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September 14, 2014

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Feds’ appraisal of Nevada OSHA practices damning

Probe of agency’s response to worker deaths turns up serious problems

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Richard Brian / File photo

The CityCenter project is shown in May 2008, shortly after an ironworker died after falling 59 feet through a hole in a floor. An OSHA-required backup deck or netting was not in place at the time.

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Report's Findings, And What Nevada OSHA Says

A report by the Occupational Safety and Health Administration, part of the U.S. Labor Department, revealed a number of “serious concerns” with Nevada’s workplace safety agency. Below, a few of its recommendations followed by Nevada OSHA’s responses.

TRAINING

  • Finding: State inspectors were not properly trained on the hazards of construction work. Some longtime employees had not taken the most basic training courses.
  • Recommendation: Improve training with a focus on construction hazards.
  • State response: The agency has suffered from high turnover because of “retirements, low salaries, low morale” and new staff gets as much training “as our budget allows.” It will seek more funding for training in the next legislative session.

QUALITY VS. QUANTITY

  • Finding: The agency set a goal of 2,900 inspections per year, saddling each inspector with 95 to 115 annually, “far too many … to do a thorough job.”
  • Recommendation: Work with the Legislature to establish quality standards.
  • State response: During the 2009 legislative session the agency committed to review all of its performance standards.

VIOLATIONS

  • Finding: Finding willful violations is discouraged because of a lack of management and legal support.
  • Recommendation: Train inspectors to develop legally sufficient cases and increase their pursuit of willful violations.
  • State response: Nevada OSHA does not discourage finding willful violations, but it does require the appropriate level of proof to sustain the willful violation. It is understandable that our staff perceives management or legal counsel discourages willful violations because the burden of proof is so high. Nevada OSHA will re-evaluate its stance.

HAZARDS

  • Finding: All hazards identified were not addressed as citations, notices of violations or hazard alert letters.
  • Recommendation: All hazards identified during inspections must be addressed.
  • State response: We expect all serious hazards observed during a fatality investigation or any other type of inspection to be addressed.

ABATEMENT

  • Finding: The agency failed to ensure that identified hazards were corrected. It lacked procedures to track abatements and had no policy on what qualified as adequate corrective action.
  • Recommendation: Review the abatement verification policy and step up enforcement.
  • State response: The agency assigned an administrative assistant to track citations, penalties and abatements and will ensure proper documentation to comply with federal standards.

The U.S. Labor Department issued a scathing indictment of Nevada’s Occupational Safety and Health Administration on Tuesday, painting the state agency charged with keeping workers safe on the job as incompetent and ineffective in the wake of a deadly building boom.

The probe examined Nevada OSHA’s oversight of 25 workplace fatalities, some of which occurred during the Las Vegas Strip construction boom and found an agency with staff ill-equipped to investigate accidents and administrators unwilling to impose hefty penalties on companies.

The report is the most significant review of a state program conducted by the Federal Occupational Safety and Health Administration in nearly two decades. Labor officials said the findings have prompted a nationwide review of state-administered workplace-safety plans and increased federal oversight.

The Labor Department said its investigation was triggered in part by the Sun’s Pulitzer Prize-winning series that examined the Strip construction deaths and exposed the failures of government, management and labor unions to protect workers.

The report documents troubles large and small within Nevada OSHA’s offices in Reno and Henderson — from state lawyers and managers who discouraged harsh citations for company violations to staff communiqués via Post-it notes. In half the fatality cases, families of the workers were not told of investigations, as required.

Safety experts called the federal officials’ findings “grave” and “brutal.” Nevada lawmakers promised legislative action.

In Washington the House labor committee has scheduled a hearing next week to review the Nevada program. In Nevada, state Sen. Maggie Carlton, chairwoman of the state Senate Commerce and Labor Committee, pledged to use the report as a template for new legislation to correct the agency’s failures.

Some experts believe Nevada’s response to the findings could determine whether the federal government takes the unprecedented step of assuming control of the state program.

“This report confirms that there are serious problems with Nevada OSHA that need to be addressed immediately,” said Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee in Washington. “Workers in Nevada deserve to know that basic health and safety protections are enforced by the agency tasked to protect them.”

Nevada OSHA officials acknowledged at a news conference Tuesday that they need to make improvements, including in their overall approach to workplace hazards.

“Looking back, we should have taken a more aggressive approach,” said Donald Jayne, the new head of the state Industrial Relations Division, which oversees the agency. “That’s an easy call.”

Union leaders and lawmakers expressed confidence that new agency administrators will make the needed changes.

Still, the report shows the federal government’s lax oversight of worker safety in recent years has allowed the Nevada program to operate with many deficiencies and with impunity.

Under the Obama administration, Labor Secretary Hilda Solis has pledged to reinvigorate OSHA as a strong watchdog for worker safety.

“The safety of workers must be priority one, and the U.S. Department of Labor is stepping up its review of state OSHA plans to ensure that is the case,” Solis said.

OSHA sent federal investigators to Nevada over the summer to conduct a comprehensive review of the state-run program after the Sun documented the rising number of construction fatalities.

The Sun reported that during Nevada OSHA’s investigations of the deaths, fines imposed on companies were routinely reduced after negotiations, and the families of workers killed on the job were rarely notified investigations were under way.

During a two-week period in July and August, federal investigators analyzed Nevada OSHA’s handling of 23 workplace fatalities that occurred from Jan. 1, 2008, to June 1, 2009, as well as several cases with high penalties.

Investigators were stumped by the absence of large fines given the number of deaths. They intended to review additional cases with penalties in excess of $45,000. Finding none, they lowered the threshold to $15,000.

The report contains several dozen findings and recommendations.

Among the most damning is that state investigators were discouraged from citing companies’ violations as “willful.” Willful violations carry higher penalties because they signal that employers intentionally broke the law. Only one willful violation was made during the period investigated, but it was later reduced.

“During interviews with the Nevada investigators, it was determined that they are discouraged from pursuing willful violations by management and legal counsel,” the report said. “Any proposed willful violation was reviewed by the Chief Administrative Officer and legal counsel, and those were usually reclassified.”

Stephen Coffield, the newly installed chief administrative officer of Nevada OSHA, said the agency will review its policy toward finding willful violations. He said the legal department has historically taken a conservative approach to willful violations because “they’re hard to prove.” Coffield added that “it’s possible we raised that bar too high. We’re committed to look at it.”

The report further found that state investigators identified hazardous conditions during workplace inspections, but did not cite these problems or issue alert letters. Four of the 23 fatalities “included documented hazards that were not cited.”

In the complaint filed about conditions at the Orleans — where two workers died and a third was injured when they entered a toxic manhole at the resort — Nevada OSHA cited the company for a less serious violation even though the hotel had previously been cited for similar problems. “Clearly supportable repeat violations were not cited,” the report said.

“This is very grave,” said Celeste Monforton, a workplace safety expert and professor of the George Washington University School of Public Health.

Monforton notes that fatality investigations should be a state agency’s best work, prompting her to wonder: “If you can’t even get it right in a fatality case, when you’ve got a dead body, God help the rest of them.”

She said state leaders should establish an independent panel or commission to review Nevada OSHA’s progress on improvements.

Carlton, who pushed for worker safety reform in this year’s legislative session, said the federal report would give her cause new urgency. She said she would convene a legislative working group, if not a subcommittee, to draft a bill to correct Nevada OSHA’s shortcomings.

“There’s absolutely no excuse for not addressing these issues, unless you want to turn a blind eye to worker safety,” she said. “Our job is to protect the public. It is so sad that it had to come to this, to lose that many guys before we had this shake-up.”

The report further found that workers in Nevada OSHA’s offices were ill-prepared for their jobs. Some longtime employees, it noted, had never taken the most basic training courses.

Peg Seminario, director of safety and health for the AFL-CIO, testified before Congress last year about the Strip fatalities and the need to beef up OSHA laws. She called the report’s findings “brutal.”

“This report is a confirmation of the deep problems that exist in that state plan,” Seminario said.

Seminario said the state must be held to timetables and deadlines to make required changes.

“Now what is important is that these deficiencies be addressed and remedied quickly,” she said. “And if Nevada OSHA doesn’t act expeditiously to address these problems, then the federal government has the ability to step in to ensure that the safety of Nevada workers is protected.”

Nevada’s lawmakers pledged to monitor Nevada OSHA’s response.

Senate Majority Leader Harry Reid believes the report “sends a clear message that Nevada OSHA needs to make changes to improve worker safety,” his spokesman Jon Summers said.

“Additional action may be necessary in the future, but he would like to see how Nevada OSHA follows through on the report’s recommendations first.”

Democratic Rep. Dina Titus, who serves on the House Education and Labor Committee, which will hold next week’s hearing on Nevada, said the report “reveals steps Nevada OSHA could have taken to prevent the tragic accidents along the Strip.”

Since the Sun’s reporting on the Strip fatalities, Nevada’s lawmakers have taken steps to beef up state workplace safety rules.

While shying away from the more sweeping reforms proposed by Carlton, the Legislature did pass SB228, which requires that families be notified when an investigation into a loved one’s death is under way so they can participate — a law the report cited as one the state needs to abide by in involving families in the process. Lawmakers also passed a bill requiring that all construction workers undergo 10 hours of safety training.

Gov. Jim Gibbons’ spokesman Dan Burns said department officials have told the governor they have begun to institute changes, adding, “He expects that work to continue and that every single one of the issues will be addressed.”

Carlton said that after the resistance she encountered while pushing tougher worker safety legislation this year, she’s pleased to now hear state officials adopting a new tone on the issue.

“This state has been too reactive instead of proactive,“ she said. “We will find a way to get this done.”

Mascaro reported from Washington, Mishak from Las Vegas. Sun reporter David McGrath Schwartz contributed to this story, reporting from Carson City.

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