OSHA rules on workplace toxics stalled

Introduction

At 58, retired machinist Bruce Revers is tethered to his oxygen machines — a wall unit when he’s at home, a portable tank when he’s out. The simple act of walking to the curb to pick up his newspaper is a grind.

“This is a hell of a thing to live with,” Revers, of Orange, Calif., said of his worsening lung disease. “There’s nothing I can do without my air.”

His undoing was beryllium, a light and versatile metal to which he was exposed in a Southern California factory that makes high-tech ceramics for the space, defense and automotive industries. His bosses tried to keep the place clean and well-ventilated, Revers says, and he wore a respirator to shield his lungs from the fine metallic dust. Nonetheless, he was diagnosed with chronic beryllium disease in 2009.

He will not recover.

The federal standard in place to protect workers like Revers from beryllium is based on an Atomic Energy Commission calculation crafted by an industrial hygienist and a physician in the back of a taxi in 1949. For the last 12 years, an effort to update that standard has been mired in delay. A plan to address another toxic hazard — silica, a mineral that also damages the lungs — has been tied up even longer: 15 years.

The sluggishness is symptomatic of a bigger problem: the Occupational Safety and Health Administration’s inability to act with urgency on well-known workplace hazards.

Beryllium, used in everything from missiles to golf clubs, threatens as many as 134,000 workers in the United States, according to government estimates. Silica, pulverized and inhaled by construction workers, foundry workers and miners, threatens more than 2 million. Obsolete exposure limits, dating to the early 1970s, are on the books for both substances.

Apart from the suffocating, chronic lung ailments they cause — berylliosis and silicosis — beryllium and silica are classified as “known human carcinogens” by the International Agency for Research on Cancer.

“Shameful,” Dr. Cecile Rose, a physician with National Jewish Health in Denver who treats silicosis victims, said of OSHA’s silica limit.

“Woefully outdated,” her colleague, Dr. Lisa Maier, who sees Revers and other berylliosis patients, said of the beryllium cap.

Revers, who worked around beryllium from 1983 to 1995, recalls hearing warnings about the metal’s potency but said, “I didn’t really worry about it. Back then, I just cared about the job.” He learned he had berylliosis only after he had his gall bladder removed in 2009.

“I’ve gotten progressively worse,” Revers said. “I’m on oxygen 24-7.”

OSHA officials declined interview requests from the Center for Public Integrity. In a written statement, the agency said it remains “committed to protecting workers” from beryllium and silica. “However, numerous steps in the regulatory process mean OSHA cannot issue standards as quickly as it would like.”

“These days the backlash against even the simplest efforts to protect workers is withering,” said Rena Steinzor, a professor at the University of Maryland School of Law and president of the Center for Progressive Reform, a left-leaning think tank. “OSHA hasn’t made a serious run at regulating chemicals in the workplace in a couple of decades.”

‘Broken’ process

The Government Accountability Office reported in April that it takes OSHA nearly eight years, on average, to issue a health or safety standard. After issuing 47 significant rules, covering threats as diverse as asbestos and logging, in the 1980s and ‘90s, the agency has produced only 11 since 2000, the GAO found. Some of these aren’t new rules at all but tweaks to existing rules, known as technical amendments.

“The standard-setting process at OSHA is broken,” Sen. Tom Harkin, an Iowa Democrat who chairs the Senate Committee on Health, Education, Labor and Pensions, said at a hearing on the GAO audit.

It takes OSHA twice as long as the Department of Transportation and five times as long as the Securities and Exchange Commission to put out a rule, Harkin said. “The Reagan administration issued new [worker health and safety] rules at a rate four times faster than the current administration,” he said.

To be sure, OSHA has hurdles to clear. Court decisions in industry lawsuits say the agency must prove significant risk before adopting costly rules. The White House Office of Management and Budget often serves as a bottleneck; the silica rule, for example, can’t be formally proposed until it’s extricated from OMB’s Office of Information and Regulatory Affairs, where it’s been under review for more than 15 months instead of the 90 days allowed by executive order. Given industry objections, it stands little chance of being dislodged before the presidential election.

The beryllium rule has yet to make it to OMB.

The day of the Harkin hearing, four workers, eight worker advocates and seven relatives of people killed on the job had a one-hour meeting with Cass Sunstein, director of the Office of Information and Regulatory Affairs, and other White House officials. The visitors’ aim was to put a human face on the sterile process of rulemaking.

It seemed to work. One OMB staffer started crying after hearing the family members’ stories, several attendees said. Sunstein shook the hand of Alan White, a 47-year-old foundry worker from Buffalo, N.Y., who suffers from silicosis. “He said, ‘I’m so sorry,’ ” White recounted a few days later.

Still, no one expects the process to change anytime soon. Chuck Gordon, a lawyer who retired from the Department of Labor in 2008 after spending 32 years in the solicitor’s office, believes OSHA isn’t pushing hard enough.

“People say OMB holds things up, and sometimes they do, but the fact is you can fight OMB,” Gordon said. “We did it all the time in the Reagan and Clinton years. We’d negotiate and make a few compromises, but we’d often win on the major issues. You can put pressure on them if the assistant secretary [of labor for occupational safety and health] is willing to take them on.”

An OMB spokeswoman did not respond to interview requests.

Crackdowns on silica and beryllium could cost the affected industries hundreds of millions of dollars. Companies would have to pay for respirators, health screenings, exposure assessments and dust-control equipment.

But the price of inaction on these and other workplace toxics is staggering. A recent study put the cost of fatal and non-fatal workplace illnesses in the U.S. at $58 billion for a single year.

The human costs are higher still. Each year, an estimated 50,000 people die from occupational diseases. That’s roughly 10 times the number of workers who die from traumatic injuries. More than 400,000 people a year get sick from on-the-job exposures.

“The government — of course they’re going to drag their feet,” Revers said. “That’s a given.”

It’s worse than Revers knows. In 1978 alone, OSHA issued standards for six workplace poisons: benzene, arsenic, cotton dust, lead, a pesticide known as DBCP and acrylonitrile, an industrial chemical. In 1989 the agency ambitiously sought to update exposure limits for 428 air contaminants at once, only to have a court strike down the rule three years later.

Today? Paralysis.

‘Stop Silicosis’

Alan White’s pique was aroused recently when he viewed, on YouTube, a 1938 Labor Department film called “Stop Silicosis.” The grainy, black-and-white video features Frances Perkins, Franklin D. Roosevelt’s secretary of labor, who says silicosis can be prevented if safety measures are “conscientiously adopted.” It shows how dust from tools like jackhammers — “widow-makers” — can be controlled with water.

The film was made in the wake of the Hawk’s Nest Tunnel disaster, in which hundreds of mostly African-American workers died of silicosis in short order after drilling through silica-laden rock near Gauley Bridge, W.Va.

White hadn’t heard about Hawk’s Nest when he took a job as a general helper at the Buffalo foundry in 1995. He was happy to have the work; a single parent, he’d been laid off from a food packaging plant the year before and had been on public assistance for nine months.

The foundry, where molten copper and brass are poured into molds, was full of dust. Silica was routinely knocked loose from brick furnace linings and other equipment; clouds of it hung in the air. Dust masks were available but the workers almost never used them. “You didn’t wear masks,” White said. “You either took the heat and the dust, or you didn’t work there.”

He took it for 16 years. He took it even after he grew short of breath and a doctor told him an X-ray showed “something fuzzy” in his lungs. He didn’t want to forego wages that once reached $92,000 a year with overtime.

In 2011, White reluctantly absorbed a pay cut and transferred to a less dusty part of the plant. Asked why he stays at all, he replied, “I have two mortgages.”

Easily winded and unable to exercise, White, a new grandfather, won’t get better. The best he can hope for is a gradual loss of lung function, as opposed to the rapid deterioration experienced by the Hawk’s Nest workers. “I’m going to do my best to refrain from getting mad,” he said, knowing now that his disease was probably preventable.

White attended the Senate hearing in April and put a written statement into the record. “If there were better OSHA rules for silica,” he wrote, “I may not be sick today.”

Silicosis is hardly a new phenomenon. It was documented by the Greeks and the Romans centuries ago. The National Institute for Occupational Safety and Health, NIOSH, warned in 1974 that the silica exposure limit was too high and recommended that sandblasting, which can lead to prodigious silica exposures, be banned.

Industry demurred. A group calling itself the Silica Safety Association formed in Houston; its purpose, according to internal documents, was to prevent a “crippling restriction” on sandblasting, used in the petrochemical industry to treat storage tanks and other equipment prior to painting.

No ban was imposed. In fact, OSHA made no attempt to adjust its silica regulations until 1997, when it floated an “advance notice of proposed rulemaking” that would cut the exposure limit in half and require that controls such as water be used to quell dust. This triggered more objections from industry, which maintained that silicosis was no longer a significant threat to American workers.

The proposal stayed within the Labor Department until February 2011, when it was sent to OMB’s Office of Information and Regulatory Affairs. It was the subject of nine meetings there last year, seven of which included representatives of industry groups. Two included labor or public health officials.

In a statement to the Center for Public Integrity, OSHA called silica “one of the most pervasive hazards found in the workplace” and said it “anticipates that the proposed rule will be published soon.”

In April, NIOSH researchers reported that almost half the air samples they took in 2010 and 2011 at 11 oil and natural gas drilling sites that used hydraulic fracturing, or fracking, exceeded the current — lenient — silica limit. The drillers pump sand, which is virtually 100 percent silica, along with fluids, into dense shale formations to create fissures and get at oil or gas deposits. Dust ensues.

Industry isn’t giving in. In a statement, the American Chemistry Council called a new silica rule “unnecessary,” saying it “could threaten tens of thousands of jobs. We believe the right approach is to improve enforcement and ensure that the current standard is met, not to cut the standard in half.”

The National Stone, Sand & Gravel Association concurred, saying “the scientific evidence is clear that the existing [exposure limit] is protective of health.”

Not true, says Dr. Kathleen Kreiss, a physician with the NIOSH Division of Respiratory Disease Studies. The new limit OSHA is considering — 50 micrograms of silica per cubic meter of air, half of what’s allowed now — has itself been shown “not to be protective over a lifetime of exposure,” Kreiss said in an interview.

While the number of silicosis cases has declined in recent decades, the Centers for Disease Control and Prevention estimated in 2008 that between 3,600 and 7,300 cases still occur each year. The decline has been less pronounced among workers 15 to 44 years old, suggesting that “intense overexposures” to silica are still occurring, the CDC said.

“Now, it seems like the highest exposures are in construction,” said Pam Susi, a program director with the union-affiliated Center for Construction Research and Training. Many contractors still don’t use water or exhaust systems to suppress silica-rich dust, Susi said.

Tom Ward sees this firsthand.

Ward, 43, of Woodhaven, Mich., became a union bricklayer 22 years ago and a training director for his local in 2010. At construction sites throughout Michigan he sees workers cutting or grinding masonry and concrete with no respiratory protection and no engineered controls, generating huge dust clouds. The dust could be knocked down with water or sucked up with vacuums, Ward said, but almost no one bothers.

Ward, whose father died of silicosis at 39 after sandblasting for several years, fears he’ll contract the disease. “It’s my generation that’s going to come down with it,” he said. “There will be a surge in it among masons in this country.”

Silicosis isn’t the only worry. Dr. Ian Greaves, a physician and professor of public health at Temple University, said recent studies show that even modest silica exposures heighten the risk of lung cancer. “It appears that any degree of lung fibrosis increases the risk,” Greaves said.

‘Try to breathe through a straw’

Glenn Bell, 64, was diagnosed with chronic beryllium disease in 1993 after working 25 years as a machinist at the Department of Energy’s Y-12 nuclear weapons production plant in Oak Ridge, Tenn. He’d developed breathing problems in the 1980s but was treated as an asthmatic for years before getting the correct diagnosis.

Having berylliosis, Bell said recently, is “like being on a roller coaster. On a good day I still have quite a bit of difficulty breathing. A bad day would be when my breathing gets a lot worse. As a friend of mine described it, go outside in cold weather and run around your house eight times, as fast as you can. Then try to breathe through a straw.”

Recognizing beryllium’s extreme toxicity, even in tiny doses, the DOE in 1999 lowered the exposure limit for government and contract workers by 90 percent.

OSHA didn’t force private-sector employers to do the same, despite ample evidence that its exposure ceiling was too high and was making workers sick.

“Today the federal government finds itself in the somewhat embarrassing position of explaining why the employees of DOE and its contractors are now protected by a workplace rule ten times more restrictive than the one covering workers in the private sector,” former DOE assistant secretary David Michaels, then with George Washington University, wrote in his 2008 book about corporate influence on science, Doubt is Their Product..

Now head of OSHA, Michaels declined to talk about beryllium, which is used to make cell phones, scientific equipment, airplane brakes and many other products. Not everyone blames him for the rulemaking snag. “He’s tried hard to make changes,” said Steinzor, of the University of Maryland. Citing OMB’s glacial review pace, she said: “He’s been shut down by the White House.”

OSHA acknowledged in a statement that its existing regulations “may not be adequate to prevent the occurrence of chronic beryllium disease.” The agency said it is “hopeful” it can push through a beryllium rule mirroring the one adopted by the DOE 13 years ago.

Such a rule has the backing of both the United Steelworkers union, which represents several thousand beryllium-exposed workers, and Ohio-based Materion Brush, the nation’s only producer of pure beryllium. Known until recently as Brush Wellman, the company for years denied that beryllium posed any significant risk and fought OSHA’s attempts to tighten the standard in the late 1970s.

Now, even Materion Brush agrees that the standard is too weak. “We are hopeful OSHA’s proposed standard will reflect the collective expertise of organized labor and the beryllium industry,” the company said in a statement.

“Beryllium is no longer controversial,” said Gordon, the retired Labor Department lawyer. “If you move quickly, industry will become more cooperative because they see you moving forward. You get into the rhythm of doing things as opposed to not doing things.”