State OSHA denounced at hearing

Good training, enough safety inspectors and the threat of hefty fines still won't be enough to right the wrongs in worker safety in Nevada, as long as powerful employers in construction and gaming can use political juice to sabotage the final outcome of investigations into workplace deaths and accidents.

That conclusion was drawn by some of the people who participated in a congressional hearing Thursday about the findings of the federal Occupational Safety and Health Administration, which just released a comprehensive review that indicts Nevada OSHA for systemic problems.

The federal agency undertook a review of Nevada OSHA's activities from January 2008 through June 2009 after a string of worker deaths in 2007 and 2008 at construction sites along the Strip, and at The Orleans.

In the time span studied, 25 workplace deaths occurred in Nevada. Of 14 construction deaths, five occurred on the Strip. In many of the 25 deaths, the state's workplace safety agency chose the path of least resistance, minimal or no fines, even when critics argued that employers had condoned the unsafe behavior leading to the accidents.

The pattern conveyed to contractors, project developers, lenders and owners is an anti-safety message that "the only thing that matters is, I get my completion bonus, and this (worker deaths) is just collateral damage," Rep. George Miller, D-Calif., said at the hearing. He leads the House Committee on Education and Labor, which had the hearing.

"I'm at a loss to explain how eight cases where individuals died on the job, seven of those were written down to basically minor citations and penalties," Miller told the Las Vegas Review-Journal after the hearing. "The fact that was done essentially in secret and without the knowledge of the family of the victims needs further explanation," he added.

At the hearing, official Jordan Barab testified that the federal OSHA soon will open a permanent office in Nevada and has asked the directors of the federal OSHA's regions to start similar reviews of all state-run worker safety programs.

The order affects 26 other states and U.S. territories. Barab is acting assistant secretary of the U.S. Department of Labor, which houses the federal OSHA.

In his testimony, Barab acknowledged that the federal OSHA should have spotted the state agency's deficiencies sooner.

One mourning relative, Debi Koehler-Fergen of Las Vegas, testified Thursday about her experiences with Nevada OSHA after the 2007 death of her son Travis Koehler, a maintenance employee at The Orleans.

He died in sewer line, trying to rescue a co-worker, Richard Luzier, who also died. David Snow, a third co-worker involved in the rescue attempt, was severely injured but survived. The federal report confirmed Koehler-Fergen's suspicion that Nevada OSHA failed to treat The Orleans as a repeat offender, though Boyd Gaming, The Orleans' owner, already had allowed situations that were "substantially similar" at other properties.

"Essentially," Koehler-Fergen testified, "they let the gaming company get away, in my opinion, with murder."

The federal report faults Nevada's agency for not seeking relatives' knowledge about hazardous conditions at the victim's workplace and not keeping them informed as investigations unfolded.

Koehler-Fergen described OSHA's treatment as "humiliating and distressing." When she went to pick up the long-awaited report on her son's death, Steve Coffield handed it to her in a OSHA lobby, where she had to endure sidelong glances from passing employees, as she stood crying. "There was no invitation to his office. Not even an offer to sit or have a glass of water," she said.

Coffield, who was named the chief administrator of Nevada OSHA this year, was acting administrator at the time of the Koehler investigation.

Coffield's boss, Donald Jayne, testified at the hearing as head of the Nevada Division of Industrial Relations, a post he assumed in March, after most of the fatalities covered in the report had occurred.

"Nevada's OSHA is not a wreck. It should not be junked. It should be repaired," Jayne told the committee.

When Rep. Dina Titus, D-Nev., asked Jayne how he could guarantee that an objective inquiry into an accident would not be compromised by outside pressure from employers, he answered that he is part of a leadership change.

"I would not bow to undue political influence. I will look at ways to insulate" the process.

After the hearing, Jayne was unavailable for questions because he left the nation's capital to return to Nevada.

But Titus and Koehler-Fergen both said they were disappointed by Jayne's response.

"He kept saying the word 'perception,'" when referring to the agency's kid-gloved treatment of employers with workplace hazards, Koehler-Fergen said.

"If you don't put regulations in place for more transparency, you run the risk of having it happen again," Titus warned.

She said she was interested in having the House committee consider new laws to allow the federal OSHA to take interim authority over a state-run OSHA plan to investigate specific cases, if federal officials fear state officials are going easy on violations.

Currently, federal law offers only an all-or-nothing option for OSHA to take over a state-run plan completely.

In her remarks, Titus cited statistics showing that "between 2003 and 2007, the construction illness and injury rate nationally declined by 11.4 percent. But it increased by 21.4 percent in Nevada."

State standards are supposed to be as tough as federal rules. In 2008, serious violations constituted 29 percent of violations that Nevada OSHA identified. By comparison, federal OSHA classified 77 percent of its violations as serious.

Contact reporter Joan Whitely at jwhitely @reviewjournal.com or 702-383-0268. Reporter Arnold M. Knightly contributed to this report.