Business Fails to Rally Behind Plan to Kill Cal/OSHA

Gov. George Deukmejian’s plan to abolish the state’s occupational health and safety agency would roll back worker protections against hazardous materials, retard response to complaints of unsafe working conditions and result in fewer criminal prosecutions, according to labor leaders, business officials, prosecutors and occupational health physicians.

Organized labor and the governor’s Democratic opponents in the Legislature already are mounting an effort to dissuade Deukmejian from his plan, and hope to enlist the help of organizations ranging from the American Cancer Society to the California Medical Assn. in the campaign.

Business Division

Moreover, business organizations that have been critical of worker safety programs in the past, such as the California Manufacturing Assn., are reported to be divided on the issue. Although California’s worker safety regulations generally are stronger and more comprehensive than the federal standards that would replace them under the governor’s plan, many business executives say they find the state agency more convenient to deal with and more accessible.

Deukmejian, in his 1987 budget proposal, included abolition of the California Industrial Relations Department’s division of Occupational Safety and Health, commonly called Cal/OSHA, and most of its components. Under the governor’s plan, which he could institute virtually unilaterally, principal responsibility for insuring worker safety in California would fall to the U.S. Occupational Health and Safety Administration (federal OSHA). The governor said such a move would eliminate 366 jobs and save the state $8 million in the 1987-88 fiscal year and would result in no reduction in worker safety.

Currently, California is one of 24 states certified by the federal government to operate its own worker safety agency on the grounds that the state program is equivalent to or stronger than federal rules. In return, the federal government provides almost half of the funding for Cal/OSHA.

Considered a Leader

California has had a job safety program since 1913 and generally has been considered a leader in the field.

“I view this as a giant step backward in public health,” said Dr. John Peters, a professor of occupational health at the University of Southern California who served on the Cal/OSHA Standards Board from 1981 through 1986. “California has better and more frequent inspections and more up-to-date standards (than the federal government).”

As an example of the gap between state and federal standards, Jan Chatten Brown, special assistant to the Los Angeles County district attorney for occupational safety and health and environmental protection, pointed to California’s so-called “right to know” law, administered by Cal/OSHA. The law requires that almost all California workers be given information about any potentially hazardous materials that they may use. Federal law mandates only that workers in manufacturing jobs be given such information. The federal law would preempt the California statute if Cal/OSHA is abolished, according to Brown.

She also lamented the fact that the federal government has not set permissible exposure limits on 170 widely used toxic substances already regulated by Cal/OSHA. Those state standards would be preempted, too, she said, as would California’s extensive rules governing demolition of structures containing asbestos, a known cause of lung cancer.

Brown said failure to maintain the strictest safety procedures for asbestos removal would have an effect that went beyond laborers involved in the work. She said that if such operations were not conducted properly, excess asbestos fiber could be disseminated into the air, creating potential hazards.

“Failure to have sufficient standards in the workplace can have a deleterious effect on the community,” she said. “No one should think it’s only the workers who will suffer.”

When he announced his plan to abolish the agency, Deukmejian asserted that the federal government could do as good a job as the state has done. He said it would be “wasteful” to continue the state program when federal OSHA could step in.

Ronald T. Rinaldi director of the state Department of Industrial Relations, said Deukmejian was concerned about the fact that the percentage of the Cal/OSHA budget provided by the federal OSHA had shrunk from 50% to 43% in recent years. About $14.2 million of the current $31.5-million budget came from Washington, according to Rinaldi.

Rinaldi said he concurs with the governor’s decision and also said he did not think California workers would suffer if the proposed change comes to pass.

But many people, including some who have been critical of Cal/OSHA in the past, sharply disagreed.

“The mere balancing of a budget is not the way to decide (the feature of) a program whose goal is to save lives,” said Allen Nacenski, manager of operational health and safety at Redondo Beach-based TRW Inc.

Critics of Deukmejian’s proposal said abolition of Cal/OSHA would create numerous problems, including the following:

- Under a policy developed in 1982, federal OSHA reduced its field inspections by 75% by setting up a system that eliminates inspections when a company’s injury record is below the national average. The controversial policy has drawn considerable criticism and in recent months OSHA has had to levy fines against several large companies after it discovered they were under-reporting injuries.

Health and safety professionals say they are particularly concerned that a reduction in inspections could lead to an incident like the one at Film Recovery Systems in Elk Grove, Ill., where a worker died of cyanide poisoning in February, 1983, a few months after federal OSHA inspectors declined to inspect the site because a check of the firm’s records showed that its injury rates were lower than the national average.

- Cal/OSHA’s bureau of investigation, which has the specific mandate to provide information to district attorneys on cases that may warrant criminal prosecution, would be eliminated. Federal OSHA does not provide information to local prosecutors, Brown said.

Under federal OSHA nationwide, since 1971, a total of 37 cases have been referred from the Labor Department to the Justice Department for investigation and only 14 have been prosecuted, Brown said. Since Ronald Reagan became President, only two criminal cases have been filed as a result of federal OSHA investigations.

200 Prosecutions in State

On the other hand, there have been about 200 such prosecutions in California during the last decade, according to Cal/OSHA attorney Al Coie, including a dozen in Los Angeles County alone since December, 1985. In all but one of the Los Angeles cases a worker had died, Brown said.

- Coie also noted that the maximum civil penalty that can be imposed on an employer for a serious health or safety violation is $20,000 in California, compared to $10,000 under federal law.

- A federal OSHA study, cited by Assemblyman Richard Floyd (D-Hawthorne), shows that Cal/OSHA responds more rapidly to safety and health hazard complaints. For example, the study states that average response time on a report of a serious safety hazard is four days by Cal/OSHA and five days by federal OSHA; Cal/OSHA takes two days to respond to a complaint of a serious health hazard, while it takes federal OSHA 14 days.

- Brown noted that Cal/OSHA has the authority to order an employer to stop using a piece of equipment that it has determined presents an imminent hazard. Federal OSHA has no such power, but may petition a federal court order against perceived hazards, she said.

Federal OSHA officials say they will do their best to protect California workers if they are given the task but indicate that they will have fewer staff members and less money to do the job than does the state agency. Federal OSHA is supposed to get a modest budget increase this year, but the agency now has only 2,200 employees, down from the 3,000 it had in 1980, the year before Reagan became President.

“While we’re gearing up a contingency plan (to take over), we’re going to try to work with California to see if we can get them to change their minds,” said Bruce Hillenbrand, director of the directorate of federal and state programs for federal OSHA.

Retaining Some Control

The governor’s proposal would not take California totally out of the safety and health arena. His plan calls for the creation of a new division in the Department of Industrial Relations that would be responsible for the safety and health of California’s state and local government workers.

Cal/OSHA’s consultation service--a feature of the program that employers especially like--would be retained and perhaps enlarged, Rinaldi said. The service provides advice to employers and employees on safe work practices. The state also would keep responsibility for regulating operations of aerial tramways, elevators, pressure vessels and mine safety education, he added.

But Cal/OSHA’s medical unit and the special studies program that does detailed investigations of new chemicals and potentially hazardous work practices would be gone. The state’s innovative Hazard Evaluation System and Information Service (created in the wake of a 1977 incident in which several workers were rendered sterile after working with DBCP at a chemical plant in Lathrop, Calif.), which provides consulting services to business, labor and the public on toxics, will shrink, too, according to members of the unit’s staff.

Rinaldi said he hopes that some activities of the Hazard Evaluation System can be continued under the auspices of the state Health Department. He said that about 260 of the 620 employees currently involved in Cal/OSHA projects would be retained. Rinaldi said it is too early to say how big a staff federal OSHA would set up in California if it takes over the California program.

He met with federal officials in Washington this week to discuss a possible transition. Rinaldi acknowledged that California had a number of regulations covering important health and safety issues that the federal government does not have.

Ban on Short-Handled Hoe

For example, Rinaldi said he favors maintaining California’s ban on the short-handled hoe, which has caused numerous disabling back injuries among agricultural workers. Many farm owners oppose the ban and reporters periodically discover fields where the hoe is still being used. Rinaldi said it would be possible for the state to retain control in this area by passing specific legislation, although he was not sure how enforcement would be handled.

He said federal OSHA could put a stop to any dangerous practices by utilizing its “general duty” clause, which says that a workplace must be free from recognized hazards that are causing or likely to cause death or serious physical harm to employees.

California also has a “general duty” clause and it is stronger than the federal provision, requiring simply that an employer must provide a safe and healthful place of employment. Brown, of the Los Angeles County district attorney’s office, said the difference in the breadth of the two clauses is an example of how Cal/OSHA potentially has much more strength than federal OSHA.

When he was asked at a press conference about the adequacy of a federally run OSHA program, Deukmejian said that workers in several large industrial states that have such a program are just as safe as or safer than workers in California.

Figures from the federal Bureau of Labor Statistics show that California historically had had a higher rate of worker injury and illness than the nation as a whole. That is still true, but the rate in California has declined more than the national rate over the last decade.

On the other hand, a study just completed by the National Institute of Occupational Safety and Health shows that from 1980 through 1984 California had fewer deaths per 100,000 workers than the nation as an aggregate. Neither of the studies draws any conclusions about what role government safety and health agencies may have played in the rate reductions.

Split in Ranks

It came as no surprise when organized labor immediately decried Deukmejian’s proposal. But some longtime supporters of Cal/OSHA said they were pleased that two major business groups that might have been expected to rally to Deukmejian’s side on the issue have not taken a stand backing him yet.

“We probably are split down the middle on this issue,” said Tom Ellick, president of the California Manufacturers Assn., a trade association whose member firms employ about 80% of the state’s private sector work force. “If this trend continues, we’ll stay out of it,” Ellick added. “We have nothing that even approaches a consensus.”

Officials of several companies said in interviews that they had developed a good working relationship with Cal/OSHA over the years. They said they would prefer to deal with a state agency, feeling that inevitably it would be more approachable to them than federal OSHA. “It’s always better for us to deal with a state agency; they’re more accessible to us,” said David O’Reilly, general manager of Chevron Corp.’s El Segundo refinery.

Roberta Cook, a spokeswoman for the California Chamber of Commerce, said that organization was not ready to take a position. She said some small companies preferred to deal with Cal/OSHA while large companies with operations in several states favor abolition of the state agency, since it would mean one less set of rules to deal with.

At this point it is not clear whether Deukmejian can be moved on the issue. Some sources said the governor’s stance is firm. Rinaldi said that if the Legislature restores the agency’s financing, Deukmejian simply will use his line-item veto.