CalOSHA: Going Down the Tubes?

Released by
California Coalition For Workers Memorial Day CCWMD
http://www.workersmemorialday.org
8/1/2008

CalOSHA: Going Down the Tubes?

There are over 17 million workers in California. The total number of active inspectors that are enforcing the health, and safety regulation are at present 187. The present ratio of 92,080 workers per safety inspector in California is over nine times the 10,000 workers per inspector ratio recommended by the International Labor's Organization's guidelines. Table A showes that other West Coast jurisdictions have come much closer than California to meeting that standard.
Table A: Number of Health and Safety Inspectors per Worker: Selected Jurisdictions
Jurisdiction Cali- Fornia (3/2007) Washing- ton state (5/2006) Oregon (5/2006) British Columbia (5/2006) ILO recommen-ded ratio (5/2006) Inspectors per Worker 92,080(a) 26,904(b) 22,239(b) 10,564(b) 10,000(b) Sources: a. Cal-OSHA Reporter/DOSH Program Office, as of March 9, 2007; b. Legislative Analyst’s Office, State of California, March 18, 2006. The trends at Cal-OSHA between 1992 and 2006 show a decrease of 32% in both the number of on-site inspections and cited violations from 1992-2006, despite a 20% increase in the number of workers in California. The decline in inspectors has led, not surprisingly, to failures by Cal-OSHA to meet the requirements in the labor code: inspections are not being initiated within the required 14-day post-complaint period, inspections are not being closed in a timely fashion, and many serious complaints are being declared "invalid" at the discretion of the 21 district managers. Worse yet, follow-up inspections for “serious” citations are not being carried out, and there are an increasing reluctance to effectively fight appeals by employers. Furthermore, existing programs, such as targeted inspections in "high hazard industries" are short changed, and a concomitant reduction in previously programmed inspections in high-risk industries such as agriculture, construction, garment, and restaurant industries has occurred. Over the years, CalOSHA has essentially eliminated the enforcement of health standards, especially for infectious diseases. At its inception under Governor Jerry Brown in the 1970s, CalOSHA had six physicians serving as public health medical officers, and several occupational health nurses enforce the occupational health standards. When I retired in 2006, I was the last physician working as a CalOSHA public health medical officer, and no one has been hired to replace me. Medical expertise is of enormous importance in protecting California's work force from a multiplicity of hazardous chemicals, infectious diseases, and repetitive strain motion injuries. At present there are only about 80 professionally-trained industrial hygienists, college-level post-graduate professionals primarily trained to measure various hazardous exposures and to apply mandated exposure limits to airborne hazards when issuing violation citations. Serious acute, and chronic long term illnesses are frequently caused by multiple chemical exposures. Unfortunately the existing health standards as defined in the labor code were set without reference to the possibility of multiple exposures to hazards. Worse yet, a whole universe of new hazards is inherent in nanotechnology, genetic engineering, biotechnology, indoor air quality exposures, and infectious diseases. Most new chemicals and pesticides have yet to be screened for for their potential to cause illness, at a time when an increasing proportion of workers and the public is becoming aware of long term threats to health, and the environment. Cal-OSHA has the legal authority under the Labor Code to establish new standards and procedures, and to require strict recording of all occupational illnesj, and the retention of all medical records for 30 years,as well as requiring medical surveillance with certain highly hazardous substance exposures is a important part of this program for worker protection, but it has refused to exercise this prerogative in most cases. Not surprisingly, employers record only a diminishing small proportion of occupational illnesses by setting it up so that most of them are only in need of first aid, and staying at work, or returning to the work place the next day, and therefore exempt from the official recording sheet.
The Tip of the Iceberg Examples
Several recent examples illustrate the dramatic failure of Cal-OSHA to effectively respond to serious threats to life and health in California’s workplaces: 1) Agriquest, a technology corporation, turned a naturally occurring microorganism into a pesticide which caused a life- threatening illness in a professional employee. That illness was recognized by the employee’s primary care medical practitioners as a workplace-induced illness. The Cal-OSHA investigator assigned to Agriquest totally failed to address the problem that also threatened the surrounding community, and issued only a "laboratory hood" citation. The real issue was the overall level of laboratory protection needed. Without knowing all the facts in the case, I would guess that Level 4 protection—the same required when working with any dangerous microorganism, (anthrax as an example), might have been considered in this investigation. Dealing with infectious disease hazards in the workplace requires the expertise of a physician, but CalOSHA sent over an industrial hygienist. 2) Over 80,000 new chemicals that have been released and have become are now in commercial circulation that have not been adequately tested for general public health safety. Only 15% of these chemicals have been barely adequately tested. Usually workers exposed to these untested chemicals are the equivalent of the "canary in the coal mine" who when exposed to dangerous mine gases, “sway noticeably on the perch” thus warning the miners of the danger of the odorless, poisonous gases. The shocking example of "popcorn lung disease" is a good example of a worker "body count" which has alerted the labor and public health communities to the dangers of a particular hazardous chemical. Of course the illness should have been called "chemical lung destruction disease." Diacetyl is used in processed food and beverages as an additive to give a buttery taste. It is part of the oily substance chemical mix that is put on commercial popcorn. A worker at the Foothill Ranch flavor manufacturing facility had been exposed to the heated fumes, and over a period of a year and a half developed devastating lung destruction called "bronchiolitis obliterans", and 80% of his lung function was destroyed, to the point that only a lung transplant offered any hope for restoring his health. It took CalOSHA over six months after the diagnosis of bronchiolitis obliterans” to fine the employer, and the penalty was only $40,000 for the destruction of a worker’s life, and the employer failed to report the illness. This fine was legally appealed. Nationally there were many more worker cases of lung disease reported from this exposure, and one documented case occurred in a consumer. It makes one wonder about the popcorn fumes that young theater workers are constantly exposed to. The Cal-OSHA response was to have an industry physician associated with the Food and Extract Manufacturers Association do the medical screening and evaluations at the 20+ workplaces which utilized diacetyl. The chemical manufacturers of diacetyl were not required to provide a list of all of the firms they supplied with diacetyl in California. To this day, CalOSHA is uncertain whether or not these employers comprised all of the industrial users of diacetyl in the state. Assembly Bill 816, which would have required that this information be provided by chemical manufacturers in California, was vetoed by Governor Arnold Schwartzenegger who declared it it an "invasion of privacy.” The Cal-OSHA response to the “popcorn lung” problem was dictated by Leonard Welsh, Acting Chief of Cal-OSHA, who sent in non-enforcement “Consultation” agents of Cal-OSHA to the incomplete list of twenty odd industrial users of diacetyl. CalOSHA’s treatment of this case illustrates how Mr. Welsh has developed an ever-expanding emphasis on so-called "voluntary compliance" for large corporations even in life-threatening cases. Large chemical and electronic companies in California have become effectively exempt from programmed “enforcement” inspections if they sign “voluntary compliance” agreements, even where they use dozens of notoriously toxic chemicals in their operations. Another example of Cal-OSHA incompetence are the ongoing increasing deaths from heat stress or hyperthermia in agriculture. Until the inevitable death occurs, CalOSHA essentially fails to enforce the requirements for rest periods, drinking water, and shade for agricultural workers even during record statewide heat waves. Addressing the Cal-OSHA Enforcement Disaster In 1975 Cal-OSHA had the strongest state OSHA program in the United States. Now, after enduring death by a thousand cuts, it is now one of the weakest state programs. despite the increasing numbers of workers and hazardous industries in the state. The insufficient level of enforcement staffing and the elimination of all Public Health Medical Officers has lead to a inability of the agency to meet its mandated responses to workplace health and safety problems as enumerated in the California Labor Code. The U.S. Court of Appeals decision in AFL-CIO v. Marshall, the established benchmark had been 805 inspectors for the State of California. Federal OSHA has recommended 334 safety, and 471 health compliance officers Instead under successive Republican California administrations the enforcement staff numbers have shrunk to a total of only 187 inspectors of all kinds. If an effective committed administration were operating, thirty vacant field positions would be filled immediately and trained on an emergency basis, and five times as many inspectors plus 5 physician medical officers would be presented to the legislators as urgently needed to accomplish an effective Cal-OSHA. Anti-labor administration policies, plus weak statewide labor support have contributed to this dysfunctional Cal-OSHA picture.

Author: Lawrence Rose M.D., M.P.H. 28 years as the senior Public Medical Officer for the statewide Cal-OSHA enforcement program (recently retired), Occupational/Environmental UCSF
LarryRoseM.D.,M.P.H.,
197LovellAve.
Mill Valley, CA 94941
larryrosemd [at] sbcglobal.net