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 15 of 17)
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Abate Notice.

Violations #1-7 and #9:

OSUA has received no abatement information; therefore, a Failure to Abate
Notice will be issued.

Violation #8:

The Forest Senice did not provide any additional Information to assure
abatement of the violation. A Failure to Abate Notice will be Issued.


Violation #10:

An Exposure Control Finn was developed and sent to the field Tor Implemen-
tation, llic violation has been abated as of September 28, 1993.

Violation #11:

A generic IJaznrd Coinmunlcntlon Program was developed and sent to the
field; but It was not implemented. A Failure to Abate Notice will be Issued.

Violation #12:

Mntcriiij Snfct} D.iln Sheets (MSHSs) required for abatement hove not been
obtained. A Fniltire to Abate Notice will be issued.

Violation #13:

Required training has not been performed. A Failure to Abate Notice will be

In addition, the Notice of violations was not posted at the Forest Ser-\icc Regional
Office or at the Jcmc?. Ranger District Omcc. An additional violation will be
recommended for failure to post these notices. Ihe Albuquerque Area Office expects
to issue the Failure to Abate Notice, resulting from the Follow-up Inspection, on
October 4, 1993.

16261 Hwy. 101 #9
Brookings, Oregon

(503) 469-7562

Senator Metzcnbautn

60B Harl Senate Office Bldg.

Washinqton, D.C. 20510

Dnar 5>(?riator Motzenbaum,

During tlin summer of 1993 the U.S. Forest Service (Region 3 -
Albuquerque, New Mexico) conducted what is described as a
"controlled burn". Tragically, during this event, the life of a
Pueblo Native was lost. This person was a temporary Forest
Service employee, hired specifically for this event (named by the
Forest Service the "Buchanon Fire"). Because of my strong
commitment to the safety of Federal employees I am compelled to
discuss this event. Something MUST be done to bring Federal
safety programs into compliance with existing lavs. Forest
Service Management's conduct relating to this fatality was
deplorable and consistent vlth their previous conduct relating to
safety problems, injuries, and fatalities.

The Forest Service's handling of the Buchanon Incident is as
follows. Management selected a Chief Investigator that did not
meet their own guidelines for training. The Chief Investigator
was the Regional Director of Fiscal. This persons reason for
existence is to protect the Forest Service from lawsuits. The
final report was an obvious attempt to protect the Forest
Service. The Chief investigator hindered the Department of
Labor's (OSHA) investigation of the fatality. This behavior
included questioning OSHA ' s authority, misleading OSHA relating
to investigative documents, and attempting to cancel meetings
because of OSHA ' g presents.


My position at the time all this occurred was Regional Safety and
Health Manager, thus all information and investigative procedures
should have been under my direction. I told top Management that

OSHA did a Bupcrlor Job investigating this Incident. Management
stated that they had never worked with or cooperated with OSHA in
the past and tlms questioned the need to at this time. I
cxpr9r.GC>d continually tlieir error, using the Code Of Federal
Regulations as reference. This had no effect on their actions.
T>>o Regional Forestnr, stated to mo that, the we could not just
roll over for OSHA because that would be admitting error and we
vo<)]d hove n<5 basis for our case. The Regional Forester, in a
letter to OSHA, questioned their authority and demanded proof of
such authority or the Forest Service would not cooperate. These
actions slowed progress and hindered the possibility that changes
would happen to protect employees. Management does not want OSHA
to have authority as they are well aware this win make them
accountable for tlieir actions or their lack of action. Being held
accountable for safety issues strikes fear in the hearts of
Forest Service Management.

The basis for the Management fear of accountability is the fact
tJiat their actions are taken in blatant (willful) disreguard of
the advise of their safety professionals. Safety problems have
been brought to tlie attention of Forest Service Management many
times by safety personnel. In Region 3 I conducted an extensive
Region-wide questionnaire relating to safety problems. This
questionnaire was sent to all Forests and Districts within Region
3. The subsequent report was staggering in its content. From
this report I compiled a summary that included many problems-
Here are just a couple: 91^ of the employees stated that
management apathy was a big problem and that there is no real
commitment to the safety program; 82% stated that safety is
second priority to everything else. This report presented the
problems and the proposed changes that management needed to
change the program and provide safe working condition. As with
past situations. Management made no real effort to address th«
problems .

Management's attitude towards safety and their lack of action
places all employees at risk. Most at risk are temporary (short
term) employees like the Pueblo Natives at the Buchanon fire.
These employees are treated like second class citizens, often
referred to as pieces of meat. They received little or no
training from the Forest Service. Equipment, if they receive
any. Is usually old or out of date. At the Buchanon incident
Pueblo employees requested personal protective equipment and were
refused. Many had to provide their own equipment even though the
Forest Service had identified such equipment in their Job Hazard
Analysis and thus it must be provided. The Pueblo
employees were even told that since they were within a commuting
distance they would not be provided food. This occurred while
full time Forest Service employees were relatively well equipped
and well fed. In my opinion, this type of conduct although


common, Is deplorable. When 1 brought this up at a meeting on
the Buchanon incident the response was equally deplorable.
Forest Service Management stated that If they were forced to
provide the required training they would not be able to hire the
Pueblo employees because the BUDGET would be expended.

ForeBt Service's top management attltu
by several problems. First, managemen
Safety is not an important element of
Ironic that timber or hiring targets h
the safety of the people who do the wo
knows that OSHA cannot hold them accou
the rules and i npi na Ir abJ e . Third, th
for years with no repn t cviss ions . Thes
when looknd into. In my Region we inj
workforce a year. Many more injuries
unreported. The Forest Servlco spends
every year because they do not have a
only react when something bad happens,
controlled by possible lawsuits and no
employees. Usually corrective actions
change admits error and thus possible
compensation and TORT claims prove rea
work. The conduct on the Buchanon Inc
I have seen It before, too many times,
of Management can be shown explicitly
Region 3'3 Regional Forester. This st
presence of two OSHA officials, the De
myself at a briefing meeting on the Bu
"When yoo fight fire as much as we do,
doing business" .

de towards safety is caused
t is not held accountable,
their performance. it ie
ave a higher priority that
rk. Second, management
ntable thus they feel above
is conduct has been allowed
e facts are easily apparent
ured as many as \0% of our
are hidden and go

10s of millions of dollars
prevention program, they

These reactions are
t what is best for

are not done as making
claims. Injury
ctive programs do not
ident did not surprise me,

The attitudes and conduct
in a statement made by
atement was made in the
puty Regional Forester and
chanon incident. I quote:

tragedies are the cost of

1 hope
end to
are an
at stak
and wii
the For

and pr
this p
ent ac
at hlg
u 1 env
ent mu
e. 1
1 cont
and he
est Se

ay that your efforts and those of others can put an
roblem. The laws have to be changed to mandate
countabi 11 ty . Until this is done our employees will
h risk of Injury and/or death. Federal employees
ional group and deserve to work in a safe and
ironment. They give management their best efforts,
St not give them less when employees well being is
continue to feel a responsibility to the employees
inue wherever possible to assure progress In their
alth. 1 have never and will never betray the trust
rvlce employees place with me.



Regional Safety and Health Manager-

Retired July 13, 1993


United States
Department of


Washington 14th & Independence SW
Office P.O. Box 96090

Washington, DC 20090-6090

Reply To: 1500/6700

OCT I 9 »993

Honorable Howard M. Metzenbaum
Chairman, Senate Subcommittee

on Labor
SH-608 Hart Senate Office Building
Washington, DC 20510

Dear Mr. Chairman:

Thank you for the opportunity to provide a statement for the record on the
Occupational Safety and Health Act (OSHA) Reform Hearing held October 5. 1993.
Please Include this letter In your written record as your Subcommittee
considers S. 575.

We have reviewed the statement provided by Mr. Clemente Toledo, brother of
Mr. Frankle Toledo, who was fatally Injured In the Buchanan Prescribed Fire on
April 22, 1993. We have also reviewed statements submitted by
Mr. W. Patrick O'Connor, Mr. John N. Sturdlvant, and Mr. Charles A. Casey.
Enclosed Is a report (Attachment A) that provides pertinent facts and
clarifies the statements provided by these witnesses in reference to the
October 5 OSHA Reform hearing. While I will not address all of the concerns,
I would like to highlight some key areas that the Subcommittee should be aware

The Buchniian Prescribed Burn project was developed over a period of
approximately 18 months by the Santa Fe National Forest, Southwestern Region,
with assistance from other cooperators . The project was a complex,
landscape-scale operation, covering approximately 15,^00 acres. A small
portion of the burn was on Zia and Jemez Pueblo lands. Both Pueblos
cooperated with the Forest Service and because of mutual natural resource
objectives, the Forest Service was granted permission to burn on portions of
their land. Project planning was found to be In order and well documented.

The prescribed burn was conducted April 20-23, 1993, on the Jemez Ranger
District. The burn proceeded without Incident until 3:40 p.m. Thursday,
April 22, when a rapid, unexpected, short-duration increase and shift In the
wind that lasted about 8 minutes, caused the fire below Pajarlto Peak Road to
crown or burn in the tops of trees and move across the road In Section 20,
Township 17 North. Range I East (Zla Pueblo land). Sixteen people were In the
immediate vicinity of the crown fire as It crossed the road.

The vegetation In the general area of the accident Is dominated by
plnyon- juniper. This Is a fuel type that does not support sustained,
hlgli- Intensity fire behavior except during extreme conditions. Extreme
conditions existed for about 8 minutes at the time of the fatality.
Forestry Aid Frankle Toledo, member of the Pueblo of Jemez, was above the road
and did not escape the flame front as he ran uphill toward a ridge line.
Physical evidence shows that Mr. Toledo tried to deploy his fire shelter Just
before the flame front overcame him. Mr. Toledo, age 44, had 11 years of
experience fighting forest fires, Including four fires In 1992. He met the
qualifications for his Job.

Our responses to the statements and letter sent to the Subcommittee are
primarily based upon the the Forest Service Accident Investigation Report
dated June 19. 1993, and the 6700 letter of July 26. 1993, from Southwestern
Regional Forester Larry Henson to OSHA Area Director Mr. Edward Cosgove. Thla
letter Includes a /i7-page enclosure titled Response to OSHA Notice of
June 29, 1993, and Is dated July 21, 1993. Enclosed Is a copy of the
Forest Service Accident Investigation Report dated June 19, 1993,
(Attacliment B) . The other documents have already been provided to the
Subcommittee .


I wnnt to assure the Subcommittee that the Forest Service takes the health and
safety of all Agency personnel very seriously. Much of the strenuous outdoor
work we perform can be potentially hazardous. We emphasize "Safety First"
with all our personnel and especially with those who work on fires.

Our accident Investigators are trained to approach every accident as a
preventable one. In the case of this tragic fatality, members of the
12-person Investigation team spent about 175 days conducting their
Investigation I am satisfied the Forest Service has conducted a thorough
investigation that Is well documented.

Ue would be glad to come and visit with your staff to further discuss these
Issues. Please do not hesitate to call us If you have questions about this
report .





Attachment A


Mr. Clemente Toledo's statements.

Statement #1: "After lunch the Forest Service started rushing the fire. 1

think they were doing that to save money so they wouldn't have
to pay us for another day. They started to drop Incendiary
devices called ping-pong balls and began torching from
helicopters . "

FS Comment: Incendiary devices were used each day of the prescribed burn

before and including the day of April 22. Use of these devices
began about noon of each day when the weather conditions were
best. The higher afternoon temperatures, along with the amount
of fire produced by the Incendiary devices, were required to
produce fire intensities needed to meet the burn objectives of
the approved prescribed burn plan. A ping-pong ball machine,
helitorch, terra-torch and hand ignition were all used to ignite
the prescribed burn and to control the progress of the fire. To
generate these heat intensities and effect the fire's movement,
more or less fire was used at the direction of the Firing Boss.
The Accident Investigation Report documents that ignitions done
were within the Prescribed Burn Plan.

A Prescribed Burn Plan is developed that addresses the
objectives, weather parameters, resources needed, funding, etc.
This plan is then approved by a Line Officer. All conditions
must be met before the project can proceed. If adequate funding
were not available to start and finish the project as planned.
It would not be approved. The burning conducted on April 22 was
on the third day of a planned four-day ignition plan. Use of
the Jemez Crew was planned for each of the four planned ignition
days .

Statement #2: "We didn't have the proper equipment such as respirators, brush
coats, boots and working fire .shelters. The Forest Service did
not provide these to us and on a salary of $7,000.00 per year,
we could not afford to buy this equipment. It is a hard Job to
do with no personal protective equipment."


FS Comment: The Forest Service does provide personal protective equipment
(PPE) to do the various Jobs In the organization. The Jemez
Ranger District provides, annually, to the Jemez and Zla Pueblos
enough PPE to outfit at least 60 personnel from the Jemez Pueblo
and 20 from the Zla Pueblo when they are recruited for
prescribed or wildfire suppression assignments. The Jemez Crew
was made up of 16 Jemez and 6 Zla Pueblo members. There was no
shortage of available PPE at the Pueblos when the Jemez/Zla crew
was recruited and hired. For each job that Is done In the
Forest Service, a Job Hazard Analysis (Form 6700-7) Is
completed by workers familiar with the Job and work
supervisors. The form Is then signed by a Line Officer. In the
case of flreftghtlng or prescribed burns, the Forest Service
requires hard hat, goggles, gloves, noraex shirt and pants, fire
shelter and 8-Inch lace-up leather boots. All PPE is provided
to employees with the exception of boots. Boots are a condition
of employment for all Forest Service employees. This Is well
understood by the Jemez Pueblo members of this crew due to their
past experience as Southwest Firefighters hired under the
Administratively Determined (AD) Emergency Pay Plan.

Brush coats are provided for cold weather use. The coats are
made of nomex which can provide some warmth plus still provide
the benefits of nomex. Jemez Crew aiembers were not required to
have brush Jackets. Brush Jackets were Identified In the on the
Job hazard analysis as a requirement for individuals handling
flammables, but not for those doing general work.

Respirators were not listed as PPE on this prescribed burn nor
are they required for wlldland f Iref ightlng. Respirators do not
filter out carbon monoxide and breathing through them places an
added stress on the body. See page 39 of the Southwestern
Region 6700 memo, dated July 26, 1993, for a more complete
discussion of respirators.

Statement #3: "Some people had to use their fire shelters, but they quickly

found out that they were old and torn and would not protect them
from the fire . "

FS Comment: The Forest Service Investigation team did Inspect the shelters
and protective Polyvinyl Chloride (PVC) bags. As a result of
this Investigation, It was determined that two of the PVC fire
shelter bags had black aluminum oxide residue In them. This Is
an Indication of abrasion to the shelter surface and the folded
bags. To avoid potential problems, each individual has a
personal responsibility to inspect their shelter when they
receive it and then every 2 weeks throughout the fire season.
The fire shelters are replaced If they show evidence of
excessive wear (black aluminum oxide residue inside the PVC
case) . One of the shelters should not have been on the f ireline
and the other shelter was questionable.

One of the fire shelters was torn In two places with a 2 to
3 foot tear. This shelter was successfully deployed and used by
two firefighters. In this case, the firefighters did receive
minor burns to hands and elbows, but did not receive any
Injuries as a result of the tears. Three other shelters were
successfully deployed. (See the Accident Investigation Report,
Tab F for more complete information.)


SCatement #4: "The fire then started to burn where It was not supposed to. We
call this Jumping the line."

FS Comment: During prescribed burns It Is Imperative that good weather

forecasts are available to the Fire Behavior Specialist and the
management team. On this burn, Mr. Roy Pennington, Fire Weather
Forecaster with the National Weather Service, was a member of
the prescribed burn team and was on site. The accident
Investigation team found that the Fire Weather Forecast for
April 22, 1993, was well prepared and weather predicted was
within the prescription parameters for the Buchanan Burn.

Weather conditions, fire Intensities, and rates of spread
remained within prescription up to 3:40 p.m. At 3:40 p.m. a
rapid, unexpected, short-duration Increase and shift In wind
occurred, causing the fire to crown In the trees Immediately
below the Pajarlto Peak Road. This crown fire then spread
across the road. The fire across the road was outside the
prescribed burn perimeter and was not within burn prescription
parameters. This condition lasted for 8 minutes and resulted in
the fatality.

Armando L. Garza, Fire Weather Program Manager. National Weather
Service, Southern Region Headquarters, reviewed the weather data
and Mr. Pennington's work and concluded, "1 therefore find that
the Information furnished by Roy was correct and complete."
(See the Accident Investigation Report, Tabs B and C for more
information . )

Statement #5: "1 don't know of any benefits that the family will receive and
Frankle's wife, Brenda, Is very distraught."

FS Comment: The Santa Fe National Forest Personnel Officer, Ron Benagas,
began working with the Toledo family on the evening of
April 23, 1993. Since that time, the paperwork has been
processed to apply for the payment of the Public Safety
Officer's Benefit Act to the widow (Brenda Toledo). The
Department of Justice just approved this application and payment
Is expected within the next several weeks. Mrs. Toledo and her
daughter will be receiving monthly Office of Workman
Compensation Program (OWCP) payments based on computations
provided by the Santa Fe National Forest to the Federal Office
of Workman Compensation Program.

Statement «6: "This tragedy happened because the Forest Service was trying to
save money at the expense of Its workers* health and safety.
They did not have enough workers on the Job and were pushing us
too hard, because they didn't want to pay us for another day.
They didn't think about the crews up there; they should have
evacuated us when the fire first got out of control."

FS Comment: The project would not have been approved or started. If funds
were not available. There were 123 people assigned to conduct
the prescribed burn. As stated In response to Statement #1,
this crew was planned for use for at least one more day,
regardless of what was accomplished on April 22. The Accident
Investigation Report documents that the planning was well done,
qualified personnel were used, and all planned resources were on
site. The management team conducting the prescribed burn made
the on-site decisions for timing and methods of firing to
execute the burn according to plan. There Is no Indication that
the burning was being rushed. The management personnel were all
In place In the Immediate vicinity of the crown fire, and the
crew, though stretched over approximately a 1,500 to 1,800 foot
distance, was equipped with four radios for communications. The
crew had to handle only one small Incident of spot fires across
the road preceding the crown fire at 3:40 p.m.


Statement #7: "I also understand that the Forest Service refused to allow the
Union to be part of the Investigation, and stonewalled OSIIA
Inspection by not allowing the Investigators to Inspect the

FS Comment: The Union In question Is the American Federation of Government

Employees (AFGE) , Local 3137, representing only employees of the
Santa Fe National Forest. Within the Region, there are four
other National Forests that are represented by the National
Federation of Federal Employees (NFFE) union. There Is also a
national NFFE agreement within the scope of the Chief's
authority .

The Investigation of the fatality was the Regional Forester's
responsibility. The Regional Forester determined It was not
appropriate to have a local forest union representative
participate as a member of the regional investigation team since
presumably there would be reglonwlde Implications and
recommendations .

When the OSHA Inspectors arrived at the Jemez Ranger District
for the first time on Monday, April 26, 1993, they were escorted
to the site of the fatality by district personnel as quickly as
transportation could be arranged and other ongoing activities
cancelled. OSHA Inspectors were escorted to the fatality
si te- -despite the fact that their own personal attire did not
meet the Forest Service standards for PPE to enter a prescribed
burn area.

Statement #8: "The Forest Service also removed evidence from the scene before
OSJIA Inspected It."

FS Comment: The evidence related to the fatality and shelter deployments was
collected In accordance with standard criminal Investigation
procedures by a qualified Forest Service Criminal Investigator.
Bureau of Indian Affairs Criminal Investigators were also at the
site on the evening of April 22, 1993, and conducted their
required determination of criminal, or accidental, cause for the
fatality. The evidence was collected and removed to safe
keeping on Friday afternoon, April 23, 1993. The OSHA
Inspectors arrived at the Forest Service Regional Office four
days later on Monday, April 26, 1993, and announced for the
first time that they Intended to conduct an Investigation. OSHA
had been notified of the fatality at approximately 10 a.m. on
Friday, April 23, 1993. During the week of April 26-30, 1993,
all evidence collected and removed from the site was made fully
available to OSHA Inspectors at the Jemez Ranger District. The
Forest Service also offered to place all the evidence back at
the location where It was collected, so OSHA Inspectors could
view It on site. OSHA Inspectors declined this offer.

Statement #9: "1 have been told that the Forest Service has not abated most
of the violations and does not Intend to do so. OSHA has

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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 15 of 17)