September 28, 2007 The Pump Handle 4Comment

While the House of Representatives was voting Wednesday to approve the Popcorn Workers Lung Disease Prevention Act (here), OSHA’s Assistant Secretary Edwin Foulke had just mailed a letter rejecting a petition from a group of workers’ who’d asked for emergency protection from the respiratory hazards caused by butter-flavoring agents.  Mr. Foulke’s response is not only tardy—it took them 14 months to write a 5-page letter—but its content is insulting.   “I assure you that OSHA takes the concerns you expressed very seriously,” he writes.  Oh, please.  Your meager actions to protect diacetyl-exposed workers speaks volumes.  Are we supposed to be impressed by your revelation that OSHA has “evaluated workplace exposure conditions at site visits to three microwave popcorn plants over the last 8 months”?  Three plants in eight months?  And then to use this paltry information to state

“Thus, OSHA does not have sufficient evidence that a grave danger currently exists in microwave popcorn manufacturing facilities to support the issuance of an emergency temporary standard (ETS) for diacetyl.”

If severely injured workers waiting for lung transplants does not constitute a hazard of a grave nature, what does?

Both the OSH Act of 1970  (See 6(c)(1)) and the Mine Act of 1977  (See Sec 101(b)(1)) give authority to the Secretary to issue “emergency temporary standards.”  In fact, the language in both statutes is nearly identical (and I believe that the 1977 Mine Act’s language was borrowed directly from the 1970 OSH Act).

The Secretary shall provide, without regard to the requirements of chapter 5, title 5, USC, for an emergency temporary standard to take immediate effect upon publication in the Federal Register is he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.*

Assistant Secretary Foulke’s letter says in order for OSHA to make a “finding” of a “grave danger” it must have “compelling evidence of a serious health impairment involving incurable, permanent or fatal consequences.”  Curiously, OSHA cites a case (Florida Peach Growers Ass’n v. Dept of Labor, 1974) in which the Fifth Circuit Court of Appeals made a explicit distinction between “easily curable and fleeting effects on workers’ health” and those of a grave nature in which the “necessity for emergency measures” could be demonstrated.  As Eric Peoples and others who suffer from bronchiolitis obliterans know, their lung function is not going to come back even after they stop working with diacetyl. The damage is permanent and devastating.

The balance of Mr. Foulke’s letter is equally unconvincing.   He explains that OSHA

“…must be able to show that the ETS would substantially reduce the grave danger during the six months the ETS would be in effect and must also show that such reduction could not be obtained by enforcement of existing specific standards.”

He states, for example, that an emergency temporary standard (ETS) is only warranted when “no existing OSHA requirements can substantially reduce that grave danger.”  He boldly (not!) suggests that eye goggles (29 CFR 1910.133), gloves (1910.138), and respirator (1910.134) are adequate protection.   Excuse me?  Personal protective equipment (PPE) as the first line of defense for a workplace hazard?  Eye goggles and gloves, no less? 

What happened to the hierarchy of controls, with engineering controls the primary and best means to protect workers’ health?  Has OSHA completely lost its soul and now rejects fundamental public health principles?

One other issue intrigues me about OSHA’s rejection of the workers’ request for an emergency temporary standard (ETS).  Granted, OSHA’s experience with these emergency rulemakings has been mixed.  Over the agencies 36-year history, nine have been issued.  Three were succesfully implemented (vinyl chloride (1974), DBCP (1977), acrylonitrile (1978)), but five were challenged by industry groups and were not put in place.**   The last time OSHA attempted to issue an ETS was nearly 25 years ago.

What is curious to me is that OSHA’s sister agency–MSHA–has successfully issued three ETS’s in the last five years:  One in 2002 concerning training in mine evacuation procedures (here), one in 2006 on requirements to notify MSHA immediately of accidents and for supplies of emergency breathing devices (here), and one just a few months ago on the sealing of abandoned areas of underground mines (here).  In these cases, MSHA’s attorneys appeared to use all the tools in their legal-argument arsenal to make the case for these ETS’s. 

These recent MSHA emergency rules came on the heels of disasters when numerous coal miners were killed.  After the 2001 explosion at the Jim Walters Resources No. 5 (JWR) mine which killed 13 miners, for example, MSHA determined that new training requirements were urgently needed to ensure that workers are evacuated from underground during a fire, explosion or inundation.  MSHA stated that an ETS was warranted because the agency had concluded that:

“…miners are exposed to grave danger when they remain underground or re-enter affected mine areas at the time of a mine emergency which presents an imminent danger to miners due to fire, explosion…without a responsible person at the mine initiating and conducting a mine evacuation.”

MSHA’s 2002 ETS simply required mine operators to designate a “responsible person” to direct mine evacuations.  Using Mr. Foulke’s logic above, he likely would have argued that (1) these coal mine disasters are rare occurences (the last one before JWR in 2001 was in 1992, when eight miners died at the Southmountain mine in Norton, VA) and therefore miners don’t face a “grave danger” and (2) it was highly unlikely that in the six months between issuing the ETS and a final rule that a grave danger would be substantially reduced.  For coal miners’ sake, thank goodness OSHA’s views on “grave danger” have not infiltrated MSHA.  

In 2006 and 2007, MSHA again made fairly simple assertions about the “grave danger” faced by miners and the need for ETS.  For the new requirement for mine operators to notify MSHA within 15 minutes of a mine accident, the agency simply stated:

“The Secretary has determined that …delay in notification may slow down the arrival of mine rescue assistance and the arrival of MSHA personnel who can provide assistance at the mine site.  The Secretary has further determined…when a mine accident occurs and miners do not have access to supplemental SCSRs for escape, prior training, including drills…and lifelines to guide miners through the designated escapeways to escape the mine.  Without these devices and training, miners are exposed to grave danger because they are not prepared and equipped to take action to safely escape from the mine.”

Again, someone could argue that coal mine disasters are “freak” events and on a shift-by-shift, week-by-week basis, fatalities like the ones at JWR, Sago and Crandall Canyon are rare.  In fact, each of these disasters had a different physical cause (i.e., methane gas ignition, electromagnetic field triggered by lightning, and a massive rockburst) and opponents of aggressive workplace protection measures could have argued that each represented a different “grave danger.”  But no.   Where there was a will there was a way, and MSHA successfully issued the ETS.

At each of these points in time, MSHA’s leadership determined that an ETS was warranted, and the Department’s attorneys found a way to make the best legal case they could.  After reviewing these recent MSHA ETS’s and comparing them to Mr. Foulke’s letter rejecting the workers’ petition for an ETS on diacetyl, I’m convinced of one thing: OSHA and its attorneys could have put their heads together to justfiy a case for a “grave danger” and, thus, an ETS.  The Secretary of Labor and Mr. Foulke simply did not want to do so.  They spend their energy and the resources of the Department figuring out excuses why they can’t act boldly to protect workers.   


*Note: the only differences between the OSH Act and the Mine Act in these provisions are: (1) OSH Act reads: “emergency temporary standard” while Mine Act reads: “emergency temporary mandatory health or safety standard”; (2) OSH Act reads: “substance or agents determined to be toxic or physically harmful or from new hazards” while Mine Act reads: “substances or other hazards”; (3) OSH Act reads: to protect “employees” while the Mine Act reads to protect “miners”; and (4) OSHA is required to issue a final rule within 6 months, while MSHA is given 9 months.  Other than that, the provisions are identical.

**Note: The five ETS’s challenged be industry and not put in place are: pesticides (1973), commercial diving (1976), several carcinogens (1973), benzene (1977), and asbestos (1983).

4 thoughts on “If Obliterated Lungs are Not a Grave Danger, What is?

  1. We don’t need a new standard for this – the employers who use this material haphazardly are already in violation of the regulation (i.e. not providing a workplace free from recognized hazards).

    Seems to me the main reason OSHA doesn’t do more is because no one will let them. When OSHA tried to implement an ergonomics regulation to protect workers, congress kicked them back to their corner (because of industry pressure). Every new standard issued by OSHA is challenged in the courts – by industry because it’s too restrictive, and by labor because it’s not restrictive enough (my definition of shooting yourself in the foot).

    If OSHA were to issue a quick fix for diacetlyl, I’d be willing to bet the labor groups who so badly need this protection would sue OSHA because they didn’t do enough research, didn’t gather enough data, and didn’t make the exposure limits low enough.

    From my perspective – OSHA really is in a no-win situation. Well, almost. They could stop the whining about why they haven’t done anything and enforce the existing regulation.

    Oh wait – even under the current regulation, even if a worker DIES, a company might get fined a few thousand dollars. When OSHA is allowed to issue fines like the EPA does, THEN we might see some substantial progress in workplace protections. Until that happens, all the new diacetyl regulations you can imagine won’t make any difference.

  2. Joe,
    Thanks for your thoughtful and informed comments.

    Yes, I agree that technically, under the OSH Act “general duty clause” (5(a)(1)) employers’ whose employees are exposed to recognized hazards (and I think we agree that diacetyl is a recognized hazard) are required to protect employees from that hazard and provide a place of employment free from recognized hazards. But, we know that a fair number of employers do not meet that legal obligation, in part, because they are rarely inspected by OSHA, and the potential economic consequences of having to actually compensate an ill worker are so small. (If the workers are compensated at all because we know that some workers will just leave a job that is making them sick, rather than go through the process of getting the hazard fixed and ensuring they receive medical care and compensation.)

    The disclaimer at the top of OSHA’s Safety and Health Information Bulletin on Diacteyl is quite a mouthful and frankly confusing (below). What do you think they mean when they refer to the “general duty clause” in this case? It seems to me that there are too many lawyers running the show at OSHA, and not enough public health and worker advocates.

    “This Safety and Health Information Bulletin is not a standard or regulation, and it creates no new legal obligations. The Bulletin contains both recommendations and descriptions of relevant mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. Pursuant to the Occupational Safety and Health Act, employers must comply with safety and health standards promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, pursuant to Section 5(a)(1), the General Duty Clause of the Act, employers must provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Employers can be cited for violating the General Duty Clause if there is a recognized hazard and they do not take reasonable steps to prevent or abate the hazard. However, failure to implement any specific recommendation in this Safety and Health Information Bulletin is not, in itself, a violation of the General Duty Clause. Citations can only be based on standards, regulations, and the General Duty Clause.”

    Thanks again Joe for your thoughtful comments and for reading The Pump Handle.

  3. I agree with Celeste that Joe raises some good points, but I’d like to correct the record on a couple of things.

    First, Joe is “drinking the Kool-Aid” if he believes OSHA is in a “no-win” situation. Rather, in my experience OSHA has usually been in a “won’t win” situation, and wants the public to believe it can’t do what it won’t do. It is accurate for Joe to note that when a standard has been challenged in court in the past, both industry and labor tend to appear as plaintiffs. But that’s misleading, because many times, industry is the main challenger, seeking a less strict regulation, and labor sues in order to have a voice in the challenge (and perhaps so that the reviewing court will not see its only options as judging the regulation as too strict or leaving it alone). In my experience, labor is often not “shooting itself in the foot,” but seeking to prevent industry from shooting OSHA in the head. And three of the last four major health standards (butadiene, methylene chloride, and respiratory protection) were either accepted by both sides without challenge, or were challenged by industry and very easily left intact by the reviewing court. The problem since 1998 or so has not been what the courts (or OMB) might do to a standard, but that they never get the chance to tinker with the result because OSHA is comatose (with the exception of ergonomics, which in my view was a tragedy of errors from all sides).

    Second, Joe seems to believe that OSHA has some experience using the General Duty Clause (GDC) to go after chemical overexposures. As Celeste implies, this is not about what the OSHA statute says, but what the Labor Department’s lawyers will tolerate. Here are some facts and figures from OSHA’s Website (the General Duty Standard search function only returns the most recent ten years of data, although I have done such searches in the past and gotten the same general picture):

    * In ten years, only 38 GDC citations have been issued with the word “TLV” in them. Of these, ten were for heat stress, five were for potential exposure to anhydrous ammonia leaks, and only six were for overexposures to specific chemicals. This is fewer than one “chemical GDC citation” each year, out of more than 70,000 federal and state OSHA inspections annually!

    * The situation looks a bit better if you search using the term “exposure”—there have been 849 such GDC citations in the past 10 years—except that “exposure” tends to cover many safety situations (“exposure to potential fall hazards,” for example). Only 130 of these 849 citations are listed in the “chemical” category, and when I looked at the first 50 or so of these one at a time, it was clear that many of the 130 were for potential overexposures in the event of accidents, not actual chronic hazards. So again, there are probably only a couple of GDC citations for chronic chemical hazards each year, throughout the entire country.

    Again, this is the way the solicitors want it—when I was a Regional Administrator, the inspectors and managers I knew had to plead with the lawyers to allow them to issue a GDC citation, and eventually stopped trying in all but the most open-and-shut cases. How much of this reluctance is due to the real difficulties of prevailing if the citations are contested, and how much is “anticipatory apathy,” would make for a good law review article someday, but the point is that to control diacetyl overexposures, workers and employers need an OSHA standard.

  4. Okay – I drank too much kool-aid. And didn’t do enough research on the facts. Thanks, Adam, for the education. I think what you said is something I probably knew intutitively (GDC isn’t really used much, and won’t help much here, either), but I still have zero faith that OSHA will issue a standard anytime soon (I saw in OSHA’s QuickTakes they’ll be having a stakeholder meeting Oct 17; likely the first of a hundred meetings to look busy).

    It’s hard to tell what OSHA’s reference to the General Duty Clause means in the bulletin Celeste referenced. Maybe something like “you don’t have to do what we recommend here, but you need to do something. If you don’t do what’s listed here, we won’t cite you under the General Duty Clause, unless you do absolutely nothing.” Then again, based on Adam’s data, maybe they mean “here’s some recommendations. We sure hope you do this, and we hope it makes it look like we’re taking action.”

    Maybe if OSHA mounted a national emphasis program (NEP) for diacetyl users, similar to their on-going NEP for refineries, we’d see some action from the manufacturers (the refineries are jumping through all sorts of hoops to get ready for their personalized OSHA visit).

    The San Jose Mercury News has an article ( ) indicating the House is making a move. What I think will really have an impact on making change (more kool-aid, please) is public pressure – and education of the workforce so they know they don’t have to sacrifice thier lives to make a living (which is exactly what a worker told me once).

    Asbestos regualtions (I think) are closely followed because of the nasty press and lawsuits associated with failure to protect employees (not the threat of OSHA inspections or fines). Safety coordinators and industrial hygienists everywhere are shaking in their shoes over hexavalent chromium because of lawyer billboards – not because of the new OSHA rule. (Yes, we have a regulation to follow, but we’re more worried about getting sued than fined by OSHA.)

    Diacetyl is getting a lot of press (well, in our circle anyway; most of my non-Public Health friends have never heard of it). That, I think, is what will cause companies to change – like the three listed in the Mercury News article who have said they will stop using it now (maybe they will; let’s keep watching).

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