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Alexandra Berzon

Reform deferred

22 April 2009

LAS VEGAS, Nevada -- Not long ago, state Sen. Maggie Carlton, chairwoman of the Senate Committee on Commerce and Labor, set out to overhaul Nevada's Occupational Safety and Health Administration.

The Las Vegas Democrat said she was concerned that the state's largest employers and their regulators had grown too cozy.

Over the past year, the Sun has documented that Nevada OSHA weakly enforced safety laws following a string of construction fatalities on the Las Vegas Strip, as well as other accidents.

Carlton's Senate Bill 288, as introduced, would have shifted oversight of the agency from the Business and Industry Department to the OSHA Review Board — a body that currently meets only a few times a year to hear appeals.

"We were trying to get OSHA out from underneath all this political pressure," she said. "We know the system now isn't working."

Up against a deadline and fierce opposition from business interests and Nevada OSHA officials, Carlton last week gave up on her plans for thorough OSHA reform — for now. She has instead put forward a proposal that would require OSHA to place a call to family members of workplace accident victims and offer to walk them through the accident investigation process. That provision, included in an amended SB288, passed out of committee Friday.

If it is signed into law, the bill would require OSHA to offer to talk to family members of workplace accident victims after it issues citations but before it begins settlement talks with employers. OSHA would be required to provide family members information regarding the citation and abatement process, information about how the family can obtain a copy of the agency's investigation report, and any other information it considers relevant.

Family members currently may request this information from OSHA, and many do. But in legislative committee hearings, family members said the process seemed too opaque.

Carlton said she hopes that more openness on the part of OSHA will help family members be watchdogs, making sure the agency effectively enforces workplace safety laws.

"The more sunshine on the process, the better family members will be able to hold these folks accountable," Carlton said. "If the family feels something terrible happened in the investigation, they can turn around and call the media. This holds OSHA's feet to the fire."

But the amended bill is something of a defeat for Carlton and workplace safety reform in the state, and highlights how difficult it will be to bring about meaningful change to an entrenched state agency that is subject to regulation by federal OSHA under the U.S. Labor Department.

Carlton said the Industrial Relations Division, which oversees Nevada OSHA, "made it pretty clear if we don't pare this down, nothing will happen. And I've got to get it out of the Senate."

Industrial Relations Division spokeswoman Elisabeth Shurtleff said in an e-mail, "Concerns were expressed with the original bill language due to the fiscal impact resulting from the changes to the hearings process." The division worked with Carlton to "assist in finding ways to improve the process and to provide assistance to the affected family members," Shurtleff said.

Carlton said she hopes to form a committee to develop proposed OSHA changes for the next Legislature to consider. Reimagining the structure of an agency was more than her committee could do in a single legislative session, she said.

"I have to be practical," Carlton said. "If I put too much in there nothing will pass. I sat down and thought about it long and hard. What is the best thing I can do for these families and get the division comfortable enough so they will not oppose it. This is one small step."

But some family members of workplace accident victims said the proposed changes are too incremental.

"If there's nothing I can do to voice my opinion, then what's the point of being offered information," said Debi Fergen, the mother of one of two workers who died in a high-profile accident at the Orleans in 2007. "What they're proposing to me does not fix a broken system."

Fergen was in court Monday for a hearing on her wrongful death complaint against Boyd Gaming and two employees stemming from the death of her son, Travis Koehler. Family members of Richard Luzier, the other worker who died in the Orleans accident, joined in the lawsuit.

Fergen plans to attend congressional hearings in Washington, D.C., on federal OSHA, timed to coincide with Workers' Memorial Day on April 28.

Family members of workplace accident victims plan to march together to House and Senate hearings that will focus on making OSHA enforcement stronger at the federal level. The House and Senate are expected to introduce a new version of the Protect America's Workers Act, an OSHA reform bill that has been introduced in each of the past few sessions of Congress.

Carlton said she hopes a strengthened federal OSHA will also force changes at the state agency.