Adam Finkel: Not Yielding

When last we left whistleblower and former OSHA official Adam Finkel, OSHA was refusing to give him the information he requested under two Freedom of Information Act requests to determine how much beryllium OSHA inspectors had been exposed to in the course of their inspections, and how many other OSHA employees may have developed signs of beryillium-related disease. OSHA was also refusing to give him chemical sampling data from inspections that he needs to determine whether OSHA has any kind of credible health targeting and sampling program, and if it is responding sensibly to chemical overexposures as the law intends. After a year and a half, he's gotten no response and has now filed a lawsuit.

Finkel, you may recall, was removed from his job as OSHA Regional Administrator in Denver in 2003 because he blew the whistle on the agency for not establishing a testing program for OSHA inspectors who were exposed to beryllium in the course of their inspections. Due to Finkel's efforts, OSHA tested a number of its inspectors and last year, The Chicago Tribune obtained an internal OSHA memo stating that ten OSHA employees out of 271 tested have confirmed postive results for beryllium sensitization.

Time moves on and OSHA has filed a legal brief in which the agency presents the reasons why it is refusing to give Finkel the information. Unfortunately, OSHA's excuses don't even pass the laugh test.

In order to figure out the lifetime beryllium exposure to each inspector, he must have the the identifying code of each inspector. And in order to determine whether OSHA is actually doing an adequate number of health inspections, levels of overall industry compliance with chemical standard, and other issues, he needs the names of the companies that were inspected and the names of the chemicals that were sampled.

OSHA, however, is refusing to give him the names of the companies, allegedly fearing that trade secrets will be released. (How a chemical wafting through the air, being inhaled by a worker constitutes a trade secret is beyond me. As Adam says, it's not like they'll be revealing the secret formula of Coca Cola.) For the first time, OSHA issue a Federal Register notice requesting information from companies about whether the requested information constituted a trade secret, and in case corporate America didn't get the hint, OSHA even sent memos to industry trade associations warning that “[t]here is reason to believe that the release of this data could include the confidential commercial or trade secret information that has not been previously disclosed to the public.”

The agency argues that an estimated 2% of companies inspected requested that the chemicals that were sampled be considered trade secrets, yet OSHA now claims that it never kept track of any of those alleged requests, and no one can come up with any examples of any business that ever claimed that the sampled chemicals were trade secrets. Nevertheless, OSHA says that Finkel's request would mean that agency staff would have to spend an estimated 1521 days to look through 73,000 enforcement case files to find the mysterious 2% that may have requested that the information be kept secret. Meanwhile, while searching (or not searching) for the elusive, probably imaginary 2%, OSHA sits on millions of valuable data points.

This, even though Finkel has gathered lots of examples over the past decades of researchers who have been given the exact same information that Finkel is requesting, and that OSHA is suddently considering to be a trade secret. (And he's looking for other examples of OSHA supplying chemical and company specific monitoring data to researchers -- or cases where such data has been declared a trade secret. You can contact him here.)

Then, in logic that makes the head spin, OSHA claims that it doesn't want to release information about the inspectors exposed to beryllium because may somewho figure out the names of the inspectors and get rich selling the information to employers who will then be able to deduce valuable information about which inspectors are tougher. (Why this information would be useful is beyond me, as employers don't get to choose their inspectors based on how well they do their jobs.) Adam points out that they're not exactly a bunch of Valerie Plames: the first thing inspectors do when they enter a workplace is introduce themselves and show their photo IDs.

Finally, the agency argues that the potential release of such data would cause more employers to force OSHA to get a warrant before inspecting -- also a rather questionable assertion, being as it's so easy for OSHA to get a warrant that few employers actually deny entry.

Menwhile, the public health community doesn't share OSHA's dim view of Dr. Finkel's efforts on behalf of workers. The American Public Health Association last week awarded Adam with the prestigious David P. Rall Award for Advocacy in Public Health. The Rall Award recognizes an individual "who has made outstanding contributions to public health through science-based advocacy, nationally or internationally."

I was fortunate to attend the ceremony where Adam gave his acceptance speech and explained a bit about what makes him tick:

At the risk of revealing the depths of my naïveté, however, I can simplify a career in science advocacy even further—I am drawn to try and take the least circuitous path to the truth. So far, it has been easy, in that my tendency towards precautionary analysis and my concern for workers have never come into conflict with what I see as true. The hard part has been working among and for individuals who treat the truth like it was the newest electronic gadget to be manipulated. I really believe that the casual lies beget the “big lies”—brought to you by “Mission Accomplished” banners and backed up by withholding of information, misuse of data, and the glorious tendency to write the press release first and then look for something, anything, to support it. If the agencies ever want to get back to their original regulatory and enforcement missions again, they had better staff them back up with people who indeed will advocate—but for something larger than their own career paths.

And finally, as those of us with parents and children know, we all come from somewhere and, hopefully, return the favor with the next generation:

Finally, I want to thank my family. My father Max has cheerfully (or so it has seemed to me) supported everything I’ve ever accomplished (and many things I’ve failed at as well). My Uncle Lou, who will be 95 in March, got his MPH at Johns Hopkins after World War II, and helped inspire me to choose public health and policy as a career. My wonderful wife Joanne has had to move her psychology practice from D.C. to Boulder to D.C. to Princeton during the past six years, and never blamed me despite this needless price of my advocacy. Most of all, I honor the hereditary gifts and life lessons I’ve received from my mother Mae, a retired ophthalmic nurse, who showed me how, and tried to show me when, to try to be the irresistible force or the immovable object. I often tell my daughter Maia that it’s a cruel fate of genetics to be both the second most stubborn person in the world and also in our little household, but I look forward (as I think you all should) to being on the same side of whatever causes she chooses to advocate for in the decades ahead. As Tennyson said, may those of us just starting out, and those of us “made weak by time and fate,” remain “strong in will/ To strive, to seek, to find, and not to yield.”

The full text of Adam's speech can be found here.

OSHA To Adam Finkel: "You Can't Handle The Truth!"

Princeton University Professor (and former OSHA official) Adam Finkel continues to be a royal pain in the ass for the leaders of his former agency. The problem is that Finkel insists on doing the job that OSHA should be doing itself, assuming the agency had the sense, political will, funding and people to do it: protecting workers (including its own employees) and conducting evaluation and research to determine the effectiveness of OSHA's programs.

Finkel, you may recall, was removed from his job as OSHA Regional Administrator in Denver in 2003 because he blew the whistle on the agency for not establishing a testing program for OSHA inspectors who were exposed to beryllium in the course of their inspections. Due to Finkel's efforts, OSHA tested a number of its inspectors and last year, The Chicago Tribune obtained an internal OSHA memo stating that ten OSHA employees out of 271 tested have confirmed postive results for beryllium sensitization. Finkel filed a Freedom of Information (FOIA) request for data needed to determine how much beryllium the inspectors were exposed to and how many other OSHA employees and retirees may developed signs of beryillium-related disease.

Finkel has also made a second FOIA request for data relating to OSHA inspections that dealt with exposure to chemicals. He is interested in investigating the resources that OSHA is dedicating to investigating workers' exposure to toxic chemicals in the wake of evidence that such inspections are declining while the number of employers found out of compliance is rising.

Another area Finkel is investigating is whether workers' exposures increase when firms modify their production process to comply with environmental mandates. In other words, are the chemicals that are not being released into the outside air exposing workers instead?

All of these sound like worthwhile projects, projects that OSHA should be doing itself, or at least research it would want to encourage others to conduct, especially if it's not even at government expense.

But that makes far too much sense, especially for a government far more interested in protecting the business community than it is in protecting workers. So OSHA has issued a notice in the Federal Register "to all employers that were subject to air sampling by the Occupational Safety and Health Administration from 1979 to June 1, 2005" whether the disclosure of company names, along with air sampling information, would reveal any "trade secrets." (hint, hint, wink, wink.)

Without company names, according to Finkel, the information is useless.

Note also the absence of any equivalent Federal Register notice to the millions of employees exposed to hazardous chemicals every day on the job, asking them whether withholding this information and impeding this research might lead to cancer and other work-related disease from the chemicals they're exposed to.

By the way, if anyone out there in web-land has ever received air sampling data from OSHA that included company names, let me know. E-mail me or leave a comment below. Not that OSHA would suddenly change its mind or anything because of the identity, past history or political persuasion of those who may want the information.

OSHA Inspectors: Left Twisting In The Wind

Whistleblower Vindicated

In times such as these, when government agencies are asked to ignore their Congressional mandates to protect workers, the environment and the public; when government employees are required to ignore their mission and take orders from political appointees determined to deliver the agencies to the highest bidders; when we have too few journalists with the knowledge, interest or curiosity to report on what's happening to what is supposed to be a government by and for the people -- it's good to know that there are some brave whistleblowers out there who will risk their reputations and livelihoods to make sure that workers are protected and that truth sees the light of day.

A bit of background: In the Fall of 2002, OSHA Regional Administrator Adam Finkel disclosed to the press that OSHA Assistant Secretary John Henshaw had pulled the plug on a plan to test OSHA inspectors for exposure to beryllium as a result of inspections conducted in contaminated facilities. Beryllium is an extremely toxic metal that carries a high risk of causing chronic beryllium disease, a fast-progressing and potentially fatal lung disease.

In return for his service, Finkel was removed from his position and filed a whistleblower complaint against OSHA. Last April, after much fanfare in the national press, Henshaw announced that OSHA would offer testing for beryllium disease to inspectors who may be been exposed to the toxic dust in the course of inspections.

Earlier this week, Chicago Tribune reporter Sam Roe reported that OSHA has found that

several of its employees have been affected by exposure to the deadly metal.

The Tribune has learned that ongoing medical testing shows that at least three OSHA workers have developed blood abnormalities linked to beryllium exposure--the first such cases at the agency. The workers are thought to have been exposed while conducting safety inspections in industries using beryllium, a lightweight metal whose dust can cause an often-fatal lung disease.

Beryllium is used in a variety of industries to help make products ranging from missile components to laptop computers to golf clubs. The safety agency estimates that 1,000 inspectors, or three-fourths of its force, have conducted inspections in industries handling the metal

***

There is no cure for beryllium disease, but early detection can aid treatment. Symptoms include shortness of breath and fatigue, and some people eventually cannot breathe without the aid of an oxygen tank.

For Finkel, who reached a settlement with OSHA, it was a bittersweet victory:

Finkel, who now teaches health policy at Princeton University, said he was saddened to learn some workers have developed blood abnormalities, but "it's exactly what I said would happen."

He said OSHA officials knew inspectors were exposed to high levels of beryllium dust and that agency officials should have offered testing sooner. "They let them twist in the wind for many years," he said. Finkel, who remains on OSHA's payroll until next year as part of the whistle-blower settlement, emphasized that he was speaking for himself and not the agency.

Henshaw resigned from the agency last month, and his Deputy, R. Davis Layne also retired last month.

In an interview with Confined Space, Finkel (speaking for himself and not the agency) described the harassment he has experienced from high OSHA officials which was mystifying, considering the low cost of the tests ($150) and the severity of the disease. Finkel also expressed concern about the OSHA retirees who have not yet been offered testing, as well as inspectors in the 21 states that run their own occupational health and safety programs.

In response to Roe's article, Public Employees for Environmental Responsibility, who supported Finkel's whistleblower complaint, sent a letter to Elaine Chao, Secretary of Labor, the agency that oversees OSHA. PEER called on Chao to "open an investigation into the four-year delay before testing commenced and the campaign of deception that accompanied it."

PEER also called on Chao to warn retirees, state plan inspectors and Environmental Protection Agency inspectors to get tested, ascertain the levels of beryllium that inspectors have been exposed to and notify those with the highest exposure, and to revise its beryllium standard which is still based on a 50 year old level.

The Bush administration and the Republican Congress has four more years to wreak havoc on protections that have been legislated over the past decades to protect workers, consumers and the environment. Our only protection for the near future will be whistleblowers like Adam Finkel and journalists like Sam Roe who are able and willing to find the truth and tell the people. They all need and deserve our support.

OSHA Whistleblower Adam Finkel To Speak In New York

If you're in the neighborhood next Monday, OSHA whistleblower Adam Finkel will be speaking at the St Johns University School of Law, 8000 Utopia Parkway, Jamaica, NY.

Finkel, as you may remember, was removed from his job as OSHA Regional Administrator in Denver because he revealed that OSHA had abandoned its plan to screen its inspectors for beryllium disease. OSHA eventually agreed to the tests and several employees have been affected by exposure to the deadly metal.

Finkel will talk about his experiences as a scientist and advocate for worker and public health. He is currently Visiting Professor of Public Affairs,Woodrow Wilson School, Princeton University and Professor of Environmental and Occupational Health, UMDNJ School of Public Health.

More details about the event here.

Related Stories

• Whistleblower Condemns OSHA's Response to Beryllium Exposures, June 20, 2005
• Ten OSHA Staff Test Positive For Beryllium Sensitization, March 24, 2005
• Washington Post on OSHA Inspectors' Beryllium Exposure, February 1, 2005
• Blowing Off Whistleblowers, January 26, 2005
• OSHA Inspectors: Left Twisting In The Wind, January 19, 2005
• OSHA Regional Administrator Accuses OSHA of Refusing To Test OSHA Inspectors for Beryllium Disease, October 12, 2003

Nothing Funnier Than A Trench Collapse

It is possible that some people think OSHA officials have no sense of humor. But I think former OSHA Regional Director Adam Finkel has a point here.* He forwarded me this article from the NY Times:

Bobcats May Drop Advertising Campaign

An advertising campaign for the Charlotte Bobcats scheduled to begin this week could become a casualty of Friday's brawl in Auburn Hills, Mich.

The television commercials by Boone/Oakley, an advertising agency in Charlotte, N.C., were produced weeks ago. Created in a slapstick vein, they were to introduce an ardent Bobcats fan, the Ambassador, who appears around Charlotte with cardboard cutouts representing star players on teams the Bobcats will play this season, including Kobe Bryant, Yao Ming and Shaquille O'Neal.

Under the care of the character, however, the cutouts are plagued by various exaggerated acts of mayhem that render them smashed, wrecked, soaked, buried or ruined. The O'Neal cutout falls into a barbecue grill at a cookout and is incinerated.

"In light of this past weekend's events, the climate has changed and we have an obligation to review what we've done," Ed Tapscott, president of the Bobcats, said in a telephone interview yesterday.

"We wanted to strike a note of humor, comedy, but we are going to take a look at our ad campaign to make sure it is not misinterpreted," he said.

A decision has already been made about one of the commercials, featuring Ben Wallace of the Detroit Pistons, who was suspended for six games for his role in the brawl. The commercial, in which the Wallace cutout is partly buried in sand in a construction-site accident, is being withdrawn because Wallace will not be playing when the Pistons play at Charlotte tonight.

Writes Finkel: "So the Charlotte NBA team was GOING to show an ad in which someone gets buried in sand in a construction accident, and only dropped it because of the ugly brawl at the Palace?"

He recalled a similar issue when he was RA in Denver and wrote a personal letter "to the marketing director for "Mike's Hard Lemonade," which was then in the middle of an ad campaign in which all of the ads made fun of workplace accidents."

April 25, 2001

Dear Mr. ****:

I hope your company will take the opportunity to re-evaluate the wisdom of trying to sell your product by making light of serious occupational injuries. Your current television commercial, featuring a construction worker who falls and impales himself on a steel rod and then retreats to a nearby bar for a glass of hard lemonade, is really in very poor taste. Putting aside the inexplicable subject matter (why do you apparently think that “Mike’s makes you forget you’re bleeding to death” is an attractive marketing concept?), the commercial is a graphic affront to workers, business owners, and government agencies who devote their careers to occupational safety. More importantly, I’m sure the families of the approximately 700 victims who die in similar construction accidents each year (not to mention the more than 90,000 workers who suffer serious but non-lethal injuries due to falls) are much more deeply offended than I am by your choice of “humor.”

I know it’s “just an advertisement,” and I do believe that political correctness can be taken to extremes, but making fun of preventable tragedy is simply not something people should “lighten up” about. At this point, your commercial is merely another example of how certain segments of our society just don’t understand how far we have to go to give America’s workers some fundamental protections and rights. I would be happy to discuss this issue with you at your convenience.

Sincerely,


Adam M. Finkel,
Sc.D., CIH

I can hardly wait to see the comedy routines celebrating the 20th anniversary of the Bhopal disaster later this week.


*(Disclaimer: You may remember that Finkel was transferred out of his Denver Regional Administor position when he blew the whistle on OSHA for refusing to screen OSHA inspectors for berrylium disease. Although still officially an OSHA employee, Finkel is currently teaching at Princeton University under the terms of a settlement agreement the Agency signed in exchange for which Finkel dropped his lawsuit.)

Blowing Off Whistleblowers

The life of a whistleblower is often not easy according to an article in the Christian Science Monitor. Yet, in the next four years, the welfare of the citizens of this country will come to depend increasingly on the courage of whistleblowers in the private and public sectors:

Lionized by Hollywood and protected by federal law, the lone employee who stands up to a large bureaucracy has become a well-established part of American culture. In 2002, Time magazine put three whistle-blowers on its cover, lauding them as "persons of the year."

But the hard truth is that blowing the whistle is a long, tough slog in which people sacrifice careers, friends, and job security to do what they believe is right. And in a small corner of that world - environmental whistle-blowing - such sacrifices appear particularly extreme. Ironically, where complaint dismissals and court rulings have eroded whistle- blower protection, their numbers have increased. Yet where legal protections have grown, the number of whistle-blowers has stayed flat or even fallen.

Which brings us back to the happier story of Adam Finkel and his crusade to get OSHA to test its inspectors for health effects of exposure beryllium during inspections of contaminated workplaces.

Finkel, as you will remember, was removed from his job as Regional Administrator in Denver because he revealed that OSHA had abandoned its plan to screen its inspectors. OSHA eventually agreed to the tests and earlier this week, Chicago Tribune reporter Sam Roe reported that OSHA has found that three of its employees have been affected by exposure to the deadly metal.

Finkel's case had a happier resolution than that of many whistleblowers. OSHA agreed to do the testing and reached a settlement with Finkel who is currently teaching at Princeton University. Others have not been so lucky, according to the Monitor:

Despite the passage of the Whistle-blower Protection Act for federal employees in 1989, those who have filed complaints under the act face a backlog of unsettled cases and a minuscule success rate. Only 1 percent of such cases since 2001 was referred to agency heads for investigation. Of the last 95 such cases that reached the federal circuit court of appeals, only one whistle-blower won.

"When people come to us, we have to be candid," says Greg Watchman, executive director of the Government Accountability Project, a Washington advocacy group that counsels would-be whistle-blowers in the federal government. "Under current laws protecting federal whistle-blowers, they don't stand a chance."

Yet they keep on trying - and not just on environmental issues. During the first four years of the Bush administration, the backlog at the Office of Special Counsel, set up by Congress to handle whistle-blower disclosures by federal workers, saw its backlog grow from 287 to 690. In addition, the OSC reports 572 new disclosures last year, the highest in four years.

The number of would-be environmental whistle-blowers contacting the Public Employees for Environmental Responsibility has also grown. PEER, which helps environmental whistle-blowers at all levels of government, has seen a two-thirds increase in the past four years.

One key factor in the boom is Bush administration environmental policies that have driven not only lower-level scientists but also more senior government managers to step forward in protest, says Jeff Ruch, executive director of PEER.

And things are no better in the public sector than in the private sector, according to Finkel in an interview with Jim Nash of Occupational Hazards:

During his years as a regional administrator, Finkel said he saw dozens of cases of private employers retaliating against workers who complained about health and safety issues.

"OSHA treated me as badly as any private sector employer I've ever seen," Finkel contended. "So how can OSHA be trusted to protect private sector people who complain about health and safety problems?"

Ironically, OSHA is the agency responsible for handling whistleblower cases under most federal laws -- even those brought under the Sarbanes-Oxley Act which was recently passed in the wake of the Enron scandal:

The number of whistle-blower complaints filed with the Occupational Safety and Health Administration has not risen dramatically since 2002, when Sarbanes-Oxley was passed. OSHA, which administers whistle-blower provisions under Sarbanes-Oxley and numerous other federal statutes, saw its total cases peak at 2,060 in fiscal 2003. But that total declined to 1,922 last fiscal year - lower than the annual totals in two years of the Clinton administration. Its environmental caseload has actually fallen 14 percent during the first four years of the Bush administration compared with the last four years under Clinton.

Because of the small numbers involved in the environmental arena - the annual peak was 85 cases in fiscal 2000 - such comparisons are not statistically significant, an OSHA official says. Still, some see a problem.

The decline "could reflect a skepticism on the part of workers that the current administration will give them a fair hearing," Mr. Watchman says.

Finkel note other troubling issues raised by OSHA's failure to effectivelly address hazardous to its own employees:

"If we can't protect the people closest to us," he asked, "what does that say about how well we are protecting the other 100 million workers we are supposed to be protecting?"

If the 1.5 percent rate [three postive workers out of 200 tested] holds up, Finkel said as many as 45 current or former inspectors may already be sensitized to beryllium, since he estimates there have been roughly 3,000 federal and state plan inspectors in the history of the agency.

If this administration continues along its course of appointing officials to represent the interests of the industries they come from rather than the laws they're hired to enforce, if they continue to ignore worker, consumer and environmental protections and undermine the intent of the laws passed over the past 35 years, the welfare of the citizens of this country will increasingly depend on the courage of whistleblowers in the private and public sectors.

Why should the Bush administration and Republican Congress take the public heat for repealing the laws on the books if they can just ignore them without paying any price? If whistleblowers feel they can't speak out about crimes perpetrated behind the scenes without endangering their careers and the welfare of their families, the bad guys will continue to get away with undermining our collective rights to safe workplaces and communities, a clean environment, and consumer products and food that aren't going to kill us.

Let's not let that happen. We need to encourage and support whistleblowers by pressuring legislators to protect them, pushing the media to cover their stories and supporting organizations like the Government Accountability Project and PEER.

Whistleblower Condemns OSHA's Response to Beryllium Exposures

OSHA whistleblower Adam Finkel has sent a letter to the ranking member of the House Committee on Education and the Workforce highly critical of OSHA's refusal to release exposure information on the agency's inspectors who have been sensitized to the highly toxic metal beryllium. Last March, OSHA revealed that ten out of 271 employees tested had been sensitized. Sensitization can lead to beryllium disease, an incurable and potentially fatal lung disease.

Finkel argues that in order to determine what level of beryllium caused the sensitization, it must be known how much beryllium the inspectors were exposed to. OSHA is refusing to release exposure data, arguing that "the data available is limited to sampling and inspection history, not exposure in the traditional industrial hygiene sense."

"Ridiculous," is what several other prominent industrial hygienists and physicians called OSHA's argument that its sampling data is not "exposure in the traditional industrial hygiene sense," according to Finkel's letter.

The information OSHA declines to release offers a "fantastic scientific opportunity to define the lower levels of exposures and their relationship to beryllium sensitization," according to Peter Lurie, MD, MPH, deputy director of Public Citizen's health research group. Lurie believes, "The data are at a level of detail that exceeds what we usually have in occupational health studies."

Brush Wellman, a major supplier of beryllium, agrees with OSHA, apparently fearing that the information will reveal that beryllium sensitization can be caused by lower levels of exposure than is currently believed.

OSHA also continues to refuse to offer testing to OSHA retirees, which Finkel calls "callous in the extreme."

Finkel was removed from his position as OSHA Regional Administrator in Denver after complaining publicly that OSHA had reversed its promise to test inspectors for beryllium sensitization. He filed a whistleblower complaint and later reached a settlement with OSHA. Finkel currently teaches at Princeton. Although he remains on OSHA's payroll, he does not speak for the agency.

Occupational Hazards has provided the complete text of Finkel's letter is available here. The text for Snare's March 24 is available here.


Related Stories

• Ten OSHA Staff Test Positive For Beryllium Sensitization, March 24, 2005
• Washington Post on OSHA Inspectors' Beryllium Exposure, February 1, 2005
• OSHA Inspectors: Left Twisting In The Wind, January 19, 2005
• OSHA To Test Staff For Beryllium Disease, April 28, 2004
• OSHA Regional Administrator Accuses OSHA of Refusing To Test OSHA Inspectors for Beryllium Disease, October 12, 2003
  
  

OSHA To Test Staff For Beryllium Disease

Whistleblower Vindicated

The Occupational Safety and Health Administration has announced that it will offer testing for beryllium disease to inspectors who may be been exposed to the toxic dust in the course of inspections.

Last Fall, OSHA transferred its Rocky Mountain Regional Administrator Adam Finkel who had been advocating for the testing for several years.

Finkel filed a whistle-blower complaint, alleging he was transferred because he was advocating a safety plan that OSHA higher-ups did not want. The agency denied the claim, and the case was settled.

Jeff Ruch, executive director of Public Employees for Environmental Responsibility, an advocacy group that backed Finkel, said the whistle-blower had been vindicated.

"It's a shame that somebody had to jeopardize his job in order to push forward a needed safety measure," Ruch said.

Finkel, now a senior adviser at OSHA, said: "I just hope no one turns out to have blood abnormalities or disease who could have learned of this three years ago when the issue was first raised." He emphasized that he was speaking for himself and not the agency.

Finkel argued that OSHA had started to put together a beryllium testing program in 1999, but that current Assistant Secretary John Henshaw pulled the plug in 2002. Finkel alleged that the cost of the program would be so small, that the only thing that the agency must be afraid of tort liability.

Beryllium is used in a variety of industries to help make products ranging from missile components to laptop computers to golf clubs. OSHA estimates that 1,000 inspectors, or three-fourths of its force, have conducted inspections in industries handling the metal.

Agency records show that many of those inspections have taken place in facilities that have had high levels of beryllium dust, up to 30 times the safety standard.

Dr. Lee Newman, a leading beryllium researcher, predicted OSHA likely will find that 2 percent to 6 percent of its exposed inspectors will have beryllium disease or blood abnormalities linked to the illness, the same rate found in similar testing programs.

"I am delighted that OSHA made the right decision to offer testing," Newman said. "It's important that they do this."

OSHA Regional Administrator Accuses OSHA of Refusing To Test OSHA Inspectors for Beryllium Disease

OSHA is neglecting the health of its own employees, according to Region 8 Director Adam Finkel.

Finkel has accused the agency, specifically Assistant Secretary for Labor John Henshaw, of refusing to provide testing for OSHA inspectors who may have been exposed to beryllium dust while conducting inspections.

Beryllium is an extremely toxic metal that carries a high risk of disease following even very low exposure. Hundreds have already died of chronic beryllium disease (CBD); a fast-progressing and potentially fatal lung disease, the only known cause of which is exposure to beryllium. A blood test used by industry and the U.S. Department of Energy can detect whether a person has been sensitized to beryllium, a necessary condition for the onset of CBD. The test costs approximately $150 per application.

Finkel is one of only 10 OSHA Regional Administrators. He is in charge of the 6-State Rocky Mountain region. According to the whistleblower compliant filed by Public Employees for Environmental Responsibility on behalf of Finkel,

Beginning in 1999, OSHA scientists developed a protocol for testing active and retired inspectors. In March 2001, the agency rejected a recommendation to set up a pilot-testing program for beryllium. Then, in April 2002, Assistant Secretary Henshaw announced that the agency would not even provide information or counseling to potentially affected agency employees and retirees.

According to Finkel,

The risks of delay or failure to test are so substantial, and the costs of testing so minimal, that in my view, the only plausible reason to defer or deny testing is fear of tort liability. Such a concern is inappropriate for a public agency.

OSHA had previously accuse Finkel of leaking to the press information about OSHA's refusal to provide testing of inspectors, and was attempting to transfer him out of RA position back to Washington. The transfer was stayed last June by the Merit Systems Protection Board. There are rumors that he has not been transferred back to Washington, but that information has not been confirmed.
More here and here.

Ten OSHA Staff Test Positive For Beryllium Sensitization

Ten OSHA employees out of 271 tested have confirmed postive results for beryllium sensitization according to an internal memo sent to OSHA staff by Acting Assistant Secretary of Labor for OSHA Jonathan Snare. In January, Chicago Tribune reporter Sam Roe revealed that three OSHA employees had tested postive. Beryllium is an extremely toxic metal that carries a high risk of causing chronic beryllium disease, a fast-progressing and potentially fatal lung disease.

Snare opens the memo stating that "OSHA is committed to protecting the health and safety of its employees." You would hardly suspect from these statements that OSHA in April of 2002, former OSHA Assistant Secretary John Henshaw had pulled the plug on a 2000 plan to test OSHA inspectors for exposure to beryllium. OSHA Regional Administrator Adam Finkel disclosed OSHA's reversal to the press and in return for his service, was removed from his position as Regional Administrator. Finkel then filed a whistleblower complaint against OSHA. After several articles in the national press, Henshaw announced last April -- four and a half years after the original screening was to go into effect -- that OSHA would offer testing for beryllium disease to inspectors who may be been exposed to the toxic dust in the course of inspections.

Although his fears have been vidicated, Finkel is still concerned. It's not clear whether those that tested positive had high exposures or low exposures to beryllium. If those tested happen to have had low exposures, it would mean that those with higher exposures are at even more risk.

Furthermore, Finkel notes that Snare's memo said nothing about screening retirees, staff that left OSHA or state plan inspectors.

But fear not. Snare concludes the memo stating that "We value the health of all OSHA employees." We're sure he means former employees, retired employees and state plan employees as well. I mean, have they ever given us a reason to doubt their sincerity?

UPDATE: OSHA Press Release here.

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Load 16 Tons And What Do You Get? Sex & Hot Bods

Anyone out there know what "ecomagination" is? According to GE, it's something about their "commitment to imagine and build innovative solutions that benefit their customers and society at large." In other words, according to Slate writer Seth Stevenson, "GE has been getting all enviro on us."

All well and fine. More companies should be fighting for cleaner air, although I think the jury is still out on how "clean" burning coal can get.

But check out this GE ad. GE has gone way beyond "ecomagination" all the way to "ecofantasy." This is how Stevenson describes it, but you can't really get the whole flavor unless you view the video yourself here (scroll down to Model Miners)

The Spot: We're in a coal mine, dank and dark. But wait—what's with these coal miners? They're sexy! Toned bods and tank tops. Dudes with cinder-block pecs. Ladies with come-hither stares. One of these chicks is wielding what looks to be a pneumatic jackhammer. As the models preen with their pickaxes and helmet lamps, an old mining folk song plays: "You load 16 tons and what do you get? Another day older and deeper in debt."

And Stevenson manages to hit my personal "nail" on the head:

Even if coal processing gets cleaner, that coal will still need to be mined. And unless I'm mistaken, there will be actual coal miners doing that. Now: Guess who still gets black lung? Guess who still gets killed when mines collapse? It isn't sexy supermodels.

You won't be shocked to learn that the models appearing in this ad never actually entered any mines. That would be dirty, unpleasant, and dangerous. Instead, according to the ad agency, a replica coal mine was built on a soundstage. That way the models could strut in comfort.

And then there's the song over which the miner models gyrate:

Several of my readers were even more galled by the ad's use of "Sixteen Tons"—a folk song about the miserable futility of mining and the evils of controlling corporations. Merle Travis wrote the song in 1946, drawing on the experiences of his father, a coal miner from Kentucky. More sample lyrics: "St. Peter don't you call me 'cuz I can't go. I owe my soul to the company store."

Not a positive take on the mining experience. So what's it doing here, in a piece of pro-coal propaganda? The only thing comparably weird would be to use Bob Dylan's "The Times They Are a Changin'" in an ad for, say, a giant, corporate bank. Oh, wait—never mind.

GE's miners

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GE's miners

REAL Coal Miners

OSHA whistle-blower Adam Finkel, who sent me this article (and, as usual is not speaking on behalf of OSHA or Princeton University where he is employed) notes the following:

So coal mining is glamorous, not to mention healthful, as none of the models was using any kind of respiratory protection. I’ve never lost a loved one to a cave-in or black lung, so others have far more right to be offended by this latest ‘they don’t get it’ moment than I do. But to me these sorts of ads offer a mirror to how differently we treat environmental versus occupational issues. There are no ‘Times Beach Diet’ commercials extolling the benefits of oiling roads with PCBs, or tourism ads for what remains of the Aral Sea, and yet the dangerous trades continue to be fodder for parody.

Finkel seems to have an eye for inappropriate parody when it comes to workplace safety. Last Fall he contributed a couple of stories to Confined Space, one in which the Charlotte Bobcats basketball team created a commercial where an opposing player gets buried in sand in a construction accident, and another where Mike's Hard Lemonade created a television commercial that featured a construction worker who falls and impales himself on a steel rod and then retreats to a nearby bar for a glass of hard lemonade.

But if may be allowed to carry the inappropriate metaphor too far, I think we all need to chill a bit and learn to make lemonade out of lemons. I mean, if GE can use sex to sell clean coal, why can't John Sweeney and Andy Stern put their heads (or some other appropriate part of their anatomy) together and use sex to sell unions.

With commercials like these, I could get even get my Madison Avenue-wannabe daughter to join. She's probably heading down to apply for a mining job as we speak.

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What Really Matters...

Sometimes you can tell what a society truly values by the penalties it places on certain crimes. Take today's paper, for example:

Stiff Overhaul of Mine Safety Rules Passes Congress

The maximum civil penalty for violations of mine-safety regulations will rise to $220,000, from $60,000.

And then there was this:

Congress Increases Indecency Fines Tenfold

The bill would increase the maximum fines the Federal Communications Commission may levy for indecent content from the current $32,500 to $325,000 per incident.

This: $220,000

This: $325,000

Hat tip to Adam Finkel for pointing out the obvious.

Washington Post on OSHA Inspectors' Beryllium Exposure

The Washington Post's regulatory columnist, Cindy Skrzycki, writes today about the discovery that at least three OSHA inspectors may have tested positive for blood abnormalities that indicate they could be susceptible to chronic beryllium disease, as well as the saga of OSHA whistleblower Adam Finkel who single-handedly forced the agency to conduct the testing. Nothing too new since I wrote about the case earlier this month except that Skrzycki did score an interview with acting OSHA Director Jonathan Snare, who shockingly disclosed to Skrzycki that

it would be premature to comment on whether anyone tested positive because the agency has not completed the testing of 301 inspectors.

Skrzycki also discusses OSHA's half-hearted effort to revise the beryllium standard:

Instead of lowering the beryllium standard, OSHA has issued periodic hazard information bulletins saying the standard may not be adequate.

Public Citizen and a labor union petitioned the agency in 2001, asking that the federal standard be lowered to 0.2 micrograms per cubic meter of air and that surveillance of workers be required. In late 2002, OSHA issued a "request for information," which is a preliminary step to rulemaking.

Snare said last week that the agency does not yet have a proposal but is querying the small-business community on the likely effects of changing the standard.

Well, isn't that comforting, especially since, as Skrzycki reports:

The beryllium industry and some of its users maintain that working with the substance is safe when proper precautions are taken. Brush Wellman Inc., a large producer, has supported extensive research on the effects of beryllium and does not think there is a definitive link to cancer or that it should be listed as a carcinogen.

It also thinks that inspectors don't need a special testing program and that the test being used is inappropriate for screening. "Brush Wellman has had employees diagnosed with sub-clinical chronic beryllium disease who run marathons and climb mountains," the company said in an e-mail.

Does that mean if I contract sub-clinical chronic beryllium disease I'll be able to run marathons and climb mountains?

Unions Petition OSHA To Deal With Slow-Motion Chemical Disaster

We've become accustomed in this country to framing disasters as single events involving the deaths of numerous workers such as Sago or the BP Texas City explosion. But the deadly damage caused to the lungs of hundreds of workers in this country by a butter-flavoring chemical can only be called a slow-motion disaster. And while OSHA fiddles, the damage to workers' lungs continues.

Two labor unions, the United Food and Commercial Workers and the Teamsters, along with forty of the nation's leading experts in environmental and occupational health, are petitioning the Occupational Safety and Health Administration today for an Emergency Temporary Standard to prevent workers from being exposed to diacetyl, a butter flavoring chemical that has caused a deadly lung disease known as "popcorn lung" among workers in microwave popcorn facilities and other factories where flavorings are used.

According to the UFCW press release

"Three workers have died and hundreds of others have been seriously injured. We will not let food processing workers continue to be the canaries in the coal mine while waiting for the industry to regulate itself," said Jackie Nowell, UFCW Safety & Health Director.

"The science is clear. Now it is time for the Department of Labor to employ their regulatory mandate and protect the public," said Lamont Byrd, Teamster Safety & Health Director

According to the unions, about seventy U.S. companies are involved in the making and marketing of flavorings.

More than 8,000 workers are employed in the flavorings production industry and may be exposed to the dangers of diacetyl and other similar chemicals, and tens of thousands of food processing workers are involved in the production of popcorn, pastries, frozen foods, and candies which uses these chemicals. Even dog food contains this harmful chemical. It is not clear whether consumers are at risk from exposure to diacetyl but certainly the workers who deal with high concentrations of the flavoring chemical are at risk of developing serious and irreversible lung damage.

The petition calls for an airborne exposure limit, respirators for workers exposed above the limit, medical surveillance and airborne monitoring. The petition also calls for OSHA to issue an educational bulletin to all employers and employees, conduct inspections where workers are exposed, and to begin work on a permanent standard covering all food flavorings.

In a Confined Space post about the ravages caused by diacetyl, I asked more than two years ago why OSHA hadn't considered an emergency temporary standard (ETS). OSHA has the ability to issue an ETS if the Assistant Secretary determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." An ETS also serves as a proposed standard until the final standard is issued which must be done within six months. OSHA has rarely used this provision of the act, even in the rare case that the agency has issued an ETS, the courts have often overturned it. No successful ETS has been issued in over 25 years.

The hazards of diacetyl first came to public attention in a 2002 USA Today article. In 2004, thirty workers at a Jasper Missouri popcorn processing plant who had suffered severe lung damage sued the maker of the chemical flavoring, International Flavors & Fragrances, because the Material Safety Data Sheet for the butter flavoring said "Respiratory protection: none generally required" and that respirators were not normally required unless vapor concentrations were "high."

The workers were suffering from what has become known as "popcorn workers lung," or bronchiolitis obliterans—a severe, disabling, and often fatal lung disease experienced by factory workers who produce or handle diacetyl. Many of these workers were so sick that they were awaiting lung transplants. Three workers have died. The tragedy was that the chemical company BASF had known since 1993 that the chemcal caused severe lung damage in rats. After several workers won multimillion dollar lawsuits, the company settled with the rest of the workers.


"Astonishingly Grotesque" Health Effects

The National Institute for Occupational Safety and Health (NIOSH) studied the chemical after the workers's health effects became known, finding that the buttery popcorn flavoring eats away at the coating of the lung's airways and is one of the worst lung toxins they had ever seen:

One scientist, research physiologist Jeffrey Fedan, used the words "astonishingly grotesque" to describe the toxic effect of diacetyl, a key ingredient in the flavoring.

Vincent Castranova, chief of NIOSH's pathology and physiology research branch, said that the effect of breathing butter flavoring vapors could be likened to inhaling acid.

"The airway response is the worst we've ever seen," Castranova said. And that's comparing it to a catalogue of notorious respiratory toxins such as asbestos and coal dust.

Then last April, journalist Andrew Schneider described in the Baltimore Sun how workers are still getting sick and dying, while federal and state agencies whose job it is to address these hazards are falling down on the job. Schneider examined the failure of OSHA and California's CalOSHA to address the problem, despite that fact that aggressively tackling chemical hazards that kill workers is exactly what these agencies were created to do. OSHA refused to consider a new regulation that would protect workers from exposure to diacetyl, despite urging by OSHA scientists in 2002 and 2003 to take further action. George Washington University Professor David Michaels called "criminal."

Even the doctor who first diagnosed "popcornworker's lung" is disgusted, according to the Baltimore Sun:

In 2000, Dr. Allen Parmet, an occupational medicine specialist, diagnosed bronchiolitis obiterans in workers in Missouri, the first time that the disease had been found in a popcorn plant.

"We identified the hazard from diacetyl six years ago. We knew how to stop it four years ago, yet no action has been taken by OSHA," said Parmet, who has diagnosed the disease in more than 100 workers, including several who did not work in popcorn plants.

And, as the Sacramento Bee reports,

Relatively few of these food-processing and flavoring workers are unionized. Many of the estimated hundreds in California flavoring plants are immigrants and speak primarily Spanish.

"Who is looking out for them?" Nowell said.

In California, Cal/OSHA officials announced that they are now considering the unions' request, according to the Bee:

California job safety regulators said the link between the butter-flavoring chemical and workers' lung damage is strong enough to warrant regulation.

"It's certainly a discussion that needs to happen," said Len Welsh, acting director of the California Occupational Safety and Health Administration.

Welsh said Tuesday he will propose a regulation similar to the unions' proposed "permissible exposure limit" for the butter-mimicking chemical, called diacetyl.

Meanwhile, the majority of the estimated 25 flavoring companies operating in California are "voluntarily" examining workers' health and inspecting their plants in exchange for avoiding Cal-OSHA inspections and possible citations, Welsh said.

Under the arrangement formalized in May, the companies must share the results with regulators and allow enforcers to visit their operations to ensure protections are in place.

"We're not leaving it to industry to police itself," Welsh said.

"We're going to be getting into every one of those plants ourselves."

The first California victim, reported in 2004, is a young father of two who worked as a mixer at Mission Flavors & Fragrances near Mission Viejo in Orange County.

Cal-OSHA fined Mission Flavors $45,575 in January 2005 for several violations, including "failure to report illness," and found that the worker "became ill because employer failed to implement proper controls and respiratory equipment," agency records show.

The company is appealing the enforcement action.

The other California victim is a mother of three in her early 40s who mixed flavoring components at Carmi Flavor & Fragrance near Los Angeles.

Among the occupational safety and health experts who signed a supporting letter are former Assistant Secretary of Labor for OSHA, Eula Bingham; former OSHA official (and whistle-blower) Adam Finkel, former EPA Assistant Administrator Lynn Goldman, George Washington University Professor (and former Department of Energy Assistant Secretary) David Michaels, former NIOSH director Anthony Robbins, and University of Washington Professor (and former OSHA policy director) Michael Silverstein.

Even the industry seems more favorable toward a standard, according to the Bee:

A flavoring trade group spokesman said his member companies support an OSHA limit for diacetyl, a naturally occurring chemical in butter and other foods that is synthesized and highly concentrated for economy.

The industry had viewed the diacetyl-lung disease link as an open question until the second California victim surfaced in May, said John Hallagan, an attorney for the 120-member Flavor and Extract Manufacturers Association.

But, now, Hallagan said, "this issue needs to be reviewed again, and that's what we plan to do."

Lesson Not Yet Learned

The entire "popcorn lung" disaster shows that workers in this country are still the proverbial canaries in the coal mine. The health effects of chemicals aren't adequately studied, and when they are, the results are hidden -- until someone notices that workers are starting to get sick and die. These workers were "lucky" in a way because diaceyl left its "fingerprint" on his lungs in a relatively short period of time. Had the damage caused by the chemical masked itself as some more common "lifestyle" disease, it may never have been linked back to their working conditions.

Finally, the policy and practice of considering chemicals to be innocent until proven guilty - by the lungs and bodies of workers -- must end. I have written often about REACH, the European Union's proposal to gather and report the quantity, uses and potential health effects of approximately 30,000 chemicals, and about the defects of the U.S. Toxic Substances Control Act. We must call on the U.S. Government to not only stop lobbying against the European proposal, but to advocate for a similar law here.

Related Articles About Popcorn Lung

• Lungs of the Living Dead, March 1, 2004
• Popcorn Workers Lung Trial Begins
• Popcorn Lung Trial Update 3
• Popcorn Lung Trial Update 4
• Jury Awards Popcorn Lung Victim $20 million: What Have We Learned? March 15, 2004
• Let No Rat Die In Vain, March 16, 2004
• Interview With Eric Peoples, March 17, 2004
• "Astonishingly Grotesque" Popcorn Lung Shows Failure of Regulatory System, April 4. 2004
• Popcorn Lung on NPR, April 20, 2004
• Second Popcorn Lung Trial Ends, May 2, 2004
• Second Popcorn Lung Suit Settled
• Third Popcorn Lung Trial Ends In Victory For Worker
• Manufactured Uncertainty Kills Workers and US Regulatory System, April 17, 2005
• Take four bulldozers and put them on your chest. Then put an elephant on top of those bulldozers. November 25, 2005
• Can We Still Trust Popcorn? Maybe Not If These Guys Say It's OK, April 27, 2006
• Government To Workers: Cough Your Lungs Out And Drop Dead, April 24, 2006
• Popcorn Lung Victim Dies: "Knowing That It Could Have been Avoided", May 3, 2006
• NIOSH, Congress Investigate Popcorn Lung, June 6, 2006
  

Also more information on Diacetyl at DefendingScience.org