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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.

Assessing changes in lab safety culture

Following the lab safety anecdotes that I posted on Monday, there was some discussion on Twitter regarding how to evaluate whether or not academic lab safety culture is changing. The answer seems to be that it’s hard and developing good metrics will take time.

Is academic lab safety culture improving?

It’s hard to say, but there are still serious problems, according to people posting on reddit chemistry:

I mean these are supposed to be some of the brightest student chemists around, yet the attitude is really disappointing. Whenever I’ve called people out on it they typically say that they “know” what they are doing. The brazen attitude is really pathetic. I’ve heard other excuses like saying how it takes too long to put on lab coats. I’ve seen people refuse to evacuate during fire alarms to finish their columns. I’ve seen people eat while doing chemistry at their hoods.

Everything from “not caring about the equipment/techniques” like not bothering to fill the vac traps with liquid N2, setting up distillations with pressurized nitrogen instead of with a N2 bubbler, letting dishes become overwhelming before dealing with them, leaving wrappers out; to “legitimate dangerous practices” like using a low temp oil bath heated to 325C instead of a sand bath until the oil burned and blackened, dumping 20-30 g of sodium in ketyl stills because they don’t want to clean it, trying to throw away broken Hg thermometers in the trash.

I watched this girl work with god only knows what ligand and metal with gloves still on, proceed to pull out her iPhone and text her friends. Also headphones in lab, we bought a radio so you didn’t have to wear those and block out the world. What if an emergency comes up and I’m yelling for help but your in your own little world listening to music??

And some responses when Chemjobber tweeted about the discussion:

The University of Minnesota shows off its safety culture

The University of Minnesota chemistry department released a new promotional video last week. The department sets a pretty high standard for showing proper personal protective equipment. I spy only one person who is obviously in a wet lab without eye protection.

UMN was one of the schools involved with Dow in the company’s safety partnership with universities. They now have a paper out in the Journal of Chemical Education, so you can read about their experiences in their own words (J. Chem. Educ. 2013, DOI: 10.1021/ed400305e).

Friday chemical safety round up

Chemical health and safety news from the past few weeks:

Court watch

  • On Nov. 20, UCLA chemistry professor Patrick Harran had a status check with the judge regarding felony charges of labor code violations that led to the death of researcher Sheharbano (Sheri) Sangji. The result of that status check was another status check scheduled for Jan. 10, 2014. Harran’s preliminary hearing concluded on April 26. We’re going on two years since charges were filed on Dec. 27, 2011, and five years since the Dec. 29, 2008, fire.
  • On Nov. 1, former UC Davis chemist David Snyder was arraigned on felony charges of reckless disposal of hazardous waste, possession of a destructive device or explosive, possession of materials with intent to make a destructive device, and possession of firearms on university property. The charges relate to an explosion in his campus apartment nearly one year ago. Snyder’s preliminary hearing concluded on Oct. 10. Snyder is scheduled for a trial-setting conference on March 17, 2014, and a jury trial to start on March 24, 2014.

Tweets of the month from @Free_Radical1:

Other items of interest

  • The president-elect of ACS, Diane Grob Schmidt, is currently the chair of the Division of Chemical Health & Safety
  • NIOSH released new recommendations for controlling worker exposure to nanomaterials
  • BioRAFT will hold a webinar on Proactive EHS Management & Communications on Dec. 12
  • Residents near an Allenco Energy oil field in Southern California have been complaining for three years about fumes from the site. At Sen. Barbara Boxer’s request, EPA investigators visited the site in October. “I’ve been to oil and gas production facilities throughout the region, but I’ve never had an experience like that before,” [EPA regional administrator Jared] Bumenfeld said. “We suffered sore throats, coughing and severe headaches that lingered for hours.” No word on what’s happened since.
  • Also in California, state regulators are supposed to match hazardous material origin paperwork with what arrives at disposal sites. They don’t. “These so-called lost loads include more than 20,000 tons of lead, a neurotoxin; 520 tons of benzene, a carcinogen; and 355 tons of methyl ethyl ketone, a flammable solvent some in the industry call ‘methyl ethyl death.’” (I’m curious to know what chemists think of that nickname. It’s flammable, yes, but it’s not ranked category 1 for any GHS hazard class.)
  • And, er, ALSO in California, a waste mystery: “more than 100 metric tons of the banned pesticide DDT and industrial compounds known as polychlorinated biphenyls, or PCBs, have vanished from one of the country’s most hazardous sites, almost a 90% drop in just five years. Scientists are at a loss to explain the decline across the 17-square-mile site, which sits about 200 feet below the ocean surface and two miles off the Los Angeles County coast.” The chemicals wound up there from industrial waste dumped into sewers.

Fires and explosions

Leaks, spills, and other exposures

  • A 20,000-gal tank of liquid…something…overpressurized and launched itself through the roof of American Vinyl Company in Florida; one employee died and was found covered in a yellow liquid, while five others were injured
  • More than a pound of mercury spilled onto the ground and into a deep well at an Archer Daniels Midland site in Iowa, “when a contractor was pulling a submersible pump from the well and the mercury seal in the pump broke”
  • Sulfuric acid leaked from a Solvay plant in California, the cause was a malfunctioning scrubber; 13 people in the area were treated for nose and throat irritation and vomiting
  • Chlorine dioxide leaked at Nucor Steel in Arkansas; 18 employees and contractors were treated for exposure
  • Two workers at dental implant manufacturer Hiossen in Pennsylvania were pouring nitric acid from one container into another when some sort of reaction occurred; the workers were wearing gloves but no other PPE, and suffered burns to their airways and upper bodies
  • Gluteraldehyde spilled at an office building in Texas; the chemical was possibly intended to disinfect health care equipment that cannot be heat sterilized

University incidents

Not covered (usually): meth labs; incidents involving floor sealants, cleaning solutions, or pool chemicals; transportation spills; things that happen at recycling centers (dispose of your waste properly, people!); and fires from oil, natural gas, or other fuels

Hearing postponed for #DavidSnyder in UC Davis explosives case

The preliminary hearing for former University of California, Davis, chemist David Snyder on explosives and weapons charges was scheduled to continue today in Yolo County Superior Court. Snyder’s defense attorney is recovering from surgery, so the hearing was postponed to Oct. 4.

UC expands its lab safety program

In this week’s issue of C&EN, I have a story on how the University of California is implementing and expanding upon the lab safety settlement agreement that UC made with the Los Angeles County District Attorney’s Office last summer. In short, UC is taking the legal mandates for chemistry and biochemistry departments and expanding them to all research and teaching laboratories as well as to technical areas such as store and stock rooms. Go read the story for details.

Included with the story is a list of links to things such as UC’s new online “Laboratory Safety Fundamentals” training program, UCLA’s personal protective equipment (PPE) inspection checklist, and the system’s new policies on training, PPE, and minors in labs. As part of reporting on the story, I went through the safety fundamentals training and scored 19/20 on the test at the end. If readers are inclined to do the same, be warned that it will take about three hours, at least if you click through the various bits to get additional information.

UC also purchased personal protective equipment for researchers, including 115,000 lab coats. Part of that purchase involved special-ordering flame-resistant, NFPA 2112-rated lab coats from Workrite in small sizes tailored for women. I don’t see them available now on the company’s website, but clearly it at least has patterns. I don’t know whether Workrite is willing to make more, but it’s probably worth a call if you’re looking for some.

National Academy of Sciences lab safety culture committee meeting in Boston tomorrow

The National Academy of Sciences committee on “Safety Culture in Academic Laboratories” meets starting tomorrow in Boston. The committee has previously met in Washington, D.C., and Berkeley, Calif.

Speakers for the open part of the meeting include Massachusetts Institute of Technology chemistry professor and safety committee chair Rick L. Danheiser. I spoke with Danheiser about MIT’s safety program for “Learning from UCLA.” Also on the agenda is William B. Tolman, chair of the chemistry department at the University of Minnesota and one of the people involved in Dow’s academic lab safety partnerships. And then there’s Susan S. Silbey, who is head of anthropology at MIT and studies “the creation of management systems for containing risks, including ethical lapses, as well as environment, health and safety hazards.”

I can’t attend the meeting, but if anyone else who does would like to recap it for the Safety Zone, please let me know!