A gamble on safety in Vegas

LAS VEGAS —  A recently hired plumber was sent into the bowels of the Orleans hotel and casino last year to unplug a sewer pipe in a large grease trap -- an assignment that would be his last.

The hotel had no permit or training program to allow plumber Richard Luzier to enter a confined space where he might inhale poisonous sewer gas. He had no breathing apparatus or emergency rescue harness -- all routine precautions.

Luzier fell 12 feet and landed face down in fatty sewage. As supervisors watched, a second unprepared worker, Travis Koehler, went into the pit to help. He collapsed on top of Luzier. A third man, David Snow, was sent in.

By the time city rescue personnel could enter the trap, Snow was in a coma, heaped atop the first two men, who were dead. Snow woke 23 days later in the hospital with a tube down his throat and permanent disabling injuries.

Investigators at the Nevada Occupational Safety and Health Administration concluded that the casino, owned by Boyd Gaming Corp., had “willfully” violated safety rules.

The company had a previous violation involving such confined spaces. And the investigators found evidence that in 2001 a worker fell sick after working in a grease trap and was cared for in a hotel room for several days before being sent to a hospital, according to state records.

But when the investigators tried to formally cite the company after the two men’s deaths, Boyd attorneys pressed two political appointees overseeing Nevada OSHA, Mendy Elliott and D. Roger Bremner, for a less severe finding. In a private settlement conference, Bremner, administrator of the Nevada Division of Industrial Relations, knocked the finding down to “serious” rather than “willful,” according to state records. A willful finding could have exposed Boyd to civil suits, normally prevented by workers compensation law.

“You don’t touch a casino in this state,” said Don Barker, the former safety director of Boyd Gaming. “I got paid to make things go away. I might go into a conference facing a $25,000 fine and leave with a $1,500 fine. This situation would never happen in any other state. The program has no teeth.”

Barker said he had asked for safety improvements at the Orleans before the accident but was blocked by management. Afterward, he quit in protest and now works as a safety official elsewhere in Las Vegas.

The Orleans accident was among the first in a streak of fatal accidents in Las Vegas buildings and construction sites that has taken a dozen lives in the last 16 months.

In case after case, the state has dropped or sharply reduced fines and penalties proposed by investigators, just as it did in the Orleans case. To some critics, the handling of the accidents has sent a message to the construction and gaming industries that they can disregard safety rules with near impunity.

The concern comes amid a building boom unlike anything in the city’s history. The Las Vegas area has $31 billion of construction underway and another $25 billion in the planning stages, according to Applied Analysis, an economic research company.

MGM Mirage is building the $9-billion CityCenter project with six hotel and condo towers, billed as the nation’s largest privately funded construction project.

But the frenetic pace has led to a spate of fatal accidents.

Until 2006, Nevada had a fatal accident rate in construction slightly higher than the national average of 12.3 per hundred thousand, according to the Bureau of Labor Statistics. But the 12 recent deaths could drive the state’s rate up when the 2007 numbers are computed.

As the problems in Nevada have unfolded, unions have walked off the job in protest. The U.S. Labor Department has sent a team to examine the state OSHA program. The U.S. House Education and Labor Committee is investigating. The Las Vegas Sun published a series of stories detailing a pattern of safety problems and lax enforcement.

And the Nevada Attorney General’s Office is conducting its own ethics probe into the conduct of Elliott and Bremner. Conrad Hafen, chief deputy attorney general, said his department would not comment on its ongoing investigation.

The gaming industry doesn’t like the image. Alan Feldman, senior vice president of public affairs at MGM Mirage, said the safety record was not satisfactory. At MGM’s CityCenter project, six workers have died, and the company has expanded its safety program with its general contractor, Perini Building Co., he said.

Union leaders say the fault lies with Nevada OSHA.

“It is a broken system,” said Steven D. Ross, secretary-treasurer of the Southern Nevada Building and Construction Trades Council and a Las Vegas city councilman. “We are concerned about the lack of oversight by Nevada OSHA.”

In the Orleans case, state OSHA documents show that on Aug. 7, 2007, Boyd officials were told they would receive willful, repeat and serious citations for the Feb. 2, 2007 accident. Investigators recommended that Boyd pay a $433,500 fine, according to internal OSHA documents.

But before those citations were mailed, Boyd attorneys met in Carson City with Bremner, a political appointee, and he agreed to drop all of the willful and repeat citations.

In the end, the fine was $185,000. Bremner also agreed to allow Boyd to join a voluntary safety training program, which could exempt Boyd’s properties from OSHA inspections for several years.

If Boyd had received a willful citation, it could have faced civil suits. “It makes perfect legal sense for Boyd to want to remove those willful violations to prevent workers from seeking recovery outside workers compensation statutes in Nevada,” said George Bochanis, a veteran workers compensation attorney in Las Vegas.

Asked about the decision, Elisabeth Shurtleff, a state spokeswoman, said Bremner decided against willful citations because they required “state-of-mind proof,” suggesting OSHA lacked such evidence.

The practice of reducing penalties behind closed doors was criticized at a recent hearing held by Rep. George Miller (D-Martinez), chairman of the House Education and Labor Committee. “I don’t get how that passes the smell test in this country,” he said.

It also leaves a bitter taste for Debi Koehler-Fergen, mother of Travis Koehler.

“As far as I am concerned, they murdered Travis by their actions,” she said. “Here you have two supervisors who knew not to go down there and they sent one person after another into that trap. There is nothing in me to hate people. But I do want justice and I want this insanity to stop.”

More than a year after the accident, Luzier’s widow, Leslie, an oncology nurse, broke down during an interview. “I know nobody meant for Richard to get hurt, but it is so sad and so useless. It could have been prevented so easily.”

A formal complaint about the investigation, filed by Koehler-Fergen, has languished for months at the Department of Labor. She suspects the governor’s office helped protect Boyd.

Ben Kieckhefer, a spokesman for Gov. Jim Gibbons, said the governor’s chief operating officer got involved but played no direct role in the decision. “No one discussed it with the governor,” Kieckhefer said. “I know that.”

Rob Stillwell, a spokesman for Boyd Gaming, said the company had never had a fatal accident before the incident at the Orleans and is trying to improve safety conditions.

Boyd officials insisted that it was Luzier’s idea to enter the pit. But the OSHA report notes that at least two witnesses observed Boyd supervisors watching the entire operation and instructing the three men to enter the grease trap. The report detailed a list of violations, none of them casting the blame on the workers.

“There is something severely wrong with Nevada OSHA,” said Snow, who is still being treated for injuries. Although he remains employed at the Orleans, Snow said he was being harassed by management and that he believed the company wanted to get rid of him. The company declined comment.

This month, the Carnegie Hero Fund Commission, established in 1904 by industrialist Andrew Carnegie, named Snow and Koehler heroes for their attempts to rescue Luzier from the grease pit.

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