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'Model workplaces' not always so safe amidst deaths and avoidable accidents

Posted: 07/07/11 01:52 PM ET

Despite deaths and avoidable accidents, companies stay in OSHA's 'voluntary protection' club

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First in a series, "Model Workplaces, Imperiled Workers," by the Center for Public Integrity's iWatch News

In October 2005, a spark triggered an explosion at a Tropicana juice processing plant in Bradenton, Fla. Flames engulfed mechanic Rob Hackley and burned a co-worker who came to his aid. For weeks, Hackley clung to life, undergoing multiple surgeries to treat second- and third-degree burns covering two-thirds of his body. Somehow, he survived.

The federal Occupational Safety and Health Administration, the nation's chief overseer of workplace safety, concluded that the fire could have been prevented if Tropicana had followed basic safety requirements. The company should have evaluated the risks, given workers tools that didn't produce sparks, monitored for a buildup of flammable vapors and ventilated the area.

Nearby, inspectors uncovered another problem. Employees had to risk a dangerous fall while performing some tasks; the company had refused to pay for a piece of equipment that would have reduced the hazards.

In the official report, inspectors didn't mince words. They found instances in which "employees were told to 'throw safety out the window' and get the work done."  Company managers had shown "deliberate, voluntary and intentional disregard to employee safety." The inspectors tallied up a dozen violations, including two of the most serious kind that OSHA can allege.

Yet the federal government had for more than a decade considered the Tropicana plant a "model workplace," and it still does. The plant is one of more than 2,400 across the country that has gained entry into OSHA's Voluntary Protection Programs, known as VPP -- a club whose membership benefits include an exemption from the agency's regular inspections. Participating sites range from chemical plants and refineries to shipyards and sawmills.

The explosion in Bradenton is hardly the only case of preventable harm to workers at one of OSHA's exemplars of safety. Since 2000, at least 80 workers have died at these sites, and investigators found serious safety violations in at least 47 of these cases, records examined by the Center for Public Integrity's iWatch News show.

Workers at plants billed as the nation's safest have died in preventable explosions, chemical releases and crane accidents. They have been pulled into machinery or asphyxiated. Investigators, called in because of deaths, have uncovered underlying safety problems -- failure to follow recognized safety practices, inadequate inspections and training, lack of proper protective gear, unguarded machinery, improper handling of hazardous chemicals.

Yet these companies have rarely faced heavy fines or expulsion from the program. In death cases in which OSHA found at least one violation, VPP companies ultimately paid an average of about $8,000 in fines. And at least 65 percent of sites where a worker has died since 2000 remain in VPP today.

Though Tropicana, a unit of PepsiCo, paid $164,250 in fines stemming from the explosion in Bradenton, the plant stayed in the program. Sixteen months after the fire, OSHA formally reapproved the plant as a "Star" site -- the highest level in the club of companies pledging to exceed OSHA standards.

Tropicana said it has corrected problems identified following the explosion and is one of the safest companies in its industry. The Labor Department, which oversees OSHA, said in a written statement that problems were found only in one area of the plant, and that Tropicana took "aggressive action" to fix them.

The program's supporters note that fatal accidents can occur despite the best efforts of well-intentioned companies; even VPP sites can't be perfect. But former OSHA officials interviewed by iWatch News said that a death at a VPP workplace should raise serious concerns, especially when accompanied by underlying safety violations.

A fatal accident is "the ultimate failure at a VPP site," said David Martin, who left OSHA earlier this year after a long career as an inspector, assistant area director and compliance assistance specialist in Pennsylvania. "The whole concept of the program is to prevent fatalities and injuries."

David DiTommaso, who left OSHA in 2005 after 25 years as an area director in Montana, said, "If you have an OSHA violation and somebody died as a result of that, I can't imagine how that company can stay in the program."

The current No. 2 official at OSHA, Jordan Barab, told iWatch News that a death leading to the discovery of serious violations is "certainly a strong indication that you've got a serious problem." But overall VPP is "very useful as a model to all employers of what can be achieved," he said.

Davis Layne, a former top OSHA official who now is chief of an advocacy group for companies in VPP, said sites that have experienced problems are the exception, not the rule. "Is it a perfect program? Certainly not," Layne said. "But neither is [OSHA's standard] enforcement." He said the group, the Voluntary Protection Programs Participants' Association, doesn't track fatalities at VPP sites; asked if 80 deaths over a decade was an acceptable number, he said he didn't know.

VPP exemplified the philosophy of the Ronald Reagan administration, which started the program in 1982, and the George W. Bush administration, which dramatically expanded it. The idea was that cooperation between regulators and industry could achieve better results at less cost than enforcement alone. "OSHA's primary role is not to police, to punish, or to penalize," asserted Thorne Auchter, the agency's chief, in 1982. "We can better assist employers by adopting a more helpful, supportive posture aimed at addressing safety and health needs."

Other agencies also have adopted voluntary alternatives to enforcement. The Energy Department has a VPP, and the mining industry wants one. Barely a year after the deadly accident at Massey's Upper Big Branch coal mine, a coal executive asserted that "to improve safety performance, we need to move beyond a model based strictly on enforcement." His suggestion: a program patterned after OSHA's VPP. The Environmental Protection Agency rewarded companies taking steps benefiting the environment by lessening the chances of an inspection -- until the EPA's inspector general criticized the program and a newspaper series investigation called it a "charade." The EPA canceled the program in 2009.

But OSHA's program has spanned administrations and enjoys continued support today. Despite warnings from government auditors about the risks of expanding too quickly, its growth has been exponential, adding to concerns that employers are only going through the motions, not genuinely protecting workers. Between 2000 and 2008, the number of sites tripled.

"When it started, we thought it was a good idea," said Mike Wright, director of health, safety and environment for the United Steelworkers union. But "the program got out of control. They started measuring the program by the number of sites rather than the quality. A lot of companies that got in didn't deserve it." (Nor is there much in the way of evidence that the program has made workplaces safer: See Does it Work?)

When the Obama administration sought to curb spending on the program last year, the participants' association and supporters in Congress resisted; the administration gave in. Members of both parties in Congress are pressing to make VPP permanent and to ensure its government funding.No law now requires OSHA to keep the program.

Supporters argue that the program extends the reach of workplace safety regulation at a time when inspectors hardly can be expected to keep tabs on conditions facing every American worker. OSHA has only so many inspectors. By one AFL-CIO estimate, it would take 129 years for inspectors to visit each U.S. workplace.

To be sure, there are success stories -- injury rates lowered, workers' compensation costs reduced, safety lessons learned and disseminated. Some participants in the program mentor their peers and help OSHA by sharing information and providing experts to help evaluate other sites.

Five of Butterball's six poultry processing facilities in three states, for example, are in VPP. Since joining the program, the plants have seen significant reductions in injury and illness rates and workers' compensation costs, said Brian Rodgers, the company's corporate director of safety and risk management. "By committing to it," he said, "we believe that it elevates us to be the best of the best."

Another key benefit of participation is that employees become more involved and aware of safety issues, whether it's holding safety meetings or identifying potential hazards, Layne said. In many workplaces, he said, "it changes the culture."

But, for some sites, a different picture emerged during an eight-month iWatch News investigation that included visits to VPP workplaces, interviews with company officials, union representatives, safety experts, accident victims' families and former OSHA officials, and a review of thousands of pages of OSHA records and agency databases obtained under the Freedom of Information Act.

This picture is of a program that has grown faster than OSHA's ability to monitor it. It is a picture of a program that continues to reward some companies, even after they have failed to protect workers and violated safety standards. It is a picture of overstretched regulators who must decide whether a company is really committed to safety or is just good at making it look that way -- and who are uncertain whether every company in the club deserves to be there. Asked if the agency felt confident that only qualified sites were in VPP, OSHA official Barab said, "We're looking at that."

Preventable deaths

A complete picture of the conditions at VPP workplaces is hard to come by. Unless a worker dies on the job or at least three workers are sent to the hospital, OSHA often doesn't conduct an investigation, making non-fatal accidents at VPP sites difficult to track. Member companies and OSHA often cite injury and illness rates as a measure of how well an employer is protecting its workers, but government auditors and experts have questioned the wisdom of relying solely on these self-reported numbers, which can be inaccurate or misleading.

iWatch News tried to determine the extent to which VPP sites outperform other companies in the same industry - the comparison OSHA makes when evaluating VPP sites' injury and illness rates. An analysis of agency data obtained under an open records request indicated that, between 2000 and 2008, an average of about 13 percent of VPP sites each year were worse than their industry peers on one or both of the injury and illness measures used by OSHA. In each year, at least a few sites had rates of injury and illness more than double the average at other workplaces in their industries. OSHA said it couldn't confirm these numbers, and the agency did not respond to requests by iWatch News for its own numbers. A Government Accountability Office audit looking at rates from 2007 found similar numbers.

Documents obtained by iWatch News provide a glimpse of safety lapses involving companies in VPP. Case files detailing OSHA investigations of fatal accidents at VPP sites, though often heavily redacted, show that some deaths were, in the view of agency inspectors, preventable.

"Proper training along with working two employees together and a review of the duties to be performed would have prevented this accident," OSHA concluded after an investigation of a fatal accident in 2003 at the Tobyhanna Army Depot in Tobyhanna, Pa., in which a pressurized tank lid blew off and hit the employee.

Following an investigation of a fire that claimed a worker at Eastman Chemical Company's Longview, Texas, plant in 2003, OSHA determined that the worker could have survived the blaze if the company had provided the proper protective suit.

And after an investigation of a catastrophic boiler explosion in 2008 at International Paper's mill in Vicksburg, Miss., OSHA found that the company did not act on recommendations from its own expert that, if followed, would have either prevented the explosion or minimized the risk to workers. As it was, the blast killed one worker and injured another 22, at least three of whom remained in medically induced comas for months as doctors treated grave burns.

In each case, OSHA alleged violations of safety standards VPP members are expected to exceed, but the company remained in VPP. In the Eastman and International Paper cases, some of the violations were reduced after the company contested them.

Representatives of Eastman and International Paper declined to discuss the accidents. Russ Dunkelberger, Tobyhanna's safety manager, said that the depot regularly exceeds OSHA safety requirements; the 2003 death, he said, was not indicative of larger problems.

At least seven sites have experienced multiple fatal accidents while in VPP; four remain in the program today. Two companies, International Paper and Georgia-Pacific -- among the largest corporate participants in the program -- have four sites each where workers have died since 2000.

Some accidents have occurred just months after OSHA officials determined the site belonged in VPP.

In May 2009, the agency announced that American Packaging Corp.'s Columbus, Wis., plant had earned "Star" status. OSHA Area Director Kimberly Stille, presenting the company with a flag and a plaque, noted American Packaging's "excellent record in workplace safety and health," "outstanding efforts" by management, and "exceptional employee involvement in safety and health programs."

Five months later, an explosion rocked the plant, killing 47-year-old worker Jeffrey Doxtater. OSHA investigators found a host of deficiencies, including inadequate training, protective gear and written safety procedures, as well as problems with the company's handling of hazardous substances. The agency found 29 serious violations of safety regulations, and proposed a $127,350 fine.

This time, Stille was not so laudatory of the company's safety achievements. "These types of violations show the company's disregard for the safety and welfare of its employees," Stille said in a press release announcing the violations. "Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers."

American Packaging didn't respond to requests for comment. In an earlier statement, the company said it was "shocked and dismayed" by OSHA's proposed penalties and noted its status as a member of the club. "Approval into VPP is OSHA's official recognition of a company's outstanding efforts and excellence in occupational safety and health," the company stated. American Packaging is contesting the citations.

The Labor Department, in a written statement, said that approval of VPP status was based on the standard evaluation by a VPP team, which is "not a comprehensive safety and health investigation." The government also said it is weighing whether the operation in Columbus still meets the program's requirements.

In the meantime, American Packaging remains in VPP.

Staying in the club

To join VPP, companies must submit to an on-site evaluation. Unlike the usual OSHA visit where inspectors can issue citations, however, evaluators -- often including employees of companies in the program -- issue "90-day items," a list of hazards to correct within 90 days. "Star" sites typically won't face another evaluation for at least three years. Almost every member of the club -- more than 95 percent -- has "Star" status.

Once a site is approved into VPP, it is largely left to police itself. Only serious accidents, formal complaints, or referrals -- when OSHA is informed of a potential hazard -- will trigger a visit from an enforcement official.

Though OSHA often uses special enforcement programs to target particularly dangerous industries, VPP sites are exempt from these inspections, too. Companies must file reports on themselves with OSHA each year, but OSHA generally does little to verify them until the next evaluation in three to five years, Barab confirmed.

When a worker dies at a VPP site, OSHA officials responsible for overseeing the program have to follow up, but what happens after that is a judgment call. The agency could perform a full re-evaluation of the site's VPP status, or it might just call the company on the phone to check in.

"A lot of VPP is kind of subjective," said OSHA's Barab. For a workplace to stay in the club, "we have to feel like they're acting in good faith."

During the past decade, these judgment calls usually tipped in favor of letting companies stay; at least 65 percent of sites where a worker has died remain in the program today.

Some sites have been re-approved after fatal accidents, only to experience further problems. At Weyerhaeuser's Valliant, Okla., plant, for example, a contract worker was crushed to death in a paper machine in May 1999, but, in May 2001, OSHA re-approved the facility as a "Star" site. Less than two months later, another worker was crushed to death in a paper machine, and OSHA found the same violations for which it had cited the company after the first death. Only after this second death did OSHA remove the site from VPP in 2003.

Weyerhaeuser refused to discuss the accidents, but said in a statement: "Weyerhaeuser takes safety very seriously and supports the goals of VPP. Whenever we have a fatality we review the event and work with the appropriate safety agencies to learn how to prevent future occurrences."

And, more recently, the agency has repeatedly reapproved Bayer MaterialScience's Baytown, Texas, plant after serious accidents -- once after a chemical spill in 2000 that led to willful and serious violations issued for what OSHA deemed a botched cleanup, then again after a 2005 explosion followed the next year by a chemical release that killed a worker. After another explosion, the company withdrew from VPP at OSHA's request in 2007 but was readmitted the next year.

Bayer refused to discuss the accidents or its brief withdrawal from VPP, instead providing a written statement. "Achievement of 'Star' status came through the commitment of Bayer Baytown employees to a philosophy of continuous safety improvement," the company wrote.

William A. Burke, OSHA's acting regional administrator in Dallas, provided a statement to iWatch News about the Bayer plant, saying, "Each inspection and VPP review following each inspection taken independently didn't indicate a significant deficiency in their safety and health program, but added together showed an overall weakness in the strength of the program." But the company has fixed the problems and demonstrated "their sincerity to protect their employees," he said.

The decisions that OSHA officials make in such cases are based on reviews of the site, but the Government Accountability Office raised serious concerns in a 2009 report about the assessments underlying these decisions. Auditors found that, in some cases, there was little documentation of what, if anything, OSHA regional offices did to ensure these VPP sites still belonged in the program. The GAO concluded that "some sites that no longer met the definition of an exemplary worksite remained in the VPP."

Barab, acting chief of OSHA at the time of the report, responded by requiring documentation of follow-ups to serious accidents, among other steps. The effect of these changes is still unclear.

Last June, OSHA reapproved International Paper's Vicksburg mill as a "Star" site. The decision came less than a year after the company agreed to stop fighting the citations, including one initially deemed "willful," stemming from the fatal 2008 boiler explosion. A "willful" citation signals OSHA's conclusion that a company either intentionally violated the law or acted with "plain indifference" to it. In International Paper's case, the willful citation was reduced to a "serious" one.

Current agency head David Michaels signed a letter to the mill manager, calling the site "a model of excellence" and "an inspiration to us all."

'Cosmetic compliance'

Some critics have argued that VPP has been watered down in the rush to expand, and is too easily gamed by employers more interested in "cosmetic compliance" -- looking good on paper -- than keeping workers safe.

In the push to expand the program, OSHA may have undermined its effectiveness. Workplace safety regulators have changed policies to make it easier to join the club, allowing streamlined approvals for companies seeking VPP status for more than one workplace and allowing a company more latitude in how it compares its injury rate to industry peers; instead of using industry rates for the previous year, an employer can choose from one of the three previous years, whichever presents its record most favorably.

Former OSHA officials described a quota system that diverted resources from enforcement and cast doubt on the quality of some sites in the program. During VPP's rapid growth between 2001 and 2008, the number of OSHA staffers helping companies comply with safety regulations, including oversight of the VPP program, decreased, according to agency data. But with the rapid expansion, OSHA needed more people than ever to conduct on-site evaluations.

Adam Finkel, OSHA regional administrator for many of the Rocky Mountain states from 2000 to 2003 and now on the faculty of the University of Pennsylvania, said that, during his time at the agency, the emphasis on expanding VPP membership sometimes came at the expense of enforcement. Finkel, who won a settlement from OSHA after blowing the whistle on exposure of inspectors to a toxic metal, recalled the pressure to increase the number of VPP worksites: "It was always, 'How many people are you putting on this? How many new sites have you got?' "

Former OSHA official Martin, who was a compliance assistance specialist in one of the agency's Pennsylvania offices until earlier this year, also recalled pressure to move quickly. "During that era, there were some that were clearly rushed through," he said.

Haste may have had consequences. A former OSHA official asserted in a formal complaint with the Labor Department's inspector general in 2009 that evaluators missed "glaring violations" that led to a serious accident, then took steps "to cover up the botched VPP evaluation."

The complaint stemmed from a June 2008 evaluation of a Petrolia, Pa., plant owned by Indspec Chemical Corp., a subsidiary of Occidental Petroleum Corp. Impressed, evaluators recommended "Star" status. In September, the regional administrator signed off, noting "the overall safety and health program management system at this site is excellent."

One month later, a wall of white smoke billowed from the plant's "Acid House" and into nearby buildings. Workers coughed and struggled to breathe as they fled the fumes, according to their statements included in a set of documents obtained by iWatch News.

The cloud was oleum, also known as fuming sulfuric acid. OSHA eventually determined that the company's botched response led to a large and uncontrolled release, threatening a nearby community, which had to be evacuated.

This time, OSHA didn't praise the company. Its program for handling hazardous chemicals such as oleum, which the VPP evaluation team had saluted only a few months earlier, was incomplete and had created "a greater likelihood for the chance of a catastrophic release of toxic materials," the agency's inspection report concluded.

In all, the agency found 27 serious violations and issued a $121,500 fine. OSHA, which hadn't finalized the site's "Star" status and announced it publicly, quietly withdrew the approval, and Indspec's aborted bid to join the VPP club has not been previously disclosed. To settle the enforcement case, the company agreed to pay $90,000 for 20 violations and to remedy the unsafe conditions, according to the settlement agreement between OSHA and the company.

OSHA's actions "wasted government time and money and resulted [in] endangering not only plant employees, but also the residents of [the] town of Petrolia," wrote the official, whose name was redacted on documents iWatch News obtained under a public records request. Had OSHA officials been qualified and done their jobs, the official wrote, "they could have intervened prior to the incident and possibly prevented it." The Labor Department said in a written statement that VPP evaluation team's review had been thorough and that the underlying cause involved an infrequent process at the plant.

Indspec declined iWatch News' requests for comment, but in a statement the company said it may reapply for VPP status. "We understand and regret any inconvenience caused by the October 11, 2008, incident at the Indspec Petrolia plant," the company said. "To ensure that this type of incident doesn't happen again Indspec has made several changes in equipment and procedures." The company added, "Indspec believes in the fundamentals of OSHA's Voluntary Protection Program."

A 'wake-up call'

Mechanic Rob Hackley spent much of Oct. 10, 2005, scrubbing and shoveling sludge from equipment at Tropicana's Bradenton, Fla., plant. The company had given him an extremely flammable cleaning solvent known as "Brake Wash" to use.

Though company managers knew well the heightened safety requirements for working with such hazardous substances, they did virtually nothing to address the dangers, investigators later found. Any one of an assortment of tools and equipment later found at the scene -- but that shouldn't have been there -- could have triggered an explosion, investigators said. As it happened, it was Hackley's electrical impact wrench.

"One little tiny spark is all it took," recalled Cliff Vanluven, who was in the room with Hackley as it erupted in flames, singeing the hair off every uncovered part of Vanluven's body and engulfing Hackley. Vanluven used his hands to beat out the flames that were consuming Hackley, suffering serious burns himself. "It seemed like forever," Vanluven recalled.

The OSHA inspection yielded a scathing report. Two of the dozen safety violations were deemed "willful" -- a designation so serious that companies with such violations can't apply to VPP for three years. But Tropicana was already in the program, and regulators weren't required to kick the company out. Tropicana paid the full $164,250 penalty and corrected the problems investigators had found, OSHA documents show.

In a press release, OSHA deemed the fire a "wake-up call" for Tropicana. The agency's regional administrator, after meeting with company executives, said she was "convinced of their commitment to the high standards of the Voluntary Protection Programs," according to an OSHA statement.

Tropicana refused interview requests from iWatch News but in a written statement said it has remedied problems identified following the explosion. "[W]e take seriously our responsibility to continually evaluate and enhance our procedures and systems," the company wrote. "Our safety record exceeds our industry and our plants are among the top safety performers." Of the fire in Bradenton, it said: "[W]e quickly developed and implemented new safety measures. These have been included in our workplace safety and training programs."

October 2005 was not the first time OSHA had been called to the plant since it was admitted to VPP. In November 2000 -- nine months after the site first earned "Star" status -- a worker was crushed to death between a trailer and a loading dock. OSHA investigated but didn't issue citations. Instead, the agency gave Tropicana a list of five recommendations to address voluntarily. In a letter to OSHA, the company said it had taken steps to address the recommendations.

Since the accident in 2005, OSHA has received three formal complaints about the Bradenton plant. One resulted in the issuance of a serious violation. In 2009, OSHA officials returned to the plant for a scheduled VPP re-evaluation and found deficiencies in how the company was identifying and controlling hazards. The agency re-approved the plant as a "Star" site under "conditional" status, essentially placing it on probation for a year. A follow-up evaluation is supposed to take place within 15 months; OSHA did not respond to requests for information about it.

Both Hackley and his wife, Kim, have regular reminders of the 2005 fire. Rob's skin has healed well, Kim said, but he has scars on his chest and arms from the skin grafts. Sections of his skin are from cadavers and pigs.

Other wounds are less obvious. Rob has periodic anxiety attacks and shaking fits, Kim said. Sometimes he inexplicably gets so cold that they have to wrap him in blankets. After the accident, Rob received treatment for post-traumatic stress disorder, Kim said. Rob himself is still too upset to discuss the accident, she said.

The Hackleys eventually reached a settlement with Tropicana, Kim said, but she couldn't discuss the details. "I don't know if it was fair or not," she said. "When you're dealing with a company as big as Tropicana, once the accident is over and you sign the papers, they're done with you. But people have to live with the effects."

Rob considered going back to work, she said, but "he just could not bring himself to get close to the plant." He now has a slow-paced job at a small shop. He likes his work, and he sees a psychologist much less often.

"The one thing that really still bothers Rob is that they got to keep their 'Star' status," Kim said. "If safety really had been a priority, this wouldn't have happened."

 

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