Asbestos: Still Legal and Still Killing

Asbestos dust hung in the air, collected on the beams and light fixtures and built up until it was inches thick. Workers tramped in and out of it all day, often without protective suits or masks, and carried it around on their coveralls and boots. They implored the plant’s managers to address the conditions, they said, but the dangers remained until the plant closed…

An old story told by workers in the 1940s or 1950s?  Unfortunately not. This is a description from workers at, OxyChem’s chlorine plant in Niagara Falls, New York — last year — before the plant  closed.

In an amazing series of articles on chemical regulation in this country, ProPublica’s  Kathleen McGrory and Neil Bedi about asbestos in the workplace describe work with asbestos, an extremely hazardous mineral that most people think is no long used in United States. I’m providing a summary and elaborating a bit on some of the things they cover, but I highly suggest that you read the articles yourself.

Asbestos: A Bad Player From the Start

For decades, if not centuries asbestos was known as the miracle mineral — a fire and heat resistant mineral widely used to insulate boilers in ships and buildings, to insulate houses, office buildings and factories, and can still be found in  automotive parts like automatic transmission components, brake blocks, clutch facings, disk brake pads, drum brake linings, friction materials, and gaskets.

The problem is that inhaling asbestos also caused deadly disease: asbestosis, lung cancer and mesothelioma, a fatal disease of the lining of the lung, as well as a number of other fatal diseases.  The hazards of asbestos were well known — at least to the manufacturers — at least since the 1930s, but not to workers until groundbreaking studies by workplace health legends like Irving Selikoff in the 1960s. Thousands of workers died every year from asbestos they were exposed to years, and sometimes decades before.  OSHA and EPA issued regulations controlling exposure to asbestos in the 1970s.

But what really killed the US asbestos industry were lawsuits against the asbestos manufacturers that eventually drove them out of the asbestos business. But that didn’t mean that asbestos hazards have disappeared. For years after asbestos insulation was banned in the mid-1970s, workers continued to be exposed when insulation deteriorated, creating toxic dust. And workers tasked with removing asbestos insulation were also exposed if they weren’t adequately protected. Imported asbestos continued to be used in brake pads, exposing auto mechanics to the deadly dust.

Today things are better. Almost no asbestos-containing break pads are used. EPA banned asbestos-containing insulation in the 1970s and OSHA tightly regulates protections for those workers who still work with asbestos. Much of the asbestos insulation in schools and other buildings has been safely removed or sealed, although there are still exposures, especially underground, low-road construction employers. Demolition of asbestos-containing buildings continues to be a problem if proper precautions aren’t taken. Any asbestos still used in this country is imported.

But to this day, unlike dozens of countries in the world, EPA has not been able to completely ban asbestos, despite the 1976 Toxic Substances Control Act (TSCA) that gives the agency that authority.  EPA attempted to ban asbestos in the late 1980s. Chemical companies opposed the ban, and fought specifically for an exemption for chlorine plants, claiming that without asbestos in chlorine production, there would be no clean water, Western Civilization was at risk, blah, blah, blah. And as usual, the chemical industry won.

Under federal law at the time, the EPA was obligated to regulate asbestos in the way that was “least burdensome” to industry. That forced the EPA to make a cold calculation: Banning asbestos in chlorine plants would prevent “relatively few cancer cases” but increase the companies’ costs. So when the agency enacted an asbestos ban in 1989, it carved out an exemption for the mineral’s use in the chlorine industry.

The asbestos industry nevertheless challenged the ban in court, and then in 1991, a panel of federal judges determined that EPA’s asbestos ban was too burdensome and overturned it.

The good news is that TSCA was recently changed and the “least burdensome” language removed. EPA is again planning to ban asbestos, hopefully by November 2023. The American Chemistry Council and The Chlorine Institute continue to pressure EPA to exempt chlorine production from the ban, but just to hedge their bets asbestos imports have increased significantly this year.  In addition to the EPA action, the ProPublica articles have generated renewed support among Democrats in Congress to legislate a ban.

The ProPublica articles focus on the last remaining major use of asbestos in the United States, the exposure that workers continue to face, the failure of enforcement agencies to effective address the problems, and the chemical industry’s continuing campaign to oppose an asbestos ban.

A Confession…or Two

But first, I have a confession to make: To a certain extent, I fell for the industry’s propaganda.

While I was staffing the Education and Labor Committee in 2019, I worked with Linda Reinstein of Asbestos Disease Awareness Organization on the Alan Reinstein Ban Asbestos Now Act that would have banned asbestos in the United States — with the exception of Chlorine manufacturers. Why? Because their political power was too strong and that was the only way a bill could be passed — even in a Democratically controlled Congress. My committee didn’t have jurisdiction over the bill, but I agreed to worker with Linda and my boss, Chairman of the Ed and Labor Committee, Bobby Scott (D-VA) to do what we could to get the bill through the Energy and Commerce Committee (which oversees EPA) and to the floor for a vote.

But I confess, I didn’t really understand the process. I understood only that some kind of “screens” were used in the chlor-alkali process and that for the time being, there were no good alternatives.  Also, there was really no significant worker exposure. I imagined some nice clean asbestos-containing cassettes that could be cleanly and simply slipped in and out of the process and discarded. Basically a relatively clean process (if done correctly) with no muss, no fuss, no exposed or sick workers.

But as ProPublica makes abundantly clear, I couldn’t have been more wrong.  First, the process that used asbestos wasn’t so simple or clean. The basic process to make chlorine was to send a jolt of electricity into a tank of salt water, which turned the salt water into chlorine, caustic soda and hydrogen.

The chlorine could be sold for disinfecting water, the caustic soda for making paper, soap and aspirin. There was, however, a real danger: If the chemicals mixed, the tank could turn into a bomb. So each tank had a thick, metal screen inside to keep the chemicals apart.

The screen was coated with a layer of impenetrable asbestos. OxyChem used chrysotile, or white asbestos, the most common type. It showed up on trains in oversized bags that looked like pillows stuffed with down feathers. At OxyChem, there were about 200 tanks, called cells, each the size of a dining room table and containing a metal screen. When a screen needed to be recoated, a special team of workers removed it and brought it to the cavernous cell-maintenance building. There, they blasted it with a high-pressure water cannon until the old asbestos fell off. Then, they dipped the clean screen into a wet mixture containing new asbestos and cooked it in an oven until the asbestos hardened. They worked on one or two screens each day.

The companies claimed that their current protocols for handling asbestos were so protective that workers faced little threat of exposure. But listen to OxyChem employee Henry Saenz:

At OxyChem’s plant in Niagara Falls, New York, where Saenz worked for nearly three decades, the reality was far different, more than a dozen former workers told ProPublica. There, they said, asbestos dust hung in the air, collected on the beams and light fixtures and built up until it was inches thick. Workers tramped in and out of it all day, often without protective suits or masks, and carried it around on their coveralls and boots. They implored the plant’s managers to address the conditions, they said, but the dangers remained until the plant closed in late 2021 for unrelated reasons.

It was hard for Saenz to reconcile the science that he understood — and that he believed OxyChem and government leaders understood — with what he saw at the plant every day. He did his best not to inhale the asbestos, but after a short time, he came to believe there was no way the killer substance was not already inside him, waiting, perhaps 30 or 40 or even 50 years, to strike.

Asbestos splattered everywhere. It wasn’t a problem when the asbestos was wet. But it would dry overnight, and the next morning, it would be stuck to the ceiling and the walls. Clumps would roll across the floor like tiny tumbleweeds.

Although there are strict OSHA standards, including

having workers wear protective equipment and containing the asbestos inside certain areas. OxyChem had rules in place to meet those standards. But protocols failed to match reality at the Niagara Falls plant, according to more than a dozen workers.

Water-blasting the screens was like washing a car with a high-powered hose. Asbestos splattered everywhere. It wasn’t a problem when the asbestos was wet. But it would dry overnight, and the next morning, it would be stuck to the ceiling and the walls. Clumps would roll across the floor like tiny tumbleweeds. Floating particles would catch the light when the sun poured in. There was so much asbestos in the cell-maintenance building that it was impossible to keep it all wet, said Robert Cheff, who worked at the plant from 1981 to 2007. “We were constantly swimming in this stuff.”

Workers wore protective gear for certain tasks, like pressure washing and screen dipping. But they went into the building to carry out other tasks without special suits or anything protecting their faces, despite company requirements.

***

At least five times in 2001 and 2002, the levels around team member Patrick Nowak exceeded OSHA’s exposure limit, his company records show. “I failed so many times, they quit testing me,” he said.

Finally, there were alternatives to using asbestos without endangering the country’s clean drinking water despite claims that the chlorine industry continues to make.

But the EPA and public health advocates contest those claims. They point out that only a small fraction of the chlorine produced by asbestos-dependent plants is used to clean drinking water and that OxyChem and Olin have voluntarily closed or reduced capacity at several of those plants in recent years without catastrophically disrupting the supply chain. In fact, OxyChem told investors in August that its plans to upgrade the asbestos-reliant technology at its largest chlorine facility next year would have “no impact on customers,” a transcript shows. For at least eight years, the company has been slowly upgrading some plants to a newer technology that uses a polymer membrane to separate the chemicals; it built a completely asbestos-free plant in 2014.

VPP: Free at Last… from Surprise OSHA Inspections

There is a whole other dimension to this tragedy covered in the last ProPublica installment. At least four of the eight chlorine factories that currently use asbestos are participants in OSHA’s Voluntary Protection Program — a program for companies that excel in protecting their workers — and were therefore exempt from some OSHA inspections.

“Huh?” You say?

How could a company that uses a highly hazardous material be a participant in a program that signifies “OSHA’s official recognition of the outstanding efforts of employers and employees” in workplace health and safety?

First, we need to understand a few things about VPP:

• VPP is mostly based on two elements: superior injury and illness statistics and an exemplary health and safety program. VPP participants also have to have worker support, which means that unions, if any, must sign on.
• To get into VPP, OSHA conducts an extensive site-wide inspection. In fact, workers often support VPP because sometimes it’s the only way they’ll ever get a wall-to-wall OSHA inspection. And every three to five years, OSHA conducts a re-approval inspection. Initial VPP inspections and re-approval inspections, unlike normal OSHA inspections, are announced ahead of time.
• VPP participants are exempt from OSHA’s “programmed inspections” — those inspections that are part of an local or national emphasis program that focuses on specific hazards or particularly dangerous industries.  VPP participants are still subject to unannounced “unprogrammed” inspections that result from workers complaints, fatalities, hospitalizations and referrals from other government agencies or the media.
• OSHA doesn’t have the resources to do it’s main job of conducting inspections in hazardous workplaces to protect workers, plus adequately overseeing VPP participants to ensure that they belong in the program.

I have written much about VPP before, most of which is summarized here. (To summarize the summary, I think recognition of companies that excel in protecting workers — that go above an beyond OSHA requirements — is a good thing. But I’m not supportive of them being exempted from any type of OSHA inspection. And, with OSHA’s tiny size and budget problems, I think OSHA’s scarce resources would be better spent focusing on vulnerable workers getting injured and killed by low-road employers that supporting great companies that are already doing the right thing.)

So what does all of this mean?

It means that chlorine companies that are VPP participants can get away with murder.  Workers told the ProPublica reporters that before OSHA came out for its VPP re-approval inspections, the company would clean up the workplace.  Being as VPP is primarily based on injury and illness experience and asbestos-related illnesses don’t happen for years or decades after exposure, it’s unlikely that any asbestos-related disease would affect any company’s VPP status — unless serious problems were identified by OSHA inspectors during the re-approval process.

Chlorine manufacturers that are VPP participants can get away with murder. 

Here is the actual impact of VPP on OxyChem chlorine plant:

At the Niagara Falls plant, former union leaders believed the program would protect jobs and make the facility safer, they told ProPublica. They worked with management on the application — a monthslong process that entailed updating the plant’s safety practices and submitting to a rigorous inspection. But what actually changed, the union leaders said, was that OSHA inspectors came far less frequently and announced their visits well in advance. When OSHA came to re-evaluate the plant, usually every three to five years, management spent months preparing, said Spacone, the union officer. “They would clean the hell out of the place. Everything would be spotless.” Work in certain areas came to a halt. Plant representatives tried to limit what the evaluators saw.

Even when we were at OSHA in 2011 during the Obama administration:

evaluators found asbestos “scattered in certain areas of the floor” and covering much of the mechanical equipment, records show. “This contamination can spread easily when dry,” they wrote in a report. “Appropriate clean up procedures must be instituted to prevent airborne asbestos.” The evaluators did not give the plant an official citation. In the end, they applauded the plant’s “commitment to safety and health” and recommended it for continued participation in the program.

That information never reached the Assistant Secretary’s office while I was there.

Not that OSHA is completely ineffective when it comes to VPP

OSHA’s [VPP] Star Program, which exempts facilities that commit to high safety standards from random, unannounced inspections. Instead, OSHA makes re-evaluation visits every three to five years. The McIntosh [Alabama Olin chlorine] plant withdrew from the program in 2015, several months after a chlorine release sent an employee to the hospital and OSHA fined the company $8,500, government records show.

In a statement provided after this story was published, OSHA said it had inspected the plant seven times after its withdrawal from the program, mostly on account of chlorine exposures, and that its records did not indicate any problems with asbestos hazards. “Although the procedures for on-site evaluations are designed to reveal possible safety and health management failures, OSHA cannot rule out breaches in health and safety management when we’re not onsite,” an agency spokesperson said.

To add more detail to OSHA’s statement, first, obviously if overexposures aren’t occurring while OSHA is physically present for an inspection, OSHA can’t cite.

But more important, OSHA inspections are generally confined to that specific reason they’re there. In other words, if an employee complains about a piece of machinery, OSHA can only inspect that piece of machinery (and other similar machines.) If there was a fall, then OSHA can inspect fall hazards.  The exception is that OSHA can also cite violations that inspectors see on the way over to the location of the incident or complaints. (To prevent OSHA seeing other hazards on their way to the inspection area, one company several years ago tried to force OSHA inspectors to put bags over their heads so they wouldn’t see — and cite — unsafe conditions they happened to see.)

In other words, OSHA inspectors going into a large chemical plant to investigate a discreet hazard in a specific location may not get anywhere near the area where asbestos is used.

Exempt from Inspections

Probably the most objectionable part of VPP participation — especially in this case — is that VPP participants are exempt from programmed OSHA inspections. Here’s the problem:

For several years during the Obama administration, OSHA ran a National Emphasis Program (NEP) for PSM Covered Chemical Facilities — chemical plants covered under OSHA’s PSM standard. NEPs allow OSHA to preventively inspect facilities in particularly dangerous industries (like the chemical industry), or facilities that have particularly dangerous hazards (like heat) without having to wait for a worker complaint or a fatality.

Shortly into the Obama administration, OSHA concluded an NEP covering all of the nation’s refineries that was initiated following the catastrophic 2005 explosion at the Texas City BP refinery that killed 15 workers. The problems identified in that NEP led OSHA to believe that similar problems might be identified in other chemical plants across the country.  As NEPs work, OSHA area offices were given a list of facilities potentially targeted for inspection under the NEP, including chlorine plants. As there are a lot of chemical facilities in the United States and relatively few OSHA inspectors trained in PSM, not all facilities falling under the NEP can be inspected.

Chemical facilities that participate in the VPP program are automatically exempt from all local and national emphasis program inspections, including the chemical plant NEP inspections.

The problem was that chemical facilities that participate in the VPP program are automatically exempt from all local and national emphasis program inspections, including the chemical plant NEP inspections. That means that unless a worker at one of these plants filed a complaint (or there was a fatality or hospitalizations), it was extremely unlikely that any of these plants would ever be inspected by OSHA — except during the pre-announced VPP re-approval inspections every three to five years.

APHA Letter

Happily, someone (aside from ProPublica) is paying attention to this problem. Leaders of the American Public Health Associations Occupational Health Section sent a letter to OSHA last month questioning “whether worksites that import and use raw asbestos should be allowed at all in OSHA’s Voluntary Protection Program. On its face, a company whose business model relies on using asbestos does not have an exceptional health and safety management system,” especially considering that “the Environmental Protection Agency reports that the Olin Corporation, Chemours/OxyChem, and Westlake Chemical operate plants that use alternative technology.”

How likely is OSHA to kick any companies out of VPP for using asbestos?

Color me skeptical. Generally, for VPP, it doesn’t matter what hazardous products a VPP participant works with — methyl-ethyl-death or asbestos — as long as it’s done legally and safely. Asbestos use is, unfortunately, still legal, and can be handled safely. And asbestos is far from the only hazardous product VPP companies use or manufacture.  In fact, out of almost 2,000 VPP participants, there are 66 Petroleum And Coal Products Manufacturing companies and 269 Chemical Manufacturing companies in VPP that work with highly hazardous chemicals, making chemical manufacturing by far the largest industrial sector in VPP.

Clearly there are feasible and safer alternatives and VPP participants should be setting a good example for everyone.

On the other hand, clearly there are feasible and safer alternatives to using asbestos in chlorine production and VPP participants should be setting a good example for everyone. During the Obama administration, for example, OSHA prohibited VPP participants from conducting injury based incentive programs that had the effect of discouraging workers from reporting workplace injuries. These programs weren’t strictly illegal, but we felt that VPP participants needed to set a good example. OSHA’s decision generated enormous opposition from VPP members and the Voluntary Protection Program Participants’ Association (VPPPA) and has been significantly weakened over the ensuring years as players have pressured OSHA and lobbied Congress.

In Conclusion

The ball right now is in EPA’s court. Will they have the political courage to completely ban the use of asbestos as so many other country’s have done, or will they once again bow to the myths of economic catastrophe spewed out by the chemical industry?   In the meantime, as ProPublica has shown, there are major workplace health problems in chlorine plants where asbestos is still used and OSHA needs to focus on working conditions in those plants. There is now plenty of evidence (thanks to ProPublica) for directing inspections on these facilities.

Finally, kudos to ProPublica for the amazing work on this story. (Which continues with an article on OSHA’s inability to issue standards to control chemical exposures.) With major newspapers shedding investigative staff and labor reporters, non-profit investigative news organizations like ProPublica, the Center for Public Integrity and Reveal that are telling the stories that need to be told about what it’s like to work and live in the United States.

As the year winds slowly to an end and you’re trying to figure out what contributions you need to make or what kind of politically meaningful presents you can give to loved ones, remember that these organizations need your financial support.  The don’t just tell stories, they make change.