April 2, 2013 Liz Borkowski, MPH 0Comment

The only job 45-year-old Sheri Farley can hold is one where she doesn’t have to sit or stand for more than 20 minutes at a time. She’s racked by shooting pain in her legs and spine; doctors trace her neurological problems to five years of breathing glue fumes at the North Carolina furniture plant where she worked. New York Times reporter Ian Urbina tells the story of Farley and her co-workers in the in-depth piece “As OSHA Emphasizes Safety, Long-Term Health Risks Fester.” Here’s how he explains the problem with the chemical and the regulatory system that’s poorly equipped to address such hazards:

A chemical [Sheri Farley] handled — known as n-propyl bromide, or nPB — is also used by tens of thousands of workers in auto body shops, dry cleaners and high-tech electronics manufacturing plants across the nation. Medical researchers, government officials and even chemical companies that once manufactured nPB have warned for over a decade that it causes neurological damage and infertility when inhaled at low levels over long periods, but its use has grown 15-fold in the past six years.

Such hazards demonstrate the difficulty, despite decades of effort, of ensuring that Americans can breathe clean air on the job. Even as worker after worker fell ill, records from the Occupational Safety and Health Administration show that managers at Royale Comfort Seating, where Ms. Farley was employed, repeatedly exposed gluers to nPB levels that exceeded levels federal officials considered safe, failed to provide respirators and turned off fans meant to vent fumes.

Why can an employer like Royale Comfort Seating keep exposing workers to high levels of dangerous chemicals year after year? Urbina’s story points to two main reasons: Economic forces, and a system that makes it hard for OSHA to force improvements from bad-actor employers. I don’t have the solution to all the economic issues, but there are some clear ways that OSHA could do more to prevent these kinds of terrible outcomes.

There are a few different ways an employer like Royale can address problems with toxic fumes: Switch to a less-toxic ingredient, improve ventilation, or provide workers with respiratory protection. The first two methods are preferable, but giving workers respirators – whose cost Urbina gives at $18 each – is a step that can be taken immediately. Switching to a different glue would be expensive, Urbina explains, because water-based glues take longer to dry and other alternatives are flammable. A glue substitution or major ventilation improvements might entail substantial renovation costs. And the company seems to have decided that such investments aren’t worth it when there are plenty of workers to replace the ones who get sick:

“There are people lined up out there for jobs,” said John Lyles, a vice president at Franklin, according to testimony by a plant manager in a successful lawsuit in Mississippi brought by four cushion workers who suffered severe nerve damage from the glue. “If they start dropping like flies, or something in that order, we can replace them today.”

The article mentions that Farley and some other former workers have received settlements for workers’ compensation claims. I wonder how much these settlements and the associated lawyers’ fees have added up to. If the company had renovated their plant a decade ago when warnings about nPB’s dangers were circulating, would it have cost as much as the accumulated costs of disabled workers, legal fees, and the small fixes that haven’t solved the problem? I realize that Royale Comfort Seating might have figured it couldn’t afford those improvements 10 years ago, and that such investments might’ve resulted in higher prices that could have convinced their customers to switch to Chinese suppliers. But the company might have made a different choice if the cost of maintaining and unsafe workplace had seemed as large and certain as the cost of making safety improvements.

Low penalties for harming workers
In economic terms, regulation is necessary to address externalities – the costs that businesses are pushing off onto the public. If a factory decides to just dump toxic chemicals into a river instead of investing in a cleaner production method or appropriate disposal, it’s pushing pollution and its associated costs onto the public. The regulatory system is a way of pushing externality back onto the businesses that produce them. Companies are prohibited from engaging in several kinds of polluting activities, and if they break the law, there’s a good chance the EPA will hit them with a stiff fine. Such threats act as a deterrent and help redress the balance when companies do pollute.

What about the externalities associated with worker injuries and illnesses? Urbina cites economist J. Paul Leigh’s estimate that occupational injuries and illnesses cost the US $250 billion each year in medical and lost-productivity costs, and that public programs like Medicare and Medicaid shoulder a large share of those costs. That estimate doesn’t capture the pain that injured workers and their families endure, or the broader effects on communities when so many residents are crippled by pain and unable to contribute in the ways they used to. Unsafe workplaces cause massive public costs – but Occupational Safety and Health Administration fines can’t compare to EPA fines when it comes to deterrence.

OSHA chief David Michaels (full disclosure: I worked for him before he became head of OSHA) highlighted the gulf between EPA and OSHA maximum penalties in Congressional testimony for a hearing about the Protecting America’s Workers Act (PAWA):

In 2001 a tank full of sulphuric acid exploded at a Motiva refinery. A worker was killed and his body literally dissolved. The OSHA penalty was only $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act violation amounting to $10 million — 50 times higher.

PAWA makes much needed increases in both civil and criminal penalties for every type of violation of the OSH Act and would increase penalties for willful or repeat violations that involve a fatality to as much as $250,000. These increases are not inappropriately large. In fact, for most violations, they raise penalties only to the level where they will have the same value, accounting for inflation, as they had in 1990.

That hearing was held in 2010, and the Protecting America’s Workers Act did not pass during that Congress. Senator Patty Murray has just introduced the same legislation, though, and one of its provisions would increase OSHA penalty amounts and set a $50,000 minimum penalty for cases in which a willful violation leads to a worker’s death. Higher penalty amounts might make employers think twice about putting off safety improvements.

Higher maximum penalties are most effective when coupled with strong enforcement – in other words, employers need to know that if they’re exposing workers to nerve-damaging chemicals or other hazards, there’s a good chance that an OSHA inspector will find the problem and issue a large fine that the employer will have to pay. Urbina notes that repeated OSHA inspectors who found problems at Royale didn’t always levy fines, and that some of the penalty amounts were slashed. It’s important to recognize that, as Urbina mentions briefly, North Carolina is one of the states that runs its own OSHA plan, so these decisions were made at the state level rather than by federal OSHA. But even in states where federal OSHA has jurisdiction, employers who violate the law have a good chance of never getting inspected or of ending up with low fines.

The perils of hazard-by-hazard standard setting
Urbina points out that one thing that makes it hard for OSHA to crack down on companies that expose their workers to harmful levels of nPB and many other hazardous chemicals is that the agency doesn’t have a standard for that exact substance. OSHA doesn’t need to have a standard for every hazard; the Occupational Safety and Health Act requires that employers furnish jobs and workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA can cite employers under this “general duty clause,” but such citations are more vulnerable to legal challenges. As a result, OSHA rarely uses the general duty clause to cite employers for exposing workers to chemical hazards.

Setting a new standard is a time-consuming and labor-intensive process. A recent Government Accountability Office report found that it takes OSHA nearly eight years to issue each new worker protection rule, in part because of providing far more opportunity for public input (which is often industry input) and lengthy review by the White House Office of Management and Budget.
An in-depth article by Chris Hamby on combustible dust (part of the Center for Public Integrity’s excellent Hard Labor series) explored the “bureaucratic hurdles, industry pushback and political calculations” that have hindered standard-setting on a hazard that’s killed or injured at least 900 US workers over the past 30 years.

And when it comes to chemicals, Urbina’s article makes it clear that cracking down on one can lead to substitution of another that’s also hazardous – and possibly even more dangerous to workers. Many companies adopted nPB as a substitute for methylene chloride after OSHA sharply reduced the permissible exposure limit for that substance in 1997. If OSHA were to start the standard-setting process for nPB today, we’d be unlikely to see it finalized and in effect before 2025 – and at that point, companies might just switch to another chemical that’s equally harmful but not yet the subject of an OSHA standard.

With this kind of hazard-by-hazard standard-setting, there’s no way OSHA can fully address the hazards that harming workers’ lives and health.  The Lowell Center for Sustainable Production used the regulation of methylene chloride as a case study for “a cautionary tale about setting health standards one chemical at a time.” Molly M. Jacobs, Joel Tickner, and David Kriebel chart the legal challenges that have limited OSHA’s potential responses to chemical hazards and explain why employers responded to the methylene chloride standard by substituting nPB. They also suggest an alternative model for addressing employers’ use of hazardous chemicals, which Massachusetts is already practicing:

While OSHA debated the mechanisms of action of methylene chloride and their relevance to humans, agencies in Massachusetts were implementing a pioneering new approach to reducing chemical hazards—toxics use reduction (TUR). Under the 1989 Toxics Use Reduction Act, manufacturers using more than 10,000 pounds per year (less for chemicals of high concern) of some 900 chemicals are required to undertake a yearly accounting of how those chemicals enter, are used in, and are released from their facility as waste (liquid or solids that are captured and transferred offsite) or emissions (e.g., releases to air, water or ground). Every two years, the firms are required to undertake a planning process to identify alternatives to reduce or eliminate those chemicals. In reviewing alternatives, firms are required to include workers and consider environmental, consumer, and occupational health hazards to ensure that risks are not shifted. Firms pay a small fee on chemical use that funds the regulatory program but also funds voluntary, confidential technical assistance and training, and research support at the Toxics Use Reduction Institute at the University of Massachusetts Lowell.

This model of regulatory requirements to understand chemical use and opportunities for prevention  (without any requirement to act), coupled with support to firms to institute changes, has led to significant results in just the first 10 years of the program: an 80 percent reduction in chemical emissions; a 67 percent reduction in chemical waste; and a 40 percent reduction in toxic chemical use, while saving firms millions of dollars. The TUR approach focuses on alternatives and solutions to toxic chemical concerns, even though perfect information is not available. For example, while the US EPA has struggled to finalize a risk assessment on trichloroethylene (TCE ), a suspect carcinogen widely used in degreasing, Massachusetts has reduced the use of this chemical by 95 percent in degreasing operations by testing alternatives, which have been evaluated for safety, to ensure they work as effectively as TCE .

One example of the success of the TUR approach took place at Crest Foam, a small polyurethane foam manufacturer. The company eliminated the use of 190,000 pounds per year of methylene chloride by installing a foaming process that uses carbon dioxide instead of trichlorofluoromethane (CFC -11) or methylene chloride. The alternative is not only more efficient and less costly than methylene chloride, but also saved the company tens of thousands of dollars in permitting and emission control equipment costs.

(Molly Jacobs and David Kriebel were among the authors of a post published here last week – “Preventing breast cancer: the cancer free economy” – that describes the TUR approach further.)

While legislation to adopt a Toxics Use Reduction approach US-wide may not be immediately forthcoming, OSHA is developing an “Injury and Illness Prevention Program” (sometimes referred to as I2P2) rule under which employers would engage in ” planning, implementing, evaluating, and improving processes and activities that protect employee safety and health.” If an employer were to honestly evaluate the chemicals they were using and their potential substitutes, they’d have to acknowledge that substituting something like nPB, while not specifically prohibited, would still be bad for their employees’ health – so they’d need to plan and implement activities to protect workers’ health.

It may be another decade before this rule is finalized and implemented, but that would be preferable to just letting the status quo continue. And maybe by that time there will be higher OSHA fines and a bigger budget for OSHA inspectors, so that companies with unsafe workplaces might find the likelihood of stiff fines a spur to improvements.

When people who are trying to do the right thing – get a job and work hard to provide for their families – end up disabled by their jobs, something is seriously wrong. Kudos to Ian Urbina and the New York Times for drawing attention to this problem; it’s up to the rest of us to fix it.

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