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Whistle-Blower: Agency Tasked with Protecting American Workers Fails to Protect its Own

OSHA, inspect thyself.
 
 
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In less than an hour, Adam Finkel will be teaching a class on environmental risk assessment. But first, he's hustling off to audition for a tenor solo in Carl Orff's cantata Carmina Burana. The song, he explains, is the musical equivalent of a "dying swan: You basically stand there and scream for five minutes."

A cynic might say that's the perfect role for Finkel. He has spent the past five years standing up alone and screaming.

In 2002, Finkel was a high-ranking official at the Occupational Safety and Health Administration, the federal agency charged with protecting Americans from hazards on the job. Finkel was worried about hazards to some of OSHA's own inspectors, who faced the possibility of serious lung disease from exposure to the toxic metal beryllium.

He leaked the story of OSHA's refusal to offer the inspectors a blood test that would reveal whether they were at risk of disease. The day the article appeared, Finkel was essentially demoted. He filed a whistle-blower complaint, won a $500,000 settlement and left OSHA. Ever since then, he has been performing a long, loud solo protest aimed at getting the agency to do its job.

"Once I lived on lakes; once I looked beautiful, when I was a swan," the tenor bellows in Carmina Burana's "Song of the Roasted Swan." Then comes the chorus: "Misery me! Now black and roasting fiercely!"

But Finkel is an optimist, not a cynic. Although he's now in academia, teaching at the University of Pennsylvania Law School and the University of Medicine and Dentistry of New Jersey, he still believes that government can be a force for good. Despite his bitter experience at OSHA (which denies retaliating against him), Finkel believes "more than ever" in the agency's mission, proclaimed by Congress in 1970: "... to assure so far as possible every working man and woman in the nation safe and healthful working conditions." He believes it is possible to blend good science and good politics, producing rules that protect workers. And he believes that, whether solo or in the chorus, Adam Finkel can still play a role.

What's Wrong With OSHA

During his workplace ordeal, Finkel may have felt like a swan being roasted on a spit. But he emerged relatively unscathed: He lost his job, but he kept his life and his health.

Between 50,000 and 60,000 Americans a year are not so lucky, dying prematurely from work-related illnesses, according to expert estimates. From time to time, spectacular accidents -- a crane collapse, a sugar refinery explosion -- focus public attention on OSHA's failure to protect workers. But on-the-job accidents claim only about one-tenth as many victims as do occupational diseases.

The vast majority of those diseases, Finkel says, stem from exposure to toxic chemicals. The ailments are sneaky: They may masquerade as ordinary asthma, or lie latent for decades before emerging as cancer. Only rarely are they diagnosed as work-related.

Preventing those illnesses is the mandate Finkel is still trying to get OSHA to fulfill. His story illustrates some of the central challenges in the quest for healthy American workplaces. As the nation transitions to a 21st century economy, researchers are increasingly focused on the health effects of intangible factors like job stress, contract work and the night shift. Yet OSHA still relies on mid-20th century knowledge about chemical hazards.

Finkel, a boyish-looking 49-year-old whose brown hair flops across his forehead, likes to say that he was "born to protect." Certainly, he was born to achieve. The only child of older parents, he left his West Philadelphia home for Harvard at age 16. He went on to earn a master's degree in public policy and a doctorate in science, both from Harvard, and went to work at OSHA in 1995.

Launched 37 years ago, the agency now bears responsibility for health and safety at more than 7 million workplaces across the country. Even in the best of times, OSHA has struggled with political opposition, court challenges and limited resources. Under the Bush administration, the agency's would-be enforcers and regulators face additional obstacles. In the past seven years, OSHA has issued only one new health standard; that came under court order.

As OSHA's director of health standards, Finkel was in charge of establishing permissible exposure limits for toxics in the workplace. Note the word "permissible" -- not to be confused with "safe." Ever since a landmark U.S. Supreme Court ruling in 1980, OSHA has set exposure limits that are calculated to kill at least one of every 1,000 people exposed for a working lifetime. By comparison, the Environmental Protection Agency aims to reduce the same toxics in air and water to a risk level of one in 1 million. Finkel lays out that discrepancy in a PowerPoint presentation that he calls, for short, "What's Wrong With OSHA." He lists poison after poison -- including cancer-causing benzene and the neurotoxin methylene chloride -- for which OSHA's allowable limit inside a workplace is roughly 1,000 times what the EPA permits outside. One slide graphs, state by state, how long it would take OSHA to inspect every workplace. (The answer: between 22 and 227 years.) It takes two slides to list all the health and safety regulations begun during Bill Clinton's presidency and withdrawn under Bush.

Protecting OSHA's own inspectors from beryllium was another Clinton-era initiative. Ultra-lightweight and super-strong, this metal is an essential ingredient in nuclear weapons. It is also, in the words of George Washington University epidemiologist David Michaels, "almost unimaginably toxic to the human lung." It's a known carcinogen and, in very small doses, can cause a potentially fatal illness called chronic beryllium disease.

OSHA's exposure limit for beryllium, 2 micrograms per cubic meter of air, derives from a 1948 scientific "best guess." When OSHA enacted it in 1971, evidence was already mounting that beryllium causes harm at lower levels.

By the 1990s, even the federal Department of Energy -- which oversees U.S. nuclear weapons production -- recognized that it needed to do more to protect its workers. With Michaels as assistant secretary, the department in 1999 slashed its allowable beryllium exposure by a factor of 10, from 2.0 micrograms to 0.2.

Tricky Toxin

Beryllium is a tricky toxin. Some people breathe low levels without getting sick. But in a small percentage of the population, minuscule exposures cause an allergic reaction known as sensitization: The immune system regards beryllium as a foreign invader and attacks.

Eventually, the war between invader and defender scars the lungs, leading to chronic beryllium disease. Lee Newman, one of the country's leading medical experts on beryllium, warned in a 2004 article of an "unrecognized epidemic" of CBD.

The first step toward diagnosing and treating the disease is a blood test for sensitization. A positive test signals that someone has developed the allergic response to beryllium. The person can then get medical testing for signs of lung disease and can avoid further exposure. False positives are possible, however, so a second test is needed to confirm the result. And because beryllium disease is incurable, with limited treatment options, some people question the test's value.

Nonetheless, the Department of Energy began testing active and retired employees in 1999. By the time the Bush administration took office in January 2001, OSHA was refining its own testing plan. An agency database listed nearly 500 inspectors who had visited workplaces with beryllium levels above 0.2 micrograms. Although the plan did not include testing or informing retirees, Finkel -- who was then a regional administrator in Denver -- considered it a good start.

But at an April 2002 meeting, he says, then-OSHA chief John Henshaw and other agency executives voted it down. Finkel was the lone voice in favor. "We're OSHA," he recalls reminding his boss and colleagues. "We're supposed to protect everybody else's workers. If we're doing worse to our workers than DOE does to its, then something's not right."

That fall Finkel vented his frustration to a reporter, and in November 2002, the trade publication Inside OSHA ran an article on the controversy. The same day, Henshaw told Finkel he was being transferred to a nonsupervisory position in Washington, D.C. A few hours later, Henshaw confronted senior managers about the Inside OSHA article, Finkel remembers. "He shook the newsletter and said, 'one of you here leaked this.' It was as open-and-shut as retaliation gets."

Henshaw, who left OSHA in December 2004, tells a different story. According to him, the disagreement at the April 2002 executive meeting was not whether to proceed with the beryllium testing -- everyone favored that, he says -- but whether to include retirees.

He says he has "no idea" why it took his agency two years from that meeting to start offering the testing. But, he says, his decision to transfer Finkel had nothing to do with the Inside OSHA article.

"I have no beef against Adam," he says. "When I first came to the agency, he came to me and requested that, if I get a chance, he'd like to come back to the East Coast. We found a way to get him back to the East Coast. He's portraying it as retaliation. It was not."

Even though Finkel was the sole dissident on beryllium testing, "I didn't suspect Adam" as the source of the leak, Henshaw insists. "Why would it be him? It wasn't a big deal."

But e-mails that Finkel obtained through litigation carry an ugly tone. In September 2003, one OSHA executive e-mailed another that Finkel was "still communicating with his friends ET, Uncle Martin and Mork." Another staffer wrote: "I'd settle for a round-trip ticket to Denver and a working weapon." (Finkel returned the e-mails as a condition of his settlement; the quotations come from his notes.)

Then, in October 2003, the Washington Post wrote about the whistle-blower case under the headline: "OSHA Accused of Neglecting Employees' Health." By the year's end, OSHA had settled the suit.

Henshaw and a spokeswoman for the Department of Labor, OSHA's parent agency, emphasize that the independent Office of Special Counsel investigated the whistle-blower complaint and decided not to take action. The OSC also determined that the beryllium-testing situation did not constitute a threat to public health.

Finkel acknowledges that he initially told Henshaw he would like to go back East, but says he later made it clear he wanted to stay in Denver. In any case, he never wanted to be "stripped of all responsibility and put in a closet." As for the Office of Special Counsel decision, he says, "I don't think the government's in the business of giving half-million-dollar settlements where there's no wrongdoing."

Hunting the Iceberg

In April 2004, OSHA finally began offering the beryllium blood test to active inspectors.

The results were "a big eye-opener" for Finkel. Of OSHA's 989 inspectors in March 2005, 271 were tested, and 10 -- or 3.7 percent -- were confirmed positive for sensitization. Based on information from Newman, the beryllium expert, Finkel had expected only 1 to 2 percent would be positive. As of March 2008, the numbers had increased only slightly, to 11 confirmed positives out of 301 tests.

What do those results mean for the hundreds of other OSHA inspectors -- not to mention 1,000 or more retirees? "I don't know if it's the tip of the iceberg or the whole iceberg," Finkel says. So he went back into the ring with OSHA, filing a Freedom of Information Act request to find out how much beryllium the inspectors were exposed to. Then he went a step further, requesting records from all inspections where OSHA took samples for air contaminants.

In June 2007, a federal judge ordered OSHA to turn over the inspection data. A year later, the agency finally did.

Finkel notes that job-related diseases -- as opposed to accidents -- account for at least 80 percent of the workplace health and safety equation. Yet based on what he knows so far, he estimates that a mere 5 percent of OSHA inspections examine health conditions.

Mining the inspection data, he hopes, will help answer that and other important questions about how OSHA does its job -- or doesn't. What chemicals are workers breathing? How often do the levels exceed OSHA's permissible limits? Does OSHA use this information to target specific workplaces or industries for enforcement?

But first, Finkel will look at the beryllium data. If he finds high exposures to individual untested inspectors, he will know their employee ID numbers but not their names. Still, he hopes somehow to get a warning to them.

Fortune and Future

Finkel didn't anticipate that leaking the beryllium story would "lead me down this path of reprisal," he says. "But I'm very happy that it worked out the way it did. If I had thought about it at the time, I would have done the same thing with a smile on my face, saying, 'maybe this will drive them to madness, and they'll try to fire me in a clumsy, transparent way, and I'll come away with a huge settlement and embarrass them.'"

Still, Finkel admits that the academic life might eventually get stale. He acknowledges that even a future Democratic administration could have qualms about hiring someone who has proven himself willing to leak what he considered to be a dangerous policy mistake. But already, he sounds as though he's itching to get back into the mix, sprinkling his conversation with references to "after the transition."

In the meantime, he has to settle for writing letters to Congress and to the editor, and tangling with his local school board and superintendent. And then there's Carmina Burana . It turns out that Finkel didn't get the tenor part, so he'll sing in the chorus.

In the end, perhaps that's more fitting for a man trying to organize a chorus of voices singing the healthy-workplace melody. Finkel is an optimist, remember. "Misery me" is not his refrain -- and, he will assure you, it's not yet time for his swan song.

Carole Bass is a 2008 fellow of the Alicia Patterson Foundation, which funded the research for this article.

 
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