Tuesday, June 20, 2006

Industry Pushes Chemical Gag Rule To Keep Information From Workers and the Public

Our "friend" in the House of Representatives, Charlie Norwood (R-GA), is proposing legislation that would ensure that chemical producers and users "can continue to expose workers and the public to deadly hazards, and do so without interference by public health authorities and without the threat of legal action by those injured by their negligence," according to testimony by George Washington University professor David Michaels.

What's going on?

The story can get a bit complicated, so hang in there. Let me take you back to the early 1970's when OSHA was created. Because the agency couldn't create from scratch the large number of health and safety standards that were needed to protect American workers, they simply adopted existing industry consensus standards. Among these were about 600 chemical standards that had been developed by an organization called the American Conference of Governmental Industrial Hygienists (ACGIH), which issues Threshold Limit Values (TLVs) for chemical substances. OSHA adopted these standards as enforceable "Permissible Exposure Limits (PELs).

OSHA's PELs were OK for their day, but they were based on the science of the 1940's and 1950's before many of the long-term and cancer-causing effects of many chemical were known. Unfortunately, most of these outdated PELs are still on the books. Over the past 35 years, OSHA has issued only about 30 new chemical standards, leaving workers effectively without the protection of the latest scientific information on these chemicals, as well as the thousands of new chemicals introduced into the workplace since then.

The one bright spot in this travesty is OSHA's Hazard Communication (a.k.a. Right to Know) Standard, issued during the Reagan administration, which requires chemical manufacturers to develop Material Safety Data Sheets (MSDSs) that must list OSHA's "Permissible Exposure Limits," in addition to any recommended exposure limits to the product from certain professional organizations which have expertise in occupational safety and health. These organizations include ACGIH, as well as the highly respected National Toxicology Program (NTP) and the International Agency for Research on Cancer (IARC). he employer is not legally required to comply with these recommended standards, but OSHA's Hazard Communication Standard requires workers to be trained on the information on the MSDS, including the recommended standards.

Companies that produce and use chemicals are not happy with this arrangement. Having successfully bottled up OSHA's standardmaking process through endless analytical requirements and political obstructions, they see the these recommended standards as a threat. Although employers don't have comply with the standards on the MSDS (aside from OSHA's few antiquated PELs), they fear that if workers learn the latest health information about the chemical they are being exposed to, they may demand that something be done about their exposures. Or employees who are damaged by the chemicals may sue the manufacturers. And we can't have that!

The law firm Patton Boggs, which represents of number of the companies that would like to continue to poison workers unimpeded, came up with a brilliant idea: declare war on ACGIH through lawsuits designed to destroy the organization, and then to propose legislation that would prohibit OSHA from requiring the inclusion of ACGIH, IARC or NTP chemical standard in MSDSs. And Congressman Norwood was only happy enough to sponsor the legislation -- the Workplace Safety and Health Transparency Act (H.R. 5554,) -- for his friends.

Under Norwood's bill, OSHA would not be able to
promulgate or incorporate by reference any finding, guideline, standard, limit, rule, or regulation based on a determination reached by any organization, unless the Secretary affirmatively finds that such determination has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption
Instead of using information and standards developed by organizations like ACGIH, NTP and IARC where a group of experts in the field study all available information and reach a determination, Norwood wants OSHA to depend only on organizations that develop standards "by consensus" where everyone -- including the impacted industries -- agrees. As Dr. Michaels correctly points out, "that simply is not going to happen."

Norwood argues that Congress has already defined "consensus organization" in the Occupational Safety and Health Act the same way he does, and that by using standards issued by non-consensus organizations in MSDSs and as input into developing standards, OSHA is breaking the law. The reality, however, is much different. In fact, the OSHAct does define "consensus organization" as Norwood says, but the main place in the act that consensus organizations are mentioned is when OSHA was given authority to adopt consensus standard immediately after the agency was created.

The Hazard Communication Standard, however, explicitly requires employers to use other sources of information, and that standard has been upheld by the courts. In other words, the accusations of Norwood and Chajet that OSHA is engaged in illegal acts is ludicrous.

But Henry Chajet at Patton Boggs isn't going to let something as trivial as facts get in the way of his rhetoric. The language Chajet uses to justify the legislation would be funny if his goal didn't mean illness and death for thousands of American workers. Chajet accuses OSHA, MSHA and DOE of "abrogating their duties through an insidious delegation of government authority that denies our fellow citizens the rights guaranteed by the Constitution and the protection of the laws enacted by the Congress."

Norwood has even accused OSHA scientists of "moonlighting" for ACGIH -- unable to issue standards at OSHA, they go over to ACGIH to get them to issue a standard, which is then "adopted by reference" at OSHA. (Norwood mistakenly considers informing workers of other chemical standards on a Material Safety Data Sheet as "adopting the standard by reference.") The reality is that some scientists at OSHA and MSHA have contributed their unremibursed time on weekends or vacation time to go to TLV meetings -- not to make any money (as the word "moonlighting" implies) -- but because they have some skills and expertise that they want to contribute to make the world a little safer place for workers (a concept that Chajet and his ilk obviously have not understanding of).

Norwood manages to work himself into a frenzy about OSHA's alleged crimes:
"The ACGIH is going to stop writing the laws of this land, if it's the last thing I do on this earth. They'd better get ready because I'm going to come after them. You guys at the Labor Department that are letting this happen are next on that podium, under oath. We're going to find out why you are allowing this to happen, under oath .... It's against what Congress wants you to do .... We tried to fix this but the Labor Department stopped it, and now it's war!"
Hypocrisy Alert: The companies pushing Norwood's bill are praising ANSI's process which issues voluntary standards "according to strict procedures that are transparent, in open meetings, with a generous input and appeal process for all interested parties." But some of you may remember a previous effort by the American National Standards Institute (ANSI) to develop an voluntary consensus ergonomics standard. That consensus process took years of meetings, drafts that were commented on numerous times by a large committee of academics, industry and labor representatives. But as the final version was nearing completion in the Fall of 2003, the industry reps, unhappy with the result (even though it would have been significantly weaker than the recently killed OSHA Standard) threatened to sue the National Safety Council, which was sponsoring the process. The industry's threat worked. ANSI and the Safety Council caved in and the consensus ergonomics standard died. Moral of the story: These guys don't really care what the process is; only that the results allow them to go on doing whatever they want to do.

But I digress. Two hearings have been held on the bill. At the second hearing last week, Michaels attempted to enlighten Norwood on the origin of his bill:
The reality is that this legislation is part of a campaign, spearheaded by the well-paid lobbyists at the firm of Patton, Boggs, being waged on behalf of a small group of companies and trade associations. After losing in federal court, not once, but twice, these parties now seek special favors from Congress in the form of this anti-public health legislation.


Attorneys from Patton Boggs, for example, represent a group of mining companies who have fought for at least a decade for the right to expose underground miners to diesel particulate matter, a hazard that increases their risk of cardiovascular and cardiopulmonary disease and lung cancer. The EPA and this Congress have made important strides to limit the public's exposure to such dangerous particulates, but Patton Boggs continues to challenge the Department of Labor’s efforts to protect underground miners through sustained procedural attacks, and sadly, have succeeded in delaying the rule. The unceasing efforts of these lobbyists have genuine health consequences for exposed workers.
Norwood was so upset at the suggestion that he was doing the bidding of Patton Boggs and interested industries that he interrupted Michaels twice during his testimony, accusing him of attacking his honor, although Michaels had distributed a memo from the Brick Industry Association requesting money to fund Patton Boggs effort to attack ACGIH:
This effort is being led by Henry Chajet, an attorney at Patton-Boggs, who is soliciting interested companies and industries. Estimated costs for 2004 are $570,000. Several BIA member companies voiced interest in contributing to the effort. BIA is not in a position to make a financial contribution at this time.
And despite Norwood's fulminations, Michaels is right: there will be genuine health consequences for workers. Silica is a good example of the harm this legislation would do. It has been known for decades that silica dust, when inhaled, can cause a fatal lung disease called silicosis. But evidence has been building for years that silica also causes cancer. Ten years ago, IARC designated silica to be a carcinogen (a chemical that causes cancer) and ACGIH lowered its TLV. Since then, the evidence of silica's carcinogenicity has grown and OSHA -- which still enforces a hopelessly outdated 1966 standard, is currently working on a revision.

But this isn't good enough for the industry. Patton Boggs' Chajet testifying at the first hearing on April 27, complained that
The new [ACGIH] TLV limit for silica is ¼ the level deemed safe by valid OSHA and MSHA regulations and was created using secret authors with conflicts of interest and bias who ignored the scientific evidence that contradicts the TLV.
But as Dr. Michaels asks,

When an IARC expert panel concludes that a substance like silica, or beryllium, or hexavalent chromium are carcinogenic to humans, shouldn’t this information be provided to workers through a MSDS and the right-to-know protections afforded by the Hazard Communication standard?

In his testimony at Norwood's first hearing, UAW Health and Safety Director Frank Mirer argued that although ACGIH standards weren't as good as OSHA should be able to issue with months of hearings and expert input, they are much better than what's on the books now and given OSHA's inability to act, Congress should authorize a one-time adoption of ACGIH TLVs by OSHA. Mirer pointed out that the UAW had negotiated an agreement with the major automakers establishing the ACGIH TLVs as internal occupational exposure guidelines.

I'm not sure if OSHA's new director, Ed Foulke, was put under oath at last week's hearing as Norwood had promised, but to its credit OSHA is not supporting Norwood's bill, despite the Congressman's threats:
The bill ...could have the result of prohibiting OSHA from using many important sources of information—including standards, findings, reports, papers, treaties and recommendations, issued by industry, trade, or employee representative groups, and academic institutions--when drafting rules and issuing voluntary guidance documents.
Foulke also pointed out that the bill would prohibit OSHA from using the results of scientific studies to develop new OSHA standards
For example, suppose a study about a safety or health issue was conducted by a group of researchers at a university, such as the University of Georgia, and the results, which contained one or more scientific determinations, were published in a peer-reviewed journal. Even if the study’s determinations were submitted to OSHA as part of a formal notice-and-comment rulemaking process, this bill would likely prohibit OSHA from relying on that information in promulgating a standard.
I will end with one more example of the real consequences that this legislation could have for workers. Readers of Confined Space are familiar with the "popcorn lung" problems where workers have contracted a serious, fatal lung disease from exposure to diacetyl, a popcorn butter flavoring. Dozens of workers who are now facing lung transplants (one of whom has died) sued the manufacturer because the MSDS they were give did not include information that the chemical had been found through lab studies to cause severe lung damage, nor did it contain warnings to use appropriate respirators. The workers won most of the initial lawsuits, and the companies eventually settled with the rest.

If Norwood's bill were to pass, the criminal omission of the health information about diacetyl would be perfectly legal. And corporate America would rejoice.