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.   

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*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).

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