Legal Does Not Mean Safe: The Fate of Chemical Protections for Workers in the Trump Era

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The fact that most OSHA chemical standards are old, outdated and don’t protect workers very well is something that government, labor and industry can generally agree on.  There is less agreement, however, on what needs to be done about that problem. But it’s a question that needs to be addressed, as an estimated 50,000 workers die every year from occupational disease, mostly related to chemical exposure, and almost 200,000 are sickened.

Rachel Cernansky, writing in the New York Times today about “America’s Toxic Workplace Rules” asks “Why does the [Labor] department’s Occupational Safety and Hazard Administration allow workers to be exposed to dangerous chemicals at limits far higher than those set for everyone by the Environmental Protection Agency” and what will Trump’s Labor nominee, Alexander Acosta, do about it?

For example, Cernansky describes how OSHA’s “standard for lead allows up to 50 micrograms per cubic meter of air, averaged over eight hours; the E.P.A. ambient air quality standard is 0.15 micrograms.” And the Center for Public Integrity reported recently that chemical exposure limits set by EPA are up to 1,000 times stronger than those set by OSHA.

Why are workers so poorly protected against chemicals? OSHA’s regulatory process is extremely lengthy and burdensome, generally taking 7 to 10 years to issue a single standard.  In addition, former OSHA head Dr. David Michaels notes that current OSHA limits “are driven more by economic and technological feasibility than they are by the risk assessments,” he said. “Congress would have to change that.”

50,000 workers die every year from occupational disease and almost 200,000 are sickened

And Dr. Robert Harrison, an occupational medicine specialist at the University of California, San Francisco, and long-time worker health advocate, explained that “cancer and other chronic diseases are usually not recognized as occupational illnesses. Doctors often don’t know when patients have been continually exposed to carcinogens like lead or formaldehyde.”

The reason doctors often don’t know this important information is that they receive very little, if any , training about occupational hazards in medical school, and generally don’t ask what workers have been exposed to. And workers often don’t remember the chemicals they were exposed to 10, 20 or 30 years ago.

OSHA Chemical Standards: Legal does not mean safe

OSHA has standards covering fewer than 500 chemicals. Most of these standard were established in the early 1970’s and are based on science from the 1950’s and 1960’s. Because of the extraordinarily burdensome and lengthy nature of OSHA rulemaking, only about three-dozen chemical standards have been updated or added since that time, although tens of thousands of new chemicals that have been introduced into the workplace over the last 45 years.

OSHA in the Obama administration, under the leadership of Dr Michaels, made some strides in chemical protection, issuing standards protecting workers from silica and beryllium, and updating OSHA’s Hazard Communication Standard to harmonize it with international standards.  Although the beryllium standard was issued with some industry support, the silica standard generated fierce industry resistance and lawsuits from the affected industries, as do most OSHA standards.

Ironically, one of the most important contributions in chemical safety that the last administration made was a public admission that OSHA chemical standards were “dangerously out of date,” according to former Assistant Secretary Michaels. In 2013, OSHA posted two new websites to address that problem. Recognizing that the best way to protect workers from hazardous chemicals is to eliminate or replace those chemicals with safer alternatives, OSHA published a toolkit which “walks employers and workers step-by-step through information, methods, tools and guidance to either eliminate hazardous chemicals or make informed substitution decisions in the workplace by finding a safer chemical, material, product or process.”

There is no question that many of OSHA’s chemical standards are not adequately protective — Dr. David Michaels

And recognizing that OSHA standards were inadequate to protect workers, the agency published a second website that listed standards that are more protective than OSHA’s and lists a side-by-side comparison of OSHA standards and recommended standards issued by the National Institute for Occupational Safety and Health (NIOSH), CalOSHA and the American Conference of Governmental Industrial Hygienists (ACGIH). Although OSHA generally could enforce use of the alternative standards, the purpose, Michaels said, was to inform workers and encourage industry to use safer standards.

Michaels admitted that “There is no question that many of OSHA’s chemical standards are not adequately protective.”I advise employers, who want to ensure that their workplaces are safe, to utilize the occupational exposure limits on these annotated tables, since simply complying with OSHA’s antiquated PELs will not guarantee that workers will be safe.”

What will Trump and Acosta Do?

Cernansky points out there there are opportunities to improve worker protections despite the OSHA’s near paralysis. “Congress took a first step in June by requiring the E.P.A. to regulate more chemicals and add vulnerable populations, including workers, to health risk assessments. Dr. Michaels said this is the first time ‘that workers will be treated like other populations.’”

On the other hand Michaels points out that even the EPA process will address chemicals one-by-one.

And then, of course, we have the 50,000 pound elephant in the room: the fact that the Trump administration seems to be headed in exactly the opposite direction. One of Trump’s executive orders ordered agencies to repeal two regulatory protections for every new one that’s issued, a process that’s unlikely to improve protections for workers.

Meanwhile, Acosta, during his confirmation hearing refused to take a position on whether he supports OSHA’s newly issued silica standard, promising only to follow the President’s order to review all existing agency regulations. About 2.3 million workers are exposed to silica in their workplaces, including 2 million construction workers. Occupational exposures to respirable crystalline silica are associated with the development of silicosis, lung cancer, pulmonary tuberculosis, and airways diseases. It’s been a long struggle. OSHA’s original silica  and beryllium standards were over 45 years old, and OSHA had been working to protect workers from silica since Frances Perkins was Secretary of Labor in the 1930s and 40s.

Ultimately, the fate of OSHA’s  (or EPA’s) regulatory protections for workers lie in how much pressure can be placed on the Administration and Congress by workers and advocates who only want to live a full, healthy life without being poisoned very day in the workplace.

Is that too much to ask?

Alex Acosta Beryllium Chemical Standards David Michaels Environmental Protection Agency OSHA Silica Workplace Illness

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