Desperate Half-Measures

by Jim Morris

The nation’s enforcer of workplace safety and health all but admitted defeat in October when it issued a press release urging employers to voluntarily crack down on chemical hazards.

The Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, has set exposure limits for nearly 500 chemicals, from arsenic to zinc oxide. Workplaces that exceed these limits can be cited and fined. The aim: to prevent exposures that cause or contribute to an estimated 53,000 deaths from work-related illnesses each year.

Trouble is, many of the standards are, by OSHA’s own description, “out of date and inadequately protective.” Hence the October press release, in which agency chief David Michaels asked employers to adopt stricter limits – like those in effect in California or recommended by the National Institute for Occupational Safety and Health (NIOSH) – “since simply complying with OSHA’s antiquated [limits] will not guarantee that workers will be safe.” Unfavorable court decisions, dogged industry lobbying and anti-regulatory forces in Congress have made it nearly impossible for OSHA to update the numbers, many of which were calculated prior to the agency’s creation in 1970.

Even as OSHA was pleading with businesses to protect their workers (the carrot), it was trying another approach (the stick). In September, it cited Fiberdome Inc., a fiberglass manufacturing plant in Lake Mills, Wis., for allegedly overexposing workers to styrene, a chemical that can wreak havoc on the central nervous system and may cause cancer. OSHA proposed $49,500 in penalties; Fiberdome contested the citations.

Here’s where an otherwise pedestrian case gets interesting. It turns out that airborne styrene levels in the plant didn’t violate the OSHA limit of 100 parts per million. They did, however, exceed the NIOSH recommended limit of 50 ppm. So, OSHA invoked the general duty clause of the Occupational Safety and Health Act, which states that employers must provide workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to…employees.”

An OSHA spokesman told Bloomberg BNA the move didn’t signal a new enforcement strategy. But some in industry aren’t so sure. “Industry lawyers say they will vigorously fight back against any attempts to use the general-duty clause to make an end run around existing rules,” The Wall Street Journal reported. A court decision in the Fiberdome case looms large.

“I would like to see [OSHA] win, but I don’t see it happening,” John Newquist, a retired assistant regional administrator for the agency in Chicago, told me in an email. “What are the consequences of losing? OSHA might find [its ability to use] the general duty clause…severely curtailed in the future.”

Instead of trying to circumvent its archaic exposure limits, OSHA should seek to update a “large group” of standards at once using the best science from the world’s premier health authorities, Newquist maintains.

It’s been tried before. In 1989, the agency issued a gutsy rule setting 164 new standards and updating another 212. It calculated that these standards collectively would “eliminate 55,000 occupational illnesses and 683 deaths each year,” at an annual cost of $150 per worker and $6,000 per affected plant.

An industry court challenge thwarted the effort. In 1992, the 11th Circuit Court of Appeals vacated the new limits, having found that OSHA had failed to demonstrate that they were necessary or feasible. Chastened, OSHA has moved gingerly ever since, to the dismay of worker advocates.

Last year, the agency did propose a new exposure ceiling for silica, a toxic mineral linked to lung cancer and the deadly lung disease silicosis. But Michaels told reporters he expected the rule – opposed by trade associations whose representatives have dominated meetings with the White House Office of Management and Budget in recent years – would take "many months" to become final. Some observers question whether it will come out before the end of the Obama administration.