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Alexandra Berzon

OSHA loses most of Monte Carlo fire case on appeal

30 December 2008

LAS VEGAS, Nevada -- The construction company cited by the state for worker safety violations in connection with the January fire atop the Monte Carlo was largely cleared of responsibility in an appeal decision this month.

The state's Occupational Safety and Health Administration had fined Union Erectors, a structural steel company, $18,000, saying the company had violated nine workplace safety laws.

But the OSHA Review Board — made up of labor and management representatives appointed by the governor, including an MGM Mirage official who recused himself from the case because the fire was at one of his company's resorts — overturned all but one of Union Erectors' citations, reducing the fines to $3,500.

The review board's reversal follows a pattern. The Sun reported Monday that nearly all violations by employers that have been brought before the OSHA appeals body have been overturned this year.

In this case, the board's decision was based largely on testimony by Union Erectors workers that contradicted Clark County Fire Department findings that the company had caused the fire by not following proper fire prevention procedures.

On Jan. 26, Union Erectors employees were using torches to install a catwalk on the roof of the Monte Carlo. Sparks flew onto a a nearby wall, igniting a blaze that spread to the exterior facade and upper floors of the hotel, according to the Fire Department and OSHA report of events.

"Sufficient precautions were not taken to guard against a fire," OSHA's May 1 report noted.

The internationally televised images of flames leaping from the Monte Carlo were dramatic and so was the monetary damage: MGM Mirage's risk management department estimated $80 million in damage, with total losses expected to exceed $200 million, according to a report from the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The report also noted that 5,000 customers and 950 employees were evacuated from the building, while "about 11" people were transported to the hospital for smoke inhalation — all observed and released.

The Fire Department concluded that Union Erectors did not have adequate monitoring to make sure nothing caught fire and did not have fire-retardant blankets to protect flammable materials from the molten metal created by the torch work.

The Fire Department also said Union Erectors had not obtained the proper work permit. If the company had, that might have led to the discovery and correction of some of the fire code violations. But the Fire Department decided not to cite or fine the company because the permit problem appeared to have been unintentional.

Despite the Fire Department and ATF determinations that Union Erectors had caused the blaze, the lawyer who represented the company in the OSHA case maintains that Union Erectors "had nothing to do with the fire."

"We don't know what did, but that's somebody else's burden of proof," the attorney, Bruce Willoughby, said Monday.

Union Erectors had previously stressed that it was not responsible for the fire, in an informal conference with OSHA inspectors after OSHA issued the citations. Following that meeting, officials of both the Clark County Fire Department and the ATF told OSHA officials they stood by their original findings and did not plan to change their reports.

OSHA was responsible for dealing with whether the company had put workers in danger, not with determining the underlying cause of the fire. But in issuing its citations, OSHA leaned heavily on the Fire Department findings regarding violations of fire code, which OSHA said exposed employees to danger.

Like the Fire Department, OSHA said Union Erectors didn't have someone adequately observe the entire work area to watch for flames and said Union Erectors should has assigned additional people to the job as needed. OSHA also said the area did not have appropriate shielding to prevent sparks; the company did not take precautions on areas under the torching work where sparks could land; openings in walls and floors weren't covered, allowing sparks to travel; and the area wasn't properly inspected.

Union Erectors appealed, and at the review board hearing, OSHA inspector Tanisha Solano was tripped up under cross examination about the specifics of fire prevention. Union Erectors employees, meanwhile, offered testimony to rebut each allegation. The burden of proof was on OSHA.

The board found in connection with all but one citation "insufficient facts and competent evidence to establish that the employees of respondent were exposed to the identified hazards due to a failure on the part of the employer to comply with the standards." It upheld the citation that pointed to Union Erectors' failure to take precautions against fire spreading below the work area.

The company has appealed that in a letter to the board, Willoughby said.

MGM Mirage spokeswoman Yvette Monet said MGM Mirage's insurance company is addressing the cause of the fire, and she pointed to the Fire Department report that held Union Erectors responsible.

In a separate report, the county building department in August analyzed the building materials the county said helped fuel the fire. The county is requiring MGM Mirage to hire a fire protection engineer to come up with solutions, which could include painting some areas or replacing some decorative pieces.