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Alexandra Berzon

Nevada safety agency getting tougher

22 April 2008

LAS VEGAS, Nevada -- Contractors and union officials say the state's Occupational Safety and Health Administration appears to be getting tougher on construction companies in the wake of a Sun examination of how the agency has investigated construction deaths on the Strip.

Most recently, the agency did not back down from its recommended citations against a subcontractor in connection with the death at the Cosmopolitan of a safety engineer. A subcontractor, Reliable Steel, had protested the findings, but OSHA officials refused to budge during an informal conference with the employer.

These informal settlement conferences allow OSHA officials to amend the citations that follow an investigation. If OSHA and the company don't reach an agreement, the case goes before a review board.

Following the nine fatal accidents investigated by Nevada OSHA over a 16-month period, contractors and their subs persuaded the state to remove or water down citations for safety violations, the Sun found.

Federal OSHA representatives who monitor Nevada OSHA have told the Sun that citations following a fatality should be withdrawn only rarely.

In the two informal conferences conducted by the agency after the Sun began inquiring, it did not soften its findings in either.

"We suspect they are getting tougher," a safety engineer at a large Las Vegas general contractor said. "They're trying to save face, of course."

State OSHA administrators declined to comment.

The most recent settlement conference report was released to the Sun on Monday. An OSHA investigator had found several safety violations in the wake of the Jan. 14 death of Michael Taylor, a safety engineer at the Cosmopolitan. Reliable Steel had argued it was not at fault, but following the informal conference an OSHA administrator said the company did not provide enough additional evidence to justify changing the agency's conclusions. The company is appealing the case to the review board before which OSHA will have to defend its findings.

"OSHA is making an example of us," Reliable Steel President Timothy Puetz said. "They're not going to make decisions (during the informal conference) so that they're not criticized."

In the first case after the Sun's inquiries, Nevada OSHA met Feb. 27 with subcontractor Schuff Steel regarding the case of David Rabun, an ironworker who fell down an elevator shaft at the Cosmopolitan in November. The agency refused to change its findings in that case, which will also likely go to a review board.

The seemingly weakening position of contractors during OSHA investigations has not gone without notice.

At a safety orientation training conducted Monday at Boyd Gaming Corp.'s Echelon by Tishman Construction, the site's construction manager, a trainer reportedly told workers OSHA would probably be more stringent, given the attention now being paid to construction deaths. The trainer said there would be zero tolerance for any worker deviation from safety guidelines, according to a person who attended the training.

Events surrounding Taylor's death have stood out as particularly haunting among the rash of recent Strip fatalities. Taylor was employed by general contractor Perini to find and correct safety violations at the Cosmopolitan. No one saw what happened, but investigators believe the 58-year-old fell five floors when a corner iron post that helped hold up a guardrail system collapsed. The corner posts are usually held in place by support pieces called kickers, welded to the bottom, but Reliable Steel had removed the kickers to install a beam and had not replaced them, according to the OSHA investigation.

OSHA fined Reliable Steel $2,850 for two "serious" and two "regulatory" violations.

The company appealed and met April 3 for an informal conference with OSHA Administrator Jimmie Garrett and inspector Corey Church. Also attending was Chuck Lenhart, the Las Vegas business agent for Ironworkers Local 433, who became the first union leader to attend an informal conference during investigations following the recent construction deaths.

Taylor was not in a union, but Lenhart said he wanted to attend the conference nonetheless to find out more about efforts to develop an industrywide standard for guardrail systems, which was at issue in the case.

Like other local labor leaders, Lenhart learned from the Sun that union representatives are allowed to attend informal conferences.

At the conference, Reliable Steel's Puetz presented the findings of an engineering report that he said proved subcontractor Schuff Steel was responsible for not welding the iron posts to support enough weight. But Garrett deemed the engineering report insufficient.

"No documentation or evidence could be produced to justify such a request (to remove citations)," Garrett wrote.

In the past, Garrett has dismissed citations against contractors even without additional documented evidence, and without offering additional explanation.

Puetz said his company will continue to defend its safety record.

To contest the citations, he's spending well more than the $2,850 OSHA has ordered the company to pay in fines.

"We're trying to make the point that the industry has to be changed," Puetz said. "We have to have a standardized (guardrail) system so this doesn't happen again."