OSHA investigates

LIHU’E—The Hawai’i division of the Occupational Safety and Health

Administration began an investigation Monday into the disappearance of Amfac

sugar worker Davis Cortez Jr.

Division chief Jennifer Shishido said OSHA is

looking into an “event.” It would be premature, she said, to label the inquiry

as an accident investigation or anything else. “We have to determine first what

happened. We haven’t ruled out anything yet.”

And based on Shishido’s

experience, just about anything can turn up in the course of an investigation.

“There have been numerous cases where we’ve assumed that it was an

accident and it turns out it was a criminal case,” she said. “And sometimes

it’s the opposite.”

OSHA investigated an industrial accident on Maui

involving a backhoe. After interviews were conducted, it was discovered that

the backhoe driver had put the bucket on another worker’s head deliberately and

murdered him. Another time, the so-called accident turned out to be a

suicide.

Davis Cortez Jr. disappeared on April 15 two hours into his night

shift at the Amfac processing plant in Lihu’e. His car, car keys and street

clothes were found at the plant, but police have not been able to link his

disappearance to anything that might have happened at the plant. “There is no

body,” Shishido said.

She anticipates the investigation will take at least

six weeks and there is no guarantee it will solve the mystery surrounding

Cortez’ disappearance. The investigation will include site inspections,

employer conferences and confidential employee interviews.

Even though the

Kaua’i Police Department investigation is still open, Shishido said OSHA could

not wait any longer to jump in.

“If we wait too long then everything

becomes too cold,” she said. “People start their versions of what happened, and

the freshness of their information becomes altered as they re-tell and hear

rumors.”

There are already at least 16 different versions circulating about

the fate of Cortez, she said.

Did he fall into the crusher? Was he pushed

in? Were there mysterious strangers on site spotted talking to Cortez who could

have spirited him away? Did he deliberately disappear?

KPD Chief George

Freitas said police are now focusing their efforts on trying to find the

sources of many of those rumors.

“We have some speculation from different

people that there was foul play, so our detectives have been actively trying to

locate people who claim to have information about foul play and seeing if any

of them have first hand information.”

Even with all the stories, Shishido

said that people might never know what really happened to Cortez that

night.

If OSHA cannot prove that an accident took place, she said, then the

inspector will go home. Case closed.

But if OSHA concludes that the Cortez

case was an accident, then the agency will determine whether there were any

violations of the occupational safety health law and standards related to the

accident.

“We can issue penalties of up to $70,000 per occurrence,” she

said. “So it can be pretty stiff.”

Investigators will be looking at safety

devices around the cane-crushing machine to see if they may have

failed.

“The only time that someone would normally be putting their hands

in or arms or bodies or parts close to it would be where they are maintaining

it, they are freeing up a jam or fixing it, Shishido said.

By law, she

said, there must be a lock out/tag out procedure (called a LOTO) in place that

insures the machine will not be functional during maintenance.

“There has

to be a means where the employee who is going to be working on it either tags

out the start mechanism or goes to the circuit breaker box and pushes that out

of commission and puts a lock on it so nobody can start it up while they are

working on it. That’s what the law requires.”

Shishido said the inspector

may be looking to see what kind of training Cortez received on maintaining the

crushing machine, and what procedures were in place “associated with ensuring

that the worker and supervisor and the equipment were able to do what was

necessary at the time.”

If the inspector finds that violations of safety

laws did occur, then the division can cite $7,000 per item.

But if there is

evidence that the employer knew or should have known of the hazards and did

nothing, then the violation fee increases potentially tenfold.

“Failure to

train an employee could be $70,000,” she said. “Failure to insure equipment was

maintained could be another $70,000. Failure to clean up after a certain

process could be another. So there could be multiple items.”

During the

investigation, the inspector can also issue citations for any other unrelated

serious hazards found on site that are brought to his attention.

In 1991,

Lihu’e Plantation, which is now Amfac Sugar, underwent a planned

inspection.

Eighteen violations were found, resulting in a penalty of

$1,260. The company’s sugar refining plant also was cited for six

violations.

Violations included: Machine guarding to protect the operator

and others in the area was lacking (the report did not specify which machine at

the plant this referred to); railings not able to withstand 200 pounds;

compressed gas cylinders stored inside buildings were not upright and not 20

feet away from other combustible materials.

The company also was cited for

failure to have a training program to instruct employees of safe work

practices. A follow-up inspection two months later resulted in no

violations.

The island’s other sugar company, Gay & Robinson, submitted

to an OSHA inspection in 1998. Seven violations were noted.

Shishido said

that even if OSHA cannot prove violations took place, the agency still has the

power of information.

“Even if we cannot sustain a violation, if we can get

the word out that these things can happen, we can educate people to avoid such

occurrences again in the future. That’s a powerful tool also.”