Introduction
A long-delayed government epidemiological study of possible ties between diesel exhaust and lung cancer in miners may finally be published this fall — but only after a mining industry group, represented by the Washington lobbying powerhouse Patton Boggs, finishes a pre-publication review of the study’s drafts.
Eighteen years in the making and eagerly awaited by public health officials, the cancer study evaluates more than 12,000 current and former workers from eight mines that produce commodities other than coal. Its goal is to determine whether ultrafine diesel particulate matter — a component of exhaust from diesel-powered machinery — poses a serious hazard to miners in confined spaces.
In a development some experts find alarming, however, Patton Boggs lawyer and partner Henry Chajet, representing a mining industry alliance, the Methane Awareness Resource Group Diesel Coalition, accused the National Cancer Institute and the National Institute for Occupational Safety and Health (NIOSH) of “unfairly, unjustly and unreasonably” depriving mine owners of an advance look at research that could impact their operations.
Providing the latest twist in a nearly 15-year court battle, Chajet’s persuasive court filings led to a federal judge’s terse, two-page order in June requiring the two Department of Health and Human Services institutes to turn over research to the business coalition’s scientific experts 90 days prior to their public release. The same judge had issued a similar order in 2001.
“I think it’s outrageous and dangerous,” said Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists. “It’s not a fair fight under any circumstances. The public interest community is so out-funded by the private community, and then on top of that they’re getting these materials in advance,” she said. “They can spin anything they want any way they want.”
Despite critics’ charges that Chajet has endangered workers by challenging regulations proposed by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) — while attacking the science behind such regulations — the preview was a significant victory for the veteran crisis manager and litigator, who has defended companies in chemical exposure cases, mine disasters, explosions, fires, and construction accidents for more than three decades.
In this clash with the government dating to 1996, Chajet has been a formidable advocate for companies that mine salt, limestone, and an ore used in soda ash, including General Chemical Industrial Products Inc., Cargill Inc., Detroit Salt Co. LLC, Rohm and Haas Co.‘s Morton Salt, FMC Corp., and Mosaic Company.
“People turn to us when they want expertise and they want good lawyering,” Chajet explained to the Center. “There are times when problems occur in any business and any enterprise, and we’ve been honored to help people try to resolve those problems so they can move forward.” (According to 2010 disclosure forms filed with the Senate, Chajet was registered to lobby on behalf of General Chemical Corp. and the Methane Awareness Resource Group.)
Celeste Monforton, an assistant research professor at George Washington University who worked at both the occupational and mine safety agencies, has followed the long-running dispute between government health officials and industry interests over diesel. She calls Chajet’s challenges “fear-mongering.”
“He understands the limitations of science and how to convince people that these agencies are out of control. He really has an appreciation for our dysfunctional regulatory system and has been masterful at capitalizing on that dysfunction,” she said.
Monforton believes the mining industry group’s demand to see drafts of the cancer study is part of a campaign to delay or discredit the $9.4 million scientific inquiry. “They’ve done everything they can to obstruct the study,” she said.
“Government researchers do studies all the time and publish them in peer-reviewed journals. This is the only example I know of where an industry group gets access to the information before anybody else does,” Monforton said. “I think as soon as the study is published [industry consultants] will already have another paper prepared that will dissect it and explain away any risks that are identified.”
The study will be published in the “Annals of Occupational Hygiene,” a peer-reviewed British journal, after the court-ordered 90-day review period ends next month.
Representatives of the Centers for Disease Control and Prevention’s NIOSH, and the National Cancer Institute, citing ongoing litigation, declined to comment for this story.
Industry may seek more government documents
Chajet said the diesel coalition’s only goal is to provide the subjects of the cancer study — both workers and mining companies — with details on how the study was conducted and its results. Even after surrendering edited versions of its unpublished drafts, the government refused to turn over some internal correspondence and raw data, he said. “Our scientists are reviewing what’s been given to us,” Chajet said, “but we are seriously considering going back [to court] to try to obtain the rest of the documentation.” He said the coalition will report its findings to NIOSH and Congress.
“For whatever purpose — whether for litigation, the establishment of public policy, or the establishment of regulatory policy — our goal is to get the information and open the door and let the participants and the public see what the conclusions are based on the science,” Chajet said.
But some critics suspect an ulterior motive. Industry scientists, they say, could do their own analysis of the government data and produce papers that minimize the risks posed by diesel. “The bottom line is that this is scientific information in a draft form, and to have that released just provides a superhighway for industry to manipulate those research results,” Grifo said.
In arguing for a diesel exposure limit in 2001, the mine safety administration said that diesel particles spewed by front-end loaders, generators, air compressors, and other underground equipment could carry with them up to 1,800 other organic chemicals, including carcinogens. Median diesel concentrations in mines, it said, were up to 180 times higher than the average exposure in heavily polluted urban areas and eight times higher than in other workplaces.
“When there is uncontrolled diesel equipment in an underground mine, it is like working in the tailpipe of a city bus,” said Mike Wright, health and safety director for the United Steelworkers, which represents 15,000 miners.
Monforton contends that Chajet sells his clients on the idea that “any characterization of a hazard — particularly a chemical hazard — is a potential liability” to them. His aim, she believes, is to “muck up the works” by challenging the science on toxic compounds such as diesel exhaust and, therefore, help companies fend off litigation or new government rules.
Chajet said he has no such motivation. “We have never conducted any work that put people at risk,” he said. “Our clients are committed to protection of health and safety and the environment and are committed to policies that accomplish those goals.”
Chajet, 59, has been practicing corporate defense law since 1976. At Patton Boggs, he has testified before Congress on workplace issues; his clients tend to be companies that find themselves in the crosshairs of OSHA and MSHA.
After a Kaiser Aluminum plant in Gramercy, La., blew up in 1999 — injuring 29 workers, showering the neighborhood with residue, and prompting a spate of lawsuits — Chajet and his legal team “resolved all investigations and enforcement actions, helped recover almost the entire financial loss, favorably resolved the tort actions, and recovered denied insurance proceeds to rebuild the plant,” according to the Patton Boggs website. In a settlement with the government, Kaiser Aluminum and two of its managers paid more than $500,000 in fines.
In another notable industry win, OSHA in late 2009 said it would drop chemical exposure limits developed by a nonprofit professional group from hazard disclosure documents that employers are required to maintain. Chajet, representing a range of industries, had pushed for such a move, arguing that the limits — designed to protect workers’ health — were developed in secret by “biased” scientists from the American Conference of Governmental Industrial Hygienists. Chajet spent a decade fighting the group in court to stop the government from using the organization’s recommended exposure limits.
Delays and frustration
The epidemiological study of workers at so-named metal and nonmetal mines was launched in 1995 by the National Cancer Institute and NIOSH to build on studies that suggested a link between diesel and lung cancer in truck drivers and other workers exposed to diesel particulate matter. The study’s results will offer a “state-of-the-art evaluation of diesel,” said Kyle Steenland, a professor at Emory University’s Rollins School of Public Health and a former NIOSH epidemiologist. “It should provide a very important piece of information about whether diesel is a lung carcinogen. Unfortunately, it has been delayed and delayed for years. It’s high time that the public and the scientific community get to see the results of this study.”
The delays began in 1996, when the diesel coalition sued NIOSH, arguing that scientific panels established to review the study protocol were potentially biased. Over five years of legal tussling, an appeals court found only one minor violation by NIOSH: providing an advisory panel’s charter to the wrong congressional committee. Nevertheless, in a 2001 order, U.S. District Court Judge Richard Haik directed government researchers to share drafts of the study with the House Education and Labor Committee prior to any public release and required that documents explaining the diesel study protocol go to the coalition along with the House committee.
Little of consequence happened after that until March of this year, when the researchers gave drafts of the soon-to-be-published study to the House committee but not to the diesel coalition. In April, Chajet asked Judge Haik to order the government to turn over the drafts to the coalition. The government unsuccessfully argued that releasing the drafts to the group would have constituted public disclosure, in violation of the judge’s own 2001 order.
Some observers believe the fight over the cancer study may be a proxy for a bigger objective: Another mining industry challenge to an MSHA rule limiting diesel exhaust.
On Jan. 19, 2001, President Bill Clinton’s last day in office, the mine safety administration proposed its first-ever exposure limit for diesel particulate matter in metal and nonmetal mines. The regulation, which was phased in, is designed to cap concentrations of the microscopic particles, which can work their way deep into the lungs. “Miners should not be required to serve as human guinea pigs in order to remove all doubts about the excess risks of [diesel] exposures,” MSHA said at the time.
Although the industry challenged the diesel exposure limit — which MSHA estimated would cost each mine, on average, a relatively paltry $128,000 per year to adopt — the final version of the regulation took effect in 2008. Companies in the diesel coalition opposed it “because they don’t think the science supported what MSHA did,” Chajet said, adding that the quarrel over the cancer study has no connection to the MSHA standard. “This is not about a regulation,” he said.
Of course, mining companies could in theory ask MSHA to roll back the diesel standard in the face of new scientific evidence, said J. Davitt McAteer, assistant secretary of labor for MSHA from 1993 to 2000. However, it’s unlikely such an effort would succeed.
“That would be like finding out that tobacco smoke is actually good for you,” McAteer said. “It’s not a realistic outcome.”
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