Kentucky Death Case & Readers Response

1)	Kentucky death case: Another black eye for state workplace safety enforcement 
2)	Re: U.S. Industrial Policy Needed


1)	Kentucky death case: Another black eye for state workplace safety enforcement 

By Jim Morris

The Center for Public Integrity

http://www.iwatchnews.org/environment/health-and-safety/hard-labor


Around midnight on June 1, 2007, Tina Hall was
finishing her shift in a place she loathed: the mixing
room at the Toyo Automotive Parts factory in Franklin,
Ky., where flammable chemicals were kept in open
containers.

A spark ignited vapors given off by toluene, a solvent
Hall was transferring from a 55-gallon drum to a hard
plastic bin. A flash fire engulfed the 39-year-old team
leader, causing third-degree burns over 90 percent of
her body. She died 11 days later.

After investigating the accident, the Kentucky Labor
Cabinet's Department of Workplace Standards cited Toyo
for 16 "serious" violations and proposed a $105,500
fine in November 2007.

"You're disappointed because you think, that's all they
got fined?" Hall's sister, Amy Harville, of Moulton,
Ala., said in a telephone interview. "But then I
thought, at least they got 16 violations. I was
thinking they'd stick, as severely as she was burned."

The violations didn't stick. Every one of them went
away in 2008, as did the fine, after Toyo's lawyer
vowed to contest the enforcement action in court. Last
month, in a move believed to be unprecedented in
Kentucky, the Department of Workplace Standards
reinstated all the violations because, it said, the
company hadn't made promised safety improvements.

The case was another black eye for state-run workplace
health and safety programs nationwide. In all, 26
states administer their own programs under federal
supervision. Several have been criticized in recent
years for capitulating to lawyered-up employers,
performing subpar inspections and shutting out accident
victims' families.

Officials in Kentucky didn't tell Harville and Hall's
husband that the Toyo violations had been dismissed.
They found out in 2010 only because Ron Hayes, a fellow
Alabamian who runs a nonprofit advocacy group for
families of fallen workers, had taken an interest in
the case and checked in regularly with the Department
of Workplace Standards.

Hayes -- whose son, Pat, died in a Florida grain
elevator accident in 1993 -- lodged a formal complaint
against Kentucky with the U.S. Department of Labor's
Occupational Safety and Health Administration, which
concluded in June 2011 that the state had erred.

"Deleting citations in their entirety sends a signal to
employers that they need only contest to alleviate the
burden of history," OSHA's regional administrator in
Atlanta, Cindy Coe, wrote to Hayes.

In a written statement, Kentucky's Department of
Workplace Standards said it dismissed the violations
after determining that "the case would not have
withstood legal challenge." Instead, the department and
Toyo entered into a settlement agreement, which
provided for follow-up inspections. Toyo's alleged
failure to meet the terms of that agreement led to the
reinstatement of the violations last month.

The reinstatement showed that the violations never
should have been dropped in the first place, Hayes
said. "It's vindication, because we said all along this
was wrong," he said.

The president of Toyo Automotive Parts did not return
calls seeking comment. In a 2008 legal filing, Toyo
denied responsibility for Tina Hall's death, calling
the accident "the result of unforeseeable, isolated
acts undertaken by an individual employee." Problems in
the states

Under the Occupational Safety and Health Act of 1970,
states that choose to regulate workplace health and
safety must ensure that their programs are "at least as
effective" as the federal one. OSHA pays up to half the
cost of such programs and is supposed to keep tabs on
them.

By some accounts, it hasn't done a particularly good
job. After press reports about a rash of construction
worker deaths in Las Vegas, OSHA reviewed the Nevada
program in 2009 and found a long list of flaws. Among
them: State inspectors weren't sufficiently trained to
identify construction hazards and were discouraged by
managers from issuing "willful" violations -- which
suggest an employer showed "plain indifference to the
law" and can lead to stiff penalties -- to avoid
protracted court battles.

OSHA looked at the programs in the 25 other states that
administer their own, finding deficiencies such as
uncollected penalties in North Carolina and
misclassified violations in South Carolina. Kentucky,
OSHA found, was taking too long to issue citations and
wasn't making complainants aware of "specific official
findings."

In 2011, the Labor Department's inspector general
reported that OSHA hadn't found a suitable way to
measure the effectiveness of state programs. In his
response to the IG, OSHA chief David Michaels wrote
that the agency was developing a new monitoring system
that would involve, among other things, reviews of
state enforcement case files.

Still, Hayes believes that "systemic problems" persist.
"Oversight from federal OSHA has been lacking for the
past 42 years," he said. "There are so many different
problems from state to state."

Indeed, Hawaii's program -- described as "poor" in a
2010 OSHA report -- has been severely hampered by budget
and staffing cuts for the past three years. Things got
so bad that state officials recently asked the federal
government for help. 'The Five Commitments'

In its 2007 annual report, Toyo Tire & Rubber Co., a
Japanese conglomerate that makes tires, auto parts and
chemicals in plants around the world, lists what it
calls "The Five Commitments."

"We make safety our highest priority in the provision
of products and services," reads Commitment No. 2.

Tina Hall thought otherwise, according to her husband.
At the time of the accident in June 2007, she was
trying to transfer out of the Franklin plant's adhesive
department because the job required her to spend time
in the mixing room, where toxic and flammable chemicals
were stored.

"She talked about how bad the fumes were in that room,"
said L.V. Hall, who lives in Bremen, Ala. "She said
something about the disposal of chemicals -- they
weren't doing it right. I'd been wanting her to get out
of that mess."

Tina Hall and other team leaders would go into the
mixing room to fill plastic bins, known as totes, with
solvents such as toluene. They'd clean gummed-up
machine fixtures in the totes. Team leaders also would
fill five-gallon buckets with solvents and carry them
to adhesive machines on the factory floor. The solvents
were used to take residue off the machines.

Kentucky's Department of Workplace Standards would
later cite Toyo for obstructing exit routes in the
mixing room, not keeping flammable liquids in covered
containers when they weren't being used, failing to
control vapors and having inadequate fire-protection
equipment.

On the night of the accident, Tina Hall was cleaning
fixtures by herself when a spark, likely caused by
static electricity, ignited toluene vapors and set off
an explosion in a 55-gallon drum of methyl isobutyl
ketone, another solvent.

Then a General Motors assembly line worker, L.V. Hall
was awakened at home in Auburn, Ky., by a call from a
Toyo team leader around midnight. His wife, on fire,
had managed to get outside and roll on the ground. "How
she got outside I don't know," Hall said. "It was like
an obstacle course to find the exit door."

Tina Hall was taken to a local hospital, then to
Vanderbilt University Medical Center in Nashville,
about 45 minutes away. L.V. had a brief talk with her
before the doctors put her into a coma to shield her
from the pain. "She said, 'I did everything the way I
was supposed to do it,'" Hall said. His wife drifted
off and never regained consciousness. She died on June
12, 2007. 'Travesty of justice'

Not long afterward Tina Hall's younger sister, Amy
Harville, was directed to Ron Hayes by an acquaintance.
Burly, white-bearded and tenacious, Hayes lives in
Fairhope, Ala., and runs the FIGHT Project, which helps
families navigate the bureaucracy of workplace fatality
investigations. Hayes counseled Harville and L.V. Hall
as the state's inquiry into the Toyo accident
progressed.

When the Department of Workplace Standards issued 16
serious violations against the company in November
2007, "I was OK with it," L.V. Hall said. "I didn't
realize that once that's done, these attorneys can get
in there and just do away with it."

Documents obtained by the Center for Public Integrity
under the Freedom of Information Act show how Toyo's
lawyer, Mark Dreux of Arent Fox in Washington, D.C.,
fought the state of Kentucky from the beginning. Dreux
declined to comment on the case.

In March 2008, the state offered to reduce the penalty
from $105,500 to $74,000. Dreux refused. In June 2008,
the state proposed a further reduction, to $15,000, for
three violations. Dreux said no. In November 2008,
Dreux got what he wanted: No violations and no fine.

It was Hayes who first learned, in July 2010, that all
the violations had been deleted. He alerted Harville.

"I was devastated," she said. "It takes you back all
over again, like Tina was killed for the second time."

She called L.V. Hall, who reacted similarly. "I was
just shaking I was so upset," he said. He called the
Department of Workplace Standards and finally reached
"the lady attorney who was over the case. I basically
told her, 'I cannot believe y'all dropped every one of
those citations.' She said, 'Well, Mr. Hall, I am an
attorney and there was not enough evidence.'"

Hayes knew what to do. He filed a CASPA -- Complaint
About State Program Administration -- with OSHA's
Atlanta regional office, calling Kentucky's dismissal
of the citations a "travesty of justice."

After an investigation, Regional Administrator Cindy
Coe, in essence, agreed, writing in June of last year
that "the violations were well documented and legally
sufficient and there was no definitive evidence in the
file that indicated that they could not be supported."
Deleting all the citations, Coe wrote, erases an
employer's safety history and deprives regulators of
critical information should subsequent enforcement
actions commence.

"It also signals to compliance staff that their efforts
are for no good end, if the point is to drop everything
at the threat of going to court," the administrator
wrote. "It further signals to employees in the
workplace that there is no entity on their side."

In his response to Coe, the commissioner of the
Kentucky Labor Cabinet, Michael Dixon, wrote that the
state "does not retreat from litigation" but didn't
believe it could defend the case before the Kentucky
Occupational Safety and Health Review Commission, an
appeal body.

In May, a state inspector returned to the Toyo plant in
Franklin to see if the company had done all the things
it said it would do after Tina Hall's death -- making
sure supervisors were trained in the correct way to
clean fixtures, for example. It hadn't.

In a July 5 letter, Susan Draper, then director of the
Kentucky Labor Cabinet's Division of Occupational
Safety and Health Compliance, notified Ronald Wyans,
president of Toyo Automotive Parts (USA), that the 16
original citations had been reinstated, as had the
proposed $105,500 penalty. The Tina Hall case had come
full circle.

Sometime in the next few weeks, Amy Harville, L.V. Hall
and Hall's lawyers expect to meet with Dixon and Toyo
counsel. They expect to learn whether Toyo intends to
accept its punishment or continue fighting.

"When somebody gets killed in one of these workplaces,
it shouldn't be this way," L.V. Hall said. "I had Ron
Hayes on my side and he knew what to do. Most people
don't have Ron. These citations never would have been
brought back without him." 





2)	Re: U.S. Industrial Policy Needed

Dear moderator:

Mr. Bybee has written a very well-informed and rather
hopeful piece for us all to consider.But I need to ask
the following, less optimistic question, and would love
to hear a persuasive answer.

How can we still dream of a U.S. industrial policy
aimed at rebuilding a strong U.S. manufacturing base,
including raising U.S. labor standards, when corporate
America has been quite effectively implementing its own
U.S. industrial policy for several decades - reducing
labor standards here toward global levels, and treating
U.S. workers and U.S. interests as fully
interchangeable with those of other workers and
nations?Should we not begin instead to respond in kind,
by pushing for a global industrial policy of empowering
workers and raising standards through global
solidarity?This may be a project that will consume
generations, because we are generations behind.But
since we are approaching the point where we may need to
rebuild the labor movement almost from scratch, why
would we expect results more quickly than our brothers
and sisters at a similar historical point --say, 1890?
At least, let's begin with a global (and sustainable)
vision.

Carl Proper

(retired

from New England Joint Board, UNITE HERE)

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