State deal in deaths at Orleans questioned

Fed OSHA objects to Boyd’s free safety training, exemption from inspections

Tue, Jul 15, 2008 (2 a.m.)

Construction Deaths

Orleans case sparks investigation (4-25-2008)
Influenced, OSHA bends (4-18-2008)

Federal safety regulators have not yet released the results of an investigation into Nevada Occupational Safety and Health Administration’s handling of events following the deaths of two workers last year at the Orleans.

But a former federal OSHA official said a draft of the findings calls into question the use of state resources to provide training and consultation services to Boyd Gaming Corp., owner of the Orleans and one of the state’s largest employers.

The draft cleared the state agency of wrongdoing on several points. But it also challenged an exemption from most OSHA enforcement inspections that Nevada granted Boyd for several years as part of the deal OSHA negotiated with the company, said Chris Lee, a former deputy regional manager at the San Francisco Federal OSHA office, which monitors Nevada OSHA.

“There was some real question about devoting state resources to assisting what is basically a large national corporation,” said Lee, who retired five weeks ago after working on drafts of the report.

“They just had a double fatality, and now they’re going to be exempt from programmed inspections,” Lee said. “You just have to wonder why a state, given a tightening economic situation and other demands, wouldn’t suggest that a large national corporation, which you would think would have the resources, hire their own safety and health professionals.”

The training and consultation deal that created the exemption from regular programmed inspections was one of many elements questioned in the wake of last year’s puzzling Nevada OSHA investigation after the deaths of Orleans maintenance workers Travis Koehler and Richard Luzier.

The agency made a series of unusual moves to downgrade “willful” citations to the far less severe and damaging category of “serious” citations. The findings were revised after an appointee of Gov. Jim Gibbons and other highly placed officials became involved in the case. An OSHA investigator and a health and safety manager at Boyd quit their jobs in protest.

“Nothing in this case has been normal,” said Debi Fergen, mother of Travis Koehler. “The thing that would make me feel somehow a little bit of justice is to have the truth be brought out about what OSHA did.”

Koehler died Feb 2, 2007, at the Orleans when he entered a manhole in an attempt to save fellow worker Luzier, who had gone in to fix a sewage backup and had fallen in the hole. A third worker, David Snow, entered to save Luzier and Koehler, and all three lost consciousness. Snow recovered after spending several weeks on life support.

Nevada OSHA’s investigation found that Boyd 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 a willful (by indifference).”

But in a last-minute conference between OSHA and Boyd, the willful citations were changed to serious citations and fines were reduced from about $400,000 to $185,000.

After a set of unusual maneuvers to change the citations, Nevada OSHA agreed to provide safety training and other consultation services to Boyd, a service normally reserved for small companies that don’t have the resources of the gaming giant. The stated goal is to help Boyd qualify for the Safety and Health Achievement Recognition Program, a federal program specifically designed for small businesses with good safety records.

The deal also means Nevada OSHA’s enforcement division will not be allowed to conduct regular programmed inspections at Boyd casinos. (It will be allowed to do investigations following accidents or after complaints.)

Both Boyd and Nevada OSHA maintain nothing improper occurred in the investigation or the settlement, and said the results were a victory for safety because they would lead to an overhaul at Boyd that would make workers safer.

Boyd spokesman Rob Stillwell called the deal “a groundbreaking endeavor.” “If at the end of the day this results in some positive changes, then that is a good thing,” Stillwell said.

Although the company is receiving free OSHA services, Stillwell said it has also committed significant company resources to safety, including several newly created positions.

But Fergen, the Snow family and others involved in the investigation were infuriated and insisted Nevada OSHA had caved in to Boyd in reducing the citations and in providing state services for a company with Boyd’s deep pockets.

Fergen and another person involved filed complaints in September with the federal OSHA office in San Francisco alleging that Nevada OSHA had broken from procedure to give Boyd favorable treatment.

Federal OSHA opened an investigation. In April, federal officials said the results would be released in a few weeks. But neither Fergen nor Nevada OSHA has received results from the agency.

Fergen recently stepped up her activism, saying she was empowered by recent hearings on Capitol Hill that highlighted the weak response of Nevada OSHA following construction deaths on the Strip.

She wrote to Nevada Democratic Sen. Harry Reid, Nevada Republican Reps. Jon Porter and Dean Heller, and California Democratic Rep. George Miller, chairman of the House Education and Labor Committee.

Only Reid’s and Miller’s offices responded.

Reid’s office told her it will call federal OSHA to inquire. Miller’s office said it will monitor the case and will call the federal agency if no response comes soon.

Fergen said federal OSHA officials told her husband the case is hung up at the agency’s offices in Washington, D.C., but provided no explanation.

Several Labor Department representatives contacted for this story were unable to explain the delay.

Lee, the former federal OSHA official, said the agency’s actions are limited. Federal overseers are restricted to determining whether a state OSHA followed its own approved procedures.

Although federal officials found the Boyd case troubling, Lee says, Nevada was able to justify most of its actions under state laws and codes. “We have no authority to affect the outcome of the case,” Lee said.

“Let’s face it,” Lee said. “It wasn’t just a minor issue. It was the death of a couple of employees. When you take a bird’s-eye view of this thing, it looks odd. It looks like they got some preferential treatment because of who they were.”

Lee says he first saw preliminary findings in the case early this year and found them unacceptable. “It didn’t seem to be expressing a sufficiently strong concern,” he said. He told investigators to ask more questions.

Before retiring five weeks ago, Lee saw another draft of the findings that raised one especially troubling question: Why had Nevada OSHA agreed to provide consultation and training services for a company as large as Boyd?

Nevada OSHA must ensure that Boyd is devoting enough of its own resources toward safety and health, the draft of the letter stated, and state regulators should resume regular safety enforcement at Boyd casinos if the company does not make enough progress in improving safety, according to Lee.

In raising that issue, the feds focused on a point of controversy in Nevada. The federal government says small companies — defined as those with 250 employees or less — in high-hazard industries are to receive priority in receiving free government training and consultation services, an area of the agency separate from enforcement.

Nevada OSHA spokeswoman Elisabeth Shurtleff said that, unlike other states, Nevada gives large businesses in high-priority industries — gaming, construction and manufacturing — equal weight in receiving services with small high-hazard companies.

“High-hazard industries receive this ... prioritization as ‘targeted’ industries, regardless of employer size. That results in intensified efforts to positively impact injury and illness rates,” Shurtleff said in an e-mailed statement.

Some local safety consultants have been arguing to Nevada OSHA officials for years that the state should not give large gaming companies access to state resources meant for small businesses that couldn’t otherwise pay for safety personnel or consultants.

“There are lots of consultants who can provide large companies with consultation services rather than the state providing the same services for free,” said Tom McManus, vice president of SCS Engineers and a local safety consultant who has worked with many casino companies.

But those at large companies that receive the benefits believe they’re worthwhile. Wayne Matherly, a safety director at the Riviera, owned by Riviera Holdings, said he has called on help from Nevada OSHA’s consulting division several times. The agency’s outreach helps “make sure I’m on the same track they’re on. It makes sure more eyes are looking at the same property,” Matherly said.

So far, the state has devoted more than 1,000 hours to reviewing safety procedures at Boyd casinos and providing training, consultation and industrial hygiene services to Boyd, Shurtleff said.

The agency informed Boyd in May that it would drop the industrial hygiene services, Shurtleff said. She declined to explain why. Boyd is now in the process of hiring a private industrial hygiene consultant.

Fergen eagerly awaits the results of her complaint, but says she won’t feel relief unless Nevada OSHA is forced to reinstate the willful citations that were originally designated for Boyd. “I want those that did what they did held accountable,” Fergen said.

Discussion: 11 comments so far…

By SPFPAUNIONYES

7/15/08 at 6:05 a.m.

Suggest removal

Las Vegas Construction Workers Memorial Site
In Memory of Those Las Vegas Construction Workers who Lost Their Lives at
MGM Mirage Dubai World CityCenter and other Las Vegas Construction sites

We Must Continue To Bring Awareness
To The Safety Issues at
MGM Mirage Dubai World
City Center Project
and all other Las Vegas Construction Sites!

http://www.lvsecurityunion.org/SAFETYFIR...
By safety

7/15/08 at 8:05 a.m.

Suggest removal

Alexandra this article is stupid, you need to learn what you are writing about before you just start writing. First of all, the program Boyd gaming is working with SCATS (the Consultation Section of NV OSHA) on is a program that is completely legitimate. Nevada Safety Consultation and Training Services are awesome. Their consultants and trainers help me and other Safety people all over the state ensure that we are doing what we can to comply with OSHA which is what keeps our employees safe. Boyd has Safety people who work for them, those Safety people are working with SCATS to ensure the company is complying with OSHA. The end result is a safer work environment for Boyd employees. Second, the previous Safety Director for Boyd, Don Barker, the one who quit in protest,could have prevented these deaths by doing his job. Warning the Engineers about Permit Required Confined Spaces and the dangers of entering these spaces improperly. Instead, he blames Boyd for not allowing him to do his is job. He didn't have to spend alot of money to warn his employee and train them on dangers of PRCS. A Safety Director who knows his job will do whatever it takes to make sure employees are safe, if it means putting up a sign saying DO NOT ENTER, then that is what we do, if we have to personally walk up and talk to each employee who might possibly walk by the space and think of entering, that is what we do. We tell people that they cannot enter until they are trained. So the previous Safety Director is to blame. Boyd is obviously now realizing they put to much faith in their employee knowing and doing his job so they want SCATS to assist their current Safety people in ensuring that all OSHA regulations are followed and employees will be kept safe. Why is this seen a problem? Why all the whining? Tom McManus is just mad because Boyd is asking the real experts for assistance. The experts are SCATS and they happen to be free. Wayne Matherly is just one of the many of us who use SCATS on a regular basis. We like knowing that the assistance we are getting is from experts who actually know OSHA regulations better than any consultant we pay for. Consultants who are hired, like Tom, just try to bully Safety people and tell them they need to pay for training and services that are not really needed. Boyd is doing this the right way. Too bad only real Safety people know it. I was bullied by a consultant and paid $4000 for the consultant to read an OSHA standard, my employees walked away without having any idea what they had just been trained on. I had the training done a 2nd time by SCATS for free and my employees walked away knowing exactly what they needed to know. Sorry folks you are all on the wrong path arguing Boyd's current strategy for employee safety.
By Envirodoc007

7/15/08 at 8:42 a.m.

Suggest removal

Safety: You are an idiot.

Since when you need a safety person to tell a company they have PRCS? what ever happened to risk/hazard assessment?

You serious when you make a comment like consultants just bully safety people?

Looks like you dont have any problems when a company like boyd uses SCATS instead of paying for the ESH expertise they need. Let me tell you this, there are more than a handful of small biz that cannot afford own ESH personnel waiting for SCATS help.
By nonameforme

7/15/08 at 9:01 a.m.

Suggest removal

You should point out to your readers that OSHA enforcement and the Safety Consultation and Training Section are seperate and distinct from each other. Every state in the union has a consultation service similar to SCATS. While the Boyd/OSHA deal stinks to high heaven,(not to mention that it probably strains the limited resources of SCATS) you failed to point out that SCATS still provides most of its services to smaller employers such as mine. Could private consultants provide similar services? Of course they could, but when an employer calls in SCATS and hazards are discovered they are OBLIGTED to correct those hazards or they could be handed over to the enforcement section and be subject to citations and penalties. Employers like me know this up front and still make the commitment to do the right thing. Could private consultants "ensure" that employers correct serious hazards...I think not. They advise and recommend only. Does Mr McManus have the same issues with workers compensation carriers who provide safety and health services to their clients; Or Unions who provide safety and health services to their membership? If Mr. McManus has an issue with State Consultation Services he should contact his district congressperson and change the law. Until then, quite your whimpering, there is plenty of businesses that are still willing to pay for safety and health services.
By safety

7/15/08 at 9:53 a.m.

Suggest removal

nonameforme,
Thank you for pointing this out. Excellent points that I forgot about while I was ranting.
By safety

7/15/08 at 10:15 a.m.

Suggest removal

Envirodoc007
what? "Since when you need a safety person to tell a company they have PRCS? what ever happened to risk/hazard assessment?" You are an idiot, companies like, Boyd, Riviera, Bellagio, NYNY, Mirage, TI, MGM, WYNN, Venetian, and many, many others hire Safety Directors, Managers, Coordinators etc, to ensure employees are safe and they are in compliance with OSHA. It is the job of the Safety person to recognize hazards and address them accordingly, this is usually a full time position, sometimes there are more than one position for Safety on a property. The Orleans had a Safety guy. It was his job to know he had a PRCS, if he can't recognize a PRCS he shouldn't have had the job. He was the Safety person. Therefore, he was responsible for ensuring that all employees are warned and trained in all hazards. PRCS is something he never warned anyone about. He didn't train the employees to know what a PRCS is and how dangerous it is to enter without following permit procedures. Consultants are not needed when the property has a Safety person. However, sometimes the Safety person will call a consultant for assistance with something specific or even a comprehensive inspection. If they don't know any better they will call you TOM, or they will call SCATS, and if they call SCATS they are required to correct anything SCATS points out or suggests.
By Stepdad

7/15/08 at 8:18 p.m.

Suggest removal

To Safety - you must work for Boyd Gaming - I have seen the OSHA report and the Memos from Don Barker and several others on Boyd gaming letterhead warning the Department heads at the Orleans regarding the Confined space on property and where the Supvervisor stated that no Orleans employee ever goes into the Grease pits - these memo's where confirmed by Boyd gaming Management to Nv OSHA in writing during the OHSA investigation.
I have seen the email from Don Barker the morning before outlining a draft for training - again obviously not taken seriously by the Engineering supervisors. Also I have read in the report that Boyd gaming had a 'culture that did not support active safety programs'. I was standing by an Orleans employee wnen it was broadcast over the radio that any employee discussing the "accident" with the press would be terminated - that was just before they were told we were on site and were promtly escorted to the Head of Secuity's office and put into seclusion.
While you may know safety you do not know what you are talking about in this case. If Boyd Gaming has so many Qualified Safety Experts / personnel then why would they need the SCATS program.

This accident is not like the construction accidents - the employee's had NO training pertaining to the work in confined spaces and Manangement was there on location telling them what to do. And if you want to go futher as in all Casinos there are security cameras at that location and NOBODY stopped the work that day when the lives of two men could have been saved.

So in closing until you want to read all the documentation and the Orleans acknowledges it was completely their fault, and can guarantee this problem will never happen again at any Boyd property you need to concentrate on the safety at the Casino property you work at and not comment about an accident you have only read about in the newspaper. Neither you nor Orleans spokesman Mr Stillwell have any idea what the Luzier, Koehler, or Snow family have gone thru and will continue going thru for the rest of their lives because of the actions of Boyd Gaming Managers that fateful day in February.
By kellysnow

7/15/08 at 10:03 p.m.

Suggest removal

To Safety - concerning your comments about Don Barker not doing his job - please make sure you have your facts straight before making remarks about a subject you obviously know little about. Don Barker and Mark Habersack were on the Orleans property 2 days before the accident that killed Travis Koehler and Rick Luzier and left my husband on life support. They met with Chief Emgineer Steve Cooper and Asst. Chief Engineer Tom Griffin and explicitly discussed the lack of confined space training at the Orleans and that absolutely no employee was to enter a confined space. This policy was also sent to both Cooper and Griffin on 2/1/07. On 2/2/07, the Chief Engineers made the decisions to disregard what they had been instructed. They decided to not follow safety procedures, not have safety equipment available and placed these men in harm's way. There is a history of confined space violations on Boyd properties, as detailed in the OSHA report on this accident. There is, to this day, a lack of a safety culture at Boyd Gaming. In an effort to save a few bucks Boyd Gaming destroyed two families. They have left mine in tatters. The bottom line is that they are negligent in their safety programs and that OSHA has failed to protect the employees in this matter and any possible future cases. Nevada OSHA is in serious need of reform.
Anyone interested in reading the OSHA report from the Orleans accident can find it in the pictures section of www.myspace.com/boycottboydgaming

Kelly Snow
wife of David Snow, survivor of Orleans "accident"
By SPFPAUNIONYES

7/16/08 at midnight

Suggest removal

Two Workers Injured at MGM Mirage CityCenter Site
Tuesday, 15 July 2008

Two workers have been injured in another construction accident at the Project CityCenter. It happened shortly before 3 p.m. Tuesday at the site of the multi-billion dollar resort complex on the Strip. The workers reportedly fell 22 feet from a scissor lift. Both were conscious as medics responded, but complained of pain and back injuries. They were taken to UMC. The injuries are not considered life-threatening. The cause of the accident is under investigation. A total of six workers have died at the CityCenter site since construction began in 2006. The $9.1 billion complex, built by MGM Mirage, is scheduled to open in 2010.

Source: News Radio 840 KNXT

To Kelly Snow
wife of David Snow, survivor of Orleans "accident"

We have posted your myspace page to our Las Vegas Construction Workers Memorial Site
In Memory of Those Las Vegas Construction Workers who Lost Their Lives at MGM Mirage Dubai World CityCenter and other Las Vegas Construction sites

We Must Continue To Bring Awareness
To The Safety Issues at MGM Mirage Dubai World
City Center Project and all other Las Vegas Construction Sites!

http://www.lvsecurityunion.org/SAFETYFIR...
By mom_of_luziers_boys

7/16/08 at 12:22 p.m.

Suggest removal

To Safety: If you had any idea what you were talking about, you may not have merited a comment, but you are obviously a planted voice, probably sown by the same corrupt entities that killed my children's father. In your ignorance lies your fate..howerver, may you not die face down in sewage because "management" ignores "safety regulations" and repeated warnings, and orders you to do your job. Boyd-Gaming and Nevada OSHA are murderers and accomplices and you are defending them. What does that make you?
By kellysnow

7/16/08 at 2:45 p.m.

Suggest removal

SPFPAUNIOUNYES - thanks for adding us and thanks for the support, I'll be adding your site to mine to help spread the word!