Las Vegas Sun

By Lisa Mascaro

Fri, Oct 30, 2009 (2 a.m.)

Nevada OSHA must stop letting companies off easy for workplace safety violations and eliminate political influence on its decisions or face greater federal oversight, elected officials said at a House hearing Thursday to further examine regulators’ response to construction deaths on the Las Vegas Strip.

The hearing, before the House Education and Labor Committee, came one week after the federal Occupational and Safety and Health Administration issued a scathing review of Nevada’s safety program, finding the state agency is incompetent and ineffective.

The committee’s chairman, Democratic Rep. George Miller of California, scolded the Nevada OSHA officials who attended the hearing, saying they failed to grasp the seriousness of the deficiencies outlined in the report.

“You have such bad record keeping, you have such bad training, you have such a lack of resources or skilled people apparently who can do this — essentially nothing happens in the death of a worker,” Miller said. “There’s something very wrong with that. There’s something very wrong.”

The federal probe examined Nevada OSHA’s oversight of 25 workplace fatalities, some of which occurred during the Las Vegas Strip construction boom.

‘Undue political influence’

Miller and other lawmakers, including Democratic Rep. Dina Titus, said Nevada OSHA must stop allowing companies cited for safety violations to go without strong punishment.

The state’s managers and lawyers “discouraged” state investigators from issuing tough citations, the report said. Several penalties were negotiated down after the companies appealed.

Titus said extra resources will go only so far in reforming the agency if its culture doesn’t change. “Perceived undue political influence has been part of the problem, and that must be addressed,” Titus said.

“A lack of training, we can fix that. A lack of resources, that can be addressed. None of these improvements will matter if outside pressure continues to be inappropriately applied,” said Titus, who serves on the committee.

This is the second hearing Miller has convened following the Sun’s Pulitzer Prize-winning series that examined the Strip construction deaths and exposed the failures of government, management and labor unions to protect workers.

Federal OSHA said Thursday it is sending its staff back to Nevada and plans to set up an office in the state to monitor Nevada OSHA’s progress. The findings in the Nevada report have prompted federal OSHA to launch a review of the other state programs.

A mother’s testimony

Among those testifying before the committee was Debi Koehler-Fergen, who broke into tears as she described how her son, Travis Koehler, and another worker died at the Orleans when they were sent to investigate a hazard in a toxic manhole and were overcome by fumes. A third man was seriously injured in the incident.

Nevada OSHA knocked down the citation in her son’s case after an appeal by Orleans owner Boyd Gaming. The state inspector who had recommended the stronger penalty resigned.

“OSHA management did not support the citations and let the gaming company get away with, in my opinion, murder,” Koehler-Fergen testified as a family member sat behind her holding a large photo of her son.

Koehler-Fergen insisted that families must be represented in workplace investigations.

The federal review in Nevada found that in half of the fatality cases, families were not told of the investigations, as required, a problem Miller said was particularly troublesome.

Koehler-Fergen said she will always believe corruption affected the outcome in her son’s case. “Nevada OSHA cannot continue to buckle over these pressures and needs to stand up and send a clear message: The game is over.”

Blind to red flag

Both Republicans and Democrats on the committee criticized the Nevada safety program.

Republican Rep. Phil Roe of Tennessee questioned why the alarming number of deaths did not alert officials.

“Didn’t that raise a red flag?” he said. “That should have been not a red flag — that should have been a marching band.”

Federal OSHA’s acting administrator, Jordan Barab, said: “It raised a red flag to a reporter, Alexandra Berzon of the Las Vegas Sun.”

Roe continued: “Somebody dropped the ball because it took a citizen to step up, a community newspaper to step up.”

Miller noted that federal OSHA officials, under the previous administration, “were asleep at the switch,” giving Nevada’s program good ratings during this period.

‘Not a wreck’

Nevada OSHA’s officials emphasized their seriousness in responding to the report’s findings and recommendations. They noted that with new personnel and a new agency attitude, they expect to make improvements.

“I know Nevada OSHA needs work, quite a bit of work,” said Donald Jayne, administrator of the Division of Industrial Relations at the state’s Business and Industry Department, which oversees the state OSHA. “But I am here to tell you Nevada OSHA is not a wreck. The program should not be junked. It just needs to be repaired and properly maintained.”

Jayne said he would seek additional state and federal funding for the Nevada program.

The new head of Nevada OSHA, Stephen Coffield, who was promoted after the investigations, blamed the problems on previous decision-makers who declined to pursue the more severe, or “willful,” violations.

“Basically, the technical staff — myself and (Donald Jayne) — would recommend the willfuls, and when they went up the chain they would not get supported,” Coffield said.

But Koehler-Fergen — who two years ago was informed by Coffield about the outcome of the investigation into her son’s death — told the panel she doubts Nevada OSHA has the ability to make the necessary changes.

Gibbons’ defense

Federal OSHA has given Nevada until Nov. 20 to submit a detailed action plan and one year to act on its recommendations. Federal officials have the authority to take over the Nevada program, but such a move would be unprecedented.

Some committee members were hesitant to call for greater federal control, preferring that the states take the lead on reform.

Republican Rep. John Kline of Minnesota read from a statement submitted to the committee by Nevada Gov. Jim Gibbons that said, “Our workers’ safety can best be ensured by a plan that is developed and managed at the state level, adhering to and exceeding federal standards, rather than one designed and operated from Washington.”

But Democratic Rep. Lynn Woolsey of California was shocked at Nevada’s performance.

“Where were you guys?” she asked the state officials before the committee.

Coffield described an office scrambling to keep pace with development on the Strip, particularly the $8.5 billion CityCenter project.

“When we saw the complexity, the size, the number of structures coming out of the ground ... everybody was very concerned about it,” he testified.

Coffield said his staff was being siphoned off by CityCenter contractors, leaving him short-handed. Jayne testified that 50 percent of his staff members now have fewer than three years of experience.

Democratic Rep. Shelley Berkley of Las Vegas does not serve on the committee but attended the meeting. Senate Majority Leader Harry Reid testified that the workers who built Las Vegas “deserve better than Nevada OSHA’s indifference to their health and safety.”

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