California Deal Tightens Lab Safety

In an agreement aimed at improving laboratory safety across the nation’s largest public university system, the Los Angeles County District Attorney’s Office last month dropped felony charges it had filed against the University of California for labor code violations that allegedly led to the 2009 death of a UC Los Angeles chemistry staff researcher.

As schools in California and around the U.S. examine the agreement with an eye to how their own safety programs measure up, UCLA chemistry professor Patrick Harran’s future remains uncertain.

The district attorney did not drop similar charges against Harran, in whose lab the researcher worked. Instead, the judge postponed Harran’s case to Sept. 5 to allow time to consider a defense motion that could lead to dismissal of those charges. The motion asserts that California Division of Occupational Safety & Health (Cal/OSHA) investigator Brian A. Baudendistel was convicted as a teenager of a 1985 murder, and that the conviction calls into question the inspector’s credibility.

The charges in both cases stem from a Dec. 29, 2008, fire in Harran’s lab at UCLA. On that day, according to investigation notes and reports C&EN obtained through public records requests, Sheharbano (Sheri) Sangji was using a syringe to transfer tert-butyllithium from a reagent bottle to a reaction flask. The chemical ignites spontaneously in air. Somehow, the plunger came out of the syringe, exposing the reagent to the atmosphere. Sangji, wearing nitrile gloves but not a lab coat, also knocked over an open flask of hexane in the hood. The tert-butyllithium and solvent ignited, and Sangji’s clothes caught fire. Sangji was burned on her torso, arms, and hands. “Her hands had some of the deepest burns, down to the tendons,” says Naveen Sangji, Sheri’s sister. Sheri died of her injuries on Jan. 16, 2009.

Cal/OSHA investigated the incident and in May 2009 fined UCLA $31,875 for four labor code violations.

In California workplace fatality cases, once Cal/OSHA’s initial investigation concludes, the agency routinely sends the case to its Bureau of Investigations for further investigation and evaluation to see whether criminal charges might be warranted.

Under California law, it is a crime for any employer or employee manager to willfully violate any occupational safety or health standard in a way that causes death or prolonged injury to an employee. “Willfully” means that the employer’s actions were not accidental, although it does not imply that the employer intended to break the law or injure an employee. A December 2009 Bureau of Investigations report, authored by Baudendistel, recommended charges of involuntary manslaughter in the Sangji case, as well as felony charges of willful labor code violations.

The Los Angeles County District Attorney’s Office subsequently filed three felony charges of labor code violations against the UC Board of Regents, the governing body of the UC system, as well as Harran on Dec. 27, 2011. The charges cited failure to provide chemical safety training to employees, failure to correct unsafe workplace conditions and procedures in a timely manner, and failure to require work-appropriate clothing and personal protective equipment. If convicted of the charges, UC faces fines of as much as $4.5 million, and Harran faces up to four-and-a-half years in state prison.

On July 27, in exchange for the district attorney dropping the charges, the UC regents accepted responsibility for the conditions under which Harran’s laboratory was operated at the time of the incident. They also agreed to establish an environmental law scholarship in Sangji’s name at UC Berkeley. The scholarship will have a $500,000 endowment, to be funded within one year.

UC also agreed to comply with the terms of a specified lab safety program for the chemistry and/or biochemistry departments at all campuses. In large part, the program requires the university system to follow the labor code laws it was cited with breaking: For example, the campuses must maintain laboratory safety manuals and chemical hygiene plans “in full compliance” with California labor code.

Other components of the program state that UC campuses must require principal investigators (PIs) and all other laboratory personnel to complete training on laboratory safety and their safety responsibilities, prohibit new PIs from operating their labs until after completing lab safety training, ensure that standard operating procedures (SOPs) are written and reviewed for a specified list of chemicals, and report occupational injury or illness immediately to Cal/OSHA. The training components must begin within 60 days of July 27.

UCLA is further obligated to conduct safety inspections and require PIs to assess whether personal protective equipment (PPE) is adequate for the procedures done in their laboratories. The agreement outlines a minimum laboratory PPE standard, starting with full-length pants and closed-toed shoes to be worn at all times. It also dictates that anyone found working in a laboratory without required PPE must be removed from the lab and the incident documented.

The agreement states that both parties reached this deal, in part, because UC cooperated with Cal/OSHA and district attorney investigations, and because a criminal conviction would negatively affect the entire UC system and its “many thousands of students, employees, and indirectly, the public.” The UC system faced potential disqualification from receiving federal contracts as well as “loss of funding, loss of licenses and exclusion from areas of research vital to public health, public safety, and national security,” the agreement says.

The district attorney’s office declined to answer any questions about the agreement, citing the ongoing case against Harran.

Although the lab safety program outlined in the agreement cites regulations that apply only to employees, all personnel working in research laboratories will be required to follow training, PPE requirements, and other safety policies regardless of their specific employment status, says Erike Young, director of environment, health, and safety for the UC Office of the President. Instructors and teaching assistants in teaching labs also must follow the requirements, but the same is not required of students taking lab courses.

UC does not have an estimate for the cost of implementing this program across its 10 campuses. It did add a new position for a laboratory safety manager to be part of the president’s office. That person “will assist campuses in implementing system-wide laboratory safety initiatives developed during the past two years and serve as project manager to ensure timely completion of those initiatives and processes specified in the settlement agreement,” Young says.

How the agreement will be implemented on campuses remains to be seen. UC Davis’ Chemical & Lab Safety Committee “has been evaluating our practices extensively over the past year and has developed recommendations for a more robust, strengthened lab safety program,” says spokeswoman Claudia Morain, adding that the recommendations align with the terms of the agreement. The committee’s proposal is currently being reviewed by the provost. Representatives of several other UC campuses did not respond to interview requests or declined to comment.

Other California schools are studying the agreement with an eye toward what it might say about Cal/OSHA expectations elsewhere. Larry Gibbs, associate vice provost for environmental health and safety at Stanford University, thinks that the PI training requirement is a good one, provided it’s done right. Faculty must understand their responsibility to ensure the safety of lab personnel and the fact that they are accountable for the actions of lab workers, he says.

But Gibbs also notes that the minimum PPE standard may be troublesome to implement across the board for some organizations. In a medical school, for example, women doctors might wear a dress or skirt to see patients, then want to stop in their lab.

Schools in other states have also been following the case and are reading the agreement while considering what to implement in their own lab safety programs.

“I think we do a lot of what they’re proposing,” says Louis DiBerardinis, director of the Environment, Health & Safety Office at Massachusetts Institute of Technology. He does question the requirement to develop an SOP for each of the several hundred chemicals listed in the agreement. Depending on the circumstances, he thinks it might be better to have an SOP that applies more generally to a class of chemicals or a particular process. MIT is also working on integrating laboratory safety information into its new PI orientation, DiBerardinis says.

“I think we all want to do things that make sense from the safety point of view while minimizing the administrative burden of having to document this, that, and the other thing,” adds Peter Ashbrook, director of research safety at the University of Illinois, Urbana-Champaign. As his university has worked to improve its lab safety program, he’s been pleased by the faculty’s cooperation. “We’ve tended for years to tread carefully into their turf, but we seem to be welcome and people are taking us seriously,” Ashbrook says.

As campuses in California and elsewhere try to learn from the tragedy and settlement agreement, Harran’s defense against the criminal charges continues. After the July 27 court hearing, Harran’s attorney, Thomas P. O’Brien, described the prosecution’s case as “flawed from the start” and “based entirely on a report by a known killer and a known liar.”

In the July defense motion, O’Brien and colleagues requested a hearing into the credibility of Cal/OSHA investigator Baudendistel and a dismissal of the charges against Harran. The motion asserts that Baudendistel was convicted of first-degree murder for a crime committed in 1985, when Baudendistel was 16. According to newspaper accounts of the crime, three men shot and killed a 26-year-old man during a methamphetamine deal. One of the perpetrators was a Brian Baudendistel who the defense team determined had the same birthday as the Cal/OSHA investigator.

The defense motion alleges that Cal/OSHA investigator Baudendistel did not disclose “his prior crime of murder” in applications for his current Cal/OSHA job, his firearms permit, and his private investigator license. In addition, the motion alleges that Baudendistel evaded questions when the district attorney’s office asked him about the crime. But fingerprint analysis by the office suggests that he was indeed the same person who was convicted of the crime, the motion says. The district attorney declined to comment on the fingerprint analysis or its results.

The motion asserts that evidence showing Baudendistel failed repeatedly to report his criminal record on applications or had lied to the district attorney’s office about his past would undermine his credibility.

The defense motion argues that a judge faced with evidence discrediting Baudendistel would not have relied upon the 2009 Cal/OSHA Bureau of Investigations report as the basis for issuing the warrant. The motion continues that if the warrant was invalid, then the district attorney failed to start prosecution against Harran within the statute of limitations for the crime, which it argues expired on Dec. 29, 2011. As a result, charges against Harran must be dismissed, the defense motion says.

“The defendants’ most recent attempt to deflect attention from the charges brought against them simply does not relate in any way to the circumstances of Ms. Sangji’s death or the actual evidence collected in Cal/OSHA’s comprehensive investigation,” says a Cal/OSHA statement provided by spokeswoman Erika Monterroza.

Baudendistel did not return repeated phone calls from C&EN asking for comment on the case.

Maureen Pacheco, assistant director of the Center for Juvenile Law & Policy at Loyola Law School in Los Angeles, says Harran’s defense team is creative, because the requested hearing is typically used to question the validity of search warrants, not arrest warrants. “It’s a novel issue,” she says. “I haven’t seen it before.”

Pacheco and other experts in juvenile law say that, if Cal/OSHA investigator Baudendistel is the one who was involved in the 1985 murder, then he probably didn’t have to report the crime on his applications. The person connected to the 1985 murder was a minor at the time of the crime, and a 1990 U.S. Court of Appeals decision describes him as a ward of the California Youth Authority, the state’s juvenile prison system. That means he was tried through the juvenile court system, not the criminal one.

In California, state law allows juvenile defendants to petition a judge to seal their juvenile criminal records. The person who pled no contest to first-degree murder could have asked for his records to be sealed after completing the terms of his probation and providing sufficient evidence of his rehabilitation, Pacheco says. (In 2000, California voters passed a ballot initiative that made murder one of several crimes that juvenile offenders can’t have sealed. So a petition to seal would have had to be filed before the initiative went into effect.)

According to California law, a sealed juvenile record essentially means the case never happened, Pacheco says. Therefore, the person convicted of the murder could have truthfully answered “no” on any application asking if he had prior criminal convictions. “Because according to the law, there hasn’t been one,” she says.

The reason for wiping the slate clean for juveniles, Pacheco says, is rehabilitation. “The whole goal of juvenile court is that people can put those things behind them,” she says. “And that wouldn’t be possible if others could always go back and access those records.”

Even if the convicted person hadn’t sealed his juvenile records, they still would remain confidential, and it’s unlikely he would have been compelled to disclose his past on a Cal/OSHA job application, says Stephanie Sauter, the founder of the Law Project of Los Angeles, which provides legal assistance for people with past criminal convictions.

But if investigator Baudendistel is the person who was convicted, he could have hurt his credibility in his responses to the district attorney’s questions about the 1985 crime, Pacheco says. The only way to know for sure, she says, is to look at the specific questions the district attorney asked and the details of the 1985 case. For example, if the attorneys asked him if he had been a ward of the California Youth Authority, to be fully honest, he’d have to respond, “yes.” But if the attorneys asked if he had killed a man in 1985, he could have said, “no,” and still been forthright, because he was not the man who fired the shots, according to newspaper accounts of the crime.

Sauter sees the issue of Baudendistel’s communication with the district attorney as a gray area. But if Baudendistel had committed the murder and had sealed his juvenile records, she says, he could make the argument that under the law the case never happened, relieving him of the obligation to reveal his involvement in the crime. Considering all the possible situations involving what Baudendistel wrote on his applications or said to the district attorney’s office, Sauter thinks it’s unlikely his credibility is open for attack.

The defense motion also claims that a murder conviction can be used to discredit investigator Baudendistel’s report and any future testimony. But Pacheco thinks that murder is less relevant for this case than a conviction of fraud or perjury would be. Sauter goes further, suggesting that if the case went to trial, a judge probably wouldn’t allow the defense to tell a jury about the alleged murder, because it isn’t relevant to the case and could unfairly prejudice the jury.

The legal issues raised by the defense motion could get resolved on Sept. 5, when Harran will appear again in court for arraignment.

After the professor’s previous court appearance, UC Vice President and General Counsel Charles F. Robinson reaffirmed UC’s support of Harran, saying, “Justice is not served by the criminal prosecution of professor Harran.”

To download a PDF of the UC agreement, go to http://cenm.ag/agreement.

To download a PDF of defense’s motion, go to http://cenm.ag/defense.