‘The current paradigm’
In October 2013, OSHA issued an extraordinary press release saying that its exposure limits were “not adequately protective” and that employers should consider adhering, voluntarily, to stricter ones recommended by NIOSH or enforced by the state of California. It’s hard to imagine another regulatory agency admitting failure in such a public manner.
This is not to say that OSHA has given up. Last year it put out a “request for information” — an appeal to the public for suggestions on how to fix the broken standard-setting process. One is to regulate chemicals by category instead of individually, said David Michaels, the agency’s chief: “Let’s not worry so much about what the safe level is but say, ‘If you have a chemical in this category, here are all the things you have to do to make sure workers are protected.’”
“We’re going to come up with some ideas,” Michaels said. Most of them, however, probably “won’t be things we can do through regulation but we’ll need to do through legislation.”
This seems an unpromising route. “We’re going to see more timely standard-setting when Congress and the White House are more concerned with worker safety,” said Michael Silverstein, who was OSHA policy director for two years of the Clinton administration. “The politics are pretty grim at the moment.”
Some wonder if the agency has been paralyzed by self-doubt, seeing hurdles where they don’t exist.
In 1980, OSHA was stung by a Supreme Court ruling that overturned its benzene standard, saying the agency hadn’t demonstrated “significant risk.” The following year, however, the court upheld the cotton dust rule after an industry challenge and made it clear that OSHA could not do a cost-benefit analysis — in effect, pricing out a worker’s life — before issuing a health standard.
And yet OSHA — which, by law, does have to demonstrate that a proposed rule is feasible — has continued to perform “de facto cost-benefit analyses,” said Eric Frumin, the former health and safety director for the Amalgamated Clothing and Textile Workers Union, now with the labor consortium Change to Win. “It’s an intellectual corruption of the  act, and it’s a tremendous waste of resources.”
Chuck Gordon, a lawyer in the Labor Department’s Office of the Solicitor from 1975 to 2008, agreed that OSHA “does more analysis than it needs to. It takes too many internal steps, does too many internal reviews, writes too many long documents.”
Gordon believes OSHA could stand up more forcefully to the Office of Management and Budget. “I was at meetings with them on benzene, cotton dust and other standards,” he said. “We had to give in on some things but in all cases maintained the integrity of the standard.” In congressional testimony in 1981, the U.S. Chamber of Commerce had made a case for strong OMB review, saying employers were “sometimes compelled by OSHA to expend much of their time, effort and safety and health dollars abating what is, in fact, a non-hazard.”
Asked to respond to criticisms of its fortitude, OSHA said in a statement that it “promulgates standards that comply with its statutory mandate. As well as the OSH Act, this includes the Paperwork Reduction Act, the Regulatory Flexibility Act and others. OSHA works closely with OMB and in accordance with laws, executive orders and legal precedents to issue standards that protect workers.”
Lawyer and former OCAW official Steve Wodka maintains that OSHA could make more frequent use of the law’s general duty clause — invoked in citation No. 1 against Allied Chemical for the pooled mercury — to punish employers that fail to control chemical hazards. Michaels himself had endorsed the idea in congressional testimony in 2007, when he was a professor at George Washington University.
Wodka, who, with his firebrand boss, Tony Mazzocchi, filed a complaint against Allied on behalf of the union, said that he and others who helped draft the act assumed OSHA wouldn’t be able to knock out many individual health standards. The law “was set up so that there would be no gaps in coverage,” he said. “It became a huge battle that runs right up to today. OSHA takes a few steps out to cite someone under [the general duty clause] and this uproar occurs.”
OSHA said it used the clause about a dozen times from 2011 to 2014 to cite violations involving airborne chemical exposures. A “very high evidentiary burden” kept it from doing so more often, the agency said in a statement. For each violation it wants to issue under the clause, OSHA has to find that the hazard can cause death or serious harm, that workers are exposed, that the hazard is recognized by the employer or the industry, and that a feasible fix exists. Moreover, there can’t be a related standard on the books.
As experts inside and outside of OSHA debate the best way forward in what seems a hopeless situation, Raphael Metzger, a lawyer in Long Beach, California, is doing brisk business.
For the past 25 years, Metzger has devoted his practice to representing workers afflicted by toxic exposures. He estimates that he’s had about 1,000 such clients, among them a young man who developed myelodysplastic syndrome — also known as pre-leukemia — after being splashed with benzene-tainted fuel on a floating dock, and a middle-aged golf club maker who needed a double lung transplant after inhaling beryllium, the metal OSHA declined to regulate in the 1970s.
“These are all people who are just trying to make a living and they get horribly, horribly sick at work,” Metzger said. “Basically, we have a legal structure that allows workers to be exposed to chemicals that cause cancer and other diseases. That is accepted. That’s the current paradigm.”
This story was co-published with Slate.