State tells FedOSHA to back off

By Alexandra Berzon (contact)

Thursday, Sept. 25, 2008 | 2 a.m.

Nevada OSHA, responding to criticism from the federal government, has denied any wrongdoing in its handling of the Orleans investigation that followed the deaths of two workers. The agency said it would not immediately comply with the federal government’s request to consider changing some of its policies.

The state’s response comes a month after the federal Occupational Safety and Health Administration found “irregularities” in Nevada OSHA’s conduct. Those included downgrading citations issued against Orleans owner Boyd Gaming after several top officials in the department involved themselves in the investigation.

The original OSHA investigator and a Boyd Gaming risk management supervisor quit their jobs in protest during the investigation, which observers said involved a set of highly unusual maneuvers.

Federal OSHA inspectors agreed.

In a letter dated Aug. 22 that followed a yearlong investigation, federal OSHA Regional Administrator Ken Atha wrote to Nevada OSHA: “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 raises some significant concerns.”

The deaths occurred after maintenance worker Richard Luzier entered a manhole to fix a pipe and was overcome by toxic fumes Feb. 2, 2007. When workers Travis Koehler and then David Snow entered to save him, all three fell unconscious.

Luzier and Koehler died. Snow was in critical condition before recovering.

Nevada OSHA investigators found that Boyd had been warned repeatedly about dangers in the manholes but had taken no corrective action. An inspector had intended to issue “willful” citations against Boyd. But in a last-minute move that included the unusual involvement of highly placed department officials, Nevada OSHA downgraded the citations, lowered the fines attached, and agreed to provide safety consultation and training services to Boyd. In exchange, Boyd agreed not to challenge the citations.

Nevada OSHA has consistently maintained it did nothing wrong. It reiterated that view in a letter Nevada OSHA Chief Administrative Officer Tom Czehowski sent to Atha on Tuesday.

“We find your use of the word irregularities questionable,” Czehowski wrote. “In addition, we do not agree that the handling of this case raises significant concerns. A more thorough investigation by Federal OSHA personnel would have been welcome.”

Atha had asked Czehowski to respond within a month detailing corrective action the department would take. For example, Atha said Nevada OSHA should carefully review documents or agreements in all future settlements to remove any potential ambiguity. He also said Nevada OSHA should consider whether it is appropriate to offer safety consultation services as a tool in settlement agreements.

In response, Czehowski explained why the department believes its procedures and its handling of the Orleans case were adequate. He said Nevada OSHA would not propose policy changes until after federal OSHA completes its current work on a new field operations manual.

“In deciding the Boyd/Orleans fatality case, it was certainly not our intent to circumvent any rules of Nevada OSHA or Federal OSHA,” Czehowski wrote.

The next step is unclear.

Nevada is among about half of all states that operate their own state occupational health and safety enforcement divisions. Federal OSHA monitors the state agencies’ policies, procedures, safety and health standards, funding and personnel to make sure they are “at least as effective” as the federal agency.

The federal government has authority to take over operations of a state OSHA if it violates the “at least as effective as” clause. But OSHA experts say the federal government would issue such a threat only under extraordinary circumstances.

“My expectation is that they would try to hash this out,” said Celeste Monforton, a lecturer and researcher at The George Washington University’s School of Public Health and Health Services and an OSHA expert. “They may go back and forth either through letters or a meeting.”

Federal OSHA spokesman Roger Gayman said Atha received the letter Wednesday and has not yet reviewed it. He said he wasn’t sure how FedOSHA would respond and didn’t know when the field operations manual referenced in Czehowski’s letter would be available.

Chris Lee, a former deputy regional manager at FedOSHA who had worked on earlier drafts of the investigation into Nevada OSHA’s handling of the Orleans case, said he was “a little surprised the state seems to be digging in their heels.”

“We’re supposed to be partners in this effort,” Lee said. “We’re supposed to be singing from the same hymn book. For Nevada to say they’re going to wait until the operational manual changes come out to do a comparison, that’s not the kind of immediate responsiveness we would be looking for.”

Debi Fergen is the mother of Travis Koehler, one of the Orleans workers who died in the accident. She filed the original complaint against Nevada OSHA that led to the federal investigation of the state’s conduct, and she said she began shaking with anger when she read Czehowski’s letter, which the Sun provided to her.

Fergen said she plans to write to Atha and several congressional representatives to urge continued review of the situation.

“I hope the feds don’t just back down,” Fergen said.