As we’ve noted before, the National Institute for Occupational Safety and Health was the federal entity that responded most appropriately to respiratory problems among workers exposed to the butter-flavoring chemical diacetyl. They evaluated the hazards at workplaces using diacetyl and recommended steps to reduce exposures; as affected workers were probably sad to learn, though, NIOSH doesn’t have the power to set standards for workplace hazards. OSHA has that responsibility, but its progress on the diacetyl issue has been disappointing, to say the least.
NIOSH does have one important power: the right of entry, which lets it investigate private workplaces for threats to worker health and safety. Yesterday, though, Seattle PI reporter Andrew Schneider alerted us to an ongoing legal battle that NIOSH is fighting with Sensient Flavors International, which uses diacetyl but doesn’t want to let NIOSH conduct a complete inspection of its facilities:
The fight with Sensient began almost a year ago when the local Teamsters union representing the plant’s workers asked NIOSH, the worker-safety research arm of the Centers for Disease Control and Prevention, to inspect the plant, which it did.
But when I interviewed Teamster health and safety officials last year they said the company had altered the production process while the feds were inspecting and taking air samples and that the investigators failed to get an accurate idea of the conditions.
NIOSH told Sensient that it wanted to return and take more samples and interview additional workers because “pulmonary abnormalities” uncovered during its first inspection demanded a “second and more extensive examination,” an agency official told me.
The Indianapolis Business Journal said that Sensient acknowledges federal law gave NIOSH authority to conduct the first inspection. But it says no new information had emerged that would give the feds the right to go through the “highly invasive process” again.
I have to wonder if Sensient is fighting what seems to be a very reasonable request because businesses in recent years have gotten accustomed to NIOSH failing to enforce its right of entry. A 2004 report from the American Federation of Government Employees Local 3840, which represents bargaining unit employees of NIOSH in Cincinnati, states:
Although NIOSH has the legal right of entry to private workplaces in pursuit of information needed for health and safety research, this tool has been virtually abandoned over the past 20 years in the face of Administration hostility.
Although this suggests that NIOSH’s reluctance to enforce the right of entry began in the mid-1980s, I imagine that the Bush administration, with its emphasis on “compliance assistance,” has been particularly averse to forcing employers to do anything they don’t want to do. Perhaps new leadership will encourage NIOSH to start using its right to enter workplaces to protect workers’ health.