Mom whose son died in sewer finds some relief

Debi Koehler-Fergen was never satisfied with the investigation of her son's death.

She believed his employer should have been severely punished for the deaths of her son and a co-worker, who died at the bottom of a sewer at The Orleans.

But after negotiations with Boyd Gaming, state Occupational Safety and Health Administration officials issued reduced safety citations for the incident.

Koehler-Fergen asked for a federal review, which found irregularities with the Nevada OSHA investigation and called for a review of the agency's policies and procedures.

With federal OSHA's findings released a year later, Koehler-Fergen has found some of the satisfaction that has eluded her for so long.

"It does make me feel better to know that Nevada OSHA was in the wrong. This only proves that," she said Tuesday, a day after receiving federal OSHA's final report.

Koehler-Fergen requested the federal review last fall, shortly after Nevada OSHA finalized its investigation of the Feb. 2, 2007, incident that killed Travis Koehler and Richard Luzier and nearly killed co-worker David Snow.

Koehler, 26, and Snow, now 31, tried to save 48-year-old Luzier after he fell unconscious in the sewer at The Orleans loading dock. None of the hotel employees were trained or equipped to enter the dangerous atmospheres of underground sewers.

After reviewing the state's investigation, federal officials concluded that state OSHA officials acted within the scope of the law but found irregularities in several aspects of the investigation.

"Taken individually, the irregularities in this case generally appear minor. When reviewed in their entirety, however, we think you will agree that the handling of this case raised some significant concerns," federal OSHA's Regional Administrator Ken Atha wrote Friday in a letter to Nevada OSHA.

The letter recommended changes to state OSHA's procedures and asked the state to review and revise all of its procedures regarding citations and settlements to ensure they meet standards. It gave the state 30 days to respond to the recommendations and list any corrective actions.

In an e-mail to the Review-Journal, Gail J. Anderson, deputy director of the state Department of Business and Industry, which includes OSHA, said the federal report was under review by state officials, who would respond to all of the recommendations.

Nevada OSHA issued its final report and penalties against Boyd Gaming last August. The lead investigator, John Olaechea, strongly recommended citations of repeat and willful violations against the company, citing similar safety violations at other company properties. Those violations would have carried larger fines and opened the door for criminal prosecution.

But officials issued serious violations instead, citing worries about the stronger violations holding up in court.

However, Boyd Gaming agreed to pay $185,000 in fines, more than the violations required and the third-highest penalty in state OSHA history.

Federal OSHA likely would have issued "repeat, if not willful, violations" because of the previous similar violations, but the state's decision fell within approved policies and procedures, Atha wrote.

The state's decision to reduce the violations angered Koehler-Fergen and Snow, who both believed the decision was influenced by political connections in the governor's office. They cited the involvement of Mendy Elliott, director of the Department of Business and Industry, in the final meeting between OSHA and Boyd Gaming.

A Department of Business and Industry spokeswoman has said Elliott did attend the meeting but never participated in any negotiations.

The Nevada attorney general's office is investigating Elliott's role in the matter.

Koehler-Fergen said she would give the federal report to the attorney general's office. She also plans to use the report in her pursuit of criminal prosecutions of the workers' on-scene supervisors, who should have known not to send the men into the sewer.

She's also pursuing other legal options, she said.

"I don't know what I can do, but until I exhaust every avenue I have, I will continue," Koehler-Fergen said.

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.