By David Michaels

On the front page of today’s New York Times, reporter Stephen Labaton highlights a trend that we’ve been writing about here at The Pump Handle for some time: Occupational Safety and Health Administration has delayed or halted work on important standards for worker protection and put more of its energies into voluntary programs that let employers decide how far they’re willing to go to protect workers’ health and lives.

Labaton’s article focuses on OSHA’s failure to protect workers from diacetyl, an artificial butter flavoring that numerous scientific studies have linked to the lung disease bronchiolitis obliterans. Much of the material he presented comes from the case study on flavor worker’s lung disease as an example of regulatory failure, posted at www.DefendingScience.org, the website of the Project on Scientific Knowledge and Public Policy (SKAPP).

The report comes on the heels of yesterday’s hearing, “Have OSHA Standards Kept up with Workplace Hazards?” held by the House Committee on Education and Labor Subcommittee on Workforce Protections, which also discussed OSHA’s failure to do control occupational exposure to diacetyl. Labaton highlights one of the victims:

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.”

Workers exposed to diacetyl aren’t the only ones calling for action. Unions and occupational health experts have been urging OSHA to issue standards on silica, beryllium, confined space at construction sites, ergonomics, construction noise, and other hazards for years, but the agency has moved at a snail’s’ pace.

The one major rule that OSHA has issued since the start of the Bush Administration was on hexavalent chromium, and that came in response to a court-ordered deadline – and during the hexavalent chromium rulemaking process, an industry-funded campaign convinced the agency to increase the permissible exposure limit fivefold (see our hexavalent chromium case study for details).

Labaton explores factors behind OSHA’s regulatory downshifting:

Instead of regulations, [OSHA head Edwin G. Foulke Jr.] 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.

[…]

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.

Congressional and media attention to the issue of diacetyl do seem to have spurred OSHA to do something about this hazard, though the agency stops far short of what’s needed. Yesterday, OSHA announced that it was launching a National Emphasis Program focusing on the microwave popcorn industry that “will provide direction on inspection targeting and procedures, methods of controlling the hazard and compliance assistance.” As I explained here in my response to the announcement, OSHA should include other industries (including flavoring and snack foods) where cases of obstructive lung disease have emerged and should issue an actual limit for diacetyl exposure.

In what may have been an effort to make it appear that OSHA has responded promptly to a crisis, the agency’s news release mentions only one study:

In January of 2006, the National Institute for Occupational Safety and Health (NIOSH) released an investigative report on a microwave popcorn production facility. Several employees from this facility were diagnosed with bronchiolitis obliterans — a severe obstructive lung disease. Following a number of lung function tests and air sampling, NIOSH determined that inhalation exposure to butter flavoring chemicals is a risk for occupational lung disease.

In fact, OSHA was first notified of bronchiolitis obliterans cases in 2000, and NIOSH’s report of the outbreak of bronchiolitis obliterans in microwave popcorn workers was published April 26, 2002, almost exactly five years ago. In the intervening years, many more workers have contracted diacetyl-related lung disease.

How serious is bronchiolitis obliterans? Labaton describes Peoples’s case:

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.

So, while OSHA’s shift in focus from regulation to voluntary programs has saved employers money, it has left workers paying a terrible price.

I’ve been invited to testify at tomorrow’s hearing, “Is OSHA Working for Working People?” held by the Senate Committee on Health, Education, Labor, and Pensions Subcommittee on Employment and Workplace Safety. I will address several ways I believe OSHA could take action that would prevent thousands of workplace injuries and illnesses.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.