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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


Chemical safety tidbits and papers, from OPRD

A tweet from Chemjobber that Organic Process Research & Development editor Trevor Laird is retiring at the end of the year made me realize that I forgot to highlight OPRD’s annual “Safety of Chemical Processes” section at the end of last year. Making up for the omission:

Laird’s editorial: “There is a long way to go to educate and train to a high standard all chemists working in laboratories and chemical plants and to minimize the number of these incidents, which lead to damage to buildings and loss of profits, as well as loss of life. Companies always measure the cost of doing something (e.g., training) but never measure the cost of not doing something; there is a cost of not training staff, however, just as there is a cost associated with not complying with regulations (e.g., FDA regulations).”

Safety Notables: Information from the Literature, including notes about Togni’s reagent, dimethylsulfoxide, hydroxylamine, peroxides, dimethyldioxirane, nitro-explosives, and safer reagents for a number of reactions

Hydrazine and Aqueous Hydrazine Solutions: Evaluating Safety in Chemical Processes, from Lilly Research Laboratories

Safer Preparation of m-CPBA/DMF Solution in Pilot Plant, from Suzhou Novartis Pharma Technology

Process Safety Evaluation To Identify the Inherent Hazards of a Highly Exothermic Ritter Reaction Using Adiabatic and Isothermal Calorimeters, from Mylan Laboratories

Safe Scale-Up of a Hydrazine Condensation by the Addition of a Base, from AbbVie

Merck’s Reaction Review Policy: An Exercise in Process Safety, from Merck


Safety videos, courtesy of a department contest

Last Spring, the University of Minnesota department of chemical engineering and materials science held a lab safety video contest. Department chair Frank Bates thought it would be a nice way to motivate interest in the safety moments that the department holds before seminars, he says.

The contest rules were simply that the videos had to maintain basic standards of decency and respectfulness, Bates says. Graduate students worked in small teams to develop four entries, which were judged by members of the department. Prizes were $500 for first place, $300 for second, and $150 for third. Bates says that the contest was fun and generated a lot of interest. He expects that the department will hold a similar contest again at some point.

Here are the videos, in order from first place to runner up (I’ve added them to my running list of lab safety videos:


Boost your lab ergonomics IQ

Contributed by Dow Lab Safety Academy

When people talk about ergonomic issues, they often refer to things like carpal tunnel syndrome from sitting at a desk and typing. But there are also ergonomic risks associated with working in a laboratory. If you know what they are, you can take steps to minimize stress on your body and avoid injuries.

Here are four ways to improve your lab ergonomics.

1. Start with proper attire. Shoes matter, especially in a lab where hazardous materials could spill. Opt for something with a cushioned sole, closed toe, closed heel, and impervious material. Also, be sure to remove loose-fitting clothing that could interfere with your experiments

2. Pay attention to posture. Since many lab stools don’t have backs, it can be challenging to keep your back straight. But it’s important to do so, as poor posture can lead to fatigue and injury. When seated on a stool, be sure your feet are flat on the floor by adjusting your seat height to the proper level.

3. Reduce back strain when standing. Fatigue can come into play when you have to stand for long periods of time. Lab mats are an important piece of ergonomic protective equipment that can help relieve strain on the feet, legs, and back. Use one when you’ll be standing at a sink, lab, or hood for prolonged periods.

4. Embrace the mini break. When your muscles begin to get sore, it’s your body’s way of telling you to rest. Plan stretch breaks into your day after 20 minutes at any task or any time you are doing a repetitive task. Quick mini breaks or changing tasks can have a big effect.

At the first sign of discomfort, contact your local health official to address the issue. Fighting through the discomfort will lead to pain and could potentially lead to an ergonomic injury.

For more on this topic, watch the Laboratory Ergonomics video in the Orientation & Training module at the Dow Lab Safety Academy. The Dow Lab Safety Academy is a free digital learning environment that seeks to enhance awareness of safety practices in research laboratories.

Disclaimer: See Dow’s Terms of Use.


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.


Safety professionals: On the outer fringe or the leading edge?

A guest post by Russ Phifer, a consultant with WC Environmental, executive director of the National Registry of Certified Chemists, and past chair of the ACS Division of Chemical Health & Safety. Cross-posted at CENtral Science ACS Meeting Updates.

At the ACS meeting in Dallas this week, it was clear that the safety community continues to try to solidify its place in the chemical enterprise. Although technical programming in our field was a little light for this meeting, there were some excellent presentations.

The seemingly routine “Ask Doctor Safety” session held at every meeting suddenly attracted a new audience of young women chemists interested in reproductive health. Neal Langerman of Advanced Chemical Safety and Harry Elston of Midwest Chemical Safety surely gave them a newfound respect for the chemicals they might handle.

In the Safety eLearning symposium, Janette de la Rosa Ducut of the University of California, Riverside, and Thor Benzing of the UC Division of Agriculture & Natural Resources opened eyes with an arresting presentation. There were some new faces in the crowd at that session, too. Nevertheless, getting thirty or so people in attendance when other programs are getting hundreds can be a little discouraging.

Where exactly do safety professionals and their work fit in the chemistry community? Are we on the fringe or at the leading edge? We don’t make a product. We are permitted to “train,” but generally not to “teach.” We can do research, but it’s far more likely to be data inquiry than in the laboratory. The environmental health and safety field encompasses quite a few CHAS, DCT, CINF, ENVR, SCHB, and CHAL professionals, so it does reach across nearly every other discipline within the chemical enterprise. Our job, every day, is to help keep people safe. But it seems that we still don’t get the respect that we’ve earned.

We’re making progress. Every ACS president since at least Ned Heindel has made chemical health and safety at least a small part of their presidential years. Each has contributed a little more to health and safety awareness. Now, Diane Schmidt, the immediate past-chair of the Division of Chemical Health & Safety, is in the first of her three presidential succession years. We know that she has been a tireless worker for chemical safety. Hopefully her term as president will help to further raise the profile of the essential role of safety in the chemical enterprise.


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.”


#Chemsafety at #ACSDallas

Dallas_transition_825x259The 247th ACS National Meeting starts on Sunday in Dallas, Tex. Here are the chemical and laboratory safety events that will be happening there. If you’d like a nicely-formatted version to print, check out CHAS-at-a-Glance.

SUNDAY

  • Division of Chemical Health & Safety executive committee meeting, open to all ACS members; 8:30 am-noon; Convention Center room D169
  • Ask Dr. Safety: Protecting reproductive health in the laboratory environment; 1:30-3:10 pm; Convention Center room A120/A120

MONDAY

  • Committee on Chemical Safety meeting; 8:30-11:30 am; Sheraton, 400 N Olive St, room Lone Star C2
  • Benefits of chemistry in our lives; 8:00-10:20 am; Sheraton Dallas, Austin Ballroom 2 (cosponsored PRES event)
  • eLearning: What we’ve learned and where we’re going; 1:30-3:50 pm; Convention Center room A120/A120
  • Chemical safety of energy and food; 4:00-5:10 pm; Convention Center room A120/A120
  • Social hour; 5:30-7:30 pm; Iron Cactus, 1520 Main St (hosted by CHAS, PROF, and SCHB)

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.



From The CENtral Science Blogs