UCLA-Cal/OSHA settlement

Back in March, the The California Division of Occupational Safety & Health (Cal/OSHA) levied $67,720 in fines against the University of California, Los Angeles, Chemistry & Biochemistry Department for laboratory health and safety violations identified during inspections last fall. UCLA appealed the citations. Cal/OSHA and the university reached an agreement on the citations at the end of September, consolidating some of the citations and reducing the fines to $36,690.

Most of the agreement involves decreasing the fines by increasing the “good faith” component of the penalty calculation, but there are also two other things of interest: One is what happened regarding the the department’s chemical hygiene officer (CHO), who Cal/OSHA called unqualified. The second is is that a “repeat” citation for lack of training was reduced to “serious.” Cal/OSHA previously cited UCLA for lack of training in the death of Sheri Sangji.

In assessing penalties, Cal/OSHA can consider a number of factors: the extent of the problem; the likelihood of injury, illness, or disease; the size of the employer; any history of previous violations; and the “good faith” of the employer. According to the regulation, good faith “is based upon the quality and extent of the safety program the employer has in effect and operating. It includes the employer’s awareness of CAL/OSHA, and any indications of the employer’s desire to comply with the Act, by specific displays of accomplishments.”

The changes UCLA implemented after Sangji’s death would play a role here–things such as the school’s expanded lab safety training and inspection programs (including surprise inspections by the chancellor). Also, says Cal/OSHA attorney Tuyet Tran, the agency considers whether an employer cooperates with inspectors and tries to address concerns immediately. UCLA officials “were very proactive in trying to reach out to the division and doing what they could to resolve the issues that we raised, and they did abate everything that they could as soon as possible,” Tran says, noting that setting up or changing things such as training programs can take time. The original citations included a “fair” rating for good faith (“15% of the gravity-based penalty shall be subtracted,” regulations say) and the agency increased that to “good” (30%) in the settlement.

With regard to the CHO qualifications, the university has hired two new CHOs, both with PhDs in organic chemistry, for the chemistry and biochemistry department. In discussions between Cal/OSHA and university officials, the agency wanted to see a CHO with the experience and credentials to have credibility when talking to principal investigators and to be able to engage PIs and other lab workers in thinking through their experiments and processes, says Kevin Reed, UCLA’s vice chancellor for legal affairs.

“The level of training and knowledge of a CHO is based on the kind of operation they’re being a CHO for,” says Deborah Gold, a senior safety engineer at Cal/OSHA. “There are all kinds of labs that have chemical hygiene plans. In some of them the chemistry is not very sophisticated or complicated. In that case the training and experience and knowledge base of the CHO may be different than what’s necessary when you’re the CHO for a large number of chemistry and biochemistry labs in which complex syntheses are taking place involving lots of particularly hazardous chemicals.” In a chemistry and biochemistry department such as that at UCLA, the CHO would have to be able to provide technical guidance on things such as how to handle hazardous reagents, how to scale-up a synthesis appropriately, and when a process might need to be reevaluated, Gold says. “A CHO should be able to interact with investigators as a peer and be able to understand what it is they’re talking about,” Gold says, as well as to know the various regulations involved.

As for the citation for lack of training, the original citation said that, “the employer had not provided training to laboratory employees regarding the hazards and required additional protection when working with particularly hazardous substances, including select carcinogens, reproductive toxins, and chemicals with a high degree of acute toxicity, including, but not limited to, methylene chloride, benzene, formaldehyde, ethidium bromide, and osmium tetroxide.”

The citation in the Sangji case, on the other hand, had to do with training specifically for handling pyrophoric reagents, says UCLA’s Reed. “The issue in this citation is more general training for acutely hazardous substances–toxins, not pyrophorics,” Reed says. “It’s a different kind of training and a different causative effect.”

“This was an issue of contention,” says Cal/OSHA’s Tran. “The division did feel that it was a repeat, which is used when there is the same violation within three years. The Sheri Sangji citation was for a failure to train and again here there was a failure to train.” Rather than fight over the issue in an appeal hearing–a process that would delay an abatement plan to address the problem–the agency agreed to drop the repeat classification, Tran say. The change didn’t affect the need to implement a better training program, it just reduced the fine from $27,000 to $4,725. UCLA has until April 4, 2011, to implement standard operating procedures for particularly hazardous substances and to train employees on the hazards and procedures.

Cal/OSHA also assessed in March another set of citations and $29,300 in fines to UCLA for a 2007 incident in which an unnamed graduate student was burned. The university appealed that set of citations as well. That case is now in the hands of Cal/OSHA’s Bureau of Investigations, which reviews cases to determine whether to forward them to city or district attorney’s offices to evaluate for prosecution. “The Bureau has two years to conduct its own investigation during which time Cal/OSHA’s original case is stayed,” says Cal/OSHA spokesperson Krisann Chasarik.

Documents: Citations for 2009 inspections, settlement agreement. The files are also available on the ACS Division of Chemical Health & Safety website.

Author: Jyllian Kemsley

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7 Comments

  1. Perhaps the most interesting aspect of the settlement, and the one with the most wide-ranging implications, is that of CHO qualifications. OSHA’s lab standard is not specific at all in it’s discussion of qualifications, stating only that the CHO must be “qualified by training or experience, to provide technical guidance in the development and implementation of the provisions of the Chemical Hygiene Plan.” As near as I can tell, there have been no clarifications or interpretations issued by OSHA; as a performance-oriented standard, the implication is that the employer is in the best position to decide what qualifications are necessary. Since the lab standard does NOT say the CHO is to be an “enforcer”, to suggest he or she must have a PhD in the subject area would appear to be arbitrary and excessive. It puts the employer in the position of having to designate someone who might be qualified from the “technical” perspective but doesn’t have the time to properly handle the other responsibilities inherent to the position. Will we have PhD’s designated as CHOs without research responsibilities? Are “employers” – in this case a university dependent on research grant dollars – going to be willing to pay multiple PhD chemists to handle CHO responsibilities for each and every different chemical specialty area? One would assume this judgement is based largely on wording in the non-manditory Appendix A in describing the CHO’s responsibilities. Has the laboratory standard ceased to be a performance-oriented standard where the employer is entitled to latitude and judgement in addressing the facility’s specific needs?

  2. The statement by Cal/OSHA safety engineer Deborah Gold “A CHO should be able to interact with investigators as a peer and be able to understand what it is they’re talking about.” is an amazing new bar for a CHO. In context, it clearly applies to R&D chemistry labs, but the implications are enormous. The “peer” aspect clearly means “Ph.D.” in chemistry. Both UCSD and UC-Irvine have Ph.D. chemists at the department level or the college level who have staff positions specifically to assist with research safety, but these are exceptions.

    This new bar addresses one of the many questions I have had about this Agreement, that is, who will provide training to supervisors (PIs, Department Heads, Deans and higher)on particularly hazardous substances? Now I know.

    In these tough budget times for the educational world, this new bar in CHO qualifications will add a high salary position to the department or college budget.

  3. @Neal: Why was there even a question about the training? Regardless of the CHO qualifications issue, wouldn’t the same people who trained the staff, students, and postdocs have been able to train the supervisors? And is training supervisors really a new thing?

  4. Jyllian:

    My very early experiences in EH&S, which have been reinforced over the last 30 years, convinces me that a PI (read that Ph.D. chemist) is not going to listen to a “youngster with no chemistry degree” when that E&HS staffer discusses “lab safety”. That same PI WILL listen to a peer, that is someone who has an equal education and has research experience. Thus, my original question.

    When I first read the Agreement last month, my reaction was (1) what is the specific content that will be presented (2) how to I get the content across in 1 hour (faculty attention span), and (3) who will present the content.

    I am hopeful that the UCLA faculty will listen and learn. Having the content presented by a peer will be a huge plus. Only time will tell as to how it works.

    nl

  5. @CJ: I’d been thinking about your proposal in this context but forgot to bring it up in the post. Thanks for the reminder!

  6. On 26 Nov 2010 Reuters reported the following:
    FRENCH CHEMISTRY PROF FINED FOR DEADLY LAB BLAST | REUTERS, http://in.reuters.com/article/idINIndia-53150820101125

    (Reuters) – A professor at a chemistry college in eastern France was fined 8,000 euros and given a suspended jail sentence on Thursday for causing a lab explosion that killed a colleague and gravely injured a student.

    The accident occurred in 2006 when professor Alain Louati went out for lunch and an open bottle of highly inflammable ethylene triggered an explosion that tore through his laboratory in the city of Mulhouse, near the German border.

    The blast, which blew out windows and ceilings and blackened walls, killed a professor in a room above the lab and injured a high-school student in an adjacent room. The young woman suffered severe fractures to the head and body, was temporarily in a coma and was left handicapped.

    A court in Mulhouse found Louati, 62, guilty of involuntary homicide and causing injury by negligence and gave him a suspended 18-month prison sentence.

    At his trial in September, Louati was accused of using substandard rubber tubes and of leaving the flask of ethylene open. Louati denied responsibility for the blast, saying he had closed the bottle and someone must have entered the lab and reopened it.

    This is a legal precedent – and the underlying facts have some relationship to the UCLA situation. The LA DA’s office is aware of the French decision. Now that the political race for California A.G. is settled, perhaps the LA DA will move forward on the UCLA investigation.

    By the way – does anyone know of any other incident in which a PI or University was found criminally liable for a laboratory fatality?

    nl