THE STATE ROUTINELY DUMPS THE AIDS VIRUS DOWN THE SINK
Ellen Avilla was a good soldier in the war on disease. For almost five years, while working as a technician in the Arizona Department of Health's state laboratory, Avilla performed tests on thousands of blood samples--checking them for HIV (the virus that causes AIDS), hepatitis, measles and other infectious and deadly illnesses. According to a series of personnel evaluations compiled by her supervisors, she did her job well, earning high marks for her skill and willingness to follow orders.
But when state lab officials told Avilla last year that she would be required to dump vials of blood and other liquids used in AIDS and hepatitis tests down the drain of a lab wash basin, she balked. This was one order, she says, that not even the most loyal lieutenant could obey in good conscience.
"I couldn't believe that they wanted to dispose of infectious material like that by washing it down the sink," Avilla says. "That kind of waste shouldn't be put into the public sewer system, especially when it is virtually untreated.
"When I tried to tell them it was wrong, I was given a choice: Drop that stuff down the sink or leave. I chose to leave."
In a $2.5 million lawsuit Avilla and her attorney husband, Steve, plan to file next week in federal district court in Phoenix, Ellen alleges that the health department violated whistle-blower laws and her civil rights by attempting to harass her into keeping quiet about the questionable disposal method and other safety concerns.
Surprisingly, while health department officials have denied that any of its employees harassed Ellen, they reluctantly admit, in internal agency papers that will be filed as part of the lawsuit, to pouring test samples down the sink--a practice they insist is both legal and safe.
More disturbing, despite numerous federal and industry rules that require thorough sterilization of potentially deadly bacteria before they can be washed down a public drain, the state regulators charged with monitoring the lab agree. Regulators gave the health department the official okay last December to continue the drain dumping.
"It is difficult to believe that officials of the State of Arizona have sanctioned the release of potentially deadly diseases into the sewer and water supply, but they have," Steve Avilla says. "The only way to stop them now is in court."
The Avillas' battle with the health department began in 1991, when a lab supervisor, William Slanta, allegedly refused to allow Ellen, then 42, time off work to learn testing procedures that were necessary to qualify her for promotions. She filed a complaint with the department, accusing Slanta of unfairly lowering one of her performance evaluations and of discriminating against her on the basis of age. She also charged that she had seen Slanta filling out lab paperwork while wearing gloves that he had used to perform a hepatitis test.
"My wife was in her 40s," Steve says, "and [Slanta] seemed to have a problem with older lab techs advancing within the department. So he didn't give her the training time that younger technicians were getting.
"Plus, she felt he was jeopardizing safety, because that paperwork could be handled by secretaries and a lot of other people who might be exposed if the disease got on it. Hepatitis can live on paper for six to eight days."
The department, after reviewing Ellen's grievance, allowed her to enroll in a training course and ordered that the performance evaluation be raised.
But the victory did little to improve working conditions for Ellen. Bad blood remained between Slanta and the lab tech, and she was soon transferred out of the testing area and into a department called "Scientific Services," a euphemism, Steve says, for "bottle washing."
Although Ellen--a soft-spoken woman who holds science degrees from the University of California at Berkeley and Arizona State University--was reduced to lifting large, heavy boxes filled with dirty specimen bottles into a wash basin, she says she was happy to perform this mundane task rather than work for Slanta.
"I just wanted to get away from that man," she says. "Working with him was dangerous and uncomfortable."
But her slight build (five foot three and under 120 pounds) soon disqualified Ellen for the strenuous grunt work. After three months and several minor injuries sustained while hoisting bulky boxes, she was transferred back to testing duties in June 1992.
She says she soon discovered that the lab had changed dramatically in her absence. During her first four years on the job, it had been standard operating procedure to run blood and fluids used in AIDS and hepatitis testing through an autoclave--a device that kills bacteria by heating them--after testing was completed. Only then would the testing mixture, totally cleansed of dangerous disease, be safely poured down the drain.
But new procedures, implemented by Slanta, required only that a small amount of household bleach be splashed into the testing beakers before they were poured down a sink in the lab. There was no mixing or stirring of the bleach into the beakers, Ellen says--a step vital to sterilize the remains of AIDS tests, which are thick and gelatinous. When bleach was poured into an infected beaker, the bleach simply floated in a thin layer on top, never coming into direct contact with the bulk of the bacteria.
Especially troubling was the fact that the sink tended to drain slowly, and the testing fluids would sometimes pool in the basin. "People would wash their hands and clean their eyeglasses in that sink," she says, "but there were no signs pointing out that samples were being disposed of there. If you had a cut on your hand or something, you could become contaminated."
Ellen also began to worry that the disease-laden fluid would leak out of the sink's pipes, which run through two floors below the third-story lab office. In addition, she wondered whether releasing the testing waste into the sewer could possibly harm nearby homeowners. The lab, located at 1520 West Adams, is adjacent to a residential neighborhood.
Despite her past conflict with Slanta, Ellen says she felt a duty to reenter the bureaucratic fray and question the safety of the sink-disposal practices. In September of last year, she wrote a memo to Ronald Cheshier, manager of the lab's serology division, expressing concern that the lab was washing "virtually untreated" waste products down the drain. She didn't have to wait long for a reaction from lab officials.
That same week, Ellen says, Slanta called her into a private office to berate her for leveling "groundless accusations." She was then told that her work wasn't up to standards, and that her test results would be closely monitored by another lab worker from that point on. Yet while Ellen was accused of sloppy work, neither Slanta nor Cheshier could point to a specific testing mistake she had made in almost five years with the department.
Slanta also wrote a "memo of concern," which was inserted into Ellen's personnel file. The memo chided her for "misinterpreting" safety rules, which he maintained allowed the lab to skip autoclaving and use bleach only. It was made clear to Ellen that in the future, she would be conducting AIDS tests, and that she would be required to dispose of the waste products by dumping them in the sink.
Instead, she filed a grievance with both the health department and the state office of the Occupational Safety and Health Administration (OSHA), complaining of the dumping and harassment, and quit the lab in October 1992.
Steve Avilla insists that the private meeting and bitter criticism, coming on the heels of Ellen's complaints about safety issues, constitutes "harassment per se."
"They were clearly trying to send an intimidating message to Ellen and everyone else in the department," he says. "If you point out safety concerns, you are going to get punished.'"
Dan Flukas, a health department spokesman, refused to comment on the Avillas' charges or the practice of sink dumping, saying, "Anything that is connected to potential litigation is not something we can talk about." Slanta did not return telephone calls from New Times.
The paper trail left in the wake of Ellen's grievance against the health department, however, does detail the agency's position on waste disposal.
In response to her complaint, Slanta wrote Ellen that a National Committee for Clinical Laboratory Standards rule book, which is used by many scientists as the bible of laboratory safety, says that bleach is sufficient to sterilize the testing waste. She was simply wrong about bleach being inadequate, Slanta wrote, suggesting that "[there is] a need for a more thorough review of the safety policies and procedures on your part."
However, it was Slanta who needed to brush up on the rules. The NCCLS guideline he quoted says bleach is sufficient for cleaning up spills of the testing fluids. Obviously, Steve points out, you can't put floor tile or a countertop in the autoclave, so high concentrations of bleach have to suffice when there are accidental spills.
But a separate rule in the NCCLS book states clearly that in all other situations, such as when emptying the waste product left behind by AIDS and hepatitis tests, "autoclaving should be performed on . . . all contaminated material."
Other respected scientific sources confirm that autoclaving should be automatic in labs that deal with contagious substances. Rules issued by the federal OSHA office and the Centers for Disease Control (CDC) are in agreement with the NCCLS guidebook. All call for autoclaving.
None of these organizations has the power to regulate the state lab, however. The Arizona OSHA office, which is independent of the federal version, has that job. After prodding by the Avillas, state OSHA regulators investigated the sink-disposal method at the state lab in December 1992. Oddly, they agreed that Slanta was justified in labeling autoclaving "overkill."
Derek Mullins, state OSHA director, declined to comment on his agency's findings, but he did make the report of the investigation available to New Times. The records show that although OSHA rules specify that autoclaving is "preferred," the state regulations are vague enough that they can be read to mean that bleaching is sufficient. In other words, OSHA is powerless to enforce higher safety standards because, technically, the health department isn't violating state regulations by merely bleaching and dumping.
What the department is doing, Steve Avilla says, is violating the rules of common sense.
"It is clear that industry custom, most respected authorities and plain logic dictates that you don't dump diseases down a sink without doing everything possible to render them harmless," he says. Pointing out that state standards require autoclaving of testing waste before it is buried in a landfill, he says that "it only stands to reason that, at the least, equal measures are appropriate before you flush it into the public sewer system in a residential neighborhood. If the state rules allow the lab to do that, then the rules are absurd and need to be changed."
Any rule changes, however, may come too late for Ellen Avilla. Despite what she calls her "obligation" to pursue the issue of drain dumping, she is worried that her conflict with the health department will earn her the label "troublemaker" in the medical-testing industry and make it difficult to find another job.
"I work to help support my family," Ellen says. "I would like to work in the health field again.
"But I don't want to die for my job. And I don't think anyone else should, either.
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