Feds second-guess state OSHA

Tiffany Brown

Debi Fergen, holding a picture Monday of her son, Travis Koehler, who was killed at the Orleans, filed a complaint with Fed OSHA and received a letter criticizing the state agency.

By Alexandra Berzon

Tuesday, Aug. 26, 2008 | 2 a.m.

Federal workplace safety officials have raised “significant concerns” about the way Nevada resolved an investigation of a double fatality at the Orleans last year.

Concluding a lengthy review of the Nevada Occupational Safety and Health Administration’s conduct, federal OSHA officials said their investigators would have conducted the investigation differently, and would not have downgraded the citations against the Orleans’ owner, Boyd Gaming, as Nevada OSHA did.

The citations were weakened after a top official in Gov. Jim Gibbons’ administration became involved in the case, a highly unusual step that is under investigation by the state attorney general.

The federal OSHA findings are detailed in a five-page letter the agency sent to the family of one of the victims, Travis Koehler. The agency said the letter, obtained by the Sun, is similar to one sent to Nevada OSHA.

“Taken individually, the irregularities in this case generally appear minor,” said the letter to the family, written by Ken Atha, regional administrator of federal OSHA’s district office in San Francisco, which monitors Nevada. “When reviewed in their entirety, however, we believe that the handling of this case raises some significant concerns.”

The accident occurred Feb. 2, 2007. Orleans worker Richard Luzier entered a manhole to fix a sewage backup problem and was overcome by fumes. A fellow worker, Koehler, entered the manhole to try to save him. He, too, lost consciousness. A third worker, David Snow, entered and also was overcome.

Luzier and Koehler died. Snow recovered after weeks on life support.

In an extensive investigation, Nevada OSHA investigators found that Boyd Gaming officials had not taken safety precautions despite being warned by employees and by OSHA about the dangers of not having a safety plan for problems that arise with the manholes.

OSHA inspector John Olaechea concluded, “Boyd corporate had knowledge and failed to act. That is the exact definition” of the criteria for a willful citation.

But then the case went through a series of last-minute negotiations that included direct involvement by Mendy Elliott, Gibbons’ appointed head of the Business and Industry Department, which includes Nevada OSHA.

Nevada OSHA reduced both the severity of the citations, downgrading them from “willful” to “serious,” and the fines attached — from about $400,000 to $185,000 — and enrolled Boyd in a state safety consulting program that exempts the company from regular OSHA inspections for several years.

Olaechea and Boyd Gaming health and safety manager Don Barker quit in protest over the outcome.

Nevada OSHA and Boyd Gaming representatives have insisted no inappropriate irregularities occurred in the course of the investigation.

Afterward, Koehler’s mother, Debi Fergen filed a complaint with the federal office. The complaint, known as a CASPA, compels the federal agency to investigate.

In its review, the agency found that Nevada OSHA had downgraded the citations on advice of the department’s attorney, John Wiles, who made the recommendation following last-minute settlement discussions with Boyd Gaming officials. Wiles has said he concluded the willful citations could be tough to defend in court.

Federal OSHA found that “while the investigation file in this case contained considerable evidence to support a willful classification, there is also evidence to the contrary.”

Atha wrote, “Since substantially similar violations were cited previously at another Boyd Gaming property in Nevada, Federal OSHA likely would have classified them as repeat, if not willful, violations.”

That statement surprised Chris Lee, a former deputy regional manager at the San Francisco federal OSHA office, when told about it by the Sun on Monday. Lee had worked on earlier drafts of the letter before he retired. He had grown concerned that the final version would not come out as strongly against Nevada OSHA’s conduct as he thought it should.

He said Monday that he was heartened to hear the letter had become more critical of Nevada OSHA.

“I think that’s a significant finding,” Lee said. “I don’t recall that we’ve ever said something along those lines. To say they wouldn’t have done it that way clearly implies (fed OSHA is) concerned about what happened and wants to make sure procedures would preclude it from happening again.”

Fergen, too, was pleased by the finding that Nevada OSHA could have issued stronger citations.

“Maybe they were afraid to fight it, but you know what, they could have tried,” Fergen said.

Among the additional findings by the federal agency:

• The state did not violate any laws by delaying the issuance of citations beyond the six-month time period required for an investigation, but it should nonetheless consider changing procedure to hold a conference with the employer sooner in the investigation process, as federal OSHA does, so that hazards can be fixed sooner.

• The unprecedented involvement of top department officials in the investigation was in accordance with state law, but could have been avoided.

Nevada OSHA said Elliott and Roger Bremner, director of the Industrial Relations Division, involved themselves in the case because OSHA’s top official, Tom Czehowski, had been temporarily moved to head the taxicab authority. Czehowski had been reassigned by Elliott, who has since transferred him back to OSHA.

The federal agency said the state could have handled it differently and recommended that Nevada OSHA consider revising its procedures to ensure that “senior professional staff who are familiar with the investigation and conversant with technical compliance issues are available to participate in the resolution of significant and complex cases whenever possible.

“In this case, for example, Nevada could have made (Czehowski) available for a brief period in order to assist in the resolution of this high profile, double-fatality accident case.”

• Language in the settlement with Boyd may have been too ambiguous, implying that Boyd would be exempt from all OSHA inspections during the years it is receiving safety consultation services from the state. That would be contrary to federal law.

The federal agency said, “Nevada should carefully consider the appropriateness of the use of consultation as a tool in future settlement agreements.”

The federal government has limited authority over the agency run by Nevada, which is among those states that operate their own OSHAs. But the federal government does have the authority to review individual cases to find out whether a state agency followed its own procedures, and to ensure that a state OSHA is at least as effective as the federal agency.

Atha said he has asked Nevada OSHA to respond within 30 days and to review and revise the state’s procedures to make sure they meet the “effectiveness” criteria.

Fergen plans to send Atha’s letter to the district attorney’s and state attorney general’s offices to try to trigger further investigations.

A spokeswoman for the attorney general said Monday the investigation into the involvement of top department officials in the case is still under way.

The district attorney has said he would not investigate criminal charges in a workplace incident unless asked to by Nevada OSHA.

The Sun contacted the Business and Industry Department for a response Monday. The agency did not reply, but within an hour the department had sent word of the request to Boyd Gaming, through several attorneys.

Boyd spokesman Rob Stillwell then called the Sun to inquire. Stillwell said the company did not have a copy of the letter and could not respond.