State agencies don’t get fined for violations

By KELBY HARTSON CARR

THE FREE LANCE-STAR

Troy Brent Ward was just 16 when he fell to his death. He was working for a construction company, standing on a steel girder that buckled.

Franklin “Mulehead” Collawn was supervising a Virginia Department of Transportation crew removing trees when a branch snapped off and bashed his head. He died less than a week later.

The two tragedies had a lot in common.

They happened on windy days, within months of each other in the Fredericksburg area. In both cases, Virginia Occupational Safety and Health Administration investigators found violations.

There is one glaring difference.

B&B Steel Erectors, the company involved in the 16-year-old’s death, faced a $50,000 OSHA fine and the company apparently folded within months.

The Transportation Department’s penalty? Zero.

Thats because B&B was a private company and the department is a government agency.

Since Virginia started running its own OSHA program in the 1970s, it has never fined a single local, state or federal government agency, regardless of the seriousness of the violation.

And it’s not for a lack of violations.

The Transportation Department has the second-highest number of violations in the greater Fredericksburg region over the past 25 years. The No. 1 local violator was Keller Industries, a private company that stopped doing business in the state in 1996.

Two other governments, Fredericksburg and Stafford County, were also among the top 10 violators–with many of those infractions found at area schools.

Virginia is one of eight state-run OSHA programs that never fine governments for violations.

Twenty-five states operate their own inspections while the others use the federal OSHA programs. Federal programs fine only the U.S. Postal Service and don’t even have to inspect other government agencies.

Nancy Jakubec, spokeswoman for Virginia’s OSHA, said there is a reason for the states policy.

“The rationale was that to issue penalties you would just be moving money from one state agency to another,” she said. “It’s better to allow the agencies to have the money to develop their safety programs than move it where it would not be used for any safety program.”

Private-sector companies, however, are expected to pay fines and find funding for safety efforts.

To companies, some of OSHA’s decisions make no sense.

Ron Neunilst, vice president of Magnum Services of Virginia, said his Fredericksburg pipeline contracting company initially was fined $42,000 in 1997 because a trench was dug three-fourths of an inch deeper than regulations allow. Because this was the second time OSHA had spotted that violation, the company was hit with a steep fine, he said.

He believes it was unfairly high considering how close the trench was to meeting the limit–5 feet deep–for trenches.

“It’s a terrible thing for people to grossly violate [this regulation]. It can bury someone,” Neunlist said, “but OSHA’s done some things that don’t make much sense to me.”

Business-advocacy groups have long complained of OSHA nit-picking and heavy-handed enforcement. One example was a proposal by the federal agency–later withdrawn–to regulate home workplaces.

Paula White, director of OSHAs federal-state operations, said in a statement that the federal program doesn’t inspect or fine state or local governments because it has no statutory authority.

In 1980, federal OSHA programs got permission to inspect federal agencies and has conducted 985 inspections over the past two years. There are also presidential goals for each agency to reduce injuries and illnesses by three percent yearly.

There have been 42 deaths connected to OSHA violations in the Fredericksburg region–covering the city and the counties of Caroline, Culpeper, Fauquier, King George, Orange, Spotsylvania, Stafford and Westmoreland–from 1976 to 2000.

OSHA is also investigating the most recent workplace death, an explosion on July 20 at Euro Composites in Culpeper that killed 41-year-old Norman Wells Jr. The agency has not issued any findings.

‘Fatal mistake’

The Transportation Department is one of only two entities in the region with multiple deaths with Virginia OSHA violations issued. It’s had three, including Collawn’s death.

Thornburg Auto had an explosion that killed three people in August 2000. That resulted in five serious violations and fines of $11,200, which later were reduced to $8,400.

Because no fines were imposed in the death of Collawn, his nephew, Allan Buck, believes that the Transportation Department was never punished.

Buck didn’t merely lose a family member when his uncle died in March 1991. He worked with his uncle–and witnessed his death.

Virginia’s OSHA determined that the Transportation Department committed a serious violation leading to the death: Collawn was performing duties he was not normally assigned. OSHA records didnt elaborate.

“It was a day we should not have been cutting trees anyway because of the wind blowing,” Buck said. “I told him that morning when we got out there, but he said, `That’s what they told us to do.’ ”

“Fatal mistake.”

His uncle was supervising the crew in Port Royal when another worker tried to push a tree down with a front-end loader. That wasn’t working, so Collawn told the worker to stop. As soon as the loader backed up, the tree trunk bounced back, the top snapped off and it crashed down onto Collawn’s head.

“I was standing right there,” Buck, 34, of Bowling Green recalled. “I watched it when it snapped. I hollered but he couldn’t hear me because of the wind. It was just like slow motion.”

The worst part for Buck was the way his uncle died. Collawn, 57, lived for five days before pneumonia set in and he died of a heart attack in the hospital.

“That’s what really got me,” he said, noting his uncle initially survived the accident. “I thought, `This must be the toughest man in the world to get hit by a tree and make it.’ I think everybody took it hard.”

He said Virginia OSHA officials never interviewed any of his fellow workers about what happened. Jakubec, OSHA’s spokeswoman, said there is no way to find details from Virginia OSHA records that old, but found it hard to believe any inspector wouldn’t talk to witnesses.

Buck thinks it was wrong that the Transportation Department was never fined.

“I guess that’s how they got away with it,” he said. “VDOT, they didn’t want to take any responsibility for it.”

‘Treat them the same’

Kevin Beauregard, assistant director for North Carolinas Division of Occupational Safety and Health, said his state used to have the same no-fining policy as Virginia. The reasoning was similar: why take money from one public pot just to put it in another?

That sounded good in theory, he said, but proved ineffective in practice.

“What was found over the years was that if the citations did not have an accompanying fine, they did not tend to be corrected,” he said. “Sometimes, you had to get media attention to throw light on things.”

Before the new policy, government entities would argue they didn’t have the money budgeted to correct work hazards. The risks would remain.

“We don’t accept that as an answer in the private sector, so we didn’t want to accept that in the public sector,” he said.

In the late 1980s or early 1990s, North Carolina switched its policy and now treats the private and public sectors the same. And it’s working.

“When we started issuing fines in the public sector, we found we had more compliance,” he said. Agencies must find the money for the fines in their own budgets.

Don Heckler, director of Connecticuts OSHA program, said he believes fining both the government and private sectors is key to safer workplaces.

When Connecticut established its own program in the early 1970s, private and public programs were identical. Today, the state handles only government inspections, handing the private sector over to federal OSHA.

“I would think the No. 1 consideration was to treat them the same,” Heckler said. “I think it’s being consistent with the OSHA principles to fine. It’s an added incentive for compliance.”

Indeed, the transportation departments in Connecticut and Virginia have dramatically different OSHA records.

In Hartford County, Conn., which has a population more than double that of the nine localities in The Free Lance-Star’s inquiry, the Connecticut Department of Transportation had 31 violations. That’s about a third of the total in the Fredericksburg area.

Connecticut’s Transportation Department, headquartered in Hartford, ranked about 150 on a list of the most violations there for the past 25 years. Virginia’s Transportation Department in the Fredericksburg area ranked second.

‘Most dangerous’ job

Dave Ogle, VDOT’s Fredericksburg District administrator, said there are good reasons why the agency has a high number of violations and deaths.

The job we do is one of the most dangerous in the country, Ogle said.

The data, however, show only deaths related to violations. But Ogle said the department was inspected more vigorously than private companies for many years.

Wayne Varga, safety engineer for the Transportation Department, said there is extensive safety training. Every crew has daily safety meetings. There is one problem: In the field, supervisors must be trusted to do the right thing, he said.

“They have to make some judgment calls and, just like anybody else, they don’t always make the best decision,” Varga said. “There are times that they see a way they can do it faster through a short cut.”

If that happens when an inspector shows up, a violation follows. When employees are discovered breaking the rules, they are disciplined, sometimes even fired, he said.

Also, while both public and private entities can appeal violations, governments must use a different process. Varga said private companies get fined, but it is easier for them to dispute violations.

‘His last day’

Fines seemed to have hurt B&B Steel Erectors after the 16-year-old died and three others were injured on March 25, 1990. The company never paid the $50,000 it owes Virginia OSHA.

B&B, based in Missouri, also failed to meet that state’s requirements to remain an active company. B&B faced bad publicity after the accident and even criminal charges here. The company’s status in Missouri is dissolved, according to officials there.

That’s little consolation to the teen-ager’s mother, Esther Ward of Mountain Grove, Mo.

When she got the horrifying call about the accident, she didn’t know if either of her two sons at the job site survived. She was in Missouri.

That day, a severe thunderstorm swept through the job site in Spotsylvania. A steel girder, 25 feet high, collapsed. Virginia’s OSHA found the company had committed 11 violations.

Eventually, Ward learned the news: one son dead, the other, Russell Burks, 19, hospitalized with a broken neck, wrist, ribs and left shoulder.

“They didn’t know if even he was going to live or die and I thought, `Oh, my Lord,’ ” Ward recalled during a recent telephone interview.

She had agreed to let her teen-age son leave home to work in Spotsylvania on the condition that he be a gofer and nothing else.

“He was supposed to be on the ground,” Ward said. “Apparently, they got behind and the boss said he wanted everybody to get up on the steel.

“His first day on top was his last day.”

‘I just start crying’

Not every violation results in injury or death but can still pose a hazard.

Brooke Point High School, for example, was cited by Virginias OSHA for 27 violations during an inspection in 1999. The school’s citations included failure to meet regulations regarding exits, woodworking machinery and portable fire extinguishers. This happened six years after the school opened.

Greg Martin, Stafford County schools safety and security coordinator, said he personally inspects the schools to be certain they will meet OSHA standards. After the 1999 Brooke Point inspection, he did follow-up checks.

“If theres a problem, we correct the problem on the spot, immediately,” he said.

By the time OSHA discovers a hazard, someone could already be dead.

Buck lives every day with that realization.

“I can remember it just like it was yesterday,” he said. “Every time I see somebody cutting a tree, I’m always worried. They really can hurt you.”

Ward said she still struggles with memories of her dead son. The surviving son lives in the same Missouri town and is mostly healed from his physical wounds.

“I just think about it and I just start crying,” she said. “When storms come, I wonder if someone else is going to get hurt.”