Yesterday’s House Education and Labor Committee hearing on Nevada OSHA – and state OSHA plans in general – had both disturbing and encouraging moments. The hearing centered on a review of the NV-OSHA program by federal OSHA, which identified numerous problems with the state agency’s practices. Several Members and witnesses focused on the case of Orleans Hotel and Casino, where on February 2, 2007 employees were told to enter a confined space, even though they were not trained to do so. Travis Koehler and Richard Luzier were overcome by fumes and killed, and their co-worker David Snow was seriously injured.
In his opening remarks, Committee Chair George Miller said, “It is clear that there is something terribly wrong with Nevada’s OSHA program,” and used the Orleans case as an example. Prior to the February 2007 tragedy, Orleans owner Boyd Gaming had been cited for violations substantially similar to those involved in this case – and yet, even after their failure to correct hazards that killed two men and seriously injured another, Boyd Gaming escaped a willful violation. Complaints to federal OSHA about the case alleged that this outcome could only have resulted from a back-room deal. And one of those complaints, Congressman Miller explained, came from an inspector on the case, who suffered professionally after speaking out:
The lead Nevada OSHA inspector who recommended willful violations against the Orleans took the extraordinary step of filing a complaint with federal OSHA officials after a deal was made. He resigned his position shortly thereafter. He was counseled that assisting in a complaint against the state could result in an adverse personnel action.
The inspector pointed to “extensive irregularities” in the Boyd Gaming deal and said that the deal could only be the result of OSHA protecting the contractor from bad publicity and a wrongful death lawsuit by the workers’ families.
The first witness to speak to the committee was Senate Majority Leader Harry Reid – a rare occurrence, but fitting since Senator Reid represents Nevada and is concerned about his state’s alarmingly high rate of workplace fatalities. But the witness who had the greatest impact on me, and probably on most of the hearing attendees, was Debi Koehler-Fergen, whose son Travis was one of the two workers killed at the Orleans Hotel and Casino. Travis Koehler was 27, and died while trying to save his co-worker.
A compelling speaker even as she fought back tears, Deb Koehler-Fergen spoke about both the systemic problems with Nevada’s OSHA program and the individual human tragedies that these problems cause:
I believe the Federal review of the Nevada State plan accurately reflects the fact that NV OSHA utterly failed not only my son and Richard, but the other workers who died and all workers in the state of Nevada….People go to work every day with the misguided notion that they are being protected by their employer and an agency whose job it is to keep them safe. I know my son trusted his employers. He would never have dreamt that on that fateful day he would be called upon to intentionally be put in a deadly situation.
Although she detailed many problems with NV-OSHA, from inadequate training of inspectors to the downgrading of willful violations, one thing that particularly struck me was her description of how she was treated by Stephen Coffield, who was at the time the acting chief administrative officer of NV-OSHA:
When we arrived to pick up the report I was told to come in the back lobby area and he would be right down (reporters were expected to be coming to the front door and going to their office). Instead of inviting us to his office he stood by the back elevator explaining why they reduced the citations while employees were walking past us watching me cry as I was understandably upset. At no time did he offer me a chair or to go to a private room while I digested what was going on around me. He did not show me common courtesy and was the most unprofessional encounter I have ever had.
Stephen Coffield is now the head of Nevada’s OSHA program; he sat at the witness table during the hearing, and responded to a few questions but did not testify. His callous actions toward Ms. Koehler-Fergen may not have been a direct violation of policy, but they demonstrate a disturbing lack of regard for victims’ family members. During her testimony, Ms. Koehler-Fergen handed a copy of the “Workplace Tragedy Family Bill of Rights” to Donald Jayne, Administrator of Nevada’s Division of Industrial Relations and the state plan designee for Nevada’s Occupational Safety and Health Program, who testified at the hearing and was seated next to her at the witness table. Congressman Miller noted that families can contribute very important evidence to workplace-fatality investigations, that and Members on both sides of the aisle get upset when family members are cut out of the process.
Acting OSHA head Jordan Barab described some of the steps federal OSHA is taking in response to the findings on Nevada OSHA’s problems. NV-OSHA has until November 20th to put together a detailed corrective action plan, and one year to address federal OSHA’s recommendations. Federal OSHA will also conduct evaluations of every state that administers its own programs, and the target date for completion of those evaluations is April of next year. To help states that are struggling to adequately fund their OSHA programs (state OSHA programs are funded partly by their states and partly by the federal government), the President’s FY2010 budget includes an increase for state plan funding of nearly 15%. (Jordan Barab’s testimony makes a good backgrounder on the state-plan system, for those who want to learn more about it.)
Both Democratic and Republican Members who spoke at the hearing agreed on the need to fix Nevada’s state OSHA plan, and Donald Jayne assured the Committee that the state was determined to address the problems identified by federal OSHA. The question is, will something that seems urgent now get the sustained work that it needs once the spotlight has moved on to another issue? In concluding her statement, Deb Koehler-Fergen said of Nevada OSHA: “While I want very much to believe they are willing to address all of the issues and make a more effective agency, I personally have a wait-and-see attitude.”