Corrupt BAAQMD Executives Stall Caps On Bay Area Air Pollution With Last Minute Proposal

Statement To BAAQMD For 3/1/17 Board Meeting By Dr. Larry Rose
The fixed industrial sources of air pollution in the Bay Area refineries such as Chevron Shell, and Tosco have been well known by the BAAQMD for many decades.
The catastrophic 2012 fire and explosion at the Richmond Chevron refinery demonstrates the abject failure of BAAQMD to capture any of the toxic black smoke levels of pollution during that Richmond emergency community tragedy. independent monitoring information from the agency's monitoring system failed to record the obvious high levels of pollution.The black smoke from the fire-explosion went thousands of feet into the atmosphere and dispersed over a vast areas of the Bay Area counties. Complaints of severe upper respiratory reactions were felt in all of the adjacent Bay Area Counties. In the city of Richmond over 15,000 people sought professional medical attention for acute respiratory reactions. The response of the BAAQMD shortly after this shocking event was that they failed to find significant levels of health endangering pollutants recorded among their various monitoring equipment devices. Since that event the failure of a well developed improved effective air quality monitoring program has not been implemented or developed by the BAAQMD for refineries.
The vertical and horizontal pollution emissions of these refineries is increasing not decreasing due to the importation and refining of low quality highly volatile tar sand bitumen oil from Canada and mixed with highly volatile Baaken oil from North Dakota.
The 2012 Chevron corroded pipe leak and subsequent fire and explosion was in a refining unit that was processing these low quality high sulphur oils. The workers on site had to run for their lives, and some got burned. During the early phases of the gaseous leak they were not told to shut the unit down.
The only way these public health threatening increased levels of pollutant emissions can be controlled is by enforcing a cap on the allowable level of these pollutants for each refinery. It is obvious that an effective accurate capturing of all of the vertical and horizontal emission releases by each refinery 24/7 is required. Of course first each refinery BAAQMD must be responsible for implementing the system, and permanently storing the data recorded. Therefore the upper management directors at the BAAQMD, such as Attorney Brian Burger, and Executive Director Jack Broadbank must immediately require present the Board of Directors with a plan to each refinery to develop and implement a complete, technologically effective monitoring program. Air quality monitoring close to industrial sources and maintaining records should be a primary responsibility of BAAQMD.
Allowable Ambient air levels of particulates (pm 2.5), and carcinogenic polycyclic aromatic hydrocarbons, heavy metals, and other highly toxic pollutants must be accurately recorded, Accumulated data will can then be used to set update enforceable caps on each refinery's emissions This data must be developed stored and analyzed by an independent government agency responsible for protecting public health. This agency, with oversight by the agency BAAQMD Board of Directors must be responsible for overseeing this monitoring program. The foot dragging by the BAAQMD Senior Staff on these policies that clearly shows favoritism toward these corporate sources of refinery pollution must stop and the mission of the BAAQMD must be reestablished to protect and improve the air quality for the public health benefit of all of us.

Lawrence Rose M.D., M.P.H.,, Occupational Environmental Medicine, retired Chief of the Medical Unit of Cal/OHA for 28 years./

Cal-OSHA Mandated to take effective criminal action to immediately remediate the Richmond refinery multiple safety hazards
By Dr. Larry Rose

A dramatic informative community meeting occurred in Richmond on February 27,2013 that focused on the causes and prevention of the catastrophic Richmond refinery pipe leak, fire, and explosion and the immediate health effects as well as the health effects of previous ongoing exposures. This particular explosion/fire was a tragic event that was based on Chevron's management deception and malfeasance. The meeting's participating labor and environmental groups were: The Blue Green Alliance, The Steelworker's Union, The Labor Occupational Health Program at U.C. Berkley CA., The Natural Resources Defense Council, Communities for a Better Environment, and the Asian Pacific Environmental Network. This collaborative will soon be named The Collaborative on Refinery Safety and Community Health.The information that emerged from the meeting documented the disregard that management of this refinery showed for the health and safety of the plant employees and the surrounding communities.

The Cal-OSHA investigation and penalties

The Cal-OSHA compliance inspection's final report was announced on January 30, 2013, six months after the event, stating that Chevron did not follow the recommendations of its own inspectors and metallurgical scientists to replace the corroded pipe that ruptured and caused the fire. Those pipe replacement recommendations dated back to 2002. The initial leak caused a pressurized spewing out of a hot gaseous fume mist cloud that went on for two hours and employees were ordered to repair the pipe by removing the insulation and were not wearing adequate personal protection or respirators (a self contained air supplied breathing respirator). The gaseous cloud ignited forming a black mushrooming cloud that spread over 5000 feet into the atmosphere. Therefore Chevron did not follow its own emergency shutdown procedures when the leak was discovered and did not protect its employees. The outcome of the investigation were twenty three violations issued as "serious" and eleven of these were also classified as "willful" because Chevron did not take responsible actions to eliminate the conditions that it knew posed hazards to employees. It was found that Chevron elected to repair over one thousand plant pipe leaks with temporary clamps in this refinery rather than replacing these corroding pipes, and in some cases these clamps remained in place for years.
The background as to why Cal-OSHA did not do previous on site systematic inspections at the Richmond refinery despite several spill and fire incidents over the previous years, goes to the extreme understaffing of the agency's statewide enforcement/compliance officers, and the steady moving toward voluntary compliance of state safety standards primarily for the state's large corporations. If Cal-OSHA had what the International Labor Organization (UN) recommended there would be nine times as many compliance inspectors. Now an approximate total of one hundred and eighty seven functioning inspectors exists for the eighteen million California workers, ( a ratio of one inspector to ninety two thousand workers). If Cal-OSHA had the same ratio of inspectors to workers as Oregon and Washington, two other state OSHA programs, there would be four times the total number of existing statewide inspectors. This lack of an adequate number of inspectors has in fact profoundly effected the prevention of workplace injuries and illness in California. In addition many large corporations have been granted a "Voluntary Protection Program" status (no programed inspections). A similar status was granted to Chevron that is called a variance that allowed them to do computer "risk based inspections" instead of physical inspections of pipes and tanks.

The health effects of the airborne fire emissions

Twenty workers inhale the toxic fumes and combustions products from the leaking pipes. Five employees experienced some health effects. Fifteen thousand community residents went to surrounding hospitals with acute health reaction symptoms.
The gaseous releases consisted of volatile organic compounds, polycyclic aromatic hydrocarbons (carcinogens such as benzene, xylene, and toluene), heavy metals, nitrogen oxides, ozone, combustion products, and various sized respiratory particulates.
The immediate acute health reactions are mainly acute conjunctivitis (eye irritation), acute upper and lower pulmonary reactions (severe asthma and coughing) , acute bronchitis, acute sinusitis. The immediate respiratory reactions often lead to a problem called "reactive airway disease syndrome" that occurs when susceptible individuals are exposed to high concentrations of respiratory irritants subsequently become much more reactive to daily ambient airborne respiratory irritants and have more frequent respiratory crisis.
The long term effects of inhaling these emissions are an increased risk for cancer, pulmonary damage, cardiorespiratory problems, immune dysfunction, reproductive and developmental problems, and endocrine disruption.
Therefore the overall health effects, particularly in susceptible segments of the general population, are not just immediate and inconsequential.

Cal-OSHA mandated criminal inspections

The maximum fine issued by Cal-OSHA to Chevron was about one million dollars. This amounts to chump change for this refinery that turns out thirty four million dollars of product per day. Chevron is legally appealing all of these citations. The appeal process can take up to four years. During this appeal process Chevron does not have to remedy any of the causes of the citations issued that were directly related to the catastrophic explosive August 6, 2013 fire. Whether or not Chevron has proceeded to do an effective remediation to this date is unknown.
Under Article 10, section 344.51 "Criminal Investigations", it is stated "the central function of the Bureau of Investigations, within the Division of Occupational Safety and Health is to conduct criminal investigations.The Bureau must investigate accidents involving violations of a standard order, or section 25910 of the Health and Safety Code in which there is a serious injury to five or more employees, death, or request for prosecution by a division representative. The Bureau most analyze the circumstances surrounding the violation to determine whether the conduct is sufficiently aggravated to fall within the scope of Labor Code sections 6423,6425, and other penal statutes. NOTE: Authority cited: sections 6308, 6314, 6315, Kabir Code. Reference: section 6315 and 6314 CALIFORNIA LABOR CODE.

Conclusion and Comment

In this instance Chevron has demonstrated extreme corporate irresponsibility regarding the health and safety of it employees and the community members. During the two to four year period of Chevron's legal appeal of the serious, and willful serious Cal-OSHA citations, they are not required to remediate any of the many multiple hazardous defects in their process safety health and safety plant managed program. The only way these multiple safety hazards will be immediately fixed will be if criminal charges are brought by Cal-OSHA against the responsible upper management individuals, and through a legally binding agreement based in the courts criminal findings management will be ordered to immediately remediate all of the serious hazards that could cause future similar plant process failures.

(The author is Larry Rose M.D., M.P.H., Occupational/Environmental Medicine, and retired as the Chief of the Cal-OSHA Medical Unit)
larryrosemd(at)sbcglobal.net

Cal-OSHA: Going Down the Tubes?
http://www.workersmemorialday.org/documents/Rose.htm

California Coalition for Workers Memorial Day
Home Workers Memorial Day Events What is Workers Memorial Day? How Can You Help? Endorsers

Cal-OSHA: Going Down the Tubes?

By Larry Rose M.D., M.P.H.
There are over 17 million workers in California. The total number of active inspectors that are enforcing the health, and safety regulation are at present 187.

The present ratio of actual inspectors (187) to workers (17,219,000) is 1:92,090. The International Labor's Organization's recommended inspector-to- worker guideline ratio for developed, industrial countries is 1: 10,000, and as Table A indicates, other West Coast jurisdictions have come much closer than California to meeting that standard.

Table A: Number of Health and Safety Inspectors per Worker:

Selected Jurisdictions

California: 1:92,090

Washington State: 1:26,904

Oregon: 1:22,239

British Columbia: 1:10,564

The trends at Cal-OSHA show a shocking decrease of 32% in the number of on-site inspections, and of cited violations over the past 14 years. This alarming trend correlates with the steady deficiencies in the ratio of the number of functioning enforcement inspectors to the total number of employees in the entire State of California.

The decline in inspectors has led, not surprisingly to failures by Cal-OSHA to meet the clear requirements in the labor code: inspections are not being opened within the required 14 day post-complaint period, inspections are not being closed in a timely fashion, and many serious complaints are being declared "invalid" at the discretion of the 21 district managers. Worse yet, follow-up inspections for “serious” citations are not being carried out, there is less onsite verification of the correction of cited hazards, and there are weakened defenses of legal appeals by employers. Furthermore, existing internal programs, such as targeted inspections in "high hazard industries", and safety management are short changed, and a concomitant reduction in previously programmed inspections in high-risk industries such as agriculture, construction, garment, and restaurant industries has occurred.

Cal-OSHA effective enforcement has been essentially eliminated. At its inception under Governor Jerry Brown in the 1970s, there were six public health medical officers, and several occupational health nurses enforcing health standards. The last public health M.D. position was eliminated two years ago. Medical expertise is of enormous importance in protecting California's work force from a multiplicity of hazardous chemicals, infectious diseases, and repetitive strain motion injuries. At present there are only about 80 professionally-trained field active industrial hygienists, that are college-level professionals primarily trained to measure various hazardous exposures and to apply mandated exposure limits to airborne hazardous exposures when deciding whether to issue violation citations.

Unfortunately, the existing health standards as mandated are inadequate because they were set without reference to the possibility of multiple exposures in many work places. Serious acute, and chronic long term illnesses are frequently caused by synergistic multiple chemical exposures. Worse yet, a whole universe of new hazards inherent in nanotechnology, genetic engineering, biotechnology, indoor air quality, infectious diseases, and new chemicals and pesticides exist that have yet to be adequately studied in the various workplaces. The importance of toxicological screening for endocrine disruption has not yet been applied for chemicals. This has particular relevance for female employees of child baring age.

Cal-OSHA has the legal authority under the Labor Code to establish new standards and procedures, and as well to require strict recording of all occupational illness and injuries, the retention of medical records with certain exposures for up to 30 years, and to require medical surveillance with certain highly hazardous substance exposures. These mandated functions have been seriously compromised.

There has been a serious problem with employers not recording an increasing proportion of occupational illnesses and injuries by setting it up so that most of these injuries are only categorized as in need of "first aid", and therefore stay at work, or return to the work place the next day, and legally bypassing the requirement that a injury occurrence must be recorded on the injury, and illness log. Also, this is often accomplished by pressuring the physician the disabled worker is sent to, to not recognize the injury or illness as being caused by the work process. The employer routinely decides what primary care provider the injured employee is sent to. By not truly recording all injuries, and illnesses in the log, the employers avoid higher worker's compensation rates, and the possibility of a Cal-OSHA programmed or targeted inspection.

The Tip of the Iceberg Examples

Several recent dramatic examples illustrate the failure of Cal-OSHA to effectively respond to serious threats to life and health in California’s workplaces:

1) "Agraquest", a biotechnology corporation, was seeking to turn a selected naturally occurring microorganism into a pesticide when an exposure to that microorganism caused a life-threatening illness in a professional employee. That illness was recognized by the employee’s primary care medical practitioners as a workplace-induced illness. The Cal-OSHA investigator assigned to Agraquest totally failed to address the problem that also threatened the surrounding community, and issued only a "laboratory hood" citation. The real issue was the level of laboratory protection needed to protect the employees, and the surrounding community. Without knowing all the facts in the case, I would guess that Level 4 protection—the same required when working with any virulent microorganism could have been considered in this workplace laboratory considering the seriousness of this employees illness. Dealing with infectious disease hazards in the workplace requires the expertise of an independent public health physician, but Cal-OSHA sent an industrial hygienist compliance officer.

2) Over 80,000 new chemicals that have been released and have become the chemicals that are now in commercial circulation have not been adequately tested for general public health safety. Only 15% of these chemicals have been barely adequately tested for acute toxicity. Usually workers exposed to these untested chemicals are the equivalent of the "canary in the coal mine" who when exposed to carbon monoxide, “sway noticeably on his perch” thus warning the miners of the danger of an odorless poisonous gas.

The recent shocking example of "popcorn lung disease" is a good example of a worker "body count" occurring and alerting the worker and public health community to the dangers of a particular hazardous chemical. Of course the illness should have been called "chemical lung destruction disease". Diacetyl is used in processed food and beverages as an additive to give a buttery taste. It is part of the oily substance chemical mix that is put on commercial popcorn. A worker at the Foothill Ranch flavor manufacturing facility had been exposed to the heated fumes, and over a period of a year and a half developed devastating lung destruction called "bronchiolitis obliterans", and 80% of his lung function was destroyed to the point that only a lung transplant offered any life saving hope. It took CalOSHA over six months after the diagnosis of bronchiolitis obliterans” to fine the employer, and the penalty was only $40,000 for the destruction of a worker’s life, and the employer failed to report the illness. This fine was legally appealed by the employer. Nationally there were many more worker cases of lung disease reported from diacetyl exposures, and one documented case occurred in a consumer. It makes one wonder about the popcorn fumes that young theater workers are constantly exposed to.

The Cal-OSHA response was to have an industry physician associated with the Food and Extract Manufacturers Association do the medical screening and evaluations at the 20+ workplaces which utilized diacetyl. The chemical manufacturers of diacetyl were not required to provide a list of all of the firms they supplied with diacetyl in California. To this day, CalOSHA is uncertain whether or not these employers comprised all of the industrial users of diacetyl in the state. Assembly Bill 816, which would have required that this information be provided by chemical manufacturers in California, was vetoed by Governor Arnold Schwartzenegger who declared it an "invasion of privacy".

The Cal-OSHA response to the “popcorn lung” problem was dictated by Leonard Welsh, Acting Chief of Cal-OSHA, who sent in non-enforcement “Consultation” agents of Cal-OSHA to the incomplete list of twenty odd industrial users of diacetyl. Cal-OSHA’s treatment of this case illustrates how Mr. Welsh has developed an ever-expanding emphasis on so-called "voluntary compliance" for the large corporations even in life-threatening cases. Large chemical and electronic companies in California have become effectively exempt from programmed “enforcement” inspections if they sign “voluntary compliance” agreements, even where they use dozens of notoriously toxic chemicals in their operations.

Another example of Cal-OSHA incompetence are the ongoing increasing deaths from heat stress or hyperthermia in agriculture. Until a death occurs Cal-OSHA essentially ignores the requirements for rest periods, drinking water, and necessary rest in the shade.

Addressing the Cal-OSHA Enforcement Disaster

The insufficient level of enforcement staffing and the elimination of all Public Health Medical Officers have lead to a inability of the agency to meet its mandated responses to workplace health and safety as enumerated in the California Labor Code.

In 1975 the statewide program had six medical officer physicians, three nurses functioning in enforcement, and a much higher ratio of inspectors to workers. In 1975, Cal-OSHA was the strongest state OSHA program in the country. Now, after death by a thousand cuts, it is one of the weakest enforcement programs in the United States, despite the increasing numbers of hazardous industries in the state.

The U.S. Court of Appeals decision in AFL-CIO v. Marshall, the established benchmark had been 805 inspectors for the State of California. Federal OSHA has recommended 334 safety, and 471 health compliance officers. Instead, under successive Republican California administrations, the enforcement staff numbers have shrunk to a total of only 187 inspectors of all kinds. If an effective committed administration were operating, thirty vacant field positions would be filled immediately and trained on an emergency basis, and five times as many inspectors plus 5 physician medical officers would be presented to the legislators as urgently needed to accomplish an effective Cal-OSHA. Anti-labor administration policies, plus weak statewide labor support have contributed to this dysfunctional Cal-OSHA picture.

Author: Larry Rose M.D., M.P.H., 28 years as the senior Public Health Medical Officer for the statewide Cal-OSHA program (recently retired), Occupational/Environmental Medicine department at UCSF.

larryrosemd@sbc global.net



Indictment of Ca-Osha By Retiring Senior Safety Engineer-Bosses And Incompetents Now Running The Agency

http://www.workersmemorialday.org/documents/indictmentCa-Osha.htm

California Coalition for Workers Memorial Day
Home Workers Memorial Day Events What is Workers Memorial Day? How Can You Help? Endorsers


Indictment of Ca-Osha By Retiring Senior Safety Engineer-Bosses And Incompetents Now Running The Agency

Jack Oudiz’s “Exit Interview” from Cal/OSHA Upon Retiring After 25
Years With the Divison

Jack Oudiz – Senior Safety Engineer, California Division of
Occupational Safety and Health (Cal/OSHA)

As I approach my retirement from the California Division of Occupational Safety and Health after nearly 23 years as a compliance industrial hygienist, a District Manager, a Regional Senior Industrial Hygienist and Senior Safety Engineer, I wanted to share some thoughts on my experience and on the current state of affairs in the hope that it might contribute to future change. Many leading employers in the private sector have found value in conducting exit interviews with long time employees. In the absence of such efforts by DOSH or the Department of Industrial Relations, I offer these comments as the equivalent of my exit interview.

My statement is compelled by a sense of sadness and disappointment at leaving an organization that is in many ways much less effective than I found it nearly 25 years ago. The Division I leave today has veered so far away from its mission that it has begun to redefine that mission to justify its actions. It has disregarded the health and well being of its internal operation for so long that low workforce morale, lack of adequate resources, inept and poorly trained managers, directionless field staff, low expectations and complete lack of accountability has come to be the accepted norm. In the political realm, the imbalance of power between labor and employers has contributed to this steady deterioration resulting in weaker regulations, weaker enforcement and the abandonment of the advocacy role intended for the Division by the OSHAct.

First, let me be clear that it has been an honor to work alongside many of my dedicated and incredibly committed colleagues in the Division these past many years. They have inspired me and kept me going in the face of neglect, ineptitude and irresponsibility. The disappointment in knowing “what could be” was in part offset by the privilege of their friendship and a job that at times did make a difference. I leave feeling not bitterness or disgruntlement but rather a great deal of pride and gratitude.

I also leave behind a record of accomplishment and achievement I am proud of. In October 2001, I was honored to be asked to lead the Division’s contingent of volunteers that assisted OSHA at the World Trade Center disaster recovery site. Upon my return, I was also responsible for creating, developing and leading the Division’s Emergency Response Program which I subsequently was able to integrate into the California Statewide Emergency Management System.

In 1994, I was asked by Chief John Howard to develop and implement the Division’s Professional Development and Training Unit, the first such professionally coordinated training program in the Division’s history.

Since 1994, I have been primarily responsible for the development and delivery of all professional training for all Division enforcement and consultation staff. During fatter budget times, this effort resulted in more than 30,000 person-hours of training given per annum while functioning as essentially a one-person unit.

What is The DOSH Mission?

The history of the enactment of the Occupational Safety and Health Act of 1970 shows that the governmental role in regulating safety and health conditions in workplaces was the direct result of many years of political struggle by workers and their unions. While the Act was far from perfect in its scope and construct, it did establish the fundamental principle, in law, that all workers have the right to a workplace that does not endanger their safety and health, the “General Duty Clause” as the Federal agency calls it. This principle was codified in the California Labor Code as a statement of responsibility of all employers. A national regulatory bureaucracy was created by this Act to assure that this principle was in place and enforced in all workplaces. The Division is the branch of that bureaucracy in California. It derives its mission and reason for being from that principle. That is, to assure, to the best of its ability, that workers in California are afforded the protection required to keep them safe and healthy at work.

That one clear message has never been articulated by anyone in a leadership role while I have worked in the Division. Consequently, each person who comes to work in DOSH is left to define for his or herself what is their role and what is their purpose within this bureaucracy. Since “production” measures have always been given the most outspoken emphasis by Division leadership, some come to see the mission as defined by the number of inspections and citations amassed. Others come to the Division with prejudices and biases regarding workers, unions, employers and, absent any clear guidance and emphasis from above, continue to express those leanings in their daily work.

The result, as I have consistently observed it, is a workforce with a wide divergence of commitment to the agency’s mission led by many managers whose success is evaluated and measured by statistics rather than by their level of dedication and ability to create common cause in pursuit of the mission.

As lead of the Division’s Professional Development and Training Unit the past 15 years, I developed an Orientation to Enforcement training for all incoming newly hired inspector staff. The content of this training, in addition to a great deal of introduction to the mechanics of performing inspections, has always included segments on the history leading to the passage of the OSHAct including the history of occupational safety and health struggles in this nation and the point of view of labor on the role of OSHA as expressed by a guest union organizer. This is usually the only exposure to these subjects that DOSH inspectors ever receive in their working lifetime. Only once in these past 15 years has a DOSH Chief made an appearance at this training to welcome new Division employees. This opportunity to inspire, to motivate, to clearly and unequivocally emphasize the mission of the Division has been repeatedly squandered.

In my tenure with the Division, I have served six different DOSH

Chiefs. Not one of them ever articulated the mission of the Division to its employees. Not one of them ever made a serious effort to inspire and motivate its employees to understand and excel in furthering that mission. What is the primary mission of the Division?

Ask DOSH employees that question and you will very likely receive a variety of diverging responses. Is it to protect and advocate for the safety and health of workers? Is it to enhance commerce? Is it to assure that there is a “level playing field” for all employers? Is it to be a neutral arbiter between workers and employers?

Now that the financing of DOSH is increasingly coming from levied employer fees, there is already open talk from Division leadership about employers as “our customers” and steps are being taken to implement this latest interpretation of the mission. For the first time, the quality and not simply the quantity of the field work is being scrutinized and addressed by DOSH leadership. However, the justification being given to the workforce is not the goal of greater protection for workers but rather it is that employers deserve a good return on their investment! Is it realistic to expect that aggressive enforcement of protective health and safety regulations is really the return on investment that California employers want and expect?

All of this is not to imply that DOSH leadership has lacked vision all these years. Rather it is to say that that vision has seldom been congruent with the fundamental principle established by the OSHAct. As political appointees, DOSH Chiefs have been selected with certain expectations from the Administrations they serve. Twenty-two of the past 25 years, DOSH Chiefs have been appointed by and served under business-friendly Republican administrations. The impact of that history on the Division’s interpretation of its mission has been incalculable.

John Howard served as Chief of the Division for approximately 10 years. He was a man of enormous personal charm and intellectual power. He received accolades from both labor and employers during his tenure. I was inspired by and honored to work with him. Dr. Howard was also appointed by and served primarily under Republican governors. Dr. Howard fundamentally did not believe in the enforcement paradigm created by the OSHAct. His major accomplishment during his tenure was the revision of the DOSH Policies and Procedures Manual to its present 600+ pages incarnation. This was done as an effort to bring greater consistency in the manner and methods used by each enforcement office within the state. It was a huge undertaking that absorbed a tremendous amount of the Division’s energy and resources, including monthly, week-long training sessions over 14 months. It was carried out, in large part, in response to complaints from California’s employers who felt that inconsistencies in enforcement actions were a detriment to their business practices.

What has this effort done to improve the ability of the Division to more effectively achieve its mission? From my vantage, the answer is very little, particularly when judged against other opportunities that were squandered. In that timeframe very little was done to address the longstanding structural problems affecting the real daily work of DOSH staff. Poorly qualified managers continued to be appointed throughout the Division. Managers continued to struggle to be effective leaders without adequate training, mentoring or guidance. Staff demoralization reached all-time low levels partly in response to the hugely increased bureaucratization of the work and the continued deterioration of resources, support, training and leadership. Most significantly, the Division continued to ignore the glaring truth that far more staff was needed to successfully carry out its mission.

Woefully Inadequate Resources to Get Job Done

California continues to trail both Federal OSHA as well all other state staffing levels with respect to the proportion of enforcement inspectors to the state workforce. This staffing shortage was the focus of recent legislative oversight scrutiny. When given the chance to affirm the need for more staff, the current DOSH Chief buckled to political pressure and declared that “efficiencies” in operation would counter the need for additional personnel. This statement was so ludicrous and the needs are so glaring that even he has now finally had to publicly pronounce that the Division is in sore need of more resources and staffing. In the meantime, the presnet Chief just created and filled a high level staff service manager position with an “efficiency” expert while a Deputy Chief for Occupational Health position remains unfilled for the 10th consecutive year.

The consequences of chronic staffing deficiencies in enforcement district offices are numerous and have a huge impact on the work and morale of Division staff. When workloads are too great for offices and inspectors, inspections and accident investigations are rushed, witnesses are not interviewed, evidence is not collected, citations are not issued or are given away to avoid time consuming appeals, inspections are conducted by letter rather than in person, some accidents even fall through the cracks and never get investigated. Mentoring of inexperienced inspectors seldom occurs and they are often left to fend for themselves in complicated inspections or investigations. Who benefits from all of this? Who suffers the consequences? Is it any surprise that inadequate staffing levels has been the one consistent hallmark of the past 25 years?

Lack of Leadership/Lack of Accountability

The Division I leave today is marked by low levels of morale among its workforce. One of the most consistent contributors to this low morale has been the lack of excellence in leadership stemming from the poor process of selection and lack of training of DOSH managers at all levels for the critical role that they play. Excellence in management is not tested for, it is not selected for, it is not rewarded and it definitely is not taught in the Division. The manager selection process that I have observed has usually been either a complete crap-shoot or the rank exercise of favoritism. At least one Regional Manager was selected simply because she was all that was left on the civil service list. She covers her incompetence through belligerence and terror and is currently the subject of grievances by an entire District office. This is common knowledge ignored for years by Division leadership. Once an unfit manager is in place, he or she remains there for years barring the most egregious circumstances.

The combination of my statewide role as the Division’s training coordinator, my longevity on the job and my personal initiatives put me in the somewhat unique position of having recurring contact with nearly all professional staff in the Division. I hear all the rumors, I know all the dirty secrets, and I know where the bodies are buried. I also know which managers are incompetent, which ones are bullies, which ones are liked and which ones are despised. I know which managers try to inspire and which ones lead by coercion and intimidation, which ones are still dedicated to the mission and which ones were long ago beaten into submission. I know which ones give away citations to avoid the hassle of appeals and which ones are usually prone to take the employer’s view on contentious issues.

The impact of an unfit manager on an agency such as DOSH and on the morale of its staff can be devastating and can last for many, many years. This problem has been consistently ignored by every Chief I have served. None more than the present one. Poor choices in manager selection have been compounded by the lack of accountability at any level of the organization. Accountability is not an easy issue in civil service. It requires clearly defined expectations and a consistent application of well understood consequences. Neither of those exists in DOSH. The lack of accountability eventually also reaches the field level inspector where the slothful or the incompetent persist in their jobs year after year alongside those who choose to work hard and exercise superior skills. One suffers no consequences nor is the other recognized or rewarded. Personal motivation and initiative are the only impetus to good work in the

Division. For many years, I tried to convince Division leadership to implement the state’s already well established employee recognition program. It fell repeatedly on leadership’s deaf ears.

Decline of Labor Influence/Rise of Employer Influence

The historical decline in the strength and influence of the labor movement in California (as well as nationally) in the past 25 years has had a devastating impact on the effectiveness of the Division and its commitment to its mission. It is hard to conceive that at one time the Chairman of the Cal/OSHA Appeals Board was a former union rank and file member and shop steward. The imbalance of power between labor and employers has been reflected in the regulatory process, in the appointments to critical positions on the CalOSHA Appeals and Standards Boards, in the hiring of and decisions rendered by the Appeals Board and its judges and in every other facet of DOSH policies and procedures.

The universal use by the Division of advisory committees and the development of regulation by consent, on its face, may have the appeal of fairness and balance, but in reality it has slanted rulemaking power overwhelmingly to employers. It is not unusual for a regulatory advisory body to have a 10 to 1 ratio of representation in favor of employers. Even when labor representation is present, it is customarily severely outgunned in expertise, experience and assertiveness. The outcome, in the case of landmark regulations such as the ergonomics standard and the heat illness prevention standard, clearly reflects this imbalance of power. These two regulations have given DOSH an undeserved reputation as a leader in progressive health and safety rulemaking. The truth is that these regulations were grudgingly enacted only after vociferous labor action (and heat related worker deaths that drew public outcry) and were weaker versions of what was needed.

DOSH’s role is intended as an advocate for worker health and safety. The OSHAct did not intend nor require consensus or agreement between the regulated community and those the agency is designed to protect. The OSHAct did not intend nor require the balancing of worker safety and health with industry profits. Rather, the law requires the agency to protect a worker, to the extent feasible, from “material impairment of health or functional capacity even if such employee has regular exposure to a hazard regulated by such standard for the period of his working life.” When the Division assumes the role of an impartial party in the development of regulation, it abdicates its responsibilities as an advocate for worker health and safety.

Because of emphatic employer opposition to the ergonomics standard, the compromise regulation that was passed ignored much of the scientific evidence and has remained essentially unenforceable. The “Noah’s Ark” approach that requires a minimum of two of each type of injury to trigger the requirements of the regulation has meant that many exposed or injured workers lack any protection simply because there may not be any injured co-workers. Consequently, the negligible incidence of cited DOSH ergonomics cases does not begin to reflect the scope of the actual hazard in workplaces.

The heat illness standard recently enacted also faced stiff employer opposition. Compromises were made by the Division that omitted key elements demanded by labor such as the inclusion of indoor work places within the scope of the regulation. It also put the onus of requesting rest periods on workers. Anyone familiar with the realities of the workplace understands that workers, particularly low wage workers, are not likely to ask their employers for relief because they fear they will lose their job and California's regulations on piecework, which permit the employer to pay only minimum wage for a 40 hour work week, create a significant financial penalty for any worker who takes a break.

Enforcement Sabotaged By Appeals Board

In recent years, perhaps nothing has had a more deleterious impact on the daily activities and morale of the Division’s enforcement staff than the practices of the Cal/OSHA Appeals Board. The attitudes and decisions of many of the Board’s administrative law judges have been widely perceived by enforcement inspectors and many of their managers as anti-Division and strongly biased in favor of employers.

The Board itself has reinforced this perception by capriciously dismissing important citations based on frivolous technicalities such as partially inaccurate company names or downgrading citation classifications without reasonable cause. These decisions and actions have a widespread chilling effect on Division’s staff. Both managers and inspectors are more reluctant to classify serious citations in the expectation of a negative outcome on appeal. “Why bother?” is how many feel. In other cases, staff has begun to reinterpret DOSH regulations based on what they have seen in ALJ decisions. This negative impact has been compounded by practices of the Appeals Board such as overbooking of hearings, arbitrary denial of continuances and expecting worker witnesses to travel great distances for hearings. In an unprecedented recent move, 47 Division staff, including eight District Managers and nine Senior Safety and Industrial Hygiene staff, signed a letter to the Appeals Board demanding that it cease and desist its practices which have prevented the Division from effectively carrying out its mission.

The Division leadership has done little to protest or challenge these actions by the Board. In recent Senate oversight hearings, the Division Chief was effusive in his praise of the Chairwoman of the

Board. Only because of pressure from labor advocates has the Board begun an advisory process which itself is, not surprisingly, overwhelmingly stacked in favor of employers and their representatives.

Lack of Political Will for Change

Until there is the political will in California to take seriously the principle established in law by the OSHAct, I don’t expect that the Division will become any more effective in carrying out its mission. We will continue to have leadership beholden to the Chamber of Commerce rather than the working men and women of California and unwilling to address the structural deficiencies of the Division.

Those deficiencies have the net result of less effective enforcement of ever weaker regulations and a dispirited workforce in search of inspiration and leadership. Without pressure from below, there is little incentive for change. The OSHAct was in many ways a revolutionary act. For the first time, the dictatorial power of the employer over the workplace was challenged. Government inspectors were given the unprecedented power to not only inspect all workplaces but to shut workplaces or work activities down. It is not surprising that employers and their elected representatives fought the Act tooth and nail. It is also not surprising that these same forces have continued to fight at every opportunity to diminish the Act and the effective enforcement of its intent. What has not been achieved through legislation has been essentially accomplished through sabotage, undermining, and resource starvation. If there has to be an OSHA bureaucracy, then every measure has been taken to see that it cannot effectively function. The more demoralized the workforce, the more complacent the leadership, the less accountability in the organization, the less competent the managers and inspectors, the better for those opposed to the achievement of the Act’s goals.

Only a grassroots effort by workers, unions and those who support social justice and human rights can exert the political pressure necessary to correct the institutional problems that have overwhelmed the agency given the duty and responsibility to protect worker safety and health rights.

CA Osha Staff Speak Out-The Criminal Destruction Of Ca-Osha By Schwartzenegger's Appointees & Silence By CA-AFL-CIO Leadership

June 13, 2009

Candice Traeger, Chairwoman, Management member
Robert Pacheco, Public member
Art Carter, Labor Member
Occupational Safety & Health Appeals Board
2520 Venture Oaks Way, Suite 300
Sacramento, CA 95833

Dear Members of the Board,

We write as 47 individuals who work as field inspectors, seniors and district managers who interact frequently with the Occupational Safety and Health Appeals Board to strongly protest Board policies and practices that have significantly undermined our ability to do our job of protecting the lives, health and safety of California’s workers.

Over the last four years – and these policies continue to this very day – the Board has deliberately over-booked hearing days so that a single judge in the same location and the same time has as many as three or four hearings scheduled. The Board has continued to refuse to even indicate which case will be heard first. The Board has continued to hold hearings at distant locations where worker witnesses have great difficulty in appearing. The Board has continued to deny, or simply ignore, legitimate requests for continuances.

In June 2009, there are 32 days (at six locations) with three or more cases scheduled for the same judge, same location, same time. There are 14 days with four cases scheduled and one day with five cases scheduled (Oakland, June 17th).

How can we, who handle the majority of appeals for the Division, prepare exhibits, witnesses and arguments for three separate cases all scheduled for the same time? How can we convince worker witnesses to travel long distances, and then to come back after they have been sent home because their case wasn’t heard?
The simple answer is that we can’t.

That’s why there have been hundreds more “settlements” over the last four years, many with drastic reductions of final penalties. These policies are in addition to the recent practice of the Board to dismiss cases, even those with serious injuries, on minor technicalities; and to unilaterally “interpret” legislation and ignore court rulings, so as to restrict the Division’s ability to enforce the law.

The net effect of the Board’s policies has been to sabotage the Division’s ability to defend citations and penalties on appeal. Cal/OSHA’s deterrent effect has been significantly undermined as employers learn they can “game the system” when the Division is coerced into settlements, often with penalties that are pennies on the dollar.

The people who pay the cost for these policies are California workers whose employers look at Cal/OSHA as an agency that is forced to fight with one hand tied behind its back.

We find it troubling that the Board has not processed the years-long backlog of petitions for reconsideration over which the Board has sole authority and responsibility. This again undermines worker protections in California as employers are not legally required to abate these citations which remain “under appeal” for years and years.

The voices of Cal/OSHA’s front-line employees have not been heard on these issues until now because many of us feared reprisals by the Board in the handling of our individual appeals cases, or the handling of cases from the offices where we work. The deck is already so stacked against the Division that any more obstacles from the Board would be too much. But the various hearings held this spring, and the fact that the Board finally has all three members, have given us hope that the Board’s unfair policies and practices can now be challenged.

As you must know, those of us representing the Division at appeal hearings are frequently “out-gunned” by the employers’ corporate attorneys who have more resources, personnel and time – even before we have been tripled-booked with hearings, often in places where worker witnesses find it difficult to appear. The current case load and over-booking mean that DOSH attorneys are saddled with an impossible task of preparing multiple major cases for the same day or on sequential days.

We know that not all citations are “open and shut” cases and we believe everyone, including employers, should have the right to a speedy appeal and an impartial review of the facts. All we want is a level playing field.

We ask you to cease and desist with the Board’s unfair policies and practices against Division personnel, and restore the balance to the appeals process so that employers and the Division are treated fairly and equally. California’s workers have a right to, and deserve, a workplace health and safety agency that can do its job.

Sincerely,

Patrick Bell, Senior Safety Engineer, Research & Standards Unit, Oakland
Eric Berg, Compliance Safety and Health Officer, Process Safety Management/North
Jeffrey Berliner, Compliance Safety and Health Officer, San Diego
District Office
Bill Biretta, Compliance Safety and Health Officer, Fremont District Office
Maureen Braun, Compliance Safety and Health Officer, High Hazard Unit/North
Garrett Brown, Compliance Safety and Health Officer, Oakland District Office
Mario Chacon, Compliance Safety and Health Officer, Foster City District Office
Fernando CostaMartins, Compliance Safety and Health Officer, Oakland District Office
Sabino DeGuzman, Compliance Safety and Health Officer, Oakland District Office
Kathleen Derham, District Manager, EEEC Unit/South
Mike Doering, Compliance Safety and Health Officer, Process Safety
Management/South
Susan Eckhardt, Compliance Safety and Health Officer, Fremont District Office
Abgail Fabricante, Compliance Safety and Health Officer, Oakland District Office
Michael Frye, District Manager, Foster City District Office
Wing Sang Fung, Compliance Safety and Health Officer, Oakland District Office
Cora Gherga, District Manager, San Francisco District Office
Nick Gleiter, District Manager, Oakland District Office
Deborah Gold, Senior Safety Engineer, Research & Standards Unit, Oakland
Chris Grossgart, Attorney, DOSH Legal Unit, Oakland
Jan Hami, District Manager, EEEC Unit/North
Mark Harrington, Compliance Safety and Health Officer, Santa Rosa
District Office
Mike Horowitz, Senior Safety Engineer, Research & Standards Unit, Oakland
Jeff Ferrell, Senior Industrial Hygienist, Asbestos Unit, Sacramento
Thomas Johnston, Compliance Safety and Health Officer, Process Safety Mgmt/North
Shohreh Kheradpir, Compliance Safety and Health Officer, High Hazard Unit/North
Eleanor Kilner, Compliance Safety and Health Officer, Fremont District Office
Barbara Kim, Compliance Safety and Health Officer, Foster City District Office
Keith Koterbay, District Manager, High Hazard Unit/North
Mariano Kramer, Senior Safety Engineer, Research & Standards Unit, Santa Ana
Michael Loupe, Compliance Safety and Health Officer, San Diego District Office
Army Lum, Compliance Safety and Health Officer, San Francisco District Office
Scott McAllister, Senior Industrial Hygienist, Region I, Santa Rosa
Vajie Motiafard, Compliance Safety and Health Officer, San Francisco
District Office
Darcy Murphine, Compliance Safety and Health Officer, San Diego District Office
Gene Murphy, Senior Safety Engineer, High Hazard Unit/North
Sylvia Murray, Compliance Safety and Health Officer, Oakland District Office
Bob Nakamura, Senior Safety Engineer, Research & Standards Unit, Oakland
Doug Neville, Compliance Safety and Health Officer, High Hazard Unit/North
Jack Oudiz, Senior Safety Engineer, Professional Development &
Training, Sacramento
Carol Parisek, Compliance Safety and Health Officer, Santa Rosa District Office
Peter Riley, District Manager, Process Safety Management/South
Dawn Schaniel, Compliance Safety and Health Officer, Fremont District Office
Geraldine Tolentino, Compliance Safety and Health Officer, Oakland
District Office
Clyde Trombettas, District Manager, Process Safety Management/North
Chris Wing, Compliance Safety and Health Officer, Oakland District Office
Doug Woods, Compliance Safety and Health Officer, Santa Rosa District Office
Michael Zimmerman, Compliance Safety and Health Officer, San Diego
District Office

(Positions listed for identification only)