Washington, DC — The U.S. Occupational Safety & Health Administration (OSHA) has wrongfully withheld data documenting years of toxic exposures to workers and its own inspectors, according to a federal court ruling posted today by Public Employees for Environmental Responsibility (PEER). As a result, the world’s largest compendium of measurements of occupational exposures to toxic substances - more than 2 million analyses conducted during some 75,000 OSHA workplace inspections since 1979 - should now be available to researchers and policymakers. Each year, an estimated 40,000 U.S. workers die prematurely because of exposures to toxic substances on the job.
The June 29, 2007 federal court ruling came in a Freedom of Information Act (FOIA) lawsuit filed by Dr. Adam M. Finkel, a former chief regulator and Regional Administrator at OSHA from 1995-2003, and now a professor of environmental and occupational health at the University of Medicine and Dentistry of New Jersey, School of Public Health, and a visiting professor at the Woodrow Wilson School at Princeton University. His career at OSHA came to an end after disclosing OSHA’s secret decision in 2002 not to offer medical testing to its own inspectors who had been exposed to beryllium dust. Beryllium dust can cause a unique and often-fatal lung disease, known as “chronic beryllium disease” or CBD.
In June 2005, Dr. Finkel filed a request under FOIA for release of the entire contents of the OSHA database on toxic exposures, which contains the concentration of each substance found (e.g., asbestos, lead, benzene, silica dust), the company where the sample was taken, and an encrypted code for the inspector who took the sample. He also requested coded information about the results of beryllium sensitization tests conducted on OSHA inspectors. OSHA denied both requests, claiming that among the sampling results there may have been trade secrets and that releasing the encrypted codes could somehow compromise inspectors’ privacy.
Judge Mary L. Cooper of the Federal District Court in Trenton, New Jersey, held that the rationales offered up by OSHA to justify withholding the data lacked any merit. Moreover, she found that “the public interest in disclosing information that will increase understanding about beryllium sensitization and OSHA’s response thereto is significant.”
“OSHA forgot a long time ago that it exists to protect workers, not to protect its own executives,” stated Dr. Finkel, noting his gratitude to Peter Dickson from the Princeton law firm of Potter & Dickson who argued the case. “Ordinary citizens paid to collect these data, and I look forward to analyzing this public database to help OSHA find its way back to its original mission.” According to Peter Dickson, “This well-balanced and thoughtful decision is a welcome brake on efforts by the government to prevent public scrutiny of what agencies are doing, and more importantly in this case, not doing.”
The validity of Dr. Finkel’s disclosures has been confirmed in tests showing an unexpectedly high incidence of blood abnormalities among a small group of OSHA inspectors, who finally were offered the medical tests in 2004, after settling his whistleblower retaliation case against OSHA and returned to academia. This finding has serious implications for the majority of current and former OSHA inspectors who still have not been offered testing, as well as for an estimated 130,000 private-sector workers who are exposed to beryllium daily. OSHA’s permissible beryllium exposure limit was developed almost 60 years ago and has not been updated. Experts agree that the equivalent of one day’s exposure at the current limit can cause CBD.
“OSHA’s perverse posture in this case fits its pattern of studiously ignoring occupational health hazards ranging from popcorn lung disease to the epidemic of pulmonary maladies among Ground Zero workers,” stated PEER Executive Director Jeff Ruch, whose organization helped represent Dr. Finkel in his whistleblower case. “Congress should identify the officials responsible for this fiasco before the Bush administration awards them bonuses.”