Did OSHA fail the workers at AL Solutions?

June 17, 2011 by Ken Ward Jr.

Fireman battle a fire at AL Solutions after an explosion rocked the plant Thursday, Dec. 9, 2010 in New Cumberland, W.Va. Three workers were killed and one person was injured. (AP Photo/The Review, Michael D. McElwain)

There was a little something in the U.S. Department of Labor press release about its citations issued to AL Solutions in New Cumberland, W.Va., that jumped out at me. It was this:

The violations place this company in OSHA’s Severe Violators Enforcement Program. Initiated in June 2010, SVEP is intended to focus OSHA enforcement resources on recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe; industry operations or processes that expose workers to severe occupational hazards; employee exposure to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.

Sounds good, right?

It is … unless you read more about this OSHA program, in a Pump Handle blog post by my friend Dr. Celeste Monforton.

For example:

It depends on whether you agree with OSHA’s narrow definition of a “severe violator.” I don’t, because OSHA doesn’t go far enough.

For example, would you consider an employer a “severe violator” if one of his employees died on the job because the company violated OSHA’s fall protection standard, and this same firm had another worker die on-the-job from a fatal fall three years prior? That’s what I’d call a recalcitrant employer, a bad actor, and a severe violator, but not under OSHA’s definition.

Dr. Monforton even went to the trouble of putting together her own flow chart and coming up with examples of things that wouldn’t qualify for this OSHA program:

On my flowchart, I offer just a few examples of situations that I’d consider for the “severe violator” category. As currently written, none of these meet the SVEP test:

— Has the employer had more than 1 fatal accident at the site in the last 7 years?

— Has the employer had more than 1 fatal accident at all of their sites in the last 5 years?

— Has the employer had multiple fatalites in any given year (all sites) over the last 5 years?

— Is the employer in debt collection and avoiding paying previously assessed monetary penalties?

What’s all this got to do with Al Solutions, and the December explosion and fire that killed three workers? Well, obviously, this facility was having some serious problems operating in a safe manner. Check out what we said in our print story:

The willful citation issued by OSHA stemmed from the plant’s water-based sprinkler system. “The application of water to burning combustible metals can result in hydrogen production and explosion,” the citation said. OSHA recommended the use of a sand/salt fire suppression system instead.

Under OSHA rules, a willful violation is one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. The willful violation in this case carried a proposed fine of $70,000.

OSHA officials declined to make anyone with direct knowledge of the case available for a telephone interview Tuesday. But in an emailed statement, Prentice Cline, director of the agency’s Charleston area office, said the sprinkler system played a major role in the accident.

“When the water from the sprinkler system made contact with the metal fire, it created hydrogen in sufficient quantity to result in an explosion and spreading of the existing fire throughout the production area,” Cline said in the statement, which was forwarded though an OSHA public affairs official.

But guess what … prior to the December incident, OSHA had not inspected the facility (formerly owned by a company called Jamegy) since July 2006 — the last time a worker died at there.

And before that? OSHA hadn’t been at the plant since January 1996, and that was a a follow-up inspection from the most previous one  in August 1995 — which again was the last time a worker was killed at the plant.

Sounds a lot like what I found when I looked at how often OSHA inspected the DuPont plant in Belle, W.Va., prior to the January 2010 death of a worker there.

I asked OSHA about the inspection frequency at AL Solutions, and spokeswoman Leni Uddyback-Fortson sent me this statement:

We have no other history of inspections with AL Solutions or Jamegy other than what you have stated. OSHA did not have any legal reason to do additional inspections of those employers. There were no formal complaints or referrals that allowed us to go in, and there were no programmed inspections so they apparently did not make it onto any programmed inspection lists through targeting.

Business lobbyists like to make out like OSHA is a big, bad agency that shuts them down for all sorts of silly things. The Obama administration and its friends in the labor movement often try to spin it that this administration is doing a great job protecting workers.

But as the AFL-CIO noted in its most recent Death on the Job report, at its current rate, it would take OSHA more than 80 years to inspect every job site in West Virginia. Maybe they shouldn’t be inspecting every job site … but you have to wonder what would have happened if an OSHA inspector had visited AL Solutions sometime between July 2006 and December 2010 … would they have spotted this faulty spinkler? Would three workers still be alive?

This is what OSHA has to say about such things:

This facility and their other facility in Missouri will now be targeted because they qualify under the new SVEP program. However, clearly it is and has been the duty of this employer and every other employer covered by the OSH Act to comply with the applicable regulations and industry safety practices.

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