Sunday, April 17, 2005

Manufactured Uncertainty Kills Workers and US Regulatory System

A food additive chemical, the hazards of which were known to manufacturer, destroys the lungs of dozens of workers who were not informed of the hazard or provided with protective equipment. A muckraking story from the early 20th century? A third world horror story from the back pages of the New York Times?

Nope, actually this is a current event that happened in Missouri, USA, just a few years ago -- and may still be happening in workplaces throughtout the United States.

Surely laws were broken, regulations ignored, citations written, major fines imposed! This is the 21st century, after all. Crimes like this aren't tolerated!

Think again. No laws broken, no citations issued and not one dollar paid in fines or penalties.

The "popcorn lung" story is the tragedy used in an excellent article about industry's influence on our regulatory and tort system by David Michaels, Associate Chairman of the Department of Environmental and Occupational Health at he George Washington University School of Public Health and Health Services and Celeste Monforton, Research Associate in the same department, published in the Brooklyn Law School's Journal of Law and Policy.

Their conclusion is something that every American worker needs to understand: Our system of regulating and controlling workers' exposure to toxic chemicals is broken, kaput, dead.

The article describes in depressing detail how industry's influence on our regulatory system has all but stopped the issuance of regulations that protect workers from exposure to hazardous chemicals. And now they're going after the last weapon that workers and consumers have at their disposal, the ability to use the tort system to sue chemical manufacturers who produce products that sicken and kill workers, consumers and communities. It's essential reading for those who continue to rest quietly under the illusion that the government has the tools to protect us from chemical hazards or that corporate America is working in good faith to learn the truth.

In a perfect world, society would approach the use of chemicals with a public health approach -- not permitting workers to be exposed to chemicals until they are proven safe. Instead, we live in a topsy-turvey world where chemicals are given the same rights that human beings have -- to be considered innocent until proven guilty. Unfortunately, chemicals are generally only proven guilty when someone -- usually a labor union -- notices that bodies are piling up. But thanks to the chemical industry's influence, even body counts are no longer sufficient to actually regulate workers' exposure to chemicals.

Michaels and Monforton use the ongoing "popcorn lung" tragedy to illustrate their arguments. For those of you just tuned in, dozens of microwave popcorn workers in one factory have contracted a rare and devastating disease of the lungs called "bronchiolitis obliterans," named for the obliteration of the pulmonary airways that put oxygen into the blood. In March 2004, a jury awarded Eric Peoples, a 32-year old former employee of a popcorn plant in Jasper, Missouri, $20 million dollars as a result of a lawsuit against the manufacturer of diacetyl, a butter flavoring chemical used on the popcorn. Peoples is currently waiting for a lung transplant, which, if successful, will allow him to live for an additional ten years. If he’s lucky, he’ll live to see 50.

In addition to Peoples, thirty workers at the plant have similar problems and are suing the flavoring maker. Some cases have settled before a jury verdict, but earlier this month a jury awarded another plant worker $15 million. And the Jasper plant was not the only one to harm workers. Workers at Con Agra plants and possibly others have also contracted bronchiolitis obliterans.

It all could have been prevented. In 1993, BASF corporation conducted studies showing that exposure to the chemical had destroyed the lungs of rats in a very short time. The health and safety information developed by BASF was passed on to the Flavor and Extract Manufacturers Association (FEMA), although it is unclear when it was placed on FEMA's database and when members had access to it.

In an earlier Confined Space article, I wrote about the testimony of Brown University professor David Egilman, who testified at the Peoples’ trial,
Instead of warning its customers appropriately, Egilman said, International Flavors & Fragrances led its customers to believe that the product wasn't dangerous.

The company distributed a safety sheet with its butter flavoring that read, "Respiratory protection: none generally required. If desired, use NIOSH-approved respirator." The Material Safety Data Sheet is dated 1992.

A safety sheet written in 1994 by flavoring manufacturer Bush Boake Allen, another defendant in the lawsuit, said that respirators were not normally required for its butter flavoring, unless vapor concentrations were "high." The company is now a subsidiary of International Flavors & Fragrances.
When OSHA heard about the problem from the Missouri Department of Health in early 2000, the plant was inspected, but the company was never cited. OSHA had no standard regulating diacetyl. OSHA can still cite a company even if there is no hazard using its General Duty Clause, as long as they show that it's a recognized hazard that is seriously endangering employees. But the General Duty Clause was never invoked in this case.

The National Institute of Occupational Safety and Health, the government agency that conducts research in occupational safety and health issues, conducted a study of the chemical in 2002, finding results similar to the BASF study. "The study's lead investigator, Dr. Ann Hubbs, reported that these finding s were "the most dramatic case of cell death ever seen."

(You can find much more information on popcorn lung here.)

Workers are not generally allowed to sue their employer, instead being forced to rely on workers compensation. Third-party lawsuits -- in this case against the maker of the chemical used by their employer -- are allowed. In this case, the target of the lawsuits was the company that manufactured the diacetyl and who provided the faulty Material Safety Data Sheets to the factory.

Why this hazard was not addressed before condemning thirty workers at one factory to an early death, and why government agencies to this day have taken no action to regulate diacetyl or thousands of other potentially hazardous chemicals that workers are exposed to every day is the story that Michaels and Monforton tell.

Regulatory Impotence

As Eric Peoples and his co-workers got sicker and sicker, did they reassure themselves that if there was anything wrong with the chemicals they were working with, the government would have done something? Surely, most people think, there must be laws that protect workers from exposure to toxic chemicals.

Yes, there are laws -- the Occupational Safety and Health Act and the Toxic Substances Control Act, to name the main ones -- but they don't work. The primary agency created by Congress to regulate worker exposure to toxic chemicals is the Occupational Safety and Health Administration. Congress gave OSHA the authority "to set mandatory occupational safety and health standards" and, as Michaels and Monforton point out,
Congress afforded the agency a great deal of leeway in identifying hazards and setting protective exposure limits to enable the agency to act before large numbers of individuals became sick.
But even under Democrats, political attacks, in addition to the burden imposed by Congress, the White House and the courts on OSHA's ability to issue health standards has all but killed the prospect of any new health standards to cover the thousands of chemicals in use today, and most of the existing OSHA standards are antiquated:
In the last ten years, OSHA has issued standards for a total of two new chemicals. Indeed, since its inception, OSHA has issued comprehensive standards for only thirty toxic materials. Additionally, the agency enforces permissible exposure limits for only about 500 chemicals of the more than 12,000 chemicals characterized by the U.S. Environmental Protection Agency (EPA) as high volume chemicals. Of these 500 standards, all but a handful were borrowed in whole from the voluntary industry levels established prior to OSHA’s creation in 1971.
When Congress created OSHA, there was some understanding that because full health standards might take some time to issue, and that there might be a need for faster, emergency action in some cases. So in addition to OSHA's regular standard-making process the OSHAct also gives the agency to issue The Emergency Temporary Standards (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," OSHA can issue an ETS, which also serves as a proposed standard until the final standard is issued within six months. But OSHA has rarely used this provision of the act, and even in the rare cases that the agency has issued an ETS, the courts have often overturned it. No successful ETS has been issued in over 25 years.

Would an ETS regulating diacetyl be successful? I don't know, but one might argue that the popcorn lung case was the classic example that Congress had in mind when it passed this provision of the Act.

So what has OSHA done instead of a General Duty Clause citation or standard making? In September 2002 OSHA Region VII, representing four midwestern states, established an "Alliance" with the Popcorn Board to “help foster a culture of prevention.” Alliances between industry associations and OSHA are a creation of the Bush administration. They have been promoted as a "voluntary" information sharing arrangements, and have acted as an alternative to mandatory regulations, which the Bush administration has essentially ceased issuing. Unlike other voluntary arrangements sponsored by OSHA, such as the "Voluntary Protection Program," , even in highly unionized industries.

The results of this alliance have been less than spectacular, according to Michaels and Monforton:
According to OSHA’s 2002 alliance agreement with The Popcorn Board, the two entities would work cooperatively to develop an internal document to be sent to OSHA field compliance officers. Nearly two years later, the hazard bulletin that supposedly would help OSHA inspectors understand the butter flavor hazard and conduct effective inspections has not been issued.
OK, so much for OSHA. What about the Environmental Protection Agency? The Toxic Substances Control Act (TSCA) requires chemical manufacturers to test their products to determine whether they pose a “significant risk of serious or widespread harm to human beings" and if such a risk is found, the EPA can take action to prevent or reduce the risk.

Two problems there. First, diacetyl is a food additive and food additives are exempt from TSCA coverage. Second, even if food additives were covered under TSCA, the law hasn't had much effect on chemical safety:
Indeed, Congress’s General Accounting Office (now known as the Government Accountability Office) reported that only four chemicals were restricted under TSCA in the period between 1976, when the Act became law, and 1994, when the study was carried out.
Last, and in this case, least, is the Food and Drug Administration (FDA).
Although the FDA is charged with ensuring “the safety of the nation’s domestically-produced and imported foods,” because the FDA has concluded that diacetyl is “generally recognized as safe . . . as a direct food ingredient,” the FDA has satisfied its statutory mandate. That is, diacetyl is safe for humans to consume; however, the FDA makes no attempt to determine whether diacetyl is safe for workers to inhale.
So much for the public health approach to chemicals.

Workers are thus left with only one alternative, according to the authors:
Given the inability or unwillingness of the nation’s regulatory apparatus to address workplace hazards, litigation by Mr. Peoples and similarly situated popcorn workers is a logical alternative. In fact, it may be the only means of compelling employers to protect their workers.
In other words, sue the bastards!

In the popcorn lung case, it worked, but Michaels and Monforton describe in depressing detail how industries that have been the targets of potential regulatory activity or lawsuits -- from tobacco to cotton dust -- have made it their business to "manufacture doubt" not only about the science behind proposed regulations and lawsuits.

Led by the tobacco companies,
An entire industry has emerged to lend support to the generic assertion, made with great frequency by opponents of regulation, that science is uncertain and that regulation cannot proceed until more conclusive data are collected. This industry specializes in magnifying and manufacturing uncertainty about the science supporting public health regulation.
Yet although the courts, Congress and the White House (through the Office of Management and Budget) has loaded the regulatory process with more and more regulatory justification, the fact remains that the OSHAct does not require scientific certainty, but rather the best available scientific information in order to justify a regulation. The authors illustrate, for example, how OSHA's cotton dust standard virtually eliminated brown lung (or byssinosis) in the United States despite the fact that much was not known about the exact mechanism by which cotton dust caused the serious lung disorder.

Despite a handful of regulatory successes, the industry's crusade against potentially costly regulations has been relentless and creative:
By raising the cry of “junk science” and questioning the validity or strength of scientific evidence, polluters and manufacturers of dangerous products have been able to delay, often for decades, regulations and other measures designed to protect the health and safety of individuals and communities. This strategy, which has been readily employed by the textile industry and tobacco manufacturers, has been embraced by many industries facing new regulation. Through the promotion of the “junk science” movement, polluters and manufacturers have sought to influence public opinion by ridiculing scientists whose research presents an economic threat, irrespective of the quality of the scientists’ research. Further, industries facing regulation frequently challenge the scientific studies (and even scientific methods) used in the regulatory and legal arenas as fundamentally flawed, contradictory, or incomplete. Thus, they assert, it would be unfair or premature to regulate the exposure in question or to compensate the worker or community resident who may have been made sick by the exposure.
Not only have the regulatory agencies been intimidated by corporate attacks and accusations of junk science, but the courts have also fallen for the corporate arguments. The Supreme Court’s decision in Daubert v.Merrell Dow Pharmaceuticals, Inc., gave federal judges
an obligation to serve as scientific gatekeepers, allowing into evidence only expert testimony that meets specific standards for relevance and reliability. In fact, a recent study found that courts are now asking doctors who testify as experts to meet standards that exceed those that the doctors use to diagnose and treat their own patients.
But the courts have often taken the Daubert decision to the extreme. Instead of determining the validity of hazards (and the need for regulation) by using the traditional weight-of-the-evidence approach that OSHA proved successful in its early days, the courts are requiring that "that each piece of scientific data be evaluated independently for relevance and reliability."

Despite increasing difficulty in the courts, lawsuits remain a more effective deterrent to the production of unsafe chemicals than the regulatory process. The scientific evidence (from BASF and NIOSH), the relatively fast acting nature of diacetyl, its horrific life-shortening effects on young workers and the clear negligence of the companies involved combined to convince the juries that high awards were needed to send a message to companies who play fast and loose with the lives of workers.

After all, in the words of their attorney, "The only thing this group of people ever did wrong," he said of the plaintiffs, "was go to work."

What Is To Be Done?

While Michaels and Monforton do a good job describing the world as it is, we are still left with the task of figuring out how to rewrite the laws and customs of this country so that employees can go to work with the reasonable assurance that they are protected from toxic chemicals.

Although the tort system -- or the ability of workers and citizens to sue the producers of harmful products -- worked in this case, it has come under the threat of "reform" by the Bush administration. Having dismantled the regulatory system, the business community and Republican party are intent on limiting damages to $25,000.

As former Secretary of Labor Robert Reich said in a recent Washington Post article:

The administration can't have it both ways. Either it should move to strengthen regulatory agencies or it should maintain the present system of tort liability. Take away both, and consumers are in deep trouble.
Now I'm no economist, but it seems clear that $35 million for two popcorn lung cases, an unknown amount in undisclosed settlements, and numerous cases to follow are going to make American industry think twice before continuing to expose workers to these specific chemicals again. $250,000, in contrast, would barely be noticed.

But what about the tens of thousands of other chemicals in commerce, most of which have been inadequately tested? The bottom line is that until we have a mandatory system in this country where companies are required to test all new (and old) chemicals, and release all results to relevant government agencies and the public; until we make easier for government agencies to protect workers by regulating exposure to these chemicals, and until workers have the clear right to refuse to work with chemicals unless they have been tested and the information made available, tragedies like this continue to occur.

The European Community is making some progress in this arena with the REACH proposal. REACH stands for Registration, Evaluation and Authorization of Chemicals, and invokes the "precautionary principle" which states that governments should protect their populations against risk, even before all the data are compiled. In other words, chemicals should no longer be considered innocent before proven guilty.

There are some signs that the American people are willing to listen to alternatives. A recent Wall St. Journal-NBC News poll showed that 84% of those polled think that Congress should be more involved with "Rules in the workplace that deal with health and safety issues," a level of support that exceeded any of the other options. Coming in a close second with 80% was "Environmental laws that involve restricting development to protect endangered species."

But it's up to all of us to get out there and burst peoples' balloons. Every workshop I conducted for union members on their right to know about chemical hazards began with the sentence: "Legal does not mean safe." In other words, just because you are being exposed at the legal limit, or just because there is no legal exposure limit, does not mean that working with these chemicals is safe. It was not the message they had been hearing from their employers, it is not the message that Americans are hearing from chemical companies or their government.

But it is the message that we need to spread -- along with the real-life story of Eric Peoples and his co-workers -- if we are to bring about needed change in this country.

Go forth....