United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 14 of 17)
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their report. The information obtained by IFFA from the FDA FOLA request high-
lidits the FAA's inability to deal with environmental exposure problems.

The FDA clearly has jurisdiction over the food ana water on an airplane. Al-
though it was apparent to all those affected that the problem had been one of air


quality or toxic exposure, samples of food and water were obtained by The FDA and
analyzed to rule out food poisoning or other contaminates. To the credit of the 1«UA,
they did an excellent job of investigating, and it is their report, obtamed through
FOlA, that provides us with the following details. v u- _*

An FDA mvestigator interviewed the ill passengers and crewmembers. His reoort
showed very similar symptoms in each case: dizziness, disorientation, descnted as
a feeling of being drugged" or "a sleeping anesthetic wearing ofT, light headedjness.
Some experienced nausea and described a metallic taste in their mouths. Both flight
attendants who became unconscious and one passenger described a tingling sensa-
tion or twitching of the arms. , ,, ^ 1 r 4.\.

During his investigation, the FDA inspector discovered that an employee of the
New Yoric City Emergency Medical Service had obtained and stored samples of the
air along with samples of the food and water at the New York Port Authority. The
inspector stated in nis report: , , , . . j . i

I contacted other agencies to determine if they would be interested m air samples.
I contacted OSHA who informed me they are not interested since it involved the
crew, passengers and aircraft. They would only be concerned if employees were in-
volved where their jurisdiction is involved.

He then contacted the FAA which advised him that "the FAA does not have the

capability for analysis". o c ^ jy j

The air carrier was obligated to inform the National Transportation Safety Board
(NTSB) of the incident since one of the flight attendants required a hospital stay.
When IFFA requested information form the NTSB, they were told that the N IbB
had not received notification of the incident. Upon contacting the airline, the NTSB
was told no flight attendant was unconscious nor kept in the hospital, that no cock-
pit crew or other flight attendants were effected or transported to the hospiUl and
that they found nothing that would have required notification. None of these state-
ments were accurate. J 11 r 4.1.

As FDA reports and medical records document, Terry Fitzgerald and all ol the
other crewmembers including those from the cockpit were taken to hospital emer-
gency rooms for observation. Terry and the other unconscious flight attendant were
given oxygen for hours at the hospital. Terry was admitted to Elmhurst Hospital
Siat evening while the other crewmembers were released to return to their St. Louis
base. She was released six days later. Carrier management was in touch with Terry
throughout her stay in the hospital. , , , , ^ ii i

In a later report, the airline concluded that "the flight attendant had most hkely
contracted a common virus." Apparently, the determination was made by an m-
house investigation since the FDA was the only agency investigating, and that was
not their conclusion. Ms. Fitzgerald's diagnosis from the hospital was "unclean
cause". The airlines' information on the incident was grossly inaccurate.

One month after the incident flight attendant Fitzgerald was still off from her flv-
ing status and continuing to experience "pins and needles" sticking into her right
arm. This greatly concerned her since she had a son less than one year old, and
she was afraid she might drop him if her arm did not have suflicient strength. She
consulted a neurologist at Sloan Kettering Hospital. The neurologist requested, but
never received, Ms. Fitzgerald's file from Elmhurst. The doctor suspected an expo-
sure to an odorless and tasteless gaseous substance that left residual neurological
problems. More importantly, The doctor was able to provide treatment and reassur-
ance for Ms. Fitzgerald's fall recovery. , ,.„ , J /-iOTTA u

The follow-up to this incident would have been much different had Ufc>HA been
the agency with jurisdiction. First and foremost, OSHA has the ability to perform
air quality testing. Subsequently, Ms. Fitzgerald's treatment would have been more
timdy. In addition, there is no FAA requirement for employers to notify employees
if the carrier was aware of an exposure. OSHA mandates such notification.


The work place for flight attendants has many disadvantages. The working area
is cramped, and short comings either in design or maintenance expose fli^t attend-
ants to the risk of injury. The dry atmosphere combined with other air quality con-
ditions, increases vulnerability to respiratory infections. • i r. i •

According to a survey done by the California Department of Industrial Relations
governing work injuries and illnesses reported by flight attendants during 1979
showed that flight attendants had twenty times the expected frequency of res-
piratory illnesses compared with other workers. This same group found in 1980 that
occupational illnesses occurred much more frequently among fli^t attendants than
for tdl other workers; 29.5 percent of all flight attendant cases involved an occupa-
tional illness, compared to 4.9 percent for all workers. By 1982, the Department of


Industrial Relations found that 70 percent of the disabling occupational itguries re-
ported by flight attendants comprised fractures, sprains and strains.

Again, the flight attendant group finds itself with no agency evaluation hazards,
promulgating safety and health standards, or responding to complaints and inci-


The FAA has acknowledged in two reports published by their Office of Aviation
Medicine that aircrews are occupationally exposed to ionizing radiation, a well-know
physical hazard. By the FAA's own estimates, the added risk of cancer from this
occupational exposure range from 1 in 2,800 to 1 in 77, depending on the routes
flown, the amount of flying done per year, and the total number of years of flying.
In the context of an occupational exposure, these are not insignificant risks. In addi-
tion, the FAA reports highlight a very real concern about pregnant flight attendants
and (and fetuses) exceeding recommended exposures over a nine month gestation

Remember that OSHA law requires that employees be informed of all known
workplace hazards by their employer. Ionizing radiation is known hazard, therefore,
employees (in this instance aircrews) must be given appropriate information about
radiation exposure in the workplace. OSHA also has exposure limits and monitoring
requirements for radiation exposed workers.

On May 3, 1993, more than three years after the first report was issued, the FAA
took action. They published a proposed Advisory Circular. An advisory Circular does
not carry the force of law. Instead of requiring that air carriers inform their aircrew
employees of this known hazard by issuing a rule, the FAA proposes issuing a docu-
ment that does nothing more than suggest topics for a radiation training program
in the event" an air carrier chooses to inform flight attendants and other crew-
members concerning radiation exposure." (Emphasis added) The FAA's response to
this serious occupational hazard is completely inadequate.

In comments submitted by the flight attendant unions, we urged the FAA to re-
consider its position and to take the following actions:

1. Issue a Notice of Proposed Rulemaking (NPRM) which will require a radiation
training program for all aircrews.

2. As an interim measure, issue an Advisory Circular which states clearly the
need for training and which includes a list of required topics.

3. Issue an Advanced Notice of Proposed Rulemaking, (ANPRM) to address the
issues of radiation exposure limits and monitoring requirements for the crew-
members who conform to those protections afforded other occupationally exposed

We also recommended that the list of topics "suggested" in the Advisory Circular
be expanded to include information that would be more consistent with hazard in-
formation requirements under OSHA. The comment period on the proposed

Advisory Circular closed on August 17, 1993. The FAA anticipates final action on
the AC in approximately 6 months. There is no question that under OSHA, aircrews
would be much better informed about and protected from radiation exposure.


Today we have a generation of flight attendants approaching retirement age who
are literally the guinea pigs of long-term jet flight. The effects of nearly 25 years
of high altitude, cosmic radiation, low-humidity, pressurized flying, with long hours
and constant disruption of circadium Aj^hms through multiple time zone crossings
are unknown.

It is unfair and unsafe to leave airline crew members unprotected by OSHA's safe-
ty and health regulations. We feel that after nearly 20 years of FAA neglect, it is
time to provide those protections to the nations 70,000 airline flight attendants.

The OSHA 4(b) (1) language has clearly not done the job of eliminating confusion
over jurisdiction. Instead, the question of which agency has jurisdiction and under
what circumstances remains an open. one. As a result, aviation employees are often
subject to unsafe working conditions and they have nowhere to take their concerns.
Congress must revisit this section of the OSHAct in order to make clear its intent
to protect all American workers.

Once again, thank you for this opportunity to submit this testimony. We urge the
members of the subcommittee to support passage of the OSHA Reform legislation
with the provision that would extend OSHA protection to fli^t attendants.


U.S. Department o( Labor Occupational Safety and Health Administration

525 GfiHin Sfeel. Room 602
Dallas. Texas 75202

Reply to the Attention of 60SHA (TEC/FAP)

October 4, 1993

Honorable Howard M. Metzenbaum
United States Senate
Hart Senate Office Building
Washington, D. C. 20510-3502

Attention; Leisha Self

Dear Senator Metzenbaum:

This is in repponee to your letter of September 28, 1993, to Mario
Solano of my staff concerning an OSHA fatality investigation
conducted at Pajarito Peak, New Mexico. Upon completing the
investigation, our Albuquerque Area Office issued one Notice of
Hazards, detailing thirteen separate serious hazardous conditions,
to the U. S. Forest Service on June 29, 1993.

In reGponse to your questions, the U. S. Forest Service was
generally uncooperative during our investigation. The U. S. Forest
Service questioned OSHA's authority to investigate and issue
Notices of Hazards. The U. S. Forest Service has continued to
question OSHA's jurisdiction and expressed reluctance in securing
abatement of the thirteen items cited. The integrity of the OSHA
investigation file was also questioned by the U. S. Forest Service.

In response to the investigation, our Albuquerque Area Office
received an abatement letter from the U. S. Forest Service dated
July 2G, 1993. A Follow-up Inspection, conducted on September 22,
1993, revealed that abatement had not been achieved on the items

The U. S. Forest Service disagrees with the first nine items cited
in the "Notice" issued by OSHA. Partial abatement has been
completed on the other four items. OSHA will issue Failure to
Abate Notices to the U.S. Forest Service on October 4, 1993.

We have informed the representatives of the U. S. Forest Service of
their rights to elevate any unresolved issues to their agency
headquarters for resolution.

A sr;queiice of events is enclosed to provide a more detailed
description of the investigation. If we may be of further
assistiance, please do not hesitate to let us know.



Regional Administrator



Answers to Inquiries from Scnntor ^fcl7.cabntl^1's ofnce:

I. The U. S. Forest Service was generally uncooperative.

April 26, 199.'^, \s\rr\ llcnson, Rcgionnl Forester, told compllnncc ofnccrs (CSHOs):
"Understand that In our business of flglitioR Fires, it's n cost of doing business in
having accidents and fntnlitirs." He asked that the cninpliancc oITIcers use the
Investigative report that the Forest Service was preparing rather than OSIIA
conducting Its o"ti Investigation. Mr. llcnson directed compliance oITiccrs to meet
with Arvin \Miite, Chief Investigator, at a specific site and time. When CSHOs
arrived, the site was not in operation and Mr. While was not there.

April 27, 1993, OSIIA's compliance ofRccrs were told to go to Jcmez Ranger District
OfTicc to meet v»ith Anin \Milte (75 miles from Albuquerque). \\'hen OSHA's
compliance ofJlccrs arrived, fhcj were told to go back to Albuquerque because Mr.
VMiite wns at the Cibola National Forest Office.

CSnO's arrived nt Cibola National Forest Office and met with Ar»in White. Mr.
\\bitc would not give OSIIA's compliance ofnccrs an} specific Information on the
accident or even the victim's name. lie would not confirm that It was a Federal
Employee who was Involved In the accident.

OSIIA's compliance ofTicers were told by Mr. White that he had been advised by the
Orrice of General Counsel "not to cooperate with OSHA since there was a question
as to OSnA's Jurisdiction and OSHA's authority to investigate."

Mr. MTiite questioned tbe OSHA compliance officers asking, "under what authority
are you trying to investigate, and what document gives you guys the Jurisdiction to
do so?" Compliance officers asked Mr. \Miite If he had dealt with OSHA on previous
occasions, and he stated: "Yes, I hove been In charge of other Investigations where
we were successrul in keeping OSHA from doing any inspections and investigations."

OSIIA compliance officers cxplolned that because the USDA Forest Service was not
cooperating, they would consider this to be a "Denial of Entry."

April 29, 1993, CSHOs requested to Interview employees assigned to Division "C
(Jemez and Zin crew members). Mr. Wliite stated they no longer were employed by
U. S. Forest Service and directed CSIlOs to Bureou of Indian Affairs and/or to
directly to the Pueblo Governors for access to employees. (It was later learned that
those employ ccs were Indeed still employed by the U. S. Forest Service and always
available for Interviews.)

The OSHA compliance officers roqursfcd to see Division "C" employees' training
records. ITie Forest Service Regional Office told compliance officers that they had
no training records or related documents. They sent the compliance officers to Santa
Ft, New Mexico (69 miles awav), indicating that the records could be found there.
However, upon arrival In Santa Fe, no records were found. The Santa Fc Orfice sent
the roMiplinnre ofnccrs to Jcmcz Ranger District (90 miles away), indicating the
records could be found there.

April 30, 1993, compliance ofncers arrived ot Jemez Ranger District. John Peterson,
District Ranger, told compliance officers no training records were kept of crew
members in Division "C".

June II, 1993, OSHA held o Closing Conference «ith approximately 30 Forest
Sen ice Supervisors ond Managers. OSHA compliance officers explained 13 alleged
violations. Lnrrj Hcnson, Regional Forester, become accusatory and disruptive In
that he would not permit compliance officers to fully discuss each Item. He accused
OSHA of not having their findings substantiated and stated that it was hearsay, and
that the only omdal and true Investigation was that of the Forest Service.


June 29, 1993, Albuquerque Area Omcc Issued a Notice with 13 \1olatlons to the U.S.
Forest Service.

July 12, 1993, an Informnl Conference was held at the Forest Senlce Regional Office
between appro.xlinnlcly 30 representatives of the Forest Service and the Albuquerque
Area Onicc OSIIA staff. Discussions as tn the violations and the procedures were
explained. Ethel Abclta, U. S. Department of Agriculture, Office of General Counsel,
questioned OSllA's Jurisdiction and authority to Inspect, Investigate and issue
Notices of Allcpcd Violations. She stated that the authority for OSHA to issue
Notices was not spelled out

Larry Benson, Regional Forester, attacked the Investigation OSHA had conducted,
referring to (several times) that the Forest Service's Investigation wbs and should be
the only ofTicial Investigation since it wns done by their experts and professionals.
Mr. Hcnson again asked why OSBLA did not use the U. S. Forest Service's
Investigation report.

Mr. Cosgrove agreed to let the Omce of General Counsel and Mr. Hcnson, Regional
Forester, come to the Albuquerque Area Office and be presented with a full
explanation of the facts used In OSHA's findings. Including an In-Camera Review.
of the file.

.luh 20, 1993, In-Cnmcra Review of Documents: Larrj flenson. Regional Forester
and Kthcl Abcitn cnnie to the Area OrTlcc to view OSHA documents. Mr. Cosgrove
sCntcd thai tlir Forest Senice could not copy any documents, but that we would be
more than happy to go over everjthing in the case file.

July 26, 1993, a letter from Mr. Hcnson was received in the OSUA Area Office In
response to the Notice of 13 serious hazardous conditions Issued to the Forest
Senlcc. llic response was not adequate in that the Forest Service did not
spccincnlly abate the cited conditions.

In this letter, Mr. Henson again formally questioned OSHA's jurisdiction and
authority. He states: "^Ve do not agree that OSUA has been authorized by the
President or Congress to issue a Notice to Federal Agencies nor have we been
provided with any authority by your agency."

Mr. Hcnson threatened to remove the Notice from the bulletin boards, as the Forest
Service does not agree on the authority issue.

August 10, 1993, Area Director, Edward Cosgrove, sends letter to Larry Hcnson
explaining jurisdiction and responding to the Forest Service's concerns.

September 9, 1993, Mr. Volk, Assistant Regional Forester, Ethel Abelta, OGC and
Mary Ann Jocn, OGC, again met with Edw.inl Cosgrove, Mario Solano, Stan
Kauchak to view In-Camera the case file and documents obtained by OSHA.

After the Forest Service reviewed the case file, Xhr- .VJbuquerquc Area Office staff
requested abatement information, and Mr. Volk stated that they would consider
abatement when they determined If OSHA had Jurisdiction and authority... but until
then, they would not discuss abatement

OSHA compliance officers discussed the possible Issuance of Failure to Abate
Notices. Ms. Joca said that "those (Failure to Abate Notices) don't do anything for
us... they do not mean anything..."

September 22, 1993, A follow-up Inspection was conducted to ascertain abatement
of the Notice of 13 serious hazardous conditions. Present at the opening were Lou
Volk, Assistant Regional Forester, Miguel Arngon, Human Resource Specialist, Ellis
Gardner, Acting Regional Safety Manager, and OSHA Compliance Officers Mario
Solano and Stan Kauchak.


Compllonce Ortlccrs reviewed ench ^lolntlon on the Notice, but were told that the
Forest Service did not «nnt to discuss Items 1, 2, 3, 4, 5, 6, 7 nod 9, since they felt
thnl fhrir report uns conducted by experts, and since their report wbs proressionally

done, Ilicj frll fbaJ those items were not valid and the Forest Service was not going
to acknowledge them.

Partial abatement was noted on Items 8, 10, 11, 12 and 13.

2. V. S. Forest Service's response to OSllA's elTorls to secure abatement.

In his tetter to O.SIIA, Mr. Ilenson ngnin rnrninlly questioned OSHA's jurisdiction
and authority, he states; "We do not ogree that OSllA has been authorized by the
President or Congress to Issue o notice to Federal Agencies nor have we been
pro%1dcd with any authority by your agency."

August 10, 1993, Area Director, rd«ard Cosgrove, sends letter to Larr>- Benson
explaining jurisdiction and responding to the Forest Senice concerns. Abatement
was requested.

September 9, 1993, Mr. Volk, Assistant Regional Forester, Ethel Abelta, OGC, and
Mnr> Ann Joco, OGC, met with Ednurd Cosgrove, Mario Solano and Stan Kauchak
to view In-Camera the case nie and documents obtained by OSHA.

AHer they reviewed the case nJc, the Albuquerque Area OfTlcc stalT requested
abatement, and Mr. Volk slated that they would consider that when they determined
If OSTIA still had Jurisdiction and authority...but until then, they did not want to
discuss abatement.

September 22, 1993, a Follow-up Inspection was conducted to ascertain abatement
or the Notice of 13 serious hazardous conditions.

Compliance ofTicer reviewed the Notice but were told that the U. S. Forest Settee
did not want tn discuss Items 1, 2, 3, 4, 5, 6, 7 and 9, since they felt that those Items
were not valid and they were not going to acknowledge them.

The remainder of the Items were discussed and abatement was found to be

Partial abatement was noted on Items 8, 11, 12 and 13.

Compliance ofTiccrs explained that abatement was due on August 1, 1993. Because
neither abatement action nor a Petition for Modification of Abatement was received
by OSHA, a Failure to Abate condition existed.

Septembrr 24, 1993, compliance nmccrs traveled to the Jcmez Ranger District and
met with John Peterson, District Ranger, and explained to Mr. Peterson that they
wcic there to verify abatement. Mr. Peterson indicated that he would get back to
OSIIA on Monday.

Prior to the compliance oflkcrs dcpnrting. thiy oskcd fo see the employee/
management bulletin board to determine if the Notice was posted. It was discovered
that II was not posted. Mr. Peterson did not recall the Notice ever having been

September 27, 1993, CSIIO Solano called John Peterson at 11:30 a.m., and Mr.
Peterson stated he had been In a meeting and had not had a chance to check Into the
items needed to verify abatement.


John Fctcrson cnllcd the Albuquerque Area Omcc at 3:30 p.m. and said (hat the
Jcmez Ranger District lind received generic prtigrams from their Region on Hazard
Communication and Bloodborne Pathogens.

3. Did (he U. S. Forest Senicc abate the violations by the abatement date specified by


The U. S. Forest Service did not abate (he violntlons within the prescribed abatement
date of Augu.st 1, 1993. Items 1.2^,4,5,6,7,8,9,11,12, and 13 remain unabated. Item
10 was abated as of September 22, 1993.

September 17, 1993, Mr. Ilenson's letter dated September 19, 1993, states: "Based
upon our review of the mntcrinis produced by you. It has become quite clear that we
do not agree items 1, 2, 3, 4, 5, 6, 7, and 9 contained In the Notice to the U.S. Forest
Service on July 29, 1993 are >1olations".

September 22, 1993, on the follow-up inspection, Mr. Miguel Aragon, stated that
"OSIIA needs to rend our documents that we have mailed Mr. Cosgrove. "Mr. Volk
stated that the U. S. Forest Service did not want to talk about items I, 2, 3, 4, 5, 6,
7 and 9 period!"

Mr. Volk asked compliance orTicers, "How can you abate an Act of God...this accident
was an Act of God...."

OSHA compliance oCTicers told Mr. Volk, Mr. Aragon and Mr. Gardner that It
appeared that Failure to Abate Notice would be recommended to Mr. Cosgrove,
based on information obtained at this meeting.

Mr. AroRon said: "What does Failure to Abate do...lt has not done anything In the

September 29, 1993, coinplinncc ofricers discussed findings on abatement with Area
Director and recoinmenrled Fnilurc to Ab:itc Notice. OSIIA has continuously asked
for nl)otcinent. The Albuquerque Area Oflice has offered numerous times to assist
the 1). S. Forest Senicc in nchienng abntciitcnt. OSIIA Area Onice has also
explained the Petition for Modincation of Abatement Process to the U. S. Forest
Senicc and their Office of General Counsel. As of this v^ritlng (10/01/93) adequate
abatement has not been presented by the Forest Service.

4. Has the U. S. Forest Scnice indicated whether or not it intends to comply with the

abatement notices?

A Follow-up Inspection was conducted on September 22, 1993. Lou Volk, Assistant
Regional Forester, Miguel Aragon, Human Resources Specialist, and Ellis Gardner,
Acting Regional Safety Manoger with the U. S. Forest Senice were present.
Compliance Officers attempted to review all the violations and requested the Forest
Senice to provide abatement information. Mr. Volk stated that the U. S. Forest
Senicc did not agree that violations 1 through 7 and 9 were valid and, therefore, they
did not wish (o discuss abatement. Compliance ofiicers Informed Mr. Volk that
failure to provide abatement information would result in the Issuance of Failure to

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 14 of 17)