits, in a tough economy. “Who’s going to hire me?” she asked.

The owner of Bristow’s factory, which bought the facility in 2001, says it is unaware of any worker health concerns and has a “consistently strong track record – recognized by workers and regulators – of protecting its employees’ health and safety.”

‘Horrifying’ symptoms

James Brophy and his partner, Margaret Keith, both PhDs with backgrounds in occupational health, began studying Ontario plastics workers in the late 1970s.

“It wasn’t something we chose to be interested in,” Keith said. “We had people come to us” — notably, a union official from a Windsor plant concerned about what seemed to be an abundance of disease among female workers.

Keith, Brophy and a physician put together a health questionnaire, which was circulated at five plants. Reports of nosebleeds, headaches and nausea came back. Some operators said the fumes had made them pass out at their machines. “The level of symptoms was pretty horrifying,” Brophy said.

In 1981, the CBC broadcast a documentary, “Dying for Work,” which highlighted conditions in the Windsor plants. “We thought that would really start the ball rolling” toward better ventilation and other improvements, Keith said. “Absolutely nothing happened.”

Keith and Brophy lost contact with the plastics workers for more than a decade, until several turned up at their occupational health clinic in 1993 to report that they had had miscarriages or difficulty conceiving. Keith, Brophy and clinic staff developed a second questionnaire for circulation in the plants. “We found a lot of acute symptoms as well as reproductive problems and some cancers,” Keith said.

Around the same time, Keith and Brophy convinced officials at the Windsor Regional Cancer Center to begin collecting work histories of cancer patients. This led to an initial study, completed in 1999, which found an increased risk of breast cancer among women who farmed. A subsequent study, finished in 2002, looked at the work histories of 564 women with breast cancer and 599 who didn’t have the disease. Again, a strong association between farming and breast cancer was noted; an even stronger link was found among women who’d farmed and then gone to work in the auto industry.

The new study, funded by groups including the Canadian Breast Cancer Foundation-Ontario Region, examined a population twice as large and featured a more detailed questionnaire. Workers in the plastics industry, it found, are exposed to a brew of carcinogenic and estrogenic chemicals, also known as endocrine disruptors, which interfere with the hormone system and can cause tumors, birth defects and developmental disorders. This complex mixture, Brophy said, may be more dangerous than any one compound.

The study found that, in addition to the plastic workers, women who worked in food canning and agriculture and at bars, casinos and racetracks had elevated breast cancer risks. The highest risk for pre-menopausal women — nearly six times that of the controls — was found in canning, an industry in which workers may be exposed to BPA in epoxy can linings and pesticides released from food during cooking.

The primary risk factor associated with agriculture is pesticide exposure, the study found. Women who work at bars, casinos and racetracks are exposed to tobacco smoke, it noted, and also subjected to “disruption of circadian rhythms and decreased melatonin production resulting from night work,” which other research has shown to be associated with breast cancer.

In general, breast cancer is an older woman’s disease; a 60-year-old has a greater chance of developing the disease than does a 30-year-old. Many of the victims in the Windsor plastics factories are in their 30s, 40s and 50s, say six current and former workers, from multiple plants, interviewed by the Center for Public Integrity.

“We’re sitting here after three decades, and you see the weight of the evidence that these substances pose serious health problems, yet there’s nary a mention of the risk that blue-collar workers bear, particularly women,” Brophy said. “They’re just not on the radar. Had we paid more attention to them, the harm these substances cause would have been seen much sooner and we might have prevented them from becoming so ubiquitous in the environment.”

The President’s Cancer Panel, an advisory committee in the United States attached to the National Cancer Institute, reported in 2010 that “the true burden of environmentally induced cancer has been grossly underestimated.” The panel singled out BPA as one of the chemicals that may be causing “grievous harm.”

The research in Windsor buttresses other recent work on breast cancer and chemicals. A French study in 2011, for example, found elevated risks among women who worked in plastics, rubber and textile manufacturing. A study from Mexico in 2010 found that the presence of metabolites of phthalates — softening agents for plastics that have endocrine-disrupting properties — in urine was “positively associated” with the disease. A 2007 paper from U.S. researchers identified 216 chemicals that had been associated with mammary gland tumors in animals.

The lone American co-author of the Windsor study, Robert Park of the National Institute for Occupational Safety and Health, said he was “surprised by how strong the findings were. There was a lot of confirmation of prior concerns, which is always the goal but not always achieved by these kinds of studies.”

‘Race to the bottom’

The Canadian plastics workers say they have little faith in their country’s system of workplace regulation. Factory inspections are haphazard, they say, and chemical standards in many cases are weak, meaning few overexposures — by the legal definition, anyway — are cited. Conditions improve incrementally, if at all.

“It’s a race to the bottom,” said Sari Sairanen, national health and safety director for the Canadian Auto Workers union, which represents about 4,000 workers in parts plants, some of which make plastics. “For the worker, there’s the fear of losing your job or the fear of retribution from your employer if issues are raised.”

Bristow, a union member, said that many workers seem unwilling to confront their bosses with health questions. Too often, she said, a woman disappears from the factory floor and her co-workers don’t learn until much later that another case of breast cancer has been diagnosed.

The Ontario Ministry of Labor is committed to the prevention of work-related diseases, a spokesman said in a statement. The ministry uses a multifaceted approach that includes health and safety inspection “blitzes” and the updating of exposure limits, the spokesman wrote. “We make decisions on the latest science and we welcome any report that will bring a better understanding of occupational exposures to ensure that workers are protected from unsafe exposure levels.”

There is also deep dissatisfaction with workplace regulation in the United States. Adam Finkel, former director of health standards programs for OSHA, said the vast majority of exposure limits enforced by the agency in American workplaces are based on scientific data from the 1960s or earlier, even though an estimated 150 workers die each day of work-related diseases.

Limits for only 16 substances have been updated, a consequence of industry challenges and hesitancy on OSHA’s part. There are no limits for BPA. The limits that do exist for chemicals used in plastics — say, vinyl chloride, an ingredient in PVC — were designed to address cancer and acute symptoms, not the sort of hormonal damage that can occur when women of childbearing age receive low-level exposures. Only 18 percent of OSHA inspections last year focused on potential health, as opposed to safety, hazards.

The U.S. Environmental Protection Agency’s record on chemicals — like OSHA’s — is thin.

Chemicals found in the workplace — among them BPA and phthalates — also may pose health risks to the general public. Of the more than 80,000 chemicals registered for use today, however, the EPA has required only about 2 percent to undergo even basic testing. At the root of the problem is the Toxic Substances Control Act of 1976, which puts the onus on the EPA to prove that a chemical is harmful before it can be banned or its use restricted. This burden is almost insurmountably high; the EPA has banned narrow uses of only five chemicals since the law was passed.

The Obama EPA has begun to disallow claims of “confidential business information” that for decades enabled companies to conceal the identities of chemicals when they submitted health and safety data, even if significant risks had been flagged.

Industry, however, is fighting an attempt by the EPA to extend its anti-secrecy policy to new chemicals; a proposed rule has been under review by the White House Office of Management and Budget for nearly a year.

A proposal to add BPA, phthalates and a certain class of flame retardants to an EPA “chemicals of concern” list has been at the OMB for more than 900 days. The EPA says that these chemicals “may present an unreasonable risk to human health and/or the environment” and wants to use its authority under the law to list them, a step that would, among other things, require producers to notify the EPA when they exported the chemicals, and the EPA to notify the recipient governments.

Industry groups such as the U.S. Chamber of Commerce oppose the action, saying it amounts to an unwarranted blacklisting.

An EPA spokesman did not respond to requests for comment. An OMB spokesman declined to comment.

The U.S. Food and Drug Administration no longer allows the use of BPA in baby bottles or infant-training cups. The FDA acted, however, only after receiving a petition from the American Chemistry Council, which said that manufacturers of these products had already abandoned the chemical to meet consumer preference. “The agency continues to support the safety of BPA for use in products that hold food,” an FDA spokeswoman said in a written statement.

The Canadian government didn’t wait for an industry petition. It banned BPA in baby bottles two years ago, based on concerns about the chemical’s toxicity.

Brophy, one of the researchers in Windsor, approves of the ban. But he worries about the women in the plastics plants, who soak up BPA and other chemicals on the job.

“There seems to be widespread concern about consumer exposures but almost no concern for the most highly exposed population — the blue-collar workers,” he said. “These women remain invisible and their cancer risk largely ignored.”

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.”

Texas pollution victims seek millions from Citgo

CITGO Petroleum Corporation — 2012-10-04T17:51:17-04:00

Fifteen residents of Corpus Christi, Texas — so sickened by pollution they have been deemed crime victims — are asking a federal judge to force Citgo Petroleum Corp. to set up multimillion-dollar trust funds to cover medical and relocation costs, in a case with national ramifications.

A jury in 2007 convicted Citgo of criminal violations of the Clean Air Act, concluding that the company’s Corpus Christi refinery allowed toxic chemicals to drift from two large, uncovered storage tanks into a nearby neighborhood for a decade.

The company was to have been sentenced last month; the Department of Justice has proposed a fine of slightly more than $2 million. Lawyers for the 15 residents, however, asked U.S. District Judge John D. Rainey to grant the residents crime-victim status so they could testify at the sentencing hearing and, perhaps, win compensation from Citgo. Rainey granted that status on Sept. 14 and postponed the hearing.

In a court filing Wednesday, lawyers for the 15 residents are seeking $80,000 from Citgo for medical screening.

They also want Citgo to establish an $11 million trust fund for treatment of cancer or other illnesses suffered by the more than 300 people who have submitted victim impact statements to the court. A court-appointed special master would decide whose expenses should be covered.

And the lawyers are asking that Citgo set aside $15 million to relocate those who want to leave the area known as Refinery Row. “[B]ecause of Citgo’s crimes, many of the community victims no longer live in a thriving neighborhood, they live in fear that they will be exposed to more chemicals released into the air they breathe, and they understandably wish to move,” the court document says.

The Justice Department says the refinery made more than $1 billion in profits during the 10 years it was in violation of the Clean Air Act. Residents complained of vomiting, dizziness and shortness of breath while chemicals – including benzene, a known carcinogen – were wafting from the tanks.

In a written statement Thursday, Citgo said it “takes this matter very seriously. We proactively addressed these issues seven years ago, prior to the 2007 trial. Our highest priority is always the safety of our employees and members of the local community and that is reflected in everything we and our employees do.”

Paul Cassell, a University of Utah law professor representing the 15 residents pro bono, said the legal arguments being made on their behalf apply to “many other similarly situated persons.”

Rainey’s ruling last month was “very significant,” Cassell said in a telephone interview Thursday. “I think this is the first detailed opinion analyzing what kinds of health effects are sufficient to trigger crime-victim status,” he said.

Rainey declined to grant such status last year, saying the residents hadn’t proved that emissions from Citgo were the “specific cause” of their ailments. Last month, the U.S. Court of Appeals for the Fifth Circuit granted a petition — filed by Cassell and another lawyer — stating that the residents were, in fact, crime victims. The appellate court told Rainey to consider new arguments raised by the petition.

In a news release Thursday, the Justice Department said that “any member of the community at large who believes they may be a crime victim” should submit a victim impact statement to the court by Nov. 4. “In this instance,” the department said, “community members may be considered crime victims based on the immediate negative health effects they suffered from breathing noxious fumes from Tanks 116 and 117 during the 1994-2003 time frame.”

As Clean Air Act sentencing nears, Justice cites violations at Texas Citgo refinery

Corpus Christi,Texas,United States — 2012-09-07T15:20:56-04:00

Days before Citgo Petroleum Corp. faces its long-awaited sentencing for criminal Clean Air Act violations at its refinery in Corpus Christi, Texas, a Justice Department court filing alleges that a “wide range” of environmental and worker safety violations continue to plague the plant.

Citgo was convicted in June 2007 of two criminal counts stemming from 10 years of toxic emissions from two massive, uncovered storage tanks. Such convictions are rare: The Center for Public Integrity reported last year that Clean Air Act cases have been prosecuted at a far lower rate than Clean Water Act or solid waste cases.

In its filing this week, the Justice Department asks a federal judge to fine Citgo $2,090,000, the maximum allowed under the statute, and put the company on five years’ probation — also the maximum — for illegal emissions of benzene and other hazardous chemicals from the tanks between 1994 and 2004.

The department says the refinery made almost $1.16 billion in profits during that period.

Citgo’s sentencing hearing is scheduled to begin Monday in U.S. District Court in Corpus Christi and could last several days. In an e-mailed statement Friday morning, the company said it “embraces a culture of safety that is reflected in everything we and our employees do. We are proud of our record and of the important role our refineries play in providing good jobs and much needed tax revenue for the communities they serve, including Corpus Christi.”

The Justice Department document alleges that Citgo “has violated a wide range of environmental and worker safety regulations” — as recently as this year in some cases.

An inspector with the U.S. Environmental Protection Agency, for example, found that the refinery had five releases of hydrofluoric acid (HF), a potentially lethal gas, between Feb. 11 and March 20, 2012. As reported last year by the Center and ABC News, the refinery had a major HF release in July 2009 that severely injured a worker and put the nearby Hillcrest neighborhood at risk.

Citgo told state regulators that only 30 pounds of the acid escaped plant boundaries. The U.S. Chemical Safety Board later estimated, however, that at least 4,000 pounds left the refinery and concluded that failures in a Citgo water system meant to contain HF had nearly led to a bigger release.

The 2012 HF releases occurred “because equipment deficiencies are not repaired in a safe and timely manner” and are evidence of “systemic failure,” the Justice Department document says. The document also cites incidents such as the “preventable” release of more than 142,000 pounds of pollutants into the atmosphere on Dec. 25 and 30, 2009.

On Thursday, the U.S. Occupational Safety and Health Administration proposed fines totaling $66,500 against Citgo for five alleged violations related to an HF leak. “The employer did not have proper safeguards in place to protect employees from the release of toxic chemicals,” Michael Rivera, OSHA’s area director in Corpus Christi, said in a written statement.

Suzie Canales, executive director of Citizens for Environmental Justice in Corpus Christi, said she is disappointed that Citgo faces, at most, a fine of slightly more than $2 million for the 2007 Clean Air Act conviction. “It’s pocket change to them,” she said.

She also doesn’t understand why it’s taken more than five years for the company to be sentenced. “When you go that long, it sends a message to Citgo and others that it doesn’t matter if you violated the Clean Air Act — you’re going to get away with it,” Canales said.

In a related development Thursday, the U.S. Court of Appeals for the Fifth Circuit in New Orleans granted a petition seeking crime-victim status for 14 people who live near the refinery. The trial judge in the Citgo case, John D. Rainey, ruled last year that the residents didn’t qualify as victims under the Crime Victim’s Rights Act and therefore couldn’t testify at the company’s sentencing hearing because they hadn’t proven that emissions from the Citgo tanks were the “specific cause” of their alleged health problems, including shortness of breath, vomiting and dizziness.

The Fifth Circuit instructed Rainey to consider new arguments raised by the petition. “The judge needs to hear from these people to determine an appropriate sentence in the case,” said law professor Paul Cassell, who is representing the residents pro bono through the Appellate Clinic at the University of Utah’s S.J. Quinney College of Law.

It's not yet clear, however, whether the residents will speak at next week's hearing.

Kentucky death case: Another black eye for state workplace safety enforcement

Kentucky,United States — 2012-08-17T15:02:47-04:00

Around midnight on June 1, 2007, Tina Hall was finishing her shift in a place she loathed: the mixing room at the Toyo Automotive Parts factory in Franklin, Ky., where flammable chemicals were kept in open containers.

A spark ignited vapors given off by toluene, a solvent Hall was transferring from a 55-gallon drum to a hard plastic bin. A flash fire engulfed the 39-year-old team leader, causing third-degree burns over 90 percent of her body. She died 11 days later.

After investigating the accident, the Kentucky Labor Cabinet’s Department of Workplace Standards cited Toyo for 16 “serious” violations and proposed a $105,500 fine in November 2007.

“You’re disappointed because you think, that’s all they got fined?” Hall’s sister, Amy Harville, of Moulton, Ala., said in a telephone interview. “But then I thought, at least they got 16 violations. I was thinking they’d stick, as severely as she was burned.”

The violations didn’t stick. Every one of them went away in 2008, as did the fine, after Toyo’s lawyer vowed to contest the enforcement action in court. Last month, in a move believed to be unprecedented in Kentucky, the Department of Workplace Standards reinstated all the violations because, it said, the company hadn’t made promised safety improvements.

The case was another black eye for state-run workplace health and safety programs nationwide. In all, 26 states administer their own programs under federal supervision. Several have been criticized in recent years for capitulating to lawyered-up employers, performing subpar inspections and shutting out accident victims’ families.

Officials in Kentucky didn’t tell Harville and Hall’s husband that the Toyo violations had been dismissed. They found out in 2010 only because Ron Hayes, a fellow Alabamian who runs a nonprofit advocacy group for families of fallen workers, had taken an interest in the case and checked in regularly with the Department of Workplace Standards.

Hayes — whose son, Pat, died in a Florida grain elevator accident in 1993 — lodged a formal complaint against Kentucky with the U.S. Department of Labor’s Occupational Safety and Health Administration, which concluded in June 2011 that the state had erred.

“Deleting citations in their entirety sends a signal to employers that they need only contest to alleviate the burden of history,” OSHA’s regional administrator in Atlanta, Cindy Coe, wrote to Hayes.

In a written statement, Kentucky’s Department of Workplace Standards said it dismissed the violations after determining that “the case would not have withstood legal challenge.” Instead, the department and Toyo entered into a settlement agreement, which provided for follow-up inspections. Toyo’s alleged failure to meet the terms of that agreement led to the reinstatement of the violations last month.

The reinstatement showed that the violations never should have been dropped in the first place, Hayes said. “It’s vindication, because we said all along this was wrong,” he said.

The president of Toyo Automotive Parts did not return calls seeking comment. In a 2008 legal filing, Toyo denied responsibility for Tina Hall’s death, calling the accident “the result of unforeseeable, isolated acts undertaken by an individual employee.”

Problems in the states

Under the Occupational Safety and Health Act of 1970, states that choose to regulate workplace health and safety must ensure that their programs are “at least as effective” as the federal one. OSHA pays up to half the cost of such programs and is supposed to keep tabs on them.

By some accounts, it hasn’t done a particularly good job. After press reports about a rash of construction worker deaths in Las Vegas, OSHA reviewed the Nevada program in 2009 and found a long list of flaws. Among them: State inspectors weren’t sufficiently trained to identify construction hazards and were discouraged by managers from issuing “willful” violations — which suggest an employer showed “plain indifference to the law” and can lead to stiff penalties — to avoid protracted court battles.

OSHA looked at the programs in the 25 other states that administer their own, finding deficiencies such as uncollected penalties in North Carolina and misclassified violations in South Carolina. Kentucky, OSHA found, was taking too long to issue citations and wasn’t making complainants aware of “specific official findings.”

In 2011, the Labor Department’s inspector general reported that OSHA hadn’t found a suitable way to measure the effectiveness of state programs. In his response to the IG, OSHA chief David Michaels wrote that the agency was developing a new monitoring system that would involve, among other things, reviews of state enforcement case files.

Still, Hayes believes that “systemic problems” persist. “Oversight from federal OSHA has been lacking for the past 42 years,” he said. “There are so many different problems from state to state.”

Indeed, Hawaii’s program — described as “poor” in a 2010 OSHA report — has been severely hampered by budget and staffing cuts for the past three years. Things got so bad that state officials recently asked the federal government for help.

‘The Five Commitments’

In its 2007 annual report, Toyo Tire & Rubber Co., a Japanese conglomerate that makes tires, auto parts and chemicals in plants around the world, lists what it calls “The Five Commitments.”

“We make safety our highest priority in the provision of products and services,” reads Commitment No. 2.

Tina Hall thought otherwise, according to her husband. At the time of the accident in June 2007, she was trying to transfer out of the Franklin plant’s adhesive department because the job required her to spend time in the mixing room, where toxic and flammable chemicals were stored.

“She talked about how bad the fumes were in that room,” said L.V. Hall, who lives in Bremen, Ala. “She said something about the disposal of chemicals — they weren’t doing it right. I’d been wanting her to get out of that mess.”

Tina Hall and other team leaders would go into the mixing room to fill plastic bins, known as totes, with solvents such as toluene. They’d clean gummed-up machine fixtures in the totes. Team leaders also would fill five-gallon buckets with solvents and carry them to adhesive machines on the factory floor. The solvents were used to take residue off the machines.

Kentucky’s Department of Workplace Standards would later cite Toyo for obstructing exit routes in the mixing room, not keeping flammable liquids in covered containers when they weren’t being used, failing to control vapors and having inadequate fire-protection equipment.

On the night of the accident, Tina Hall was cleaning fixtures by herself when a spark, likely caused by static electricity, ignited toluene vapors and set off an explosion in a 55-gallon drum of methyl isobutyl ketone, another solvent.

Then a General Motors assembly line worker, L.V. Hall was awakened at home in Auburn, Ky., by a call from a Toyo team leader around midnight. His wife, on fire, had managed to get outside and roll on the ground. “How she got outside I don’t know,” Hall said. “It was like an obstacle course to find the exit door.”

Tina Hall was taken to a local hospital, then to Vanderbilt University Medical Center in Nashville, about 45 minutes away. L.V. had a brief talk with her before the doctors put her into a coma to shield her from the pain. “She said, ‘I did everything the way I was supposed to do it,’” Hall said. His wife drifted off and never regained consciousness. She died on June 12, 2007.

'Travesty of justice'

Not long afterward Tina Hall’s younger sister, Amy Harville, was directed to Ron Hayes by an acquaintance. Burly, white-bearded and tenacious, Hayes lives in Fairhope, Ala., and runs the FIGHT Project, which helps families navigate the bureaucracy of workplace fatality investigations. Hayes counseled Harville and L.V. Hall as the state’s inquiry into the Toyo accident progressed.

When the Department of Workplace Standards issued 16 serious violations against the company in November 2007, “I was OK with it,” L.V. Hall said. “I didn’t realize that once that’s done, these attorneys can get in there and just do away with it.”

Documents obtained by the Center for Public Integrity under the Freedom of Information Act show how Toyo’s lawyer, Mark Dreux of Arent Fox in Washington, D.C., fought the state of Kentucky from the beginning. Dreux declined to comment on the case.

In March 2008, the state offered to reduce the penalty from $105,500 to $74,000. Dreux refused. In June 2008, the state proposed a further reduction, to $15,000, for three violations. Dreux said no. In November 2008, Dreux got what he wanted: No violations and no fine.

It was Hayes who first learned, in July 2010, that all the violations had been deleted. He alerted Harville.

“I was devastated,” she said. “It takes you back all over again, like Tina was killed for the second time.”

She called L.V. Hall, who reacted similarly. “I was just shaking I was so upset,” he said. He called the Department of Workplace Standards and finally reached “the lady attorney who was over the case. I basically told her, ‘I cannot believe y’all dropped every one of those citations.’ She said, ‘Well, Mr. Hall, I am an attorney and there was not enough evidence.’”

Hayes knew what to do. He filed a CASPA — Complaint About State Program Administration — with OSHA’s Atlanta regional office, calling Kentucky’s dismissal of the citations a “travesty of justice.”

After an investigation, Regional Administrator Cindy Coe, in essence, agreed, writing in June of last year that “the violations were well documented and legally sufficient and there was no definitive evidence in the file that indicated that they could not be supported.” Deleting all the citations, Coe wrote, erases an employer’s safety history and deprives regulators of critical information should subsequent enforcement actions commence.

“It also signals to compliance staff that their efforts are for no good end, if the point is to drop everything at the threat of going to court,” the administrator wrote. “It further signals to employees in the workplace that there is no entity on their side.”

In his response to Coe, the commissioner of the Kentucky Labor Cabinet, Michael Dixon, wrote that the state “does not retreat from litigation” but didn’t believe it could defend the case before the Kentucky Occupational Safety and Health Review Commission, an appeal body.

In May, a state inspector returned to the Toyo plant in Franklin to see if the company had done all the things it said it would do after Tina Hall’s death — making sure supervisors were trained in the correct way to clean fixtures, for example. It hadn’t.

In a July 5 letter, Susan Draper, then director of the Kentucky Labor Cabinet’s Division of Occupational Safety and Health Compliance, notified Ronald Wyans, president of Toyo Automotive Parts (USA), that the 16 original citations had been reinstated, as had the proposed $105,500 penalty. The Tina Hall case had come full circle.

Sometime in the next few weeks, Amy Harville, L.V. Hall and Hall’s lawyers expect to meet with Dixon and Toyo counsel. They expect to learn whether Toyo intends to accept its punishment or continue fighting.

“When somebody gets killed in one of these workplaces, it shouldn’t be this way,” L.V. Hall said. “I had Ron Hayes on my side and he knew what to do. Most people don’t have Ron. These citations never would have been brought back without him.”

Landmark worker death case continues against UCLA chemistry professor

2012-07-28T13:41:45-04:00

LOS ANGELES — Sheri Sangji is on fire.

The 23-year-old research associate, a Pomona College graduate raised in Pakistan, has accidentally pulled the plunger out of a syringe while conducting an experiment in the Molecular Sciences Building at UCLA. The syringe contains a solution that combusts upon contact with air.

The solution spills onto Sangji’s hands and torso, and she is instantly aflame. She isn’t wearing a lab coat; no one told her she has to. Her synthetic rubber gloves provide no protection as the fire burns through her hands to the tendons. She inhales toxic, superheated gases given off by her burning polyester sweater, a process that accelerates as she runs and screams.

It’s December 29, 2008, mid-afternoon. The UCLA campus is mostly quiet for the holidays, but chemistry professor Patrick Harran’s team is working. Harran is in his office, one floor up from Room 4221, where at his direction Sheharbano “Sheri” Sangji has been trying to produce a chemical that holds promise as an appetite suppressant. She is unsupervised.

Two postdoctoral fellows from China are nearby when Sangji catches fire. One runs upstairs to summon Harran, the other tries to smother the fire with his lab coat. He doesn’t think to put Sangji under an emergency shower a few feet away. By now, deep burns cover almost half her body.

Harran finds Sangji “sitting on the floor,” her clothes “either caked to her or burned off,” he later tells an investigator.

After 18 days, on January 16, 2009, Sangji succumbs to her wounds at the Grossman Burn Center in Sherman Oaks, Calif.

Harran and the University of California’s Board of Regents will be prosecuted for the fire in Room 4221. Harran will be the first American university professor to be accused of a felony in connection with the death of a worker. Poor lab safety practices at UCLA will be brought to light, and researchers around the world will take notice.

“Sheri was a young girl who was working in a laboratory in one of the largest and most prestigious universities in the world,” says Sangji’s older sister, Naveen, a surgical resident in Boston. “There should be no safer place for someone to go to work. Instead, she never got to come back home.”

***

Sangji’s death and the prosecution of Harran and the UC regents have had far-reaching effects. Faculty members, department heads and deans at research institutions have followed the developments with consternation: Might they, too, be criminally liable if something happened in one of their labs? A federal investigation revealed that there had been at least 120 lab accidents at universities between 2001 and 2011.

On Friday, the criminal case against the regents was dropped after they agreed to adopt a lengthy list of safety measures and establish a $500,000 scholarship in Sangji's name. The case against Harran, who faces up to 4 1/2 years in jail, continues. His arraignment was postponed until September 5.

Naveen Sangji wants to see Harran behind bars. “If this were a regular person out on the street who got drunk and killed someone,” she says, “he would be going to jail.”

At the time of Sheri Sangji’s death, California’s Division of Occupational Safety and Health, Cal/OSHA, already had begun an inquiry into the accident at UCLA. That May the university was cited for four violations; it paid a $31,875 fine.

In December 2009, Cal/OSHA’s Bureau of Investigations, which looks into all worker fatalities in the state, recommended that Patrick Harran and UCLA be charged with involuntary manslaughter and felony labor code violations. “Dr. Harran,” investigator Brian Baudendistel concluded in a 95-page report, “permitted Victim Sangji to work in a manner that knowingly caused her to be exposed to a serious and foreseeable risk of serious injury or death.”

Harran, 42, did not respond to interview requests from the Center for Public Integrity and the Center for Investigative Reporting. In a 2009 statement to the Los Angeles Times, he called Sangji’s death a “tragic accident” and explained, “Sheri was an experienced chemist and published researcher who exuded confidence and had performed this experiment before in my lab. Sheri had previous experience handling pyrophorics, chemicals that burn upon exposure to air, even before she arrived at UCLA. … However, it seems evident, based on mistakes investigators tell us were made that day, I underestimated her understanding of the care necessary when working with such materials.”

UCLA officials declined interview requests, pointing to a written statement issued by university Chancellor Gene Block in January. “Sheri Sangji’s death was strongly felt by everyone at UCLA, and we were deeply saddened by the loss of a member of our community,” Block wrote. “I made a pledge then that we would go above and beyond existing policies and regulations to become a model of campus safety. And we have.”

Baudendistel referred the Harran case to the Los Angeles County district attorney’s office for prosecution, as is Cal/OSHA’s practice when it believes it has evidence of gross employer misconduct. The DA filed a felony complaint in December 2011, focusing on the labor code violations. Chemists and safety consultants were stunned.

“The district attorney got the attention of every research institution in the United States,” says Harry Elston, editor of the Journal of Chemical Health and Safety.

‘A scientist’s scientist’

Sheri Sangji was raised in Karachi, Pakistan, and graduated from Pomona College in California in May 2008. A superior student and athlete, she earned a degree in chemistry but had no plans to enter the field. “She was a very dynamic person with lots of interests, a lot of spark,” says her sister Naveen, 29, also a Pomona graduate. “She was interested in the environment, women’s rights, minorities’ rights.”

Sheri took a job with a pharmaceutical company in Pasadena, hoping to save money for law school. She was intrigued by an ad Harran placed for a research associate at UCLA. The idea of moving to Los Angeles and working for a “rising star” in organic chemistry appealed to her, Naveen says.

The job interview took place in September 2008. Harran was impressed. Sangji “was very familiar with analytical instrumentation of the type that I really wanted her to focus on, which was great,” he told investigator Baudendistel. “I asked her if she was comfortable with general techniques and properties of organic chemistry. And I asked her if she worked with air-sensitive materials …. Just how generally comfortable she was in the laboratory. That’s what we spent most of our time on, and she left. And, you know, I loved her. I thought she was fabulous.”

Sangji began work in the UCLA Molecular Sciences Building on October 13. Four days later, Harran watched her perform a small-scale experiment using tert-Butyllithium solution, a chemical its manufacturer, Sigma-Aldrich, describes as follows: “Reacts violently with water. Contact with water liberates extremely flammable gases. Spontaneously flammable in air. Causes burns.”

Sangji did a “great job” on the experiment, Harran told Baudendistel, and had knowledge of chemistry beyond her years. “She had published in top peer-reviewed journals with very well-known researchers. … She stood out.” Harran acknowledged, however, that Sangji did not receive “generalized safety training. I believe my assistant told me that it was not offered for her category per se, although we were going to follow up on that.” He also said that no fire-resistant clothing was available to lab employees at the time of the accident.

Harran had come to UCLA as a tenured professor the previous July, having been recruited from the University of Texas Southwestern Medical Center in Dallas, where he’d spent nearly 11 years and won a number of honors, including the AstraZeneca Excellence in Chemistry Award and the Pfizer Award for Creativity in Organic Synthesis.

“He was literally the first chemist we succeeded in hiring,” says Steven McKnight, chairman of the biochemistry department at UT Southwestern. “He was articulate and personable and easy to communicate with, unlike many of the candidates. Most of the equivalent scientists didn’t have the fearlessness or fortitude to go to a department that had no history in chemistry.”

Harran “built a very strong laboratory and proceeded to make a number of really nice discoveries in the field of synthetic chemistry,” McKnight says. Harran and a colleague, Xiaodong Wang, developed a chemical that causes cancer cells to kill themselves. They published a paper on the breakthrough in Science magazine.

A graduate of Skidmore College and Yale, Harran was “a scientist’s scientist,” McKnight says. “He really wanted to dig in and make discoveries of consequence. When he went to UCLA it was a heartbreaker.”

In a 2006 interview with the Proceedings of the National Academy of Sciences, Wang, who has since returned to his native China, offered a glimpse of life at UT Southwestern. “Nothing is ever good enough, and you’re only as good as your last paper, which I think is great,” Wang was quoted as saying.

A violent reaction

UCLA pursued Harran aggressively, offering him a budget of $3.2 million to set up a state-of-the-art organic chemistry lab on the fifth floor of the Molecular Sciences Building. He and his team were given temporary space on the fourth floor while renovations were made upstairs.

On October 30, 2008, UCLA chemical safety officer Michael Wheatley conducted an annual inspection of the fourth-floor labs. Wheatley found a number of deficiencies, one particularly relevant to events that would soon unfold: “Eye protection, nitrile [synthetic rubber] gloves and lab coats were not worn by laboratory personnel.”

In an email on November 5, Wheatley asked Harran when they could meet to discuss the findings. “Is it possible to wait until we get settled on the 5th floor?” Harran replied a week later. “That would make for a better meeting — our labs on 4 are overcrowded and disorganized. I wasn’t planning to be in temporary space for this long.” Wheatley agreed to the postponement.

On December 29, a Monday, Sheri Sangji reported for work in Room 4221. Harran wanted her to replicate the chemical reaction she’d performed on October 17, but on a scale three times larger. Around 3 p.m., Sangji was using a 60-millileter plastic syringe with a 2-inch needle to transfer tert-Butyllithium from a 100-ml bottle to a glass flask.

The needle was too short; Sigma-Aldrich recommends using one at least a foot long. This, investigator Baudendistel theorized, forced Sangji to tilt the bottle of tert-Butyllithium or lay it on its side, awkwardly withdrawing the liquid with one hand while holding the bottle with the other. Had the needle been long enough, she could have clamped the bottle, upright, to the workbench, a less risky procedure. Safer still would have been the “cannula transfer” method, in which a liquid is pushed by an inert gas like nitrogen from one container to another through a tube.

Sangji inadvertently pulled out the plunger of the syringe, spilling the solution and triggering a flash fire. Had she been wearing a fire-resistant lab coat, her burns might have been less severe. In fact, she was wearing no lab coat, not even a cotton one.

At the time there was no university policy requiring such protection. “That policy has been put in place since the accident,” Harran told Baudendistel. Requisition forms from the UCLA Department of Chemistry and Biochemistry show that fire-resistant lab coats were, in fact, ordered, at a cost of $45.05 each.

In an interview with a deputy UCLA fire marshal, Harran described what he saw in Room 4221 before the paramedics arrived.

“Sheri was, you know, she was in shock … she was shaking. I asked her what happened. She didn’t tell me much. She just said there was a fire, and she just kept asking, ‘Where are they, where are they, where are they?’ … She wanted water on her arms, and she was holding her hands out like this, and the skin was separating. It was awful.”

Sangji was taken to Ronald Reagan UCLA Medical Center. Harran finished the experiment she had started — at the request of the Los Angeles and UCLA fire departments, which feared another conflagration, he said. Shortly after 4 p.m. Pacific time, Naveen Sangji’s cellphone rang in Boston. Then a medical student at Harvard, she recognized Sheri’s number and assumed her sister was calling to tell her about another law school acceptance letter. They had been coming regularly.

It was a hospital social worker, using Sheri’s phone. “She told me Sheri had been in an accident and described what happened,” Naveen says. “As a medical student I could understand the gravity of what she was saying.” She caught a flight to Los Angeles early the next morning.

Naveen went straight from the airport to the Grossman Burn Center, to which Sheri had been transferred. “Her arms were suspended from the ceiling to keep them in a certain position, all wrapped with bandages,” Naveen says. “The only part of her that I could see was her face, which was unwrapped.”

Naveen encountered Harran at the burn center on New Year’s Eve. “He came to the hospital and spoke with me and my uncle, who is a structural engineer,” Naveen says. “[Harran] explained some of the details of the experiment Sheri was doing that day. We obviously asked him questions about why she was doing this experiment, this dangerous experiment, without supervision. My uncle, because of his engineering background, asked specifically about training and about why she wasn’t given fire-resistant protective equipment before doing this experiment. Harran refused to answer.”

Sheri’s friends began a vigil. “I had thought she would survive,” says Aakash Kishore, a lab assistant in the UCLA psychology department at the time and now a graduate student. “I remember reassuring Naveen.” Kishore and others showed up at the burn center almost every day during the 18 days Sheri was there. About two dozen of her friends and relatives were waiting in the parking lot the day she died. “Her dad came outside and let us know that she was gone,” Kishore says. “He looked very weak.”

Willful violations

In the months to follow, Naveen pressed UCLA officials for details on the accident. She found the responses wanting. The university, she felt, was trying to make it appear that Sheri was an experienced chemist, and that the fire was her fault. On June 17, 2009, replying to an email Naveen had sent two days earlier, Chancellor Block recalled “the elegant and successful way” Sheri had performed the tert-Butyllithium experiment the previous October.

Although Cal/OSHA had issued four citations to UCLA in May, Block wrote, “The campus believes … that many corrective measures ordered by our inspectors were taken before the tragic accident, though they were not properly documented.” Cal/OSHA, he noted, “found no willful violations of regulations or laws by UCLA personnel. Neither [chemistry department chair Al] Courey nor Dr. Harran were in the lab the day of the tragedy and did not have the opportunity to remind Sheri to put on her lab coat.”

In his interview with the deputy fire marshal, however, Harran — the lab’s principal investigator, or PI — admitted that his safety policies were less than rigid. Harran said he “never explicitly” told his senior employees, such as postdoctoral fellows, to make sure subordinates were wearing protective equipment. In the same interview, Harran said that he and the fellows erred by cleaning up potentially dangerous items in Room 4221 immediately after the accident, before investigators returned to gather evidence. “We shouldn’t have touched anything,” he said.

In November 2007 — 13 months before Sangji was hurt and eight months before Harran came to UCLA — a graduate chemistry student named Matthew Graf spilled a bottle of ethanol near an open flame; some of the alcohol splashed on his shirt and he caught fire. Graf wasn’t wearing a lab coat and sustained second-degree burns to his hands and torso. He spent a week at the Grossman Burn Center, the same place Sangji died, and underwent surgery to repair his hands. Cal/OSHA learned about the accident nearly two years after the fact and cited UCLA for failing to report it; the university is contesting the citation.

In Naveen Sangji’s view, the fine UCLA paid for her sister’s death was insufficient. She was relieved and gratified when Cal/OSHA’s Baudendistel issued his report in December 2009, recommending that Harran and UCLA be charged with felonies.

Baudendistel concluded that “the laboratory safety policies and practices utilized by UCLA prior to Victim Sangji’s death were so defective as to render the University’s required Chemical Hygiene Plan and Injury and Illness Prevention Program essentially non-existent.” There had been “a systemic breakdown of overall laboratory safety practices at UCLA,” he wrote.

Indeed, on Dec. 22, 2008, one week before Sangji was burned, another graduate chemistry student, Jonah Chung, was completing a reaction when “the reaction pot detonated, causing glass, hot oil, and chemicals to strike his face and torso,” Baudendistel wrote. Chung, who sustained burns to his torso, arms and face and cuts to his neck and forehead, “was not wearing a lab coat, gloves, nor appropriate eye protection … at the time of the incident.”

Baudendistel sent the Harran case to the Los Angeles County district attorney. This was not unprecedented: from 2001 through 2011, Cal/OSHA made 486 such referrals statewide, mostly in worker death cases; 174 resulted in criminal charges.

“You know, we have put owners of companies, supervisors, foremen in jail,” says Cal/OSHA chief Ellen Widess. “That is noticed. We’re definitely looking for these cases to make … an impression, leave nothing unspoken and unclear about the severity of the punishment that will be meted out.”

Still, Harran wasn’t a foreman on a trenching job or the owner of a roofing company. He was an award-winning chemistry professor with the backing of a powerful university.

It took two years. On Dec. 27, 2011, the DA filed a felony complaint against Harran and the UC regents. The allegation: “willful violation of an occupational safety and health standard causing the death of an employee.”

Hard questions

Chemists in academia and private industry already had been debating the Sangji case; bloggers and journal editors had written about it. The filing of the complaint took the discussion to another level.

Uncomfortable questions followed: Why were academic labs more dangerous than those in industry? Were some principal investigators so obsessed with publishing papers, securing grants and winning prizes that they’d lost sight of their responsibility to keep employees and students from being hurt?

“Each lab is like an island where the PI is king,” says Paul Bracher, a postdoctoral researcher in chemistry at Caltech who writes a blog called ChemBark. “He provides for the lab, brings in grants, decides how the money is spent. There are a lot of demands on their time, and the safety stuff a lot of times gets lost in the shuffle. I’ve never heard of anyone getting fired for being unsafe.”

Bracher — whose trachea was pierced by flying glass 12 years ago after a fellow undergraduate at New York University mishandled a reactive chemical — says he’s surprised UCLA has stood by Harran so steadfastly, given the evidence that’s come out. “When something like this happens, much like a drunk driver when someone loses their life, there should be consequences,” he says. “UCLA has doubled down. It sends an incredibly disconcerting message.”

“The PI has to be actively involved in safety, as does the president of the university, the provost, the dean — everyone who supervises other people,” says James Kaufman, a former Dow Chemical researcher who runs the nonprofit Laboratory Safety Institute, a training organization near Boston. “The dog sled can’t go any faster than the lead dog.”

Following the Sangji accident, and another at Texas Tech University that badly injured a graduate chemistry student in January 2010, the U.S. Chemical Safety Board began an investigation of lab safety at academic institutions. In a report last fall, the board, which can make recommendations but can’t regulate, said it had documented 120 incidents at university labs since 2001 and identified “safety gaps” that threatened more than 110,000 graduate students and postdoctoral researchers in the U.S.

“Fiefdoms” in academia were partly to blame, the board found.

“At some academic institutions, PIs may view laboratory inspections by an outside entity as infringing upon their academic freedom.” At Texas Tech, “some PIs saw the notification of safety violations to the [department] Chair as ‘building a case’ against them, felt that the safety inspections inhibited their research, and considered recommended safety changes outside their control because they could not ‘babysit’ their students.”

The board recommended that the U.S. Occupational Safety and Health Administration — whose 1990 lab standard emphasizes the need to protect researchers from carcinogens and other health hazards — make clear that physical hazards also must be controlled. And it urged Texas Tech to revamp its lab safety program by documenting and acting on near-misses that could portend more serious accidents.

Board officials believe the message is getting out — not only to universities but also to grant-makers such as the Department of Homeland Security, which funded the work on explosive materials that led to the Texas Tech accident. “DHS changed its requirements after this incident,” says board investigator Cheryl MacKenzie, demanding that grantees’ labs undergo independent safety audits before funds are released.

The American Chemical Society, a professional association for chemists, assembled a task force after the Texas Tech blast and recently unveiled a draft report that recommends ways to change the “safety culture” in academia. The study, its authors wrote, was prompted by “devastating incidents in academic laboratories and observations, by many, that university and college graduates do not have strong safety skills.”

UCLA, for its part, has created a Center for Laboratory Safety which, Chancellor Block said in his January statement, will “identify and institute best practices in safety, going beyond the minimum requirements of outside agencies so that we can hold our laboratories to even higher standards. We also dramatically increased the number of lab inspections, strengthened our policy on the required use of personal protective equipment and developed a hazard-assessment tool that labs must update annually or whenever conditions change.”

The real-world impacts of these changes remain to be seen. “I think the university is trying,” says Rita Kern, a staff research associate in the UCLA Department of Medicine who sits on the health and safety committee of University Professional & Technical Employees — Communications Workers of America Local 9119, the union to which Sheri Sangji belonged at the time of her death. “Some things have changed, but it’s like turning a big boat in the middle of the ocean. It doesn’t turn very fast.”

Indeed, following inspections in August 2009 and February 2010 — eight and 14 months, respectively, after the fire that killed Sangji — Cal/OSHA cited UCLA for 16 lab safety violations, five classified as “serious” and one as “repeat serious.” The university paid a $36,690 fine.

Ryan Marcheschi, a postdoctoral fellow in the UCLA chemical engineering department who works with flammable and explosive compounds, says the university has “tightened up” on safety since the Sangji accident, though much of this has come in the form of increased paperwork.

When he learned that the criminal complaint had been filed against Harran, “I thought it was extreme,” Marcheschi says. “But then I thought, maybe that’s what’s needed to make policies change.”

***

Despite her grueling schedule as a resident at Massachusetts General Hospital, Naveen Sangji remains an advocate for her younger sister, now 3 ½ years departed. “My sister had her whole life ahead of her,” Naveen says. “She would be graduating from law school right now.”

Her parents live in Toronto. Her father, a small businessman, “has almost completely stopped socializing,” Naveen says. Her mother, a Montessori teacher, was “completely destroyed” by the accident and immerses herself in her work. They go to the cemetery on Sundays.

“Sheri was a very brave person,” Naveen says, a trait that became evident at the burn center.

“Before my parents came into the room, she asked me to cover her up with the sheets so that they wouldn’t be distressed at seeing all the bandages; her concern was for them. When my dad arrived, he put his hand on hers lightly through the sheet and she screamed because it was so painful. And we couldn’t touch her anywhere except her face. But her thoughts were, even as she lay critically injured, for other people.”

This story was produced in collaboration with the Center for Investigative Reporting.