Jordan Barab Archive

A new and improved Protecting America’s Workers Act (PAWA) has been introduced into the House of Representatives by Congressman Joe Courtney (D-CT). Similar versions of this bill has been introduced every year for over a decade.  The bill number is H.R.1074 and a copy of it can soon be found here. (In the meantime, here is a PDF and a Section-by-Section analysis.)

As with past PAWA bills, this version, which has 27 co-sponsors, extends OSHA coverage to public sector employees in those states where they’re not currently covered (as well as federal employees), strengthens anti-retaliation protections for workers, requires the abatement of hazards during contests by employers and toughens criminal penalties.

In addition, this year’s bill also includes provisions to codify OSHA’s severe injury and electronic injury reporting requirements (including the detailed reporting by large employers recently withdrawn by OSHA). It reverses the revocation of the “Volks Rule” which was repealed by Congress and the President under the Congressional Review Act at the beginning of the Trump administration.

PAWA significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions. 

The bill significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions.

February 7 was a bad day for worker safety.

On February 7, 2008, 14 workers were killed and 38 were injured — many with severe burns — when the Imperial Sugar plant in Port Wentworth, Georgia exploded as a result of combustible dust accumulations.

Exactly two years later, on February 7, 2010, 6 workers were killed and at least 50 injured when the Kleen Energy power plant in Middletown, CT exploded after natural gas was used to blow debris from the plant’s pipes.

I remember both of those tragedies well. I was working in the House of Representatives when news of Imperial Sugar came across my desk, and snowed in on Superbowl Sunday during “Snowmageddon” when the Kleen Energy plant exploded.

Both of these tragedies were easily preventable. The hazards of combustible dust were well known, and massive accumulations of combustible sugar dust existed throughout the packaging building prior to the explosion.  Similarly, the hazards of using huge amounts of natural gas to blow debris from a power plant under construction were well known. Also well know was that all potential sources of ignition had to be eliminated before the blow — yet potential ignition sources from welding, electrical equipment and other practices had not been eliminated in an attempt to finish construction of the plant on schedule.

The Chemical Safety Board’s (CSB) report on the Imperial Sugar investigation can be found here, and the CSB’s full combustible dust report can be found here. The CSB’s report on Kleen Energy can be found here.

If the nomination of Scott Mugno to head OSHA was an airplane flight, the endless delays would have driven you to give up air travel by now.

As we last reported, Mugno had been re-re-nominated to the post of Assistant Secretary of Labor for OSHA. Mugno was originally nominated by Trump in October 2017, testified before Congress on December 5, 2017 and was approved by the Health, Education, Labor and Pensions committee on December 13, 2017. But because his nomination didn’t come to a vote before the end of that year, the White House was forced to renominate him on January 16, 2018 and he was again approved by the HELP Committee shortly thereafter. But yet again, the full Senate did not vote on his nomination due issues not related to his qualifications, forcing him to be re-re-nominated on January 16, 2019. The HELP Committee was scheduled to re-re-approve him (along with a number of other Department of Labor nominees) in a mark-up scheduled for tomorrow, but that session was inexplicably postponed to a date yet-to-be-determined.

No word yet about why the mark-up was postponed. Just a scheduling issue? Time needed to go back and look at old yearbooks? Who knows?

It’s Bad All Over

But Mugno should not feel alone. The Washington Post reports today that even Republican Senators are growing concerned about the unprecedented number of vacancies still existing:  “The Partnership for Public Service, which has tracked nominations as far back as 30 years, estimates that only 54 percent of Trump’s civilian executive-branch nominations have been confirmed, compared with 77 percent under President Barack Obama at the same point in his administration.”

And the Labor Department is one of the worst: “Only 41 percent of the Interior and Justice departments’ Senate-confirmed posts are filled, and just 43 percent of such positions have been filled at the Labor Department.”

As expected, a lawsuit has already been filed opposing OSHA’s rollback of its electronic recordkeeping rule that we discussed here last week, and in more detail here.

For those of you just tuning in, OSHA last week repealed a major section of the Obama era recordkeeping rule that would have required certain businesses with 250 or more employees and employers in high-risk industries with 20 or more employees to send in to OSHA detailed non-confidential injury and illness information contained on OSHA Forms 300 and 301.  Injury and illness summary information contained on From 300A will still have to be sent to OSHA on an annual basis. OSHA’s poorly supported excuse for rolling back these requirements was concerned about employee confidentiality, even though the program was specifically designed so that OSHA would receive no confidential information

Public Citizen Lawsuit

Public Citizen’s Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists filed a lawsuit last Friday asking the US District Court for the District of Columbia to overturn OSHA’s rollback of the recordkeeping regulation.

According to Public Citizen attorney Michael Kirkpatrick,.

When it issued the electronic reporting rule after an exhaustive process, OSHA concluded that requiring the submission of workplace injury and illness data would greatly enhance worker health and safety. OSHA has now rushed through a new rule drawing exactly the opposite conclusion, but OSHA has failed to provide any good reason for reversing itself.

Chamber to OSHA: What Have You Done For Us Lately?

Despite the OSHA cave-in to employer attempts to cover-up injury and illness information, the Chamber of Commerce thinks the agency should have gone further. According to Politico, Marc Freedman, vice president of employment policy at the Chamber of Commerce, is “disappointed” with the rollback rule, because it failed to address the continuing obligation to send in injury and illness summary information, and because it didn’t eliminate language that prohibits employers from retaliating against workers who report injuries and illnesses.

Neither government shutdowns, requests for meetings by stakeholders, nor lack of evidence can stop an agency like OSHA from rolling back a regulation that would have increased our understanding of workplace injuries and illnesses, and made work safer for millions of American workers. As Robert Weissman of Public Citizen observed, “Although shut down, the Office of Information and Regulatory Affairs is apparently still open for business – that is, for business:

Last week, the White House Office of Management and Budget cleared OSHA’s rollback of significant parts of the Obama administration’s electronic recordkeeping regulation and today the text of that regulation was released. The rollback, nothing less than a cover-up of worker injury and illness data at the behest of the Chamber of Commerce and friends, was rushed through OSHA and OMB review in record time. The rush is apparent from reading the regulation — numerous paragraphs and argument are repeated, evidence is incorrectly cited, evidence is lacking and the arguments are laughable.

Furthermore, because of the rush or the government shutdown, the AFL-CIO’s request for a meeting with the Office of Information and Regulatory Affairs was ignored — an unprecedented action that resulted in the labor federation’s request to recall the regulation until a meeting takes place.

Furthermore, the Federal Register is scheduled to officially publish the regulation this morning, despite the Register’s government shutdown guidance document that states that

"Under DOJ guidance received January 11, 2019, we are also allowed to publish documents from funded agencies if delaying publication until the end of the appropriations lapse would prevent or significantly damage the execution of funded functions at the agency.  Agencies must submit a letter certifying that delaying publication of their documents would result in this situation. This certification provides OFR with documentation that publication in the Federal Register is a function or service excepted under the Antideficiency Act."

What “significant damage” will OSHA suffer if recordkeeping requirements aren’t rolled back today?

Reuters reporters Julia Harte and Peter Eisler have assembled a powerful investigative article on how “the Trump administration’s plan to weaken the beryllium rule offers a case study in the renewed power businesses can wield in the regulatory process.”

OSHA’s standard to protect workers from the disabling and deadly effects of beryllium exposure was issued in the waning days of the Obama administration.  Exposure to beryllium dust causes chronic beryllium disease and lung cancer. Symptoms include difficulty breathing/shortness of breath, weakness, fatigue, loss of appetite, weight loss, joint pain, cough and fever. Over time it may lead to disability and death.

OSHA had been working on a new standard to update it’s seriously outdated beryllium standard for 20 years, and it was an agreement between the main beryllium producer Materion and the United Steelworkers that enabled OSHA to push the new standard over the line before Trump took over.  The labor-industry agreement reduced the Permissible Exposure Limit, added “ancillary provisions” requiring exposure monitoring, training, medical surveillance and other provisions, and covered general industry (e.g. manufacturing) worker. OSHA also added protections for construction and maritime workers who are mainly exposed during the process of abrasive blasting using ground coal slag to remove rust and paint from ships and other structures.

In its first completed rollback of a previously issued regulation in the Trump administration*, the Occupational Safety and Health Administration today announced its final recordkeeping regulation that eliminates the requirement that certain employers send in to OSHA detailed information about injuries and illnesses that employers already collect.  The Office of Information and Regulatory Affairs announced that it had rushed to clear the rule last week. The full 104 page text of the new rule and the preamble can be found here.

The main excuse OSHA uses for the rollback is “to protect worker privacy.” Ignoring the fact that employers were not required to send any confidential information to OSHA in the first place, the agency’s press release argues that

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.

The new rule does not affect the current requirement that employer send in to OSHA the summary of injuries and illnesses (OSHA Form 300A), although the agency makes clear that they do not intend to release the summary information to the public for at least 4 years because they allege that the data is not subject to the Freedom of Information Act which would normally require public disclosure. OSHA’s reason is that “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

Freedom of the Press is not Free — or Safe: Reporters Without Borders released its annual report last month of deadly violence and abusive treatment of journalists and the news isn’t good: “A total of 80 journalists were killed this year, 348 are currently in prison, and 60 are being held hostage.” And it’s getting worse. Murders, imprisonment, hostage-taking and disappearances have all increased. According to RSF Secretary-General Christophe Deloire, “The hatred of journalists that is voiced, and sometimes very openly proclaimed, by unscrupulous politicians, religious leaders and businessmen has tragic consequences on the ground, and has been reflected in this disturbing increase in violations against journalists.” I know at least one unscrupulous politician who should read this and reflect.

Spreading the Pain: Some federal employers are luckier than others because their agencies are still funded and they’re actually getting paid for their work. Instead of urging them to urge their elected leaders to end Trump’s vanity wall shutdown, “the Department of Labor’s assistant secretary for administration and management, Bryan Slater, sent an email urging department staff to help out workers at agencies affected by the partial U.S. government shutdown,” according to Bloomberg. Slater reminded those lucky DOL employees that ““This is a great opportunity to help fellow colleagues manage their bills, their child care and other everyday needs!” So instead of their employers paying them for the work they’re doing (or want to be doing), their fellow employees are now being asked to support them while the billionaire President sits in his bed, watching Fox “News” all day and tweeting lies after lie. Perhaps Labor Secretary Alex Acosta should do something real for the federal labor force and tell his boss to end the shutdown.

ADM Cutting Back on Safety?  ADM has been having problems. Or more precisely, those working in and around ADM have been having problems — deadly ones. Last weekend, OSHA launched two separate investigations into grain dust explosions at ADM corn processing plants in Iowa and Decatur, Illinois. A firefighter was killed responding to the explosion and fire in Iowa. The Decatur plant had experienced another fire and explosion just two months ago in the grain elevator that serves the company’s corn and soybean plants. As former OSHA Policy Director Debbie Berkowitz observed, “The standard to prevent explosions in grain elevators is 30 years old. There are no excuses here for these deadly explosions.”

Mining Fatalities Down Slightly in 2018: MSHA is boasting the second lowest number of fatalities n the nation’s history. 27 miners were killed in 2018 — 12 coal miners, and 27 metal/non-metal miners. Last year 15 coal miners were killed and 13 metal/non-metal miners. 2016 saw the lowest number with 25 killed — 8 coal miners and 17 metal/non-metal miners.  Unfortunately, it only took a few days into 2019 for the first mining fatality: John Ditterline, 55, of Equality, Illinois, was killed January 4. Ditterline was a contract employee in the underground mine, working for Clay, Kentucky-based S & L Industries. The mine is owned by Alliance Resource Partners, LP.

The Bureau of Labor Statistics today released its 2017 Census of Fatal Occupational Injuries— and it contained good news and bad news. 

The good news is that workplace fatalities fell slightly, less than 1% last year from 5,190 fatal injuries reported in 2016 to 5,147 last year. The fatality rate also declined slightly from 3.6 to 3.5 deaths per 100,000 full-time equivalent workers.

That bad news is that still means more than 14 workers are killed on the job every day in this country (in addition to the roughly 135 who die each day from diseases related to work like silicosis, black lung and asbestos-related disease.)

According to the AFL-CIO’s Peg Seminario,

Today’s sobering report comes at a time when the number of Occupational Safety and Health Administration inspectors is at the lowest point in decades and the Mine Safety and Health Administration inspection force has dwindled. 

Instead of increasing life-saving measures aimed at protecting working people at their workplaces, the Trump administration is rolling back existing safety and health rules and has failed to move forward on any new safety and health protections.

Most of these job deaths were preventable, caused by well-recognized hazards.

SHA just made history. For the first time in human memory, an OSHA regulation has gone over to the White House for OMB review earlier than predicted in the Regulatory Agenda.

You may recall last July, OSHA proposed to rescind the part of the agency’s “Electronic Recordkeeping” regulation, issued under the Obama administration, that would have required certain employers to send to OSHA detailed information on injuries and illnesses from the OSHA 300 Form and the  more detailed 301 form.

The Fall 2018 Regulatory agenda had predicted that the regulation would go over to OMB’s Office of Information and Regulatory Affairs (OIRA) on time for the standard to be issued in June 2019. OIRA is generally given 90 days to review a standard or regulation and often takes longer. In order to meet the June schedule, OSHA would have had to send it to OIRA by the end of March. The agency is running three months ahead of schedule.

Now, as I’ve said many times, no matter what party controls the agency. OSHA almost never meets — much less exceeds — the schedule set in the Regulatory Agenda, especially in the middle of a Presidential term when there’s no pressure to finalize regulations before the clock runs out. Everything always takes longer than expected and other priorities tend to get in the way.

So, you might ask, what’s the rush?

Workers in chemical facilities and those living nearby can sleep easier after the US Congress declined to include language in the long-awaited Farm Bill that would have forced OSHA to write regulatory language into the Process Safety Management (PSM) standard that would have threatened the lives of chemical plant workers and those living nearby.

PSM regulates worker safety in the nation’s chemical facilities and refineries.

Avid Confined Space readers may recall that after the catastrophic West Fertilizer explosion in 2013 that killed 15 and destroyed much of the city of West, Texas, Americans realized that facilities like West Fertilizer, that used and stored large quantities of highly hazardous chemicals, had fallen through a loophole in the PSM standard that exempts “retail facilities” from coverage.

“Retail” had not been defined in the PSM standard when it was issued in 1992, and although the standard clearly envisioned only facilities like gas stations and hardware stores to be exempted, OSHA had issued a flawed definition of “retail facility” that exempted more risky facilities like West Fertilizer from PSM. The result was that West Fertilizer was not covered by PSM and had not been inspected by OSHA since the 1980s. 

After the West explosion and other chemical plant disasters, President Obama issued an Executive Order which instructed OSHA to change the definition of “retail” to something that made more sense.  OSHA issued a memo re-interpreting the definition of “retail,” but that change was overturned by the U.S. Court of Appeals for the District of Columbia Circuit which told OSHA it had to go through full notice and comment rulemaking before making the change. OSHA then added the definition of retail to the issues being considered in its ongoing modernization of the PSM standard which currently languishes on OSHA’s “long term” regulatory agenda.

Under pressure from the Agricultural Retailers Association (ARA), which represents businesses that sell farm chemicals, as well as the Fertilizer Institute, House Republicans added language to the Farm Bill that would have required OSHA to write the old, flawed definition into the PSM standard. That language, however, ran into strong opposition in the Senate and from groups like the United Steel Workers union and the National Safety Council.

The last hearing of the soon-to-be late, great Republican-controlled House Education and Workforce Committee of the 115th Congress was supposed to be held yesterday.    The subject: “Mandating a $15 Minimum Wage: Consequences for Workers and Small Businesses”. (Subtext: How a mandatory minimum wage will doom small businesses and starve their employees.)

Unfortunately for Republicans who oppose paying workers a living wage, the hearing was postponed. (Probably permanently, being as the 115th Congress draws to a close at the end of next week.)

This was going to be an important hearing. Not just because this was the final hearing that the Education and Workforce Committee, controlled by Republicans, would hold before it becomes the Education and Labor Committee, controlled by the Democrats. 

This was the only hearing the Republican majority has called to discuss the minimum wage since taking control of Congress in 2010.

This hearing was important because it was to be the only hearing the Republican majority has called to discuss the minimum wage since taking control of Congress in 2010.

You read that correctly. The Republicans in this committee have held 264 hearings over the last 8 years and zero have covered the minimum wage. 

So why would they cancel their only chance argue to hard working Americans that $7.25/hour is plenty of money.

Seems one of their witnesses got caught with his digital pants down.

Excuse the length of this depressing exercise, but I’ve been away for a couple of weeks and unlike me, workplace death takes no vacation. The usual falls, machinery deaths, vehicle accidents. Also several sanitation workers lost their lives over the past several week, as well as retail workers shot on the job. From Alabama to Wisconsin. From Idaho to Mississippi.  From Massachusetts to California and on to Guam.  The toll of workplace death goes on.

College Station police: Man, 24, dies in workplace accident

Brighton man killed in accident involving large tilling machine identified

BOULDER, Colo. — Authorities have released the name of a Colorado man who was killed in an accident involving a large tilling machine. The Boulder Daily Camera reports 65-year-old Ray Garner, of Brighton, was in a field when his clothing became entangled in an auger Monday afternoon. He died at the scene. The Erie Police Department, the Occupational Safety and Health Administration and the Weld County coroner’s office are investigating.

Your job or you unborn child. Your job or your bladder. Your job or your life. These are the choices that far too many workers still have to make every day, in the 21st century, in the United States of America.

Just got back from vacation and lots of troubling stuff has been happening while I’ve been gone. I’ll write more about some of these things as time permits, but here’s a short summary.

Deaths in Small Farms: Eli Wolfe of Fair Warning has written a devastating piece, co-published in The Atlantic, about worker deaths on small farms and how Congress prohibits OSHA from investigating incidents on farms that comprise about 93 percent of U.S. farms with outside employees, employing more than 1.2 million workers. “By keeping the exemption, Congress is saying it ‘doesn’t really care whether workers get killed on small farms or not,’ said Jordan Barab, former deputy assistant secretary of labor for OSHA during the Obama administration. ‘There’s no other way to interpret it.’”  Wolfe estimates that from 2011 through 2016—333 employees were killed in accidents on farms with 10 or fewer employees.

Modern Day Slavery: Just in time for the holidays a New York Times investigation explores the cost to workers of next day delivery from Amazon and other retail outlets. Workers handle thousands of items every day, quotas are increased and it’s output over everything — including worker health or safety — but they’re the only jobs around. A supervisor to a sick pregnant employer after a 12 hour work day: “What is this fucking pregnancy? You don’t need no more fucking kids. Get a fucking abortion!” She went home and had a miscarriage the next day. Five of her co-workers also miscarried. Doctors notes about not lifting heavy objectw were ignored. Try to read this with a dry eye.

Meanwhile, Somali workers at Amazon in Minnesota show the benefits of collective action.

Under-recording of workplace injuries and illnesses is bad, and far too common. But at the automaker Tesla, in Fremont, California,  under-recording is more than a paper exercise in deception — at Tesla it means withholding needed medical treatment of injured workers so that their injuries aren’t reported on OSHA logs.

We wrote previously about reports that workers are getting hurt at Tesla and that many of those injuries are not being recorded.  Earlier this year, Reveal reporters Will Evans and Alyssa Jeong Perry documented how Tesla put style and speed over safety, undercounted injuries and ignored the concerns of its own safety professionals. CalOSHA has inspected the company a number of times and found recordkeeping violations.  Now Evans shows the many ways that Tesla is keeping injuries off the OSHA logs.

Despite a clear pattern of inaccurate reporting, federal OSHA is unable to cite patterns of under-reporting after Congress repealed OSHA’s “Volks” regulation at the beginning of the Administration. Throughout OSHA’s history, the agency had been able to cite employers who violated OSHA’s requirement to keep accurate records for five years. OSHA had issued a regulation addressing a court ruling against that practice, but Congress used the Congressional Review Act to repeal it. OSHA can’t cite recordkeeping violations longer than 6 months before a citation is issued, making it impossible to cite patterns of violations like those committed at Tesla.

California has modified these restrictions slightly by allowing the agency to cite employers for recordkeeping violations six months from when Cal/OSHA first learns of the violation, instead of six months from when the violation occurred. But the bill was signed too late for the agency to take action against Tesla.

This is one of those horrific stories that you think must have come out of the 19th century or early 20th century.

Just before Christmas in 2008, a dike at the Tennessee Valley Authority Kingston Fossil Fuel Power Plant in Roane County, Tennessee, gave way, carrying away houses and smothering 300 acres of land under a billion gallons of coal ash slurry, a by-product of coal combustion to produce electricity. It was the nation’s worst coal ash spill.

Construction workers from East Tennessee and across the nation responded, but without any protection or training, despite the fact that coal ash contains “a concentrated stew of toxins, including arsenic, radioactive material, mercury and lead.”

Today, “more than 30 workers who cleaned up the December 2008 spill at the Tennessee Valley Authority Kingston Fossil Fuel Power Plant in Roane County are dead, and more than 250 are sick or dying.”

This tragedy wasn’t an oversight on Jacobs’ part, nor a failure of workers to follow the rules, according to Knoxville News Sentinal’s Jamie Satterfield and an investigation by USA TODAY Network-Tennessee.

Testimony showed Jacobs began watering down both safety testing procedures and worker safety rules as soon as the EPA allowed the TVA to put the firm – which has a long history of worker safety lawsuits and even criminal charges – in charge of the Kingston site.

The workers were – falsely – assured coal ash exposure was safe and were misled about its dangers, testimony showed. As many grew sick while working more than 60 hours weekly unprotected, Jacobs’ safety managers, including Tom Bock and Chris Eich, continued to insist coal ash exposure was not the cause.

Testimony showed Bock ordered dust masks kept on site for the workers destroyed and refused to provide them any protective gear. Jacobs refused an EPA directive to provide the workers showers and changing rooms and instead provided them a cat litter box filled with ash-contaminated water to clean up.

Aside from the jarring videos of nurses being attacked and the tragic interviews as they recount the attacks and try to recover — physically and emotionally — the video is also packed with information:

• Over 2400 nurses are victims of workplace violence every year and the number increased 30% since 2012 according to the Bureau of Labor Statistics.
• Hospitals consider attacks and threats against health care workers to be “part of the job.”
• Part the reason for the increase is that hospitals are faced with more and more psychiatric patients and patients who have substance abuse problems.
• Instead of responding to the increase, OSHA has its efforts to address violence in health care. There were only 81 workplace violence-related OSHA inspections last year out of over 32,000 total inspections, down from 131 the year before.
• Prior to January 2017, OSHA had an emphasis program that included programmed (or random unannounced) inspections for workplace violence in nursing homes and health care institutions. The elimination of the program explains much of the reduction in workplace violence citations.
• Because there is no OSHA standard covering workplace violence, OSHA is forced to use the burdensome General Duty Clause. Because of the difficulty of using the General Duty Clause, the agency often only issues warning letters instead of citations. Terpstra found that one-quarter of inspections from 2012-2017 resulted in warning letters, and fewer than half with citations.  Nothing requires inspectors to follow up on hazard letters.
• Ten states have some kind of law or OSHA standard covering workplace violence, although it is unclear how effective they are in preventing incidents.

In case anyone hasn’t heard, there’s an election today. One of the messages that I try to communicate to workers reading this newsletter is that the way you vote in November will largely determine your chance of coming home from work healthy and alive at the end of the day.

In case there is anyone out there still wondering whether it’s worth voting this time around, I thought I’d chime in with some reasons to vote for those interested in workplace safety. Sure, there are plenty of other reasons to vote: Trump’s lies, Trump’s racism, Trump’s divisiveness and intolerance, his crushes on Putin, Kim Jong Un, Duterte and Bolsinaro, Trump’s Supreme Court choices, Republicans’ hostility to the Affordable Care Act (Obamacare) and coverage for pre-existing conditions (and their lies about being for coverage after they were against it,) and their general hostility for anything that would benefit women, labor or unions.

But if your main interest is safety and health in the workplace, there are plenty of reasons to vote next week (or before). And by “voting,” I mean for Democrats — in case you hadn’t figured that out yet.

So what will change in January if Democrats take back the House of Representatives (or even the Senate?)

Workers Can Participate in CSB Investigations:A major goal of the Occupational Safety and Health Act is to encourage workers to participate in the process, including allowing workers to walk around with OSHA inspectors. When the Chemical Safety Board was authorized, the law required that workers be given the same opportunity to participate in facility investigations as provided by OSHA. In 2012, the CSB finalized a workers particiaption policy, but it was then classified as a confidential document. So how were workers to know they were allowed to participate in CSB investigations?

Good question.

Last week, the CSB voted 2-1 to revise that policy and issued it publicly. Board members Kristen Kulinowski and Richard Engler voted to issue the policy while Manny Ehrlich abstained.  Calling workers “critical sources of information relevant to the investigation,” the new policy gives workers (or their representatives) the right to participate in the following activities: Investigation opening meetings, status update meetings, and closing meetings, site walk-throughs and on-scene investigation activities, equipment, material, and sample evidentiary testing; employee witness interviews; document requests; and review of draft written reports and recommendations.

Can Safety and Productivity Co-exist? There’s a common myth going around these days that high profits and business success are incompatible with health and safety regulations and enforcement. Former OSHA head Dr. David Michaels disagrees. At the National Safety Council conference, Michaels recalls how employers would tell him that after a tragic fatality or other incident, they improved their health and safety program and not only saw injuries and illnesses decrease, but also saw gains in other areas of the business, such as quality and productivity.

His observation were mostly anecdotal and now Michaels, a professor at the George Washington University, is looking to develop “methodologically sound, data-driven research that seeks to determine whether a true causal relationship exists between these areas.”  It’s too late if you have to wait for people to get killed or seriously injured before you improve you safety program, according to Michaels. So they executives have to understand that organizational success, quality or productivity improvements, and other key business metrics go along with safe workplaces.

I wrote earlier this month about a court decision in the Mar-Jac case restricting OSHA’s ability to expand inspections at poultry plants — even when the company’s log shows high rates of injuries and illnesses — despite the industry’s record of unsafe conditions.

When conducting an inspection about a specific incident, you may recall, OSHA is only allowed to look at factors surrounding the incident and anything within the sight of the inspector. For that reason, when an OSHA inspector requested to inspect a worker’s locker where his tools were stored, Mar-Jac told the inspector that he could only walk through the plant if he agreed to wear a cardboard box over his head to blind him to any safety hazards.

OSHA’s job is to “find violations. They are not there for us, to be safety consultants.”

The Atlanta Journal Constitution published an article earlier this week about the court decision and its effect on OSHA.

Asked why Mar-Jac didn’t want the OSHA inspector walking through its plant, [Larry Stine, an attorney for Mar-Jac] told the AJC that Mar-Jac has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment. OSHA inspectors are “enforcement officers,” he said. “Their jobs and what they try to do is find violations. They are not there for us, to be safety consultants.”

Look at that last sentence a bit closer: “They are not there for us….” They’re just “enforcement officers.”

So who is OSHA there for?

The goal of an OSHA inspector is not just to “enforce” the law. The law is not the end. The law it the means to the ultimate end — which is to protect workers.

A couple of months ago, I wrote a post about how “freak accidents” are neither “freak,” nor “accidental.”   As I explained then:

First, the phrase implies that this type of incident hardly ever happens and there is, therefore, not much you can do about it. In fact, the phrase “freak accident” is a double-whammy. Not only dies the word “freak” imply “rare,” but the word “accident,” defined as “an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury,” implies that the event was unexpected.

One of the examples of an fatality that was labeled a “freak accident” was the tragic death of Marty Dale Whitmire in Greenville, South Carolina, in April 2017.  Whitmire was working on a paving operation when his truck clipped a live power line, which fell on him — a tragic, far-too-common — and completely preventable — cause of worker death.

Yesterday, Marty Whitmire’s nephew, Melvin Whitmire,  posted a comment on that post which I am reprinting below to give it more attention. I defy you to read it without boiling over, and crying at the same time:

Thank you so much for your article about the “freak” “”accident”” in Greenville SC involving the electrocution that occurred on a paving job site.

April 11, 2017 is a day my family and I will NEVER forget. Marty was my like a brother to me. He was actually my Uncle (my fathers baby brother) but because he was only 8 years older than me we were very close when I was a child and as I became an adult we grew to be best friends. He used to tell everyone that he and I were brothers.

Lots happening these days: the grizzly murder of a Saudi journalist, baseball championships (Go Dodgers!!), mid-term elections, Presidential temper tantrums about "Horseface" and "Pocahontas." The usual.

But by far the most important thing happening today is the Fall 2018 Regulatory Agenda.  Release of the Regulatory Agenda is a much anticipated (for regulatory geeks) semi-annual event that gives the President the opportunity to boast about his  efforts to allegedly "Cut Burdensome Red Tape and Unleash the American Economy”

Or, as we here at Confined Space like to call it, his efforts to cut worker, environmental and consumer protections and release the scourge of unbridled, predatory Capitalism upon the American people.

This latest version was released in the wee hours of the morning -- about the same time as the Dodgers 13th inning walkoff victory over the Brewers. Happily, at OSHA and MSHA, at least, there's not a whole lot of new protection-cutting going on. In fact, nothing significantly new has appeared on the regulatory agenda for the worker safety and health agencies.  Just the same old story -- in Democratic of Republican administrations -- pretty much everything is delayed, because the one thing that experienced regulators (or de-regulators) can agree on is that "Regulatory Agencies Plan. God laughs."

SBREFA! Say it Loud and There's Music Playing....

Let's start with some good news for a change.  OSHA has more or less met its deadline by convening a SBREFA (small business review) panel to launch the process of issuing a standard protecting telecommunication tower workers who have a tendency to fall hundreds of feet to their deaths with disturbing frequency.  This effort was launched under the Obama administration. That this would be the first SBREFA panel of this administration is not surprising as the communication tower industry has been lobbying OSHA for regulatory action. (Yes, some industries actually like regulations -- as long as they feel they can control the outcome sufficiently.)

Next up on the SBREFA front is Emergency Response, an effort started under the Obama administration, that seeks to update, consolidate and enhance OSHA's requirements for protecting emergency response workers.  This SBREFA panel is supposed to launch this month. Following Emergency Response is SBREFA for Workplace Violence, currently scheduled for March (delayed two months from its original January 2019 date.)

The High Price of Clean Rooms: Thousands of Marriott hotel workers are on strike in 23 hotels in Detroit, Boston, San Diego, San Jose, Oakland, San Francisco, Maui, and Oahu. Aside from wanted a greater share of the company’s enormous profits, the hotel workers, represented by UNITE-HERE, are also demanding that the company address conditions that lead to back injuries and other musculoskeletal disorders, as well more protection against sexual harassment and violence. The union notes that “Housekeepers, for example, are pushed to turn over rooms quickly, lugging heavy carts, flipping cumbersome mattresses and spending hours on their knees as they clean rooms as swiftly as possible. Repetitive stress injuries are recurrent, and housekeepers are also exposed to hazards like sharps discarded in hotel room garbage.”

P.S. The New York Yankees learned the hard way that God doesn’t like people who cross picket lines. The Yankees crossed the picket line at a Marriott-owned in Boston during the American League Divisional Series. They went on to lose the series. Case closed.

The High Price of Cheap Wings: With the demise of worker-oriented reporting in many of the nation’s top newspapers, it’s nice to see that the Washington Post has decided that it’s readers need to understand that their Buffalo wings come with a price.  The article discusses the Department of Agriculture’s new policy increasing line speeds in poultry plants despite strong evidence that even the current line speeds are causing high rates of musculoskeletal injuries, and that production focused supervisors aren’t letting workers use the restroom.  According to Deborah Berkowitz with the National Employment Law Project,  “The Trump administration doesn’t care that this change will exploit workers and harm public health and animal welfare. This is all about increasing profits for the poultry industry.” I’d say that about sums it up.

A 59-year-old employee at Allen Harim poultry plant in Harbeson, Delaware was killed last week from a serious head trauma after being struck in the head with a piece of equipment on an electric hoist when he and another employee were attempting to change the battery on a pallet jack.

This was not Allen Harim’s first workplace safety and health problem.

In 2015, OSHA issued a $35,000 citation to the company, warning the poultry processor that “The combination of musculoskeletal disorder hazards, lack of proper medical treatment for musculoskeletal disorders and underreporting of injuries at this plant must be addressed.”  The OSHA citation also included a violation for not allowing workers to use the bathrooms. OSHA also sent a Hazard Alert Letter to Allen Harim, warning of deficiencies in the facility’s medical management program.

And workplace safety is not Allen Harim’s only problem.  The Washington, D.C., nonprofit Environmental Integrity Project issued a report yesterday, “Water Pollution from Slaughterhouses” noting that Allen Harim is facing a $241,000 fine for dozens of wastewater-related violations found at its Harbeson plant between 2012 and 2016 – which the company has appealed. The report studied poultry processing companies who dumped illegal levels of nitrogen, fecal bacteria or other pollutants into the waterways across the country.

Two workers, Juan Baez-Sanchez, 42, and Victoriano Garcia-Perez, 56, both Mexican immigrants, died in the collapse of a 12 foot deep trench outside of Jackson Hole, Wyoming last week.  The men, who worked for Mountain West Services, owned by developer Jamie Mackay, were working alone.  The trench may have collapsed hours before help was summoned by delivery person who noticed an abandoned excavator.  Some evidence indicates that the trench initially collapsed on Garcia-Perez and Baez-Sanchez was trying to rescue him when the trench continued to collapse on top of him.

Early last month, 27-year-old Fernando Romero Martinez was killed in a trench in Ashton, Idaho that collapsed on top of him while he was attempting to put pipe connections together. In mid-August, Anthony Smith was killed in a trench collapse outside of Philadelphia when a 15 foot deep trench caved in on top of him.  In late July, 33-year-old Abel Sauceda was killed in a 12 foot deep trench collapse at a construction site in Daly City, California. In June, Rosario “Chayo” Martínez was killed in a trench collapse in Granby, Colorado. And at the beginning of June, 20 year old Kyle Hancock was buried alive earlier in a 15-foot unprotected trench outside of Baltimore, Maryland.

What did all of these workers have in common? First, and most obvious, their deaths were preventable. Their employers were in violation of one of OSHA’s most important — and easiest to comply with — standards.  OSHA’s trenching and excavation standard requires trenches to be protected from collapse if they are more than 5 feet deep and the agency has extensive educational resources about the hazards facing workers in unprotected trenches. It’s unlikely they had been trained about the hazards of unshored trenches or their rights under the law. It’s unlikely they knew that a cubic yard of soil weighs as much as a small car, and it’s unlikely that they’d be rescued from a trench collapse alive.

It is Halloween night, 2016, and, as I reach the outskirts of town, it feels as though I am entering Mordor. Bursts of red and yellow flames shoot up out of the earth, illuminating the pitch darkness. These are the byproducts of oil fracking, the natural gas and methane that are burned away by producers drilling for oil

To get to refineries, oil and gas have to travel. Either by train (and we’ve seen the problems with travel by rail), or by pipelines. Pipeline work is hard, dangerous and under-regulated. This according to a long, comprehensive and fascinating article by Antonia Juhasz of Pacific Standard about work on the Dakota Access Pipeline (DAPL)

Juhasz opens in 2016 with the tragic death of Nicholas Janesich, a 27-year-old from Grand Rapids, Minnesota, who is working on a “ripper,” a piece of farming equipment that is used to restore the ground above where the pipeline has been laid so that grass can grow.

At some point along the way, the Ripper struck a large rock, locking a spring-loaded shank in the air, OSHA reports. Janesich got out, and set to work trying to fix it. He appears to have tried using a jack stand as a makeshift pry bar, jamming the long steel rod into the spring above his head. The spring did recompress, according to Indianhead’s incident report, sending the shank back down into position, but with such extreme speed and force that the pry bar was launched directly into the top of Janesich’s head. Somehow, he managed to climb back into his tractor, take off his shirt, and wrap it around his head before collapsing onto the steering wheel, where he remained—critically injured and very alone.

Well there’s some very bad news for those of you who don’t want to be blown to smithereens in your sleep by a bomb train or your local fertilizer supplier.

Brakes are for wimps

As those of you who read my posts on the Lac Megantic disaster where 47 people were incinerated by a “bomb train” that derailed in the middle of town, brakes on trains are complicated and often fallible safety devices.  This is how they work:  A brake pipe runs the length of the train which supplies air to reservoirs mounted on each of the cars. When the brakes are needed, the engineer uses control valves to reduce brake pipe pressure and the engineer releases the brakes by charging the brake pipe. This system has problems. As we saw at Lac Megantic, turning off the locomotive also turns off the air brakes. In addition, being as the air is controlled by the engineer in the locomotive, it can take time for the braking to reach the end of a long train, causing uneven braking as the cars in front brake before the cars behind them, causing the faster rear rail cars to bump into the slower forward cars.

This was a brilliant system — when it was invented around the time of the Civil War.  And this is still the main way that trains are stopped 150 years later.

Now you may be saying “Huh?” We can pretty much run the world — or destroy the world — from a computer screen, but trains carrying tens of thousands of gallons of highly combustible crude oil through highly populated areas still depend on 150 year old braking technology?

Well, the bad news is “yes.”

When Supreme Court nominee Brett Kavanaugh comes back before the Senate next week to respond to allegations of attempted rape, the Senators may want to follow up on his SeaWorld dissent and testimony (See here and here) by discussing another related story.

For those of you just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.  OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor.

Kavanaugh dissented from the majority opinion, arguing in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace lamented that OSHA was somehow attacking the human spirit.  Whale trainers aren’t just workers, they are sports icons, according to Kavanaugh: “To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk— is among the greatest forms of personal achievement for many who take part in these activities.” And here OSHA was attempting to paternalistically take that ability away from these sports icons.

Good Budget News for OSHA

Last June we reported some good budget news for OSHA from the Senate, and now it’s gotten a bit better. Conferees from the House and the Senate have just agreed on a budget for OSHA for Fiscal Year 2019 beginning on October 1. Both Houses still have to pass the final bill and the President has to sign it, which probably won’t happen until December.

The better news is that the final total for OSHA is $557,787,000, $1 million more than the Senate had originally agreed on last June and almost $9 million more than the President’s request. The total includes $10,537,000 for the Susan Harwood Worker Training grant program that Trump has been trying to kill, and $3.5 million for the Voluntary Protection Programs. The new total is a increase of $5 million over the FY 2018 budget of $552,787,000. It’s not clear yet exactly where that $5 million is allocated, although the President’s budget had requested $5 million more for enforcement and $3 million more for compliance assistance.

The bill also provides $102,850,000 to OSHA state plans — a $2 million increase over FY 2018 and the first increase for the state plans since FY 2014.  The state plan budget still has not recovered from pre-sequestration levels when it totaled $104,196,000 in FY 2012.

The bill also requires that agency to fund the Harwood program’s longer-term capacity building development grants which the agency had eliminated in FY 2017.

The House FY 2019 appropriations bill had originally cut $7 million from OSHA’s budget and proposed to eliminate the Harwood program as requested in Trump’s budget proposal.  The President’s budget has requested $549,033,000 for OSHA and only $100,165,000 for the state plans.