Rafael Moure-Eraso, Tony Mazzocchi and the Battle for Worker Safety

Rafael Moure-Eraso has spent his entire professional life working to protect worker health and safety.

He worked for ten years with Tony Mazzocchi at the Oil Chemical and Atomic Workers Union — where Moure-Eraso stood up to OCAW union bosses and with the insurgent Mazzocchi in two failed campaigns for the OCAW presidency. (For a fascinating history of this period, see The Man Who Hated Work and Loved Labor: The Life and Times of Tony Mazzocchi by Les Leopold, Chelsea Green Publishing 2007.)

mazz And he is now completing a five year term as Chairman of the Chemical Safety Board.

The Chemical Safety Board investigates chemical industry accidents and makes recommendations on how to make the workplace safer.

You can tell whether a CSB Board chairman is doing his or her job by the amount of heat generated on Capitol Hill.

And Moure-Eraso generated heat — first and foremost from lobbyists from the oil and chemical industry, who believe that he morphed the agency from investigation to regulation. (The regulators in this area are the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA).)

But it was bi-partisan opposition to Moure-Eraso. Few Democrats defended his tenure at the Board. And for this, we go back to the oil and chemical workers union.

The OCAW was folded into the paperworkers union in 1999 and the workers eventually came to be represented by the United Steelworkers. The Steelworkers and Moure-Eraso didn’t get along.

Part of the problem has to do with how to protect workers in the oil and chemical industry.

Moure-Eraso has been pushing structural changes. Some countries have adopted what is known as the precautionary principle or the safety case — that’s where the companies are required to make sure the facilities are safe before making them operational. The United States leans more toward what is known as process safety management. Under this system, the facilities go on line and then regulators must prove that a facility is unsafe. As a result, the U.S. worker death and injury rate is three times higher than in the United Kingdom, which leans more toward the precautionary principle.

We asked Moure-Eraso if it was this difference that led to the difficulties with the United Steelworkers.

“You look at what you call the precautionary principle, or the safety case, or our recommendations to improve process safety management, the union will claim that they support them,” Moure-Eraso told Corporate Crime Reporter in an interview last week. “They will show that support in different ways.”

“But they believe they are the ones who hold the monopoly on advocacy for workers. And of course, by and large, they do. But if there are some additional ideas on how to go about protecting the lives of workers, they might diverge from what they are preaching, they tend to be opposed. They want to have a monopoly on ideas on who is an advocate for workers.”

“At the Chemical Safety Board, we consider ourselves advocates for workers. We work to prevent workers from getting blown up and killed and to protect communities. And we have certain strategies to pursue that. Some of the unions resent that we basically don’t fall into line behind the strategies they would like to pursue.”

Is this rift between the Chemical Safety Board and the United Steelworkers — is it personality driven?

CSB Chair Moure-Eraso

CSB Chair Moure-Eraso

“I wouldn’t know,” he says. “We are trying to do our work. When we are in the field doing our investigations, we are dealing with technical and public policy issues. If there is some personal animosity, at least I know it is not coming from me.”

“The safety case has become to a lot of people a polarizing tool. We are trying to approach the issue raised by the safety case. A company will have a way of evaluating the risk and how they deal with the risk.”

“That will be the basis for regulation. That’s the basis for the safety case. Without having to say that this is the safety case, we are looking to implement the elements that improve process safety management and generate the preventive aspects of process safety management. That should be the focus.”

“Rather than just describe the risk, we should say — what steps need to be taken to reduce the risk? And then make them very concrete and specific and have the regulator come and check to make sure that those steps needed to reduce the risk have been taken.”

Process safety management is the current state of affairs. You are proposing implementing the safety case. What’s a clear example that would require a company to prove that its facility is safe before it is on line?

“In California, one of the recommendations that we made for the state to improve the regulatory regime in process safety management was the identification of indicators that could be predictive of future failures.”

These would be your red flags.

“Exactly,” Moure-Eraso says. “These are very specific. And at this moment, California officials are looking at indicators. They could be very specific and vary industry to industry. And they can be used to establish a benchmark.”

“For example, when there is excess combustible gases that would otherwise escape into the environment, they are often flared off.”

“Typically, flaring is an indicator of too much pressure in the process. And that is undesirable. If there is too much pressure, it goes to a safety device — the flare — to relieve the pressure.”

“And a high number of flares a month could be an indicator of higher risk. That could be one indicator. If you count the number of flaring episodes, that would give you an indication of how many upsets there are in the process. And you can take steps to reduce the number of upsets and make your process safer.”

If the number of red flags reaches a certain number, then what happens?

“That depends on the state,” Moure-Eraso says. “California does have the authority, when there is a dangerous situation at a facility, to stop the process. And California has stopped a process a number of times. Some other states already have that authority.”

You are recommending that the regulations be tightened so that the regulator can move more quickly?

“Absolutely,” Moure-Eraso says. “For example, if there is a flare incident indicator in place. Then Cal/OSHA could use that to say — this operation requires special attention, or stop the process if it is dangerous and they consider it serious enough. But this gives them a way to diagnose and prevent.”

“Typically, in Europe the regulators will use those indicators to set goals for the regulated industry. If they are concerned about excessive flares, for example, they will issue a goal to industry to reduce those events by five percent in the following year. In this way, they try to make progress over time on the accident rate. There is nothing analogous in the United States now. There are no risk targets. There are no risk goals.”

Moure-Eraso is wary about using criminal prosecution as a primary tool for deterring wrongdoing in this area.

“The increasing focus on criminal prosecution of accidents comes in an era when no significant changes or improvements are being made to EPA and OSHA safety rules and programs for hazardous refineries and chemical plants,” he has written.

“Post-accident prosecution does little to mitigate the harm to a community.”

“Under our current circumstances, criminal prosecution has little opportunity for deterrence,” Moure-Eraso told Corporate Crime Reporter.

“Criminal prosecutions tend to obfuscate the opportunity to learn from a particular accident. When you are conducting an investigation after a big explosion, all you find is a big hole in the ground. We have to depend on the witnesses who worked at the corporation to find out what happened. These witnesses are providing us free information for us to learn what should not be done. If those people are being told that what they tell us is going to be used to make a criminal prosecution of their peers or of others, you are going to have this situation where people will say — I don’t want to get involved in any criminal investigation. I don’t want to get involved in any law enforcement action.”

“I just want to find out what happened. Our role in a root cause investigation is to find out what went wrong and why it went wrong. We won’t be able to have access to people who might be intimidated if they are called to be part of a criminal investigation.”

“If there is a criminal violation of any law, law enforcement should enforce the law. I am not opposed to that. It should happen. But when you are trying to use criminal prosecution as the basis to improve and prevent future accidents like the one you are looking at — it’s a very weak deterrent. And that’s mostly because when you have a complicated accident, you need a detailed investigation to learn what happened.”

“If it were completely reduced to a criminal investigation, you know how criminal prosecutions happen. It will end up more than 90 percent of the time in some sort of deal, some sort of plea bargaining. And under the terms of the plea, the records will be sealed and all the details of how this happened won’t become public and you will learn absolutely nothing about how to prevent the next one.”

Moure-Eraso agrees that we are at a low point when it comes to the movement to protect worker health and safety.

“OSHA recognizes today that their systems for making regulations are broken and doesn’t work,” he says. “You cannot pretend to apply 40 year old regulations to modern industry. Many of the regulations on the books are obsolete. And they don’t have any way to improve them. There has to be different approaches in the short term to deal with the paralysis at OSHA and EPA.”

Who are Tony Mazzocchi’s successors?

“It was a different time,” Moure-Eraso says. “Tony’s work was to create an agency that would deliver. We are now at a different time. It seems like the process of regulation as the principal tool to get things done is in a state of being frozen.”

There are no strong labor voices for occupational safety and health?

“It’s hard to make a general statement like that. There are people working very hard at the grassroots level. These are the occupational safety and health groups that work with labor unions at the grassroots level. The local unions in California that represent the Chevron workers and the Tesoro workers in the Bay Area.”

Why isn’t that energy filtering up through the labor unions at the top?

“It’s a reflection of the difficulties of the times. There is an office of occupational safety and health at the AFL, directed by Peg Seminario. But her abilities to affect changes are quite limited.”

[For the complete q/a transcript of the Interview with Rafael Moure-Eraso, see 29 Corproate Crime Reporter 11 (12), March 16, 2015, print edition only.]

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