The campaign to weaken worker protections

Introduction

America’s flimsy workplace health and safety protections are no accident.

Problems that contribute to the daily toll of illnesses, injuries and deaths — from outdated chemical-exposure standards to tiny fines for major violations — come after decades of concerted efforts to delay fixes and weaken the Occupational Safety and Health Administration’s authority.

It’s jammed the gears of the regulatory system to the point that they hardly turn. OSHA issued seven health standards in the last two decades — one of which was revoked by Congress — compared with six in 1978 alone. As a result, most of the agency’s exposure limits are more than 40 years old. And tens of thousands of chemicals, including some that the federal government has known for years are hazards, have no limits at all.

There’s plenty of blame to go around. Business interests, lawmakers, federal agencies and the White House have all played a role.

Industry

The metal hexavalent chromium, emitted as a fume during chrome plating and certain welding operations and used in products such as specialty paints, can cause cancer. The risk at OSHA’s original exposure limit was so extreme — as many as one worker in three would likely get cancer from inhaling that much chromium over their entire careers — that advocacy group Public Citizen and a union sued in 2002 to get the agency to act.

Companies, sensing a threat, had mobilized years earlier. They argued there was no significant risk, criticized studies that suggested otherwise and lobbied to keep the standard unchanged.

This is how industries typically react. It’s playing out again as OSHA tries to update its limit for lung-damaging silica. Thousands of lives have been lost to such delays.

What makes the chromium case stand out: Advocates and federal officials eventually got their hands on the chromium lobby’s internal documents. They offer a revealing look at how companies work to beat back protections meant to keep people from dying.

In 1996, according to the minutes of one Chrome Coalition meeting, companies and their consultants discussed how they might “forestall the rulemaking.” The plan included attacking health studies showing harm and preparing for a lawsuit.

No one made even a passing mention of what would be best for workers’ health. Another industry document said only a comparatively modest cut in the chromium limit would be acceptable because it could be handled by modern facilities “without major additional investment.”

According to testimony in an enforcement action later filed by the U.S. Environmental Protection Agency, the coalition spent an estimated $500,000 on a lung-cancer study of chrome workers to call into question earlier research. But the results provided “strong support for the inadequacy of the current standard” and even raised questions about whether the limit OSHA proposed was protective enough, according to a 2006 paper co-authored by David Michaels, an occupational health expert who since 2009 has headed OSHA.

The Chrome Coalition withheld that study from federal agencies. Instead, Michaels wrote, it massaged the data and released certain parts that seemed to support its position.

The coalition no longer exists, but the chromium companies did get something for their efforts. OSHA feared that certain firms couldn’t afford to reduce exposures to the proposed limit of 1 microgram per cubic meter of air — as the chromium industry argued — so in 2006 the agency set the new standard at 5 micrograms.

That means workers can still legally be exposed to chromium levels that, by OSHA’s reckoning, would give up to one in 22 of them cancer over a working lifetime. That’s far less protective than OSHA typically aims for.

Adam M. Finkel, who worked on the chromium rule while directing OSHA’s health standards program from 1995 to 2000, calls the adopted limit “shamefully weak.”

The fact that it got through at all qualifies as a rare victory. Few of OSHA’s 470 exposure limits have been changed since they were adopted in 1971.

Trade groups have played an outsize role in that, too. They challenged rule after rule in court, leaving OSHA hemmed in by decisions that contribute to an expensive, years-long slog to update a single health standard.

One turning point came in 1980.

After federal officials concluded that benzene can cause leukemia, OSHA lowered its exposure limit in 1977 from 10 parts per million to 1. The American Petroleum Institute, which three decades earlier conducted an internal toxicological review that concluded “the only absolutely safe concentration for benzene is zero,” sued to get the new standard overturned.

A divided Supreme Court did so, finding that OSHA had not demonstrated that the standard remedied a “significant risk.” The decision — opposed by four of the justices, who contended it endangered workers and disregarded the law — affected more than just benzene. OSHA could no longer declare that carcinogen exposure must be as low as possible. Ever since, the agency has spent time on complex analyses that estimate the number of workers at risk.

OSHA’s later benzene analysis estimated that for every 1,000 people exposed over a working lifetime to concentrations at the original standard, 95 would likely fall ill with leukemia as a result — nearly 1 in 10. Prodded by unions, the Reagan administration adopted a 1 part-per-million standard in 1987 that stuck.

The decade-long wait came at a cost. A former OSHA official and two occupational medicine experts separately estimated that several hundred workers would die of cancer as a result.

The American Petroleum Institute did not respond to requests for comment. But in a statement after the Supreme Court ruling, the group’s then-president, Charles J. DiBona, said the case demonstrated the importance of regulators relying on “scientific facts rather than pure speculation.”

“The issue was never whether benzene is toxic,” he said. “The petroleum industry itself identified it as toxic years ago and imposed its own protective standards long before the government showed any interest in regulating it.”

In the 1980s, frustrated with the slow pace of health rule revisions, Reagan-appointed officials tried to fix everything in one fell swoop.

Most of OSHA’s exposure limits from 1971 were carbon copies of ones recommended by the American Conference of Governmental Industrial Hygienists, a group of experts that regularly updates its numbers. OSHA decided to launch a rulemaking to adopt the nonprofit’s most recent recommendations.

OSHA’s 1989 rule added new limits or tightened existing ones for 376 chemicals and won praise from big industry groups, including what is now the American Chemistry Council. The early criticism came almost entirely from unions, which contended that standards remained too lax.

But other trade groups, including the American Iron and Steel Institute and the Society of the Plastics Industry, ultimately filed suit to overturn some of the new limits.

The AFL-CIO filed suit, too, but to get OSHA to toughen some of the rules, not toss them.

Business interests upset about tighter limits won that battle in a big way. The U.S. Court of Appeals in Atlanta vacated everything. The agency’s economic-impact analysis and other studies, prepared with less detail so all 376 chemicals could be handled at once, weren’t sufficient, the judges ruled.

“It may well be, as OSHA claims, that this was the only practical way of accomplishing a much needed revision of the existing standards and of making major strides towards improving worker health and safety,” the judges wrote in their 1992 decision. But the 1970 Occupational Safety and Health Act doesn’t allow that flexibility, they added.

As the congressional Office of Technology Assessment noted three years later, “Arguably, OSHA faces rulemaking requirements among the most demanding of all federal agencies with health, safety and environmental regulatory responsibilities.”

OSHA had estimated that the 1989 update would save 683 lives a year at an annual cost of $6,000 per affected plant. The Court of Appeals judges offered a tip: “Before OSHA uses such an approach, it must get authorization from Congress.”

A generation later, Congress has yet to give OSHA that authority. In fact, it’s hobbled the agency even further.

Congress

When Republicans gained control of Congress after the 1994 election, Rep. Cass Ballenger of North Carolina gleefully took the reins of the House Subcommittee on Workforce Protections. Raising funds in the election campaign had been easy, he told The Washington Post: “This was my sales pitch: ‘Businessmen, wouldn’t you like to have a friend overseeing OSHA?’ ”

Ballenger, who died in February, owned a plastics packing company and saw OSHA as a menace. He was part of a growing tide in Congress. Rep. John Boehner of Ohio, now House speaker and then chairman of the House Republican Conference, said at the time that most employers “would describe OSHA as the Gestapo of the federal government.”

The debate then and throughout OSHA’s history centered on whether the agency treated businesses as adversaries rather than potential partners. Ballenger said OSHA inspectors felt “pressured to issue citations in order to look good.”

His overhaul legislation in 1995, which would have sharply cut back OSHA’s enforcement authority and abolished the country’s workplace-hazard research institute, didn’t make it out of committee after the Clinton administration threatened to veto it. But OSHA spent years on the defensive, battling budget-cut proposals and congressional efforts that delayed the ergonomics rule begun by a Republican labor secretary in 1990.

Businesses hated the rule, which would have affected broad swaths of industry because it was supposed to protect against disabling injuries caused by repetitive movements. In 2001, shortly after OSHA issued the standard, Congress revoked it — the first (and so far only) regulation undone by the Congressional Review Act.

Eric Frumin, former health and safety director for the Amalgamated Clothing and Textile Workers Union, pushed hard for a standard and remains distraught about its demise.

“Tens of millions of workers who are not covered by a union contract would have had a grievance procedure for abusive workloads,” said Frumin, now with Change to Win, a labor consortium. “The biggest single safety and health problem [could have been] wiped off the agenda.”

There’s no sign that OSHA will get congressional help anytime soon. Worker-safety advocates in Congress are focused on the Protecting America’s Workers Act, which would add teeth to enforcement with tougher civil and criminal penalties. Now, OSHA bemoans, companies can get into far more trouble for killing fish than killing workers. The typical employer penalty after an OSHA fatality investigation last fiscal year came to about $5,000, the AFL-CIO calculated.

Lawmakers have proposed the bill this year and for each of the last six Congresses. It made it as far as hearings only once, in 2010 — when Democrats were in control — and couldn’t get traction that year.

The measure faces deep skepticism among Republicans.

“Policies that impact our workplaces virtually always carry with them a cost, and we must be mindful not to impose any unnecessary or unnecessarily costly new requirements,” Rep. John Kline, R-Minn., now chairman of the House Committee on Education and the Workforce, said at one of the 2010 hearings.

Kline’s campaign contributions from business interests in 2009-2010 totaled about $930,000, according to the Center’s analysis of data from the Center for Responsive Politics. He took in nearly 90 percent more from such sources in 2013-2014, as committee chairman.

But Public Citizen doesn’t see wide differences between Democrats and Republicans over the last two decades when it comes to improving worker health.

“Both parties are essentially corporate-funded,” said Dr. Sammy Almashat, a researcher with Public Citizen’s Health Research Group. “In addition to the donations, the actual donation itself, it’s infused a culture in the regulatory process of extreme deference to industry.”

Still, businesses aren’t uniformly opposed to more protections. Jim Thornton, a manufacturing safety and health professional active with the American Society of Safety Engineers, said many employers already keep exposures lower than OSHA requires because they don’t want to sicken their workers.

Industry groups as well as unions came to the table when the American Industrial Hygiene Association, which represents occupational-health professionals, tried to develop a better standards system about 15 years ago. They got as far as writing draft legislation before the effort petered out, said Aaron Trippler, the association’s director of government affairs.

“There has been some talk about, ‘Maybe we could put a group together again,’ ” he said. “But I don’t think you could get anywhere unless you have Congress behind it.”

Rep. Joe Courtney, a Democrat from Connecticut who’s sponsoring the House version of the Protecting America’s Workers Act this year, thinks reform will come eventually.

“There’s this narrative that OSHA is an impediment to job creation and economic growth,” said Courtney, whose biggest single source of campaign contributions is labor, though industry sectors have donated more combined. “My experience is that more enlightened employers out there understand that it’s to their advantage to protect workers from preventable illnesses and accidents — that it actually increases productivity, that it works for both sides. But still, there’s this sort of kneejerk opposition to anything the federal government touches.”

Office of Management and Budget

OSHA has tried, in fits and starts, to reduce its exposure limit for silica since the 1970s. But its long-awaited proposal, ready in OSHA officials’ eyes in 2011, had to go to another agency for review before the public could weigh in.

And there it sat for 921 days — 2 ½ years.

The White House’s Office of Management and Budget is supposed to complete its reviews in 120 days, unless the rulemaking agency asks for more time. Critics say OSHA rules frequently languish during review while business interests work to undermine the proposals. The OMB can demand changes from agencies.

The OMB did not respond to repeated requests for comment about its review process. But Cass R. Sunstein, who headed the OMB office responsible for reviews from 2009 to 2012, said in written congressional testimony that the process helps improve rules, ensure that benefits outweigh costs and make “agencies ‘look before they leap.’ ”

Susan Dudley, Sunstein’s immediate predecessor, wasn’t involved with the silica-rule review but has followed the issue as director of the George Washington University Regulatory Studies Center. Vetting details such as health risks under current law and how much the proposal will help is a highly complex affair, she said. Even so, the length of time strikes her as “a sign that there was a lot of controversy on it.”

“There clearly was some debate about the right way to go,” she said.

The latest delay involves a rule for beryllium, which is used in industries ranging from defense to golf-club manufacturing and can trigger a deadly lung disease. It’s a rare case in which a big company has championed better protections after decades of efforts to impede them.

OSHA sent a proposal for a tighter limit to the OMB after the substance’s major producer, Materion, and the United Steelworkers union joined together to urge such an action. The OMB has had the proposal since September — nearly 10 months — despite that agreement and the fact that the U.S. Department of Energy has required stronger protections for its contractors’ workers since 2000.

Four members of Congress wrote the OMB in April to ask that it turn the proposal loose in light of the “public health urgency.”

The members, all Democrats, noted in their letter that any concerns people might have about the proposal could be raised during the hearings OSHA would hold.

Those are public. OMB meetings are not. All that can be gleaned from them is who attended — and what documents were shared, if any.

Silica is a fairly typical example. Not counting government representatives, 80 percent of the people who attended the 11 OMB meetings on that proposal were affiliated with companies and trade groups — far outnumbering attendees there to advocate for worker health. (It’s agency policy to accommodate everyone who wants to meet.) The American Chemistry Council came with a document that predicted the rule would “eliminate countless jobs and small businesses.”

The OMB’s key charge in reviews, handled by its Office of Information and Regulatory Affairs, is to delve into costs and benefits. Industry generally argues that the expense will be far higher than OSHA expects. As it happens, OSHA usually does get it wrong — by overestimating.

That’s what the Office of Technology Assessment found in 1995 when it analyzed OSHA rules, five of them health standards. Some of the overestimates were huge: The vinyl chloride rule ultimately cost about a quarter of what OSHA’s consultant expected; the cotton-dust standard cost less than a third of what the agency had estimated.

Delays have happened in Democratic and Republican administrations alike, though Public Citizen says they’ve worsened under President Barack Obama. Celeste Monforton, who worked at OSHA in the 1990s, sees OMB gridlock as a statement on the low priority presidents assign to worker health.

When OSHA is faced with deadlines set by judges or Congress, it’s able to meet them, Monforton said — perhaps because the deadline operates as a battering ram through executive-branch logjams. She thinks the agency could do better if it had more White House support.

“There’s certainly procedural issues and outside parties … that play a role and have played a role in delaying protections for workers, but you also don’t have the strong political desire to issue these regulations,” said Monforton, a lecturer at George Washington University’s School of Public Health.

Centers for Disease Control and Prevention

Information on how chemicals are used in the workplace — which occupations handle what, the number of people exposed, the ways they’re exposed — is surprisingly hard to come by. Yet these are the details officials need to protect health and prioritize standard-setting.

“There are no systems that capture it,” said Julia Quint, a toxicologist who ran California’s Hazard Evaluation System and Information Service before retiring in 2007.

Workplace-hazard research is the purview of the Centers for Disease Control and Prevention’s National Institute for Occupational Safety and Health. The problem isn’t that NIOSH hasn’t conducted a national survey of workplace exposure across industries — it’s that the agency hasn’t done it for more than 30 years.

From 1981 to 1983, NIOSH collected information by visiting nearly 4,500 workplaces, updating a survey conducted a decade earlier. That produced rich data that regulators and health researchers relied on for years. But the data are old, and NIOSH doesn’t have funding to do that work again.

Health advocates say NIOSH has few champions in Congress — it was even targeted for closure in the 1990s — and is an afterthought at its parent agency. Founded as the Communicable Disease Center in 1946 to fight malaria, the CDC must respond to public-health crises as varied as tornadoes and bioterrorism.

NIOSH’s funding tells the tale. It equated to 20 percent of the CDC’s budget in the late 1970s but has hovered around 5 percent for the last decade.

The American Industrial Hygiene Association and American Society of Safety Engineers have called on Congress to consider other parent agencies for NIOSH, whose budget they said in a 2013 letter “continues to fall short of its commitments to occupational safety and health research and education as an ever-increasing amount … is forced to be given back to CDC for administrative costs.”

The CDC would not make its director, Tom Frieden, available for an interview. In a statement, the agency said its public-health responsibilities and budget have ballooned in the last generation, but NIOSH’s funding rose, too — nearly sixfold since 1983. (That doesn’t account for inflation, which ate a substantial chunk of the increase. Much of the rest was earmarked for tasks the agency didn’t have 30 years ago, such as miner-health research.)

The CDC believes NIOSH is fulfilling its mission.

“CDC supports NIOSH’s work in leading strategic surveillance of injury and illness on the job, allocating its resources for maximum return,” the CDC said.

NIOSH, for its part, would love to conduct an updated workplace survey. Roughly 15 years ago, officials had discussions with OSHA about sharing the cost, estimated at $21 million to $33 million in today’s dollars. But NIOSH Director Dr. John Howard said that idea was unraveling by the time he arrived in 2002.

“Our NIOSH folks couldn’t figure out what was going on,” he said. “I remember sort of forcing the issue with [then-OSHA Director John] Henshaw about are we going to do this or not? ‘No, we’re not going to do it.’ ”

Henshaw said he doesn’t recall discussions about OSHA co-funding a new survey, but he thinks it’s possible such an idea reached less-senior officials and they nixed it.

“I think probably one of the reasons why it never came to my level, why I don’t recall it, is it was thought to be a NIOSH responsibility, not an OSHA responsibility,” he said. “The agency may have communicated [that] to NIOSH.”

NIOSH can’t shoulder the cost alone, Howard said, so the agency decided to focus its survey efforts on one big and growing industry — health care. It’s also spent the last decade and about $90 million delving into the complex health implications of nanotechnology, making recommendations for the burgeoning field of materials made at a scale far smaller than the human eye can see.

Given OSHA’s difficulties regulating old hazards, Howard said, NIOSH recommendations could be all that workers have to protect themselves from new ones.

“We lament like everybody else, ‘It’s a broken system,’ … but it doesn’t stop us,” Howard said. “We have to go on. Because if we don’t go on, there’s nothing there.”

OSHA

The driving force that pushed the chromium standard to completion in 2006 wasn’t OSHA but a court order. Though the agency knew in 1975, thanks to NIOSH’s work, that the exposure limit needed to be dramatically tightened, the U.S. Court of Appeals in Philadelphia noted in 2002 that OSHA had dragged its feet “in the face of an admittedly grave risk to public health.”

“Indeed, at oral argument, OSHA’s counsel admitted the possibility that OSHA might not promulgate a rule for another ten or twenty years, if at all,” the court wrote in its decision.

Forces outside OSHA’s control make its job much harder. But the agency could do more, its critics say.

“They’ve sort of given up,” said Rena Steinzor, a University of Maryland law professor who is a past president of the Center for Progressive Reform, a left-leaning think tank. “They’re suffering from battered-agency syndrome.”

In the 1990s, despite the benzene court decision and other challenges, OSHA issued 11 health rules. In the 15 years since, it’s issued four — one during the Obama administration, one during the George W. Bush administration and two at the end of the Clinton administration. That includes the overturned ergonomics rule.

Finkel, the former OSHA director of health standards, said the mid-1990s were more productive because the agency’s leaders supported his division’s work and didn’t back down when the OMB or industry groups applied pressure. Even so, he said, there was a pervasive fear of lawsuits within the agency.

“There’s something about OSHA through all its history — it’s been too deferential,” said Finkel, now executive director of the Penn Program on Regulation at the University of Pennsylvania Law School.

Monforton, the former Labor Department official, said OSHA keeps asking the public for input about what it should do — what chemicals to focus on, how to streamline the standard-setting process — and then seemingly does nothing with the information.

“There are obstacles for OSHA, but in some ways, they’re their own worst enemy,” she said.

Jim Morris contributed to this story.