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

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

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

Centeno, 50, died three weeks later, on Dec. 8, 2011. The Cook County medical examiner's report attributed his death to “scald and chemical burns due to an industrial accident.”

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

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

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

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

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

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

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

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

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

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

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

Raani is appealing the OSHA citations. H. Patrick Morris, a lawyer for the company, did not answer questions about the alleged violations. In a court filing, however, Raani denied allegations of negligence in the family’s lawsuit. Among its defenses: Centeno himself was responsible for the accident. “Plaintiff’s Decedent knew about the hazards of his conduct, but proceeded with his course of conduct, causing the claimed injuries,” the document says.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chaudary did not respond to requests for comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stephen Dwyer, general counsel for the American Staffing Association, denied that the temp workers have less legal protection than permanent employees. 

"I can say nationally, and on a state level, the legal framework is there to ensure the safety of the temporary employees,” he said. “And this framework imposes obligations on both the staffing firm and the client and so one could argue actually that temporary workers have greater workplace safety protections under the law than their counterparts with clients." 

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

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

Dwyer, of the staffing association, said the problem in Washington appears to be isolated.

"I'm not sure it's actually a widespread problem,” he said. “The laws are very clear about this -- that whoever controls the worksite is responsible for recording temporary workers' injuries on the (OSHA log) and typically that's the client." 

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

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

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

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

But Dwyer, the American Staffing Association’s lawyer, denied that the temp workers have no recourse.

"Both the staffing firm and the client have joint obligations, as joint employers, to ensure the workplace safety of temporary employees, meaning that if something goes wrong, temporary employees have recourse, typically against the client and the staffing firm, if one or both fails to discharge their duty under the law," he said.

He also cautioned against an OSHA crackdown on temp agencies. “To the extent that efforts become heavy-handed, there can be a disincentive, then, to using temporary workers,” Dwyer said, to the detriment of the workers, client employers and “the overall economy.”

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

The agency said it has brought a number of recent enforcement actions against employers for accidents involving temp workers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This story was jointly reported by The Center for Public Integrity, a non-profit investigative news outlet, and WBEZ, Chicago Public Radio. 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Center for Public Integrity is a nonprofit, independent investigative news outlet.

When Nicholas Adrian Revetta of suburban Pittsburgh died in an explosion at a U.S. Steel plant on Sept. 3, 2009, his death did not make national headlines. No hearings were held into the accident that killed him. No one was fired or sent to jail.           

The 32-year-old contract laborer, who left behind a wife and two young children, was one of the 4,551 people killed on the job in America in 2009 -- a number that eclipsed the total number of U.S. fatalities in the nine-year Iraq war. Combined with the estimated 50,000 people who die annually of work-related diseases, it's as if a fully loaded Boeing 737-700 crashed every day.

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The Occupational Safety and Health Act of 1970 entitles American workers to "safe and healthful" conditions in their workplaces. But an examination of Revetta's death by the Center for Public Integrity illustrates how safety can yield to speed, how even fatal accidents can have few consequences for employers -- who are typically fined just $7,900 per fatality -- and how federal investigations can be cut short by what some call a de facto quota system.  

Click here to read the rest of the story.

 

By Myron Levin, FairWarning.org

Wind power is riding a strong breeze. In the last five years, generating capacity in the U.S. has nearly quadrupled. Clusters of tubular wind towers, rising up to 300 feet above ridgelines and gusty plains, are an increasingly familiar sight.

But in the scramble to expand clean energy and green jobs, the wind industry has fallen short on worker safety.

Thousands of the giant wind machines violate a federal requirement to give technicians who work inside the towers enough maneuvering space to get up and down their ladders safely. The standard says the space near the ladder should be free of permanent obstructions that could cause serious head or back injuries if a climber slips or is moving fast.

There are about 36,000 of the wind towers in the U.S., and more are being added all the time. Most are produced overseas to meet international codes. For reasons they won’t explain, the manufacturers either ignored the U.S. standard, or thought it wouldn’t apply to them.

The companies "evidently didn’t look into U.S. codes and standards, especially safety standards, in doing their designs," said Patrick Bell, a senior safety engineer with the California Division of Occupational Safety and Health, or Cal-OSHA, and a member of a federal OSHA wind energy task force.

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OSHA officials say they’re not aware of any serious injuries so far. Still, the violations are so widespread that they have flummoxed safety regulators, who are trying to figure out the extent of the hazard and what to do about it.

"We could conceivably issue citations," said Bell of Cal-OSHA, "but we might end up taking all of our compliance officers off other industries to run from one wind farm to the next."

"We are trying to work with the industry," he said, "because it’s a huge industry with all the wind towers going up."

The manufacturers have been reluctant to talk about the problem. Officials with Vestas Americas, part of Vestas Wind Systems A/S of Denmark, the world’s biggest turbine supplier, declined to be interviewed and would not respond to written questions. GE Energy, the top U.S. wind turbine maker, took the same stance. Both companies referred inquiries to the American Wind Energy Assn., a trade group.

Michele M. Mihelic, the association’s manager of labor, health and safety policy, said in an email to FairWarning that the group "cannot make a blanket statement that all wind turbines comply or not."

"Each wind turbine make and model is different," she said.

The OSHA standard dates to the 1970s, and applies to the use of fixed ladders at work sites generally, not to wind towers specifically. It requires a clearance of 30 inches from the ladder so workers can safely move up and down. If there are permanent obstructions within the climbing space, they must be shielded so workers can squeeze past without getting hurt.

The main issue with tower designs is the use of heavy steel bolts and rims known as flanges to join their long, tubular sections. In the two or three spots where the sections are fastened, the bolts and flanges intrude at least several inches into the safety space.

Two field technicians have sought to draw attention to the issue, saying they were stunned by the prevalence of the problem.

"Between my friends and I … we’ve been in thousands of wind turbines and haven’t found one that’s compliant with this issue," said Ed Oliver, 47, of Dana Point, Calif.

"We can’t believe this exists everywhere we go," said Nick Nichols, 45, of Zephyr Cove, Nev. "The regulations are there for a reason."

The men said they have seen nothing worse than bruised tailbones and minor scrapes from encounters with the flanges. But they said it’s only a matter of time before there are serious injuries. They pointed to the growing use of "climb assists" that use motors and pulleys to support part of the weight of technicians, allowing them to climb faster and basically rappel downward in the descent.

Oliver and Nichols have complained to OSHA. They also took the unusual step of offering the industry their own version of a safety device, called a deflector. The website for their company, Pinnacle Wind USA, shows what looks like a short section of a playground slide covering a flange. "Developed BY tower climbers, FOR tower climbers," it says.

Their efforts haven’t brought any love from the wind industry. In August, they were stunned by an email to Nichols from Mihelic of the wind association.

"You should…be aware that there are people posing as OSHA compliance officers and/or OSHA consultants and are threatening people in the industry with citations if they don’t buy your product," the email said.

Mihelic added that OSHA had been told about the scheme and "has requested that if any of our members are approached in this manner to please report it to them so they can investigate."

The two men immediately suspected it was a bogus claim designed to discredit them. Soon after, Nichols enlisted the help of U.S. Sen. Dean Heller, R-Nev., to see what OSHA knew about it.

David Michaels, assistant secretary of labor for Occupational Safety and Health, responded Oct. 11 with a letter to Heller that seemed to contradict Mihelic. OSHA officials were unaware of "any reported cases of OSHA impersonators threatening companies to purchase Pinnacle Wind USA products," the letter said.

Mihelic told FairWarning she stood by her email to Nichols.

Meanwhile, the ladder issue remains up in the air.

OSHA has not yet issued citations for violations of the standard. Brian Sturtecky, OSHA’s area director in Jacksonville, Fla., and chairman of its wind energy task force, said the agency is preparing a "letter of interpretation" to clarify how the standard will be applied

The result could be a mandate for the industry to retrofit thousands of towers. Or, the industry could get a pass if the agency decides the hazard can be controlled by other measures, such as training.

The task force is examining other safety issues in the industry in the wake of some serious accidents.

In August, 2007, a worker was killed and another injured in the collapse of a tower at a wind farm near Wasco, Ore. Also, OSHA fined Outland Energy Services $378,000 for safety violations after an employee suffered serious electrical burns at an Illinois wind farm in October, 2010.

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.