OSHA Leaves Worker Safety in Hands of Industry
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OSHA Leaves Worker Safety in Hands of Industry
By STEPHEN LABATON
WASHINGTON, April 24 - Seven years ago, a Missouri doctor discovered a
troubling pattern at a microwave popcorn plant in the town of Jasper.
After an additive was modified to produce a more buttery taste, nine
workers came down with a rare, life-threatening disease that was
ravaging their lungs.
Puzzled Missouri health authorities turned to two federal agencies in
Washington. Scientists at the National Institute for Occupational
Safety and Health, which investigates the causes of workplace health
problems, moved quickly to examine patients, inspect factories and run
tests. Within months, they concluded that the workers became ill after
exposure to diacetyl, a food-flavoring agent.
But the Occupational Safety and Health Administration, charged with
overseeing workplace safety, reacted with far less urgency. It did not
step up plant inspections or mandate safety standards for businesses,
even as more workers became ill.
On Tuesday, the top official at the agency told lawmakers at a
Congressional hearing that it would prepare a safety bulletin and plan
to inspect a few dozen of the thousands of food plants that use the
additive.
That response reflects OSHA's practices under the Bush administration,
which vowed to limit new rules and roll back what it considered
cumbersome regulations that imposed unnecessary costs on businesses
and consumers. Across Washington, political appointees - often former
officials of the industries they now oversee - have eased regulations
or weakened enforcement of rules on issues like driving hours for
truckers, logging in forests and corporate mergers.
Since George W. Bush became president, OSHA has issued the fewest
significant standards in its history, public health experts say. It
has imposed only one major safety rule. The only significant health
standard it issued was ordered by a federal court.
The agency has killed dozens of existing and proposed regulations and
delayed adopting others. For example, OSHA has repeatedly identified
silica dust, which can cause lung cancer, and construction site noise
as health hazards that warrant new safeguards for nearly three million
workers, but it has yet to require them.
"The people at OSHA have no interest in running a regulatory agency,"
said Dr. David Michaels, an occupational health expert at George
Washington University who has written extensively about workplace
safety. "If they ever knew how to issue regulations, they've
forgotten. The concern about protecting workers has gone out the
window."
Agency officials defend their performance, saying that workplace
deaths and injuries have declined during their tenure. They have been
considering new standards and revising outdated ones that were unduly
burdensome on businesses, they said, adding that they have moved
cautiously on new rules because those require extensive scientific and
economic analysis.
"By the time the Bush administration is done - we have a good record
already - we will have a better record," said Edwin G. Foulke Jr., the
agency's head, in a recent interview.
On diacetyl, Mr. Foulke said "the science is murky" on whether the
additive causes bronchiolitis obliterans, the disease that has been
called "popcorn worker's lung." That claim is echoed by some industry
officials, but a number of leading scientists and doctors agree with
scientists at the national occupational safety institute that there is
strong evidence linking the additive to the illness.
Without an OSHA standard, which would establish the permissible level
of exposure for workers, companies can set any limit of exposure they
want.
Instead of regulations, Mr. Foulke and top officials at other agencies
favor a "voluntary compliance strategy," reaching agreements with
industry associations and companies to police themselves.
Administration officials say such programs are less costly, allowing
companies to hire more workers and keep consumer prices down. The
number of voluntary agreements has grown in recent years, but they
cover a fraction of the seven million work sites that OSHA oversees,
or less than 1 percent of the work force. Sixty-one food plants out of
the tens of thousands across the country participate; industry
representatives say other businesses are taking steps to protect
workers on their own.
Critics say the voluntary programs tend to have little focus on
specific hazards and no enforcement power. Because only companies with
strong safety records are eligible, they argue, the programs do not
force less-conscientious businesses to improve their workplaces. A
2004 study by the Government Accountability Office found some
promising results from such programs, but recommended against
expanding them until their effectiveness could be assessed.
"OSHA has been focusing on the best companies in their voluntary
protection program while doing nothing in the area of standard
setting," said Peg Seminario, the director of occupational safety and
health at the A.F.L.-C.I.O. "They've simply gotten out of the standard-
setting business in favor of industry partnerships that have no
teeth."
While labor organizations and public health experts argue that the
agency has been lax in recent years, some industries have applauded
its efforts. Construction companies, for example, are pleased that
OSHA recently decided to relax the standards for handling explosives.
The agency had long been the target of businesses that criticized its
rules as arbitrary, costly and confusing. Three of the biggest
industries regulated by OSHA - transportation, agribusiness and
construction - have given more than $630 million in political campaign
contributions since 2000, with nearly three-quarters of that money
going to Republicans. The Bush administration has promised to address
their concerns.
Change at OSHA
"We're also going to bring a transparency to the regulatory jungle
that is unprecedented in the federal government," Labor Secretary
Elaine L. Chao told business owners in a speech on June 2002. "There
are more words in the Federal Register describing OSHA regulations
than there are words in the Bible. They're a lot less inspired to read
and a lot harder to understand. This is not fair."
Until recently, Congress has provided no significant oversight of
OSHA. With Democrats now back in control, House and Senate committees
are holding hearings this week.
Among those who testified Tuesday was Eric Peoples, a former worker at
the popcorn plant in Jasper, a small town 125 miles south of Kansas
City. Once healthy, the 35-year-old Mr. Peoples has been told by
doctors that he will need a double-lung transplant. Far from
Washington, he finds the debate over the calculus of regulation - the
costs to companies and consumers of upgrading workplaces versus the
possible health benefits to workers - baffling.
"I can't understand what it would take to get them to pass rules to
make it safer to handle this stuff," Mr. Peoples said, referring to
diacetyl. "Something needs to be done."
The Occupational Safety and Health Administration was created under
President Richard M. Nixon in 1970 after Congressional hearings
exposed dangerous workplace conditions. The agency was to set and
enforce safety standards as well as detect health hazards before they
could take a toll on workers. Since the agency's creation, deaths and
injuries on the job have steadily declined. Regulators have taken
credit for much of that trend, though experts also cite pressure from
insurers and lawsuits. Government records show that in 2005, more than
6,800 workplace-related deaths occurred, along with 4.2 million
injuries and illnesses. OSHA officials say that since 2001, the
fatality rate has declined by 7 percent and the injury rate by 19
percent.
Labor leaders and health experts say those numbers significantly
undercount the problem, in part because the Bush administration has
reduced the categories of recognized injuries and because many
dangerous jobs are now performed by undocumented workers who do not
report problems.
In one of his first acts in office, President Bush signed legislation
repealing one of OSHA's most-debated accomplishments during the
Clinton administration, an ergonomics standard intended to reduce
injuries to factory, construction and office workers from repetitive
motions and lifting. Business groups and manufacturers had lobbied
against the measure, saying it would cost $100 billion to carry out.
By the end of 2001, OSHA had withdrawn more than a dozen proposed
regulations. The agency, though, soon identified several safety
priorities: rules on the hazards posed by dust from silica, used as a
blasting agent, and noise from construction sites, which was causing a
growing number of workers to suffer hearing loss. The agency has yet
to produce either standard, though OSHA officials say they are working
on them.
Mr. Foulke, the OSHA chief, has a history of opposing regulations
produced by the agency he now leads. He has described himself as a
"true Ronald Reagan Republican" who "firmly believes in limited
government." Before coming to Washington last year, Mr. Foulke, a
former Republican Party state chairman in South Carolina and top
political fund-raiser, worked in Greenville, S.C., for a law firm that
advises companies on how to avoid union organizing. Representing the
United States Chamber of Commerce, he had testified before Congress
several times to promote voluntary OSHA compliance programs. He also
opposed the ergonomics standards.
And as a member in the 1990s of an independent agency that reviews
OSHA citations, he led a successful effort to weaken the agency's
enforcement authority.
Early in his tenure at OSHA, Mr. Foulke delivered a speech called
"Adults Do the Darndest Things," which attributed many injuries to
worker carelessness. Large posters of workers' making dangerous
errors, like erecting a tall ladder close to an overhead wire, were
displayed around him.
"Kids don't always know what their parents do all day at work, but
they instinctively understand the importance of them working safely,"
he told the audience, which included children who had won a safety-
poster contest. "In contrast, adults could stand to learn a thing or
two. Looking at the posters, I was reminded of a couple examples of
safety and health bloopers that are both humorous and horrible."
A Pattern of Illness
Soon after Eric Peoples began working at the Jasper popcorn plant in
1997, he was thrilled to get a promotion: from the assembly line,
which paid $6 to $7 an hour, to the mixing room, where he got more
than $11 an hour to prepare ingredients.
Ten months later, Mr. Peoples recalled in a recent interview, he came
down with a fever and chills. Doctors first said that Mr. Peoples,
then 27, had pneumonia. When he did not improve, he saw a specialist
who treated him for asthma. Still suffering from breathing problems,
Mr. Peoples was hospitalized in St. Louis. After days of testing,
doctors diagnosed bronchiolitis obliterans.
"My lung capacity had dropped to 18 percent," Mr. Peoples said. He was
told that there was no cure for the often-fatal disease and that he
would likely need a double lung transplant to survive.
Some of his co-workers had similar health problems. A local lawyer
whose mother had fallen ill showed the medical records of several
workers to Dr. Allen Parmet, a former T.W.A. medical director who
specializes in occupational hazards.
"It took me about 15 or 20 minutes to see there was a pattern," said
Dr. Parmet, who in his previous two decades in medicine had seen only
three other cases of bronchiolitis obliterans. He contacted the
Missouri Department of Health, which then notified the agencies in
Washington.
The Missouri officials noted that in addition to nine sick workers
identified by Dr. Parmet, 20 to 30 current and retired workers had
similar symptoms. All had been exposed to vapors from diacetyl, a
compound found naturally in cheese, butter, milk and other foods. It
is added for the buttery taste in microwave popcorn and widely used as
a flavoring agent in other foods, like snacks and pastries.
Although Dr. Parmet's letter was the first that Washington learned of
a possible problem with diacetyl, some companies had been aware of the
health hazards. In late 1996, the Flavor and Extract Manufacturers
Association heard from a company that a flavoring plant employee had
developed bronchiolitis obliterans. Three years earlier, BASF, the
German chemical maker, had found in animal studies that diacetyl
caused severe respiratory problems.
After scientists from the national occupational safety institute
visited the Jasper factory and examined the injured workers, the
agency issued a bulletin in September 2001 saying "a work-related
cause of lung disease" had occurred there. In December 2003, the
agency issued an alert to more than 4,000 businesses, with tens of
thousands of workers, that suggested safeguards.
OSHA's response was more limited. The agency sent an inspector to the
Jasper plant, but he did not test the air, saying the company's
insurers had done an environmental sampling four years earlier. He
concluded that the plant was in compliance with existing rules and
closed the case.
Sixteen months later, a lawyer for ill workers filed a complaint with
the agency. OSHA conducted a 40-minute inspection, but said it could
do nothing more because there was no safety standard that established
what level of diacetyl was acceptable. Since the first outbreak, OSHA
has inspected three food and flavoring plants for links to popcorn
worker's lung, and issued one citation, according to records provided
to public health experts at George Washington University and the
United Food and Commercial Workers International Union under the
Freedom of Information Act.
Other workers have developed symptoms of the lung disease. Keith
Campbell had worked at a Conagra microwave popcorn factory in Marion,
Ohio, for two years when he got sick. He was then 44, but his doctors
told him he had the lung capacity of an 80-year-old, Mr. Campbell said
in an interview. He has extreme difficulty breathing, particularly in
cold weather. "It's affected my entire life," he said.
Kenneth B. McClain, a lawyer at the Missouri firm that has represented
Mr. Peoples and Mr. Campbell, said he had tried or settled more than
100 cases involving diacetyl and other flavorings and that more than
500 were still awaiting resolution in Illinois, Indiana, Iowa,
Maryland, Missouri and Ohio.
At a two-week trial in March 2004, lawyers for the makers of diacetyl
products - International Flavors and Fragrances and its subsidiary,
Bush Boake Allen - maintained that the additive did not cause Mr.
Peoples's illness and that, in any event, the popcorn company had
mishandled the substance. Jurors awarded Mr. Peoples $20 million. His
case, like Mr. Campbell's, was later settled for an undisclosed
amount.
Melissa I. Sachs, a spokeswoman at International Flavors and
Fragrances, based in New York, declined to comment on the cases.
According to its latest annual report, the company has been sued by
more than 150 workers in four states.
Health experts have not raised alarms about diacetyl vapors that are
released when consumers make microwave popcorn. But they note that
there is little science on the issue, and the Environmental Protection
Agency has declined to make public the results of its studies.
There are no estimates of the costs of upgrading all plants that use
the food additive to protect workers better. Some microwave popcorn
companies, including the Gilster-Mary Lee Corporation plant in Jasper,
have spent millions of dollars on better ventilation, respirators and
other equipment.
The Official Response
Two industry groups - the Flavor and Extract Manufacturers Association
and the Popcorn Board - have also become involved in resolving
workplace problems, particularly as the lawsuits have mounted. The
association has not expressed opposition to an OSHA standard; its
officials say it is working with California regulators to develop one
there.
But John Hallagan, the association's general counsel, says the group
is working with OSHA to reach a voluntary compliance agreement.
"OSHA is doing the right things in addressing flavor-related health
and safety issues," Mr. Hallagan said in a recent e-mail message.
He said the agency had met with industry and health officials and had
posted on a Web site possible health hazards associated with some
flavorings.
In September 2002, OSHA's Kansas City office entered into an alliance
with the Popcorn Board, which represents popcorn processors, to try to
address safety problems. But that arrangement soon ended.
Last July, the United Food and Commercial Workers International Union
and the International Brotherhood of Teamsters petitioned OSHA for an
emergency temporary standard for diacetyl. Urging action, 42 doctors
and scientists from institutions including Harvard, Yale, the
Massachusetts Institute of Technology and Johns Hopkins, wrote to Ms.
Chao, who oversees OSHA.
The agency responded by saying it was preparing a safety bulletin and
would be monitoring diacetyl hazards at a few dozen popcorn plants,
but not at the thousands of other food factories that use the
additive. That has frustrated public health experts like Dr. Michaels,
the George Washington University epidemiologist.
"Here you have one federal agency, Niosh, doing a great job exploring
the science behind a problem and a second agency, OSHA, which is
supposed to be moving forward with enforcement and standard setting,
and they are not," he said.
Ron Nixon contributed reporting.
http://www.nytimes.com/2007/04/25/washington/25osha.html?pagewanted=print