IMPACT: Reform boosts workplace safety even while companies appeal inspectors' conclusions

Two states to force employers to fix hazards while challenging findings of regulators

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Tesoro Corp. refinery in Anacortes, Wash. The gas flare is part of normal plant operations.

Ted S. Warren / The Associated Press

Washington is poised to become only the second state to require employers to correct workplace hazards while challenging alleged safety violations identified by regulators, a move advocates for workers say is badly needed in the rest of the country.

Even when workers are harmed and life-threatening hazards identified, companies now often can stall for months or even years the safety remedies recommended by inspectors, pending the outcome of lengthy appeals.

For companies, appeals provide a way to rebut allegations they consider ill-founded.

Legislation mandating the change in Washington state was signed by the governor, Chris Gregoire, on April 15, a year after an explosion at the Tesoro Corp. refinery in Anacortes, Wash., that killed seven workers.

The law, taking effect later this year, will bring Washington in line with Oregon, the only state that forces employers to make safety fixes immediately.

In Washington state, more than 1,300 alleged violations went unaddressed from from 2007 through 2009 while employers contested citations, according to Michael Silverstein, who heads the Washington Department of Labor & Industries’ Division of Occupational Safety and Health.

“The current arrangement is clearly unfair,” Silverstein said in testimony before a legislative panel in February. “Although 98 percent of cited violations are ultimately upheld, employers automatically delay abatement simply by appealing.”

Washington state’s Department of Labor & Industries is writing rules that will determine how the new law is enforced, a process that could take months.

San Antonio-based Tesoro faces a potential fine of $2.39 million for 44 alleged violations, 39 of which are classified as willful, in connection with the April 2010 blast – blamed by state investigators on a decaying piece of equipment known as a heat exchanger. The company, which questions the state's conclusions, is appealing.

“We’ve had reason to believe over the years that our people have been placed at increased risk because of the company’s desire to fight citations rather than mitigate hazards,” Steve Garey, president of United Steelworkers Local 12-591 in Anacortes, told iWatch News on Wednesday.

Garey, who testified in favor of the so-called hazard-abatement bill, said his “general sense” is that the refinery is safer now than it was at the time of the accident. “The question is, How long will it remain so?”

In a written statement Wednesday, Tesoro spokesman Mike Marcy said that because the company is "dedicated to operating our facilities safely" it doesn't wait to eliminate workplace hazards. "We take appropriate corrective steps regardless of any government action," said Marcy. 

In February, Tesoro disputed a state finding that the company “disregarded a host of workplace safety regulations, continued to operate failing equipment for years, postponed maintenance [and] inadequately tested for potentially catastrophic damage.”

For companies, the appeals process provides an opportunity to have their voices heard before findings are finalized and, sometimes, penalties assessed.

In the Anacortes case, Tesoro challenged inspectors’ conclusions. “We disagree with L&I’s [Labor & Industries’] characterization of Tesoro’s operations at Anacortes and believe—based on available evidence and scientific reviews—that many of the agency’s conclusions are deeply flawed,” the company said in a written statement. “We continue to cooperate with L&I and other investigative bodies and look forward to clarifying the facts as the process unfolds.”

An iWatchNews investigation in February found that oil refiners routinely challenge even the most minor safety allegations. When a refiner appeals a citation, 609 days pass, on average, before the case is closed, the investigation found.

Under federal law, even life-threatening hazards don’t have to be addressed during such appeals.

The new law in Washington state will allow employers to seek a stay when ordered to correct hazards. Such requests will be given expedited reviews.

Washington is among 26 states that run their own worker safety programs. The U.S. Occupational Safety and Health Administration oversees the remaining states.

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