California's 'safe' workplaces include employers with spotty records

Some safety-minded employers in self-policing program have high injury rates

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Mechanical engineer Ali Hassan Cemendtaur was a few feet from a co-worker blown apart in a 2003 explosion. "I consider myself very fortunate that I had this brush with death," he said. "Death did not get me this time.”

Fair Warning

This story by FairWarning was reported by Stuart Silverstein, Lilly Fowler, Laurie Udesky and Myron Levin, and written by Levin. California-based FairWarning is a nonprofit investigative news organization focused on safety and health issues.

The explosion that killed James F. Spotts easily could have been avoided.

It happened as he was cutting into a fuel mixing pipe at a Pratt & Whitney rocket motor plant near San Jose. Heat or sparks from the saw triggered a powerful blast that sprayed the 47-year old worker with metal shards and set him on fire.

Investigators later blamed the tragedy on supervisors ordering the work without first making sure the pipe was cleansed of explosive residues.

Coming barely a month after a larger explosion destroyed another building at Pratt & Whitney – luckily, without killing anyone – the September, 2003, incident suggested a pattern. The company and its parent, United Technologies Corp., wound up paying more than $1 million in criminal and civil fines.

Pratt & Whitney had not been considered a bad actor. In fact, it enjoyed an elite status reserved for California employers with exemplary safety records. It was a member of California's Voluntary Protection Program, or VPP, an honor roll of ostensibly safety-minded companies that win public recognition, friendlier ties with regulators and exemption from some safety inspections.

Yet some of these workplaces have mixed records, and are allowed to remain in the VPP anyway.  Moreover, while state officials say they closely scrutinize the members, an investigation by FairWarning found that officials have ignored their own requirement that all members have injury rates that match, or beat, industry averages.

The VPP, a national program run in California by the state Division of Occupational Safety and Health, has been steadily growing. In the last five years, the agency, better known as Cal/OSHA, has nearly quadrupled the membership to 144 job sites with more than 39,000 employees and some additional contract workers.

Participants include aerospace plants, food processors, oil refineries, power generators and construction companies with payrolls ranging from a mere handful to more than 6,000 workers. The aim, supporters say, is to hold up employers with stellar safety performance as examples to follow, while freeing the thin corps of Cal/OSHA inspectors to focus on problem sites.

“This is the kind of recognition that we want to offer,” said Cal/OSHA Chief Ellen Widess, “as well as the stiff penalties we give to employers who try to cut corners.”

Supporters hail the VPP as a motivational force that unites management and workers in the cause of safety. At the Gonzalez Winery in Monterey County, which joined in June, 2010, gaining entry was “like this glue that got everybody to pull together,” according to Morgan LeBlanc, West Coast safety director for the winery’s owner, Constellation Wines.

These days, LeBlanc said, employees run safety meetings, discussing “how to wear protective clothing properly, how to sanitize a tank safely…They do all these things on their own.”

Officials say members are required to go beyond mere compliance and show strong management and employee commitment to safety. They must pass a site evaluation typically lasting four days.

Contrary to Policy

But records and interviews raise questions about whether all members deserve their special status.

A key issue is the written policy requiring that members have injury rates that are at least average for companies in the same industry. Rates for the job sites are compared to national averages using two standard measures—known as the TCIR (Total Case Incident Rate), and DART(Days Away from work, Restricted work or job Transfer).  The companies are responsible for recording their own injuries and reporting the numbers to Cal/OSHA.

FairWarning reviewed injury rates for the 81 VPP “Star” members, the program’s top category. The data showed most sites with injury rates well below average.

However, nine of the 81 Star members, or 11 percent, had worse than average rates for TCIR, DART, or both, from 2007-2009, the last three years available.

After being contacted by FairWarning, some companies asked Cal/OSHA to review and adjust their injury rates. The agency then provided FairWarning with revised numbers for several companies, lowering rates for some and raising them for others. The net effect was to shrink the ranks of members with worse than average rates from nine to seven.

Vicky Heza, head of CalOSHA’s consultation unit, which includes the VPP, told FairWarning she wasn’t sure what happened to justify the changes. It could have been “just a typo or something on our part.” She added: “Accidents can be recorded as work-related, and then, later on, discovered that they’re not, and vice-versa.”

Another criticism of the program is that members—mostly large, sophisticated companies—have the know-how to run strong safety programs on their own without drawing on Cal/OSHA’s resources.

‘’I’m not opposed to highlighting people who are doing a good job,” said Linda Delp, director of the UCLA-Labor Occupational Safety and Health Program. “But government resources really do have to be targeted to bad actors.”

Stretched Too Thin

For their part, supporters call the program an inexpensive way to promote injury reduction, citing the cost of about $840,000 per year in state and federal funds, or just over 1 percent of Cal/OSHA’s budget. If the staff of up to six people switched from VPP to enforcement duties, they say it would hardly make a dent.

“You could quadruple our staff” and “we would not get to but a tiny fraction of the workplaces out there,” said Len Welsh, the agency chief before Widess took over in April.  The agency, critics say, is so understaffed that, by one estimate, it would need 147 years to inspect each workplace under its jurisdiction once.

For members, tangible benefits include exemption from pre-planned or “programmed” inspections, though they remain subject to inspection after serious accidents or safety complaints. Moreover, VPP companies can get a leg up in competing for contracts. For construction firms, for example, VPP status ‘’is a definitive plus for them getting awarded jobs,” said Terry Schulte, regional chairman of the VPP Participants Assn., a members group.

Launched in 1982 under President Reagan, the VPP had a growth spurt during the George W. Bush Administration, with its preference for voluntary measures over enforcement. Currently, there are more than 2,400 member sites around the country, nearly two-thirds under the federal Occupational Safety and Health Administration. The rest are managed by 22 states, including California, with their own safety and health programs.

Outside of California, too, VPP sites have experienced serious accidents and deaths. Nationwide, there have been at least 80 fatalities since 2000, according to an investigation by the Center for Public Integrity's iWatch News.

One occurred at the BAE Systems ship repair yard in San Diego—hailed on OSHA’s website as a VPP “success story’’ thanks to dramatic reductions in injury rates (BAE is under the federal, rather than the state, program like other U.S. shipyards.).

But in February, 2008, a 37-year-old worker was crushed between a moving crane and a steel column at the shipyard.

OSHA cited BAE for a serious violation for failing to prevent access to the area while the crane was in motion. After BAE appealed, OSHA agreed to downgrade the citation and drop the penalty from $5,000 to $4,000. A BAE spokesman declined comment.

Despite such incidents, OSHA officials say injury rates for VPP members nationwide typically are 50 percent better than average.

But the U.S. Government Accountability Office found in a 2009 report that 12 percent of OSHA’s VPP sites had worse than average injury rates—similar to the proportion FairWarning found in California.

The GAO also found that OSHA lacked a system for determining when companies should be booted from the program for subpar performance, rather than being treated as members for life. “OSHA’s internal controls are not sufficient to ensure that only qualified worksites participate,”’ the GAO said.

In California, there appears to be only one case of a company being stripped of its VPP status. In that case, involving an International Paper plant in Visalia, records show that Cal/OSHA declined to renew the membership after the standard three-year reevaluation. Officials said they believed some other companies had voluntarily withdrawn for fear of not being renewed.

Fatal Blast

The agency wasn’t forced to decide in Pratt & Whitney’s case. The company closed the site in 2004, though state investigators lambasted the slipshod practices that led to James Spotts’ death.

There were “no written procedures for decontaminating fixed equipment used in explosive processing,” according to the agency’s report. “There were no written procedures for visual or chemical testing to determine if decontamination of equipment was completed.”

Spotts’ assignment the day he died was a result of the explosion the previous month. The first blast leveled a building used to mix rocket fuel. To keep production going, Pratt & Whitney ordered that a mothballed fuel mix station be put back in service.

Ali Hassan Cemendtaur, a mechanical engineer and, like Spotts, a contract employee working on the renovations, was a few feet away when Spotts was blown apart. Cemendtaur was on the floor doing measurements behind a piece of machinery, which shielded him from the flying shrapnel. If not for that, “for sure I would not be here to talk to you,” Cemendtaur, of Santa Clara, said in an interview.

As for Spotts, “a part of him had to be scratched from the wall.”

Cemendtaur says the memory comes back every September, “and I consider myself very fortunate that I had this brush with death, and death did not get me this time.”

In November, 2005, Pratt & Whitney’s parent, United Technologies, paid $1.32 million in fines and investigation costs in Santa Clara Superior Court after pleading no contest to a criminal misdemeanor violation of the California Labor Code. It also accepted liability in a companion civil case. In March, 2007, the company paid another $177,000 in penalties to Cal/OSHA.

Some 20 work sites of United Technologies units Pratt & Whitney and Hamilton Sundstrand are VPP members around the country, including six in Southern California.

Pratt & Whitney declined interview requests but e-mailed a statement. “Any incident where an employee is injured or killed means there are always lessons that can be learned and processes that can be put into place to prevent the incident from recurring,” said Erin Dick, spokeswoman for Pratt & Whitney Rocketdyne. “Cal/OSHA places a significant amount of emphasis on ensuring that VPP applicants are going beyond all regulatory requirements for health and safety in the workplace.”

Covanta Energy Corp. is even more deeply involved in the VPP, with more than 30 biomass and waste-to-energy plants as members, including three in California.

The Covanta Stanislaus plant in Crows Landing is one of the California members with injury rates worse than the industry average. In 2008, a worker suffered a serious injury when his hand was caught in machinery that was missing a protective guard door. Cal/OSHA’s investigation revealed that the door had broken off its hinges months earlier. The hazard had been noted by workers and management, but never fixed.”

Cal/OSHA charged Covanta with a ‘’willful’’ violation and sought $84,000 in penalties. Willful violations, the most serious kind, are for intentional disregard or indifference to safety, and are potential grounds for disqualification from the VPP.

Covanta said in an email that since the accident, it has “strengthened the management team and…increased employee engagement.” The company also said injury rates at the Stanislaus site improved in 2010.

In a settlement with Covanta, Cal/OSHA downgraded the charge from willful to serious, and cut the penalties to $43,600. Covanta Stanislaus was renewed as a VPP member last December.

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