Thursday, March 11, 2004

Popcorn Lung Trial Update 4

Comment and Background

I received a comment from Larry Halprin, an attorney with Keller and Heckman, taking issue with a comment I made in yesterday's popcorn lung trial update. An industrial hygienist representing International Flavors and Fragrances, which is being sued by Eric Peoples, had testified that "regulations issued by the U.S. Occupational Safety and Health Administration require employers to assess hazards in their company and develop plans to control those hazards."

Larry objected to my statement that "Actually, the chemical that allegedly destroyed Peoples' lungs is not covered by any OSHA exposure regulation, nor is there any OSHA regulation that requires employers to control exposure."

Regarding your article titled "Today's Popcorn Lung Trial Update", I believe you have overlooked the application of 1910.134(a). Starting with that premise, I respectfully disagree with your analysis, which seems to conclude that current OSHA standards are inadequate to address this issue.

Sincerely, Larry
Now, Larry and his firm may represent the dark side, but he does have a partial point here. OSHA's respiratory protection standard, 1910.134, paragraph (a)(2) states that "Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee." (And paragraph (a)(1) states that respirators can only be used as a last resort, after other, more effective control measures -- such as local exhaust ventilation -- have been used.)

And the preamble to the respirator standard states that 1910.134(a)(2) has been used "in conjunction with a citation of the General Duty control exposure to a contaminant that was clearly a recognized hazard even though no OSHA PEL [permissible exposure limit] existed."

And, in fact, there have been a few cases where OSHA has cited employers for exposing employees to a chemical that did not have a permissible exposure limit. (For example, OSHA has cited hospitals for overexposing workers to cancer-causing anti-neoplastic drugs.)

So, yes Larry, in theory, if the workers at the popcorn plant had known how seriously hazardous the chemical was, and had the employer not controlled their exposure, the employees could have requested an OSHA inspection asking for a general duty clause citation against the employer for not protecting them against exposure to diacetyl.

But we'd have to make some major assumptions for that to happen. First, Peoples' employer would have had to have received a good MSDS from the manufacturer with accurate information about how dangerous diacetyl was. As we shall see below, this wasn't the case.

Second, assuming the employees had been trained and had all of this knowledge, they would have to have had a pretty expert knowledge of how OSHA works. Not finding diacetyl on OSHA's PEL list, they would have had to have known about the General Duty Clause and how it could be used in conjunction with 1910.134(a)(2). That might happen if the workers were represented by a union that was aware of the problem, or perhaps if they were represented by an attorney with Larry's knowledge of the law, an attorney who wasn't representing the dark side.

Third, the General Duty Clause would have to be much easier to use. There are a number difficult conditions that must be satisfied to successfully use the General Duty Clause, especially when dealing with a "new" hazard.

All of these things theoretically could have happened, but finding your way through this maze of legal interpretation is a long way from a simple requirement that employers control workers' exposure to diacetyl. And it's a long way from the OSH Act's guarantee of a safe workplace for every American workers.

So, Larry, to answer your question, no, I do not believe that current OSHA standards are adequate to address this issue. Not even close.

Meanwhile, back at the trial....

Dave Carroll, the director of fragrance safety assurance for flavoring manufacturer International Flavors and Fragrances, which is being sued by Eric Peoples because they produce a popcorn flavoring ingredient that is alleged to have destroyed Peoples' lungs, has testified that
The warning sheets that accompanied butter flavoring used in a Missouri microwave popcorn plant should have alerted plant managers to the possibility of hazards to employees. (In other words, we're innocent, Peoples' employer is to blame for his condition.)
I find this rather curious as Carroll also testified that:
he had written a computer program to produce the data sheets for the company's flavorings. He testified that the butter flavoring's sheet contained the phrases "no known health hazards" and "respiratory protection is not normally required," but said that does not mean users should not take precautions in using their product.

Carroll also testified that the sheets state that ingredients in the butter flavoring could irritate the skin and eyes, and might cause severe irritation to the eyes, throat, and lungs.
Well, that's perfectly clear.

At least it was clear to International Flavors and Fragrances, because
Under cross examination by Peoples' lawyer, Carroll confirmed that workers at the company's Chicago plant, which produced the flavoring, had been wearing respirators since 1995.
Well, isn't that convenient. The manufacturer has its workers in respirators, but they send out an MSDS to the popcorn company that says that respirators aren't needed. Then they blame the popcorn company for not making their workers wear respirators.


vapor vapors
Additional articles in this series are listed at the right under Greatest Hits