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People v Patrick Harran: Opposition to the appellate court petition

New arguments were filed this week in a California appellate court regarding the case against University of California, Los Angeles, chemistry professor Patrick Harran. Harran faces trial on four felony violations of the state labor code. The charges stem from the 2009 death of Sheharbano (Sheri) Sangji from injuries sustained in a fire in Harran’s lab.

One judge ruled nearly a year ago after a preliminary hearing that there was enough evidence to send Harran to trial. Last August, another judge ruled against defense motions to dismiss the case. Then, last October, Harran’s attorneys filed a “Petition for writ of mandate, prohibition, or other appropriate relief” with the California Court of Appeal.

To quote from a Safety Zone post on the petition:

The petition covers similar territory as the demurrer motion from last August: The defense argues that UC was the employer and Harran merely a supervisor. California Labor Code section 6425(a) makes it a crime for “Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee” to willfully violate an occupational safety or health standard in such a way that causes death or permanent or prolonged impairment of the body of an employee. Nevertheless, Harran’s attorneys write, the specific occupational safety and health regulations Harran is charged with violating reference either employer or no one at all (Title 8, sections 5191(f)(4), 3203(a)(6), 3383(a), and 3383(b)). Other regulations do call out supervisors. From the petition:

In the regulatory scheme, Cal/OSHA thus specifically identifies supervisors as the party legally responsible for certain acts when it deems necessary. In other circumstances, it simply prescribes duties of employers, and leaves to the employer how to divide responsibility for internal implementation of the safety standards. There is no principled justification to disregard the expressed policy preferences of the administrative body charged with promoting workplace safety in this state.

The two arguments filed this week were from the Los Angeles County District Attorney’s Office, in opposition to the petition. One, the “Opposition to request for judicial notice,” argues that the appellate court should not consider exhibits submitted by Harran’s team to support the petition. “The court may not consider outside facts on a demurrer, and may only consider questions of law relevant to the facial sufficiency of the pleadings,” the opposition document says.

The other argument filed this week is the “Opposition to petition for peremptory writ of mandate or prohibition.” This document first argues that Harran’s petition involves contested issues of fact that are properly addressed in a trial. It then goes on to argue that Harran was Sangji’s employer:

Harran stated to investigator Baudendistel that although Sangji’s payment was administered through the UCLA payroll department, the funds were from his research funds and “other funds that he controlled.” (Exh. 3, p. 91.) Sangji came to work for UCLA in response to an ad Harran placed. (Ibid.) Harran was responsible for the recruitment and hiring for his lab, and he conducted the job interviews. (Ibid.) According to Harran, it was he, not the UC, who was responsible for Sangji’s safety training because of her “classification by the University.” (Id. at p. 92.) Since Harran was in charge of the lab (id. at p. 90), presumably he controlled her day-to-day activities. The totality of these conditions seems to create a strong suspicion that Sangji was “any natural person in service” of Harran. (§ 3300, subd. (c); § 6304.) …

Under [the sponsored project] arrangement, Harran appears to administer an independent project with outside funding with support from the UC. Under this arrangement, he therefore shares employment responsibilities with the UC.

And regardless, he is liable as either an employer or supervisor:

In assigning criminal liability to supervisors, the Labor Code recognizes the basic truth that all companies must act through their employees. …

These examples show that the regulations do not establish a rigid scheme of employer duties, with the occasional imposition of a supervisory position. Rather, they should be given a common-sense reading in line with the reality of how firms operate. The more appropriate interpretation is that the regulations describe safety standards to be implemented by firms in a practical manner depending on their size and structure. As discussed ante, the Labor Code then becomes the relevant source of criminal or civil liability. It does not appear that the broad liability seemingly imposed by section 6425 is artificially limited by the regulations to only those instances where they impose specific duties on a “supervisor.” The more reasonable approach is to apply the plain meaning of section 6425 and impose criminal penalties on supervisory employees who have actually been given safety responsibilities by their employer, and who willfully violate those duties.

Replies to the opposition arguments are due to the court on April 30. Harran’s next status check with the trial court is on June 5, although the trial cannot proceed until the appellate court rules.

The Toronto Star recently published a long story on the case: A young lab worker, a professor and a deadly accident

Workers’ compensation for graduate students

Graduate students at Cornell University are pushing for the right to workers’ compensation, report the Chronicle of Higher Education and Cornell Daily Sun. The effort started after chemical engineering graduate student Richard Pampuro severed tendons and destroyed an artery in his right arm on some broken glass. “After two surgeries and about 40 sessions of physical therapy, Mr. Pampuro said his hand still ‘feels like wearing a mitten—the fingers all move together,’” the Chronicle says.

Under New York law, “people engaged in a teaching or ‘nonmanual’ capacity at a charitable or educational institution are exempted from being covered under workers’ compensation” unless the employer decides otherwise, the Chronicle reports. Cornell faculty are eligible for workers’ compensation. The New York state workers’ compensation board has asked Cornell to clarify why it distinguishes between faculty and graduate student teachers, the Chronicle says.

Looking at the board’s website, it seems odd that graduate students would be exempt:

Who Is Not Covered By The Workers’ Compensation Law?
4. People engaged in a teaching capacity in or for a nonprofit religious, charitable or educational institution (Section 501(c)(3) under the IRS tax code). (WCL §3 Group 18) To be exempt, the teachers must only be performing teaching duties;
5. People engaged in a non-manual capacity in or for a nonprofit religious, charitable or educational institution (Section 501(c)(3) under the IRS tax code (WCL §3 Group 18). Manual labor includes but is not limited to such tasks as filing; carrying materials such as pamphlets, binders, or books; cleaning such as dusting or vacuuming; playing musical instruments; moving furniture; shoveling snow; mowing lawns; and construction of any sort;

Graduate students don’t just teach, and it seems likely that research laboratory tasks would count as manual labor. C&EN’s Beth Halford reported in 2004 that New York graduate students were covered by workers’ compensation. The Daily Sun says that postdoctoral researchers are covered by workers compensation.

Halford’s story made clear what the Chronicle story and Science Careers also say now: This is a legally murky area, with varying state laws and university policies.

Prospective graduate students should take the time to research the laws and policies applicable to schools they’re considering attending. Although Cornell claims that the school has done better by graduate students than workers’ compensation would have allowed, that’s been entirely voluntary on the part of the school. And according to Pampuro:

As is, injuries are handled on a “case-by-case” basis by a committee of anonymous individuals. Not even the injured are allowed to know who oversees their case. …

To say that the administration was dismissive of me would be generous. I was told in no uncertain terms that graduate students can not expect a guarantee of coverage, and that I should feel lucky for whatever I am granted. Eventually, I was offered a portion of my stipend and medical coverage for a limited period of time. The awarded compensation has failed to cover my full period of recovery. Offers from the black-box committee reflected little respect for my needs and no discernable consideration of my injury.

Cornell is forming a task force to consider the issue of graduate students and workers compensation, the Daily Sun story says. The task force will not include graduate students.

People v Patrick Harran update

University of California, Los Angeles, chemistry professor Patrick Harran had another trial court status check last week. The result is another status check scheduled for June 5. Harran faces trial on four counts of felony violations of the state labor code relating to the 2009 death of Sheharbano (Sheri) Sangji from injuries sustained in a fire in Harran’s lab.

The case is on hold in the trial court while a California appellate court considers a petition filed by Harran’s legal team on Oct. 24, 2013, to try to get the case dismissed. The current deadline for the district attorney’s or attorney general’s offices to file opposition arguments is April 9, then Harran’s team has until April 30 to reply.

Another acid leak at Tesoro refinery

Less than a month after two workers were injured in an acid leak at a Tesoro refinery in Martinez, Calif., two more workers were burned in another acid leak at the same refinery. The second workers were injured on March 10 when they cut into a sulfuric acid pipe as part of planned maintenance, the Sacramento Bee reported.

“The men were initially protected from injury by their protective suits, but some acid remained on the garments and drained onto their necks after the men took decontamination showers,” other workers told SFGate.

The workers injured in the previous leak were not wearing similar protective gear, according to the U.S. Chemical Safety & Hazard Investigation Board (CSB). CSB is investigating the incidents, although in February Tesoro blocked CSB investigators from the site and refused to preserve the first scene.

The company eventually allowed investigators back on the grounds, SFGate reported. “But the company ‘has yet to provide some of the key documents sought’ and did not preserve some evidence from the incident,” CSB spokesperson Hillary Cohen told SFGate.

In 2012, Tesoro dropped out of two volunteer worker-safety programs, reported the Contra Costa Times. One was the “Triangle of Prevention” program developed by the Oil, Chemical and Atomic Workers International Union and continued by the United Steelworkers. The other program was the “Voluntary Protection Program,” which is a cooperative program with the California Division of Occupational Safety & Health. Refinery spokesperson Tina Barbee told the Times that the refinery had replaced the Triangle of Prevention program with a system that has “better root cause analysis during incident investigation,” and that it was technically ineligible to participate in the Voluntary Protection Program.

A survey of refinery workers, however, indicated that safety conditions had deteriorated at the site since 2007,” United Steelworkers representative Tracy Scott told the Times.

The two acid leaks come on the heels of a CSB draft report on a 2010 fire at a Tesoro refinery in Anacortes, Wash.. That incident killed seven workers. CSB has released two videos about that incident, “Animation of Explosion at Tesoro’s Anacortes Refinery” and “The Human Cost of Gasoline.”

Tesoro says CSB lacks jurisdiction to investigate acid leak

On Feb. 12, two Tesoro workers were injured in an acid leak at a refinery in Martinez, Calif. News accounts say that the workers were airlifted to the University of California, Davis, medical center, treated for first- and second-degree burns, and released.

The incident occurred mere weeks after the U.S. Chemical Safety & Hazard Investigation Board released a draft report on a 2010 fire at a Tesoro refinery in Anacortes, Wash., that killed seven workers. (For more on what’s going on with that draft report, see my colleague Jeff Johnson’s story, Regulatory Overhaul Stumbles.)

CSB investigators deployed to Martinez as well and made it onto the site initially. Then Tesoro barred the investigators from further access. “We’ve certainly faced our share of jurisdictional challenges, but I can’t think of another refinery or chemical plant that has taken a position that injuries aren’t serious enough for us to investigate and that we lack jurisdiction,” CSB managing director Daniel M. Horowitz told the Contra Costa Times.

Yesterday, CSB board members responded to Tesoro in writing, including some details of what the agency already learned about the incident:

We point out that our investigation team has determined already that approximately five gallons a minute was leaking until isolated. Acid splashing on worker’s unprotected faces or other parts of the body, resulting in first and second-degree burns requiring air evacuations to a hospital burn unit, treatment, and subsequent significant lost time at work, absolutely constitute serious injuries. …

Our draft report on the 2010 accident at Tesoro’s Anacortes refinery which killed seven workers on January 30, 2014, found a multitude of shortcomings in Tesoro’s plant safety culture. The CSB is interested in examining safety culture issues stemming from the February 12 incident, providing another legal ground for our inquiry.

At the Martinez facility, despite your counsel’s efforts to block our access, we have proceeded in our investigation and have determined that a mechanical integrity failure occurred on equipment connected to a 100,000 gallon process vessel containing flammable hydrocarbons and concentrated sulfuric acid, resulting in the sprayed acid, and that operators being sprayed by acid and caustic during routine sampling activities is a common occurrence.

We have also learned that protective equipment required by procedure for sampling was not provided for the workers at the time – operators did not have ready access to face shields and acid suit jackets at the Martinez facility.

Furthermore, some workers have made the assertion to us and to their union representatives that they have been fearful for their jobs at times when they wished to express safety concerns. We therefore seek further access and renewed cooperation with your company in order to determine all the facts.

Whatever happens with CSB, Tesoro certainly can’t bar the California Division of Occupational Safety & Health from the site. The Washington state Department of Labor & Industries cited Tesoro for 40 willful and five serious labor code violations and fined it $2.39 million for the Anacortes explosion.

Dow worker death likely due to reaction of trimethylindium with cleaning fluid

On Oct. 9, 2013, an explosion and fire at a Dow Chemical electronic materials facility in North Andover, Mass., led to the death of production operator Carlos A. Amaral, 51. According to a statement released by Dow and dated the end of January, the company’s investigation into the incident concluded that:

• An employee sustained injuries as a result of the overpressure of a small stainless steel manufacturing vessel during an operation associated with a Trimethylindium (TMI) manufacturing batch.
• An undesired and unexpected reactive chemical event occurred within the vessel as the employee was transporting the vessel from the glove box to the next manufacturing unit for further processing.
• The overpressure resulted in a release of reacted and unreacted materials and a fire.

The most highly probable cause of the unplanned event was the ingress of cleaning liquid from the cavity space of the ball valve into the crude TMI. Due to the nature of the event, it is impossible to completely validate this conclusion.

I asked Jeremy Cole, business communications manager at Dow Electronic Materials, whether Dow is changing anything regarding cleaning or other handling of the reaction vessel. He said yes, but so far he has declined to provide additional details.

The federal Occupational Safety & Health Administration is investigating the incident, because Massachusetts does not have its own occupational safety and health program. OSHA currently lists the case as open.

Feb. 26 update–Some more information from Dow’s Cole:

the following is the facility’s action plan:
• Prior to TMI production restart, the facility will consider alternate cleaning processes that use cleaning materials that do not react with TMI. If an alternate cleaning process is not feasible, the facility will define a means to confirm the absence of cleaning materials in void spaces and the vessel prior to addition of raw materials.
• The facility will consider modifications to the manufacturing process to increase the tolerance of intrusion of small amounts of cleaning materials as well as variability of raw materials.
• The facility will conduct a review of its Process Hazard Analyses and determine whether any improvements are recommended. Improvements will be captured in appropriate process documentation.

Tesoro refinery fire caused by weakened steel

Last week, the U.S. Chemical Safety & Hazard Investigation Board released its draft report about a 2010 fire at a Tesoro refinery in Anacortes, Wash., that killed seven workers. The fire occurred when a naphtha heat exchanger ruptured, the report says. The cause of the rupture was high temperature hydrogen attack, which occurs when hydrogen atoms diffuse into carbon steel and react with the carbon to form methane. The methane accumulates in the steel and causes stress and fissures. CSB found that curves established by the American Petroleum Institute to predict high temperature hydrogen attack are inaccurate. “CSB has learned of at least eight recent refinery incidents where HTHA reportedly occurred below the carbon steel Nelson curve,” the report says.

Here’s CSB’s video about the incident:

Additionally,

The CSB found several indications of process safety culture deficiencies at the Tesoro Anacortes Refinery. Refinery management had normalized the occurrences of hazardous conditions, including frequent leaks from the [naphtha hydrotreater unit] heat exchangers, by using steam to mitigate leaks, ineffectively correcting heat exchanger design issues, commonly requiring additional operators during [naphtha hydrotreater unit] heat exchanger startups, and exceeding the staffing levels that procedures specified.

and

The refinery process safety culture required proof of danger rather than proof of effective safety implementation. For years, technical experts used design data to evaluate the B and E heat exchangers for HTHA susceptibility. Data for actual operating conditions were not readily available, and these technical experts were not required to prove safety effectiveness in reaching their conclusion that the B and E heat exchangers were not susceptible to HTHA damage.

CSB noted several similarities between the Tesoro fire and a Chevron refinery fire in Richmond, Calif., in 2012:

  • The Chevron “incident was also the result of a metallurgical failure caused by a well-known damage mechanism called sulfidation corrosion, and Chevron process safety programs failed to identify the hazard before the major incident that endangered the lives of 19 Chevron employees.”
  • “Mechanical integrity programs at both Tesoro and Chevron emphasized inspection strategies rather than the use of inherently safer design to control the damage mechanisms that ultimately caused the major process safety incidents.”
  • “Rather than performing rigorous analyses of damage mechanisms during the PHA process, both companies simply cited non-specific, judgment-based qualitative safeguards to reduce the risk of damage mechanisms.”

One of the recommendations CSB makes in its Tesoro report is that Washington state implement a “safety case” approach to regulation, in which companies develop their own process safety requirements that are closely overseen by state regulators. The agency made the same recommendation to California in its Chevron report, but that report fell to a divided vote by CSB board members, with board members Beth Rosenberg and Mark Griffon wanting CSB to study regulatory options further. An expected vote on the Tesoro report last week was delayed. What happens from here is an open question. Given criticism of CSB that the agency is taking too long already to complete its investigations, holding reports for further study seems untenable. The federal budget passed last month allotted CSB “$11 million for fiscal 2014, slightly less than previous years and below the Administration’s request of $11.5 million.”

Feb. 5, 2014: Title changed to reflect the fact that although I saw the heat exchangers as a bundle of tubes inside a larger tube, CSB tells me that engineers view the outer structure as a shell, not a tube. In any case, weakened steel from high temperature hydrogen attack was still the problem.

Prosecuting companies rather than executives for wrongdoing

The last couple of weeks have been alarming ones for U.S. industrial accidents. Aside from the chemical spill and subsequent drinking water disaster in West Virginia, “Two people died and 10 were injured Monday morning in Omaha, Nebraska, when the second floor of an animal feed plant collapsed. In Madill, Oklahoma, two workers died when a large industrial furnace exploded at a steel plant Monday afternoon,” Reuters reports.

At this point it’s unclear what prosecutions, if any, will result from the incidents. I recently read a story about the 2008 financial crisis, “Why have no high-level executives been prosecuted?” by U.S. District Judge Jed S. Rakoff. I was struck by the similarities to what’s happened following the BP oil spill in the Gulf of Mexico and Sheharbano (Sheri) Sangji’s death from a lab fire at the University of California, Los Angeles. Prosecutors charged the organizations and some personnel–BP oil rig supervisors for manslaughter and a vice president for obstruction, a UCLA professor for labor code violations–but not top management. From the financial crisis piece:

The final factor I would mention is both the most subtle and the most systemic of the three, and arguably the most important. It is the shift that has occurred, over the past thirty years or more, from focusing on prosecuting high-level individuals to focusing on prosecuting companies and other institutions. It is true that prosecutors have brought criminal charges against companies for well over a hundred years, but until relatively recently, such prosecutions were the exception, and prosecutions of companies without simultaneous prosecutions of their managerial agents were even rarer. …

But if your priority is prosecuting the company, a different scenario takes place. Early in the investigation, you invite in counsel to the company and explain to him or her why you suspect fraud. He or she responds by assuring you that the company wants to cooperate and do the right thing, and to that end the company has hired a former assistant US attorney, now a partner at a respected law firm, to do an internal investigation. The company’s counsel asks you to defer your investigation until the company’s own internal investigation is completed, on the condition that the company will share its results with you. In order to save time and resources, you agree.

Six months later the company’s counsel returns, with a detailed report showing that mistakes were made but that the company is now intent on correcting them. You and the company then agree that the company will enter into a deferred prosecution agreement that couples some immediate fines with the imposition of expensive but internal prophylactic measures. For all practical purposes the case is now over. You are happy because you believe that you have helped prevent future crimes; the company is happy because it has avoided a devastating indictment; and perhaps the happiest of all are the executives, or former executives, who actually committed the underlying misconduct, for they are left untouched.

I suggest that this is not the best way to proceed. Although it is supposedly justified because it prevents future crimes, I suggest that the future deterrent value of successfully prosecuting individuals far outweighs the prophylactic benefits of imposing internal compliance measures that are often little more than window-dressing. Just going after the company is also both technically and morally suspect. It is technically suspect because, under the law, you should not indict or threaten to indict a company unless you can prove beyond a reasonable doubt that some managerial agent of the company committed the alleged crime; and if you can prove that, why not indict the manager? And from a moral standpoint, punishing a company and its many innocent employees and shareholders for the crimes committed by some unprosecuted individuals seems contrary to elementary notions of moral responsibility.

I don’t have enough data to say whether the same pattern holds for prosecutions in occupational health and safety. Certainly some company leaders have been charged–Black Mag gunpowder plant owner Craig Sanborn was convicted last fall of negligent homicide and manslaughter and sentenced to 10-20 years in prison for a 2010 explosion that killed two employees. But who, exactly, gets prosecuted for industrial incidents may be something that warrants closer attention.