OSHA Blames Inaction on Uncertainty

By David Michaels

OSHA has been taking a beating in the press recently and now they’ve started a small campaign to respond. It began with a blistering article (based in part on SKAPP’s work) by Steven Labaton in the New York Times, an article that was then reprinted in several newspapers around the country. Now, Assistant Secretary of Labor for Occupational Safety and Health Edwin G. Foulke Jr. is out there defending OSHA’s record issuing standards that protect worker health and safety.

Unfortunately, Mr. Foulke’s arguments are reminiscent of the climate change deniers who oppose government action on global warming, claiming the science is “not settled enough” for OSHA to do what needs to be done. The agency’s claims about the number of new regulations published are also quite misleading.

In an Op Ed in yesterday’s Louisville Courier-Journal, Mr. Foulke writes that Mr. Labaton’s article:

gave the impression that OSHA has abandoned work on new health and safety standards. In fact, OSHA has published more than 20 regulatory measures to protect workers since 2001, and is working on an additional 21.

If you ask OSHA, the agency’s press office will send you a list of all the “regulatory measures” they’ve published. The list shows that OSHA has in fact published more than 20 since the Bush Administration took office, but to call them all “regulatory measures to protect workers” is ludicrous. Mr. Foulke’s claim was demolished in a recent post here at The Pump Handle by Christina Morgan. She reviewed the 22 and found the list included corrections of typographical errors, updates to footnotes in old standards, new rules that decrease employer obligations, and announcements that OSHA has approved several state occupational safety and health programs. The only new chemical standard, for chromium, was issued because OSHA lost a court case and a federal judge directed OSHA to issue the new standard.

Meanwhile, OSHA may be working on some important standards, but there is no indication they will ever see the light of day. In fact, OSHA just announced they are further delaying some of the more important ones – but this didn’t make it into OSHA’s press campaign for some reason.

Celeste Monforton reports on the Labor Department’s Regulatory Agenda (published every six months in the federal register) for The Pump Handle, and told us that OSHA has just announced additional delays in progress toward the standards for, among other hazards, beryllium and crystalline silica.

In his Op Ed, Mr. Foulke also asserts the science isn’t strong enough to issue a standard to prevent exposure to diacetyl, the butter flavor chemical that is killing and crippling workers across the food industry:

Even when the science is not settled enough for OSHA to meet the strict legal requirements to issue a standard, for example in the case of potential hazards posed by some food flavorings, the agency is taking action to protect workers.

As early as 2001, OSHA engaged the microwave popcorn industry to help protect workers from lung disease. The Agency has announced a National Emphasis Program, which includes targeted inspections to address the hazards and control measures associated with butter flavoring containing diacetyl.

This is simply wrong. The scientific evidence is quite compelling and enough to warrant action to protect workers. Many of the top scientists in occupational safety and health have written a letter to OSHA saying exactly this.

I can’t imagine the type of evidence OSHA now requires. It is possible (although extremely unlikely) that diacetyl does not cause the rare and sometimes fatal disease bronchiolitis obliterans. We don’t have absolute proof, because there are no situations we know of where workers are exposed to diacetyl and no other chemicals.

But here’s what we know so far: Workers have developed this terrible disease after exposure to diacetyl in factories where diacetyl is manufactured, where it is mixed with other chemicals to make flavorings, and where these flavorings are applied to food. When rats breathe it, they get terrible lung disease.

OSHA does not have, and can never get, absolute proof. OSHA is asking for the impossible – the study where workers are exposed to diacetyl and nothing else. And by asking for the impossible, Mr. Foulke can avoid doing exactly what OSHA is supposed to do – use the best available evidence to protect workers before they get sick. The next time Mr. Foulke testifies at a Congressional hearing, I hope someone asks him what evidence he would require before OSHA would regulate diacetyl.

And finally, what Mr. Foulke doesn’t say in the Op Ed is that the National Emphasis Program is aimed solely at microwave popcorn factories. It is incomprehensible to me that OSHA would announce a National Emphasis Program limited to popcorn factories the same week the CDC published a discussion of the cases of bronchiolitis obliterans among workers in flavor factories, where they make the chemicals that are used not just in popcorn factories but in the plants where Twinkies and other snack foods are made.

Correction: In my post last week OSHA Saves Lives (But Not Enough) I wrote that “OSHA doesn’t have the staff to work on more than one or two standards at a time.” Frank Mirer corrected me:

At current reduced forces, OSHA is authorized 83 heads and nearly $17 million a year to set standards. These forces can be supplemented with other funds for lawyers, policy analysis for contracting economic and other analyses, and technical support for hearing and data management. To me, from years in the standards process from the consumer side, these resources are substantial in relation to starting and moving a portfolio of 3 PEL based rules a year. David could comment on the amount of time and effort in the mechanics of the DOE beryllium standard. We could think of the work as several master’s essay equivalents, given access to a statistical consultant and a financial analyst. There may well be 2 years of technical work to develop a standard, and two years of process requirements to promulgate the standard. But, to give Baruch Fellner his due, these standards are supposed to be a big deal.

The problem is not “OSHA,” if “OSHA” means the staff of the standards, policy and technical support directorates and the solicitor’s office. The problem is the Assistant Secretary for OSHA and the Secretary of Labor giving permission to start the process. And that’s been endemic, although the problem has reached epidemic proportions since 2001.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.

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