Hard Labor from The Center for Public Integrity

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.”

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."

New federal scrutiny in wake of Center and NPR grain bin 'drownings' report

2013-03-29T16:17:27-04:00

Congress, the Occupational Safety and Health Administration and the Justice Department are beginning to respond to the NPR-Center for Public Integrity Series on hundreds of persistent and preventable deaths in grain storage bins and weak enforcement by federal agencies.

Two federal officials familiar with the case say that the Justice Department is again considering criminal charges in the incident in Mt. Carroll, Ill.,in 2010, in which 14-year-old Wyatt Whitebread and 19-year-old Alex Pacas suffocated in thousands of bushels of corn. Will Piper, 20, survived but was unable to save his friends and co-workers. The owner of the grain bin, Haasbach LLC, was initially fined $555,000 but OSHA cut the fine by more than 60 percent.

NPR/CPI obtained Labor Department documents that showed the Justice Department initially declined to file criminal charges in the case, despite multiple willful violations and what one former OSHA official called "the worst of the worst" cases.

The officials now tell NPR that the Justice Department asked the Labor Department to again provide the Mt. Carroll case files. The request was made in January when NPR and CPI were pressing the agency to respond to questions about the case.

"They're taking another look" at the Mt. Carroll incident, one source said.

"They should reconsider," says Annette Pacas, Alex's mother. "It was a crime. They killed two kids. It should be prosecuted as a crime."

Wyatt Whitebread's mother Carla is hoping criminal charges will follow.

"Unless that happens this kind of thing is not going to stop," Whitebread says.

Haasbach LLC has declined comment given wrongful death and injury lawsuits filed by Piper, the Whitebreads and Annette Pacas.

A spokesman for Gary Shapiro, the acting U.S. attorney in the Northern District of Illinois, said he couldn't comment, citing agency policy.

Another source briefed about OSHA's response says the NPR/CPI series prompted an internal warning to agency officials. NPR/CPI reported that OSHA has routinely slashed fines and erased its most serious citations even when willful violations of law result in worker deaths.

Senior agency staffers were told this week that the NPR/CPI series has put grain bin violations under scrutiny and requires more "thinking" about penalty reductions in cases with willful citations and fatalities. An OSHA spokesman declined comment.

Congress is also beginning to respond to the NPR/CPI series. Three Democratic senators cited the NPR/CPI findings in announcing their support for the newly-reintroduced Protecting America's Workers Act (PAWA).

"Whether working on a factory floor, on an oil rig, or in a grain bin, our workers and their families need to know that they will be safe and protected at the workplace," said Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor and Pensions committee. "And when violations do occur — especially those leading to injury and death — our laws need to be enforced, with lawbreakers held responsible."

Sen. Bob Casey (D-Pa.), chair of the Senate Employment and Workplace Safety subcommittee, said, "Updating our workplace safety laws and enforcement tools will reduce the number of work related injuries and deaths."

PAWA makes felony charges possible when repeated and willful violations result in a worker's death or serious injury. The bill also calls for tougher penalties.

"No worker should be put in a position of mortal danger, especially those who are untrained and ill-equipped," said Sen. Patty Murray (D-Wash.), the chief sponsor of PAWA. "The evidence is clear that neither current criminal penalties, nor the paltry level of civil penalties allowed for under law, are sufficient to stop those employers who repeatedly violate the law and put workers in danger that leads to their death."

Under current law, workplace deaths are misdemeanors with convictions bringing no more than six months in prison. NPR/CPI reported that criminal prosecutions are rare in grain bin deaths and no one has gone to jail. Federal prosecutors decline worker death cases because they have felony crimes with more serious punishment competing for their attention.

Finally, NPR and CPI have been inundated with responses from listeners and readers. Many offered to respond to the plea of Mt. Carroll survivor Will Piper, who said he wanted to raise money for a headstone for his friend, Alex Pacas.

One anonymous donor pledged to pay the entire costs of a headstone. There's also a newly announced effort in Mt. Carroll to erect a memorial to Pacas and Whitebread in their favorite city park.

Bill aims to strengthen OSHA workplace enforcement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

House bill targets deadly dust explosions

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

A group of House Democrats introduced legislation this week that aims to protect workers from combustible dust – a fire and explosion threat that has killed or injured hundreds in recent decades.

Last year, the Center for Public Integrity examined the toll triggered by recent preventable tragedies – and the political and bureaucratic forces that impeded greater protection from a hazard recognized for more than a century. Workers across a range of industries face dust dangers from materials as varied as sugar, coal, wood and plastic.

The federal Occupational Safety and Health Administration began the process of issuing a rule to address the hazard in 2009, but its progress has stalled.

The new bill, announced Thursday, would compel the agency to issue interim protections within a year and set deadlines for finalizing a permanent rule.

“While OSHA has taken some limited steps to protect workers and property from combustible dust explosions, the widely recommended protections necessary to prevent these explosions are caught up in red tape and special interest objections,” Rep. George Miller, the senior Democrat on the House Committee on Education and the Workforce, said in a statement announcing the bill’s introduction.

Standards set by the nonprofit National Fire Protection Association have existed for decades, but are optional in many areas. Enforcement is often weak or nonexistent. Thursday’s bill would require OSHA to base much of its interim standard on these NFPA guidelines. It would mandate more worker training, a regimen of cleaning and inspections to prevent dust buildups, and work procedures and equipment design to minimize explosion and fire risk.

The new bill would require OSHA to issue an interim standard within a year, then a proposed rule within another 18 months. The agency would then have to finalize the rule within the next three years.

The rule could affect a large number of businesses, and many industry groups have pushed back, arguing for exemptions or calling the measure unnecessary.

The American Chemistry Council has taken one of the strongest positions opposing the rule, saying in a statement last year to the Center, “We believe that the accidents that have occurred might have been prevented if current OSHA regulations and relevant combustible dust consensus standards had been followed and enforced.” A representative for the trade group did not respond to a request for comment Friday.

OSHA has repeatedly set rule deadlines, then moved them back. OSHA is one of only three federal agencies that must convene a panel of potentially affected small businesses to allow them to raise objections to an unpublished rule draft. The agency’s most recent agenda said it hopes to begin this stage in the process in October.

A spokesman for OSHA did not respond to a request for comment on Thursday’s legislation.

As the rulemaking process has dragged on, fires and explosions have continued. The Center detailed a series of three accidents in 2011, all involving combustible iron dust, that killed five workers at the Hoeganaes Corp. plant in Gallatin, Tenn.

OSHA faced a similar situation after a series of high-profile dust explosions at grain elevators in the 1970s. The agency proposed regulating the handling of grain dust, and industry groups objected vociferously. OSHA issued the rule in 1987 and, in a 2003 review, found that deaths in grain dust explosions had dropped by about 70 percent. The primary industry group that opposed the rule recently credited it with reducing deaths and injuries without imposing the devastating economic burden it had originally predicted.

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.

Report suggests OSHA safeguard contingent workers

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

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

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

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

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

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

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

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

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

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

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