Whistleblower Asks: Is OSHA Failing to Protect its Own Employees?

Adam Finkel, Sc.D., CIH, OSHA's Region 8 administrator for the six-state Rocky Mountain region, is asking the U.S. Office of Special Counsel to determine the extent of risk facing OSHA inspectors and their families from exposure to beryllium. Finkel claims OSHA is not doing a good job protecting its own employees in the workplace.

Finkel is concerned as many as 500 OSHA employees might have been exposed to beryllium, a toxic metal, while inspecting workplaces contaminated with the substance.

Beryllium is an extremely toxic metal that carries a high risk of disease following even very low exposure. Finkel claims OSHA is disregarding the recommendations of its own medical and scientific staff by refusing to order blood tests for hundreds of its active and retired inspectors who may have been exposed to beryllium.

In a statement, OSHA counters Finkel's claims, saying it "places a very high value on ensuring the safety and health of all workers, including its employees. OSHA has a medical monitoring program that provides for agency-paid special testing, such as beryllium, if there was a possibility that an employee may have been exposed. Agency employees have been tested for beryllium under that program."

A whistleblower disclosure was filed on Oct. 9 by Public Employees for Environmental Responsibility (PEER) on behalf of Finkel with the Office of Special Counsel, which receives and evaluates such disclosures. According to the filing, beginning in 1999, OSHA scientists developed a protocol for testing active and retired inspectors. In March 2001, the agency rejected a recommendation to set up a pilot-testing program for beryllium. In April 2002, OSHA Administrator John Henshaw convened a meeting of the OSHA Executive Board (OEB), at which the beryllium issue was discussed. After extensive debate, Finkel says Henshaw cut short the discussion by announcing two decisions he had made on this subject:

  • OSHA would not offer the beryllium lymphocyte proliferation test (BeLPT) to any retired inspectors, or any information explaining why they might want to receive the test and where in the States testing and medical counseling is available;
  • OSHA would not provide the BeLPT to any active inspectors, but might in the future offer the test to some inspectors, although this would only occur as part of the regular medical examination program in which an inspector receives a general physical exam approximately every three years.

In his disclosure, Finkel claims Henshaw emphasized at the April 2002 meeting, and at a subsequent OEB meeting in November 2002, that his decisions on beryllium, like all decisions reached in the OEB, are confidential and not to be discussed outside the OEB without his permission. In fact, says Finkel, in the November 2002 meeting Henshaw strongly warned all OEB members not to talk to the media about the testing of inspectors for beryllium exposure or similar issues.

In response to these and other claims made by Finkel, the statement from OSHA says it has been working for some time on revising and expanding its testing policy for its employees who are candidates for beryllium testing. The new program was developed and reviewed by OSHA's senior management, including the 10 regional administrators, each of whom had the opportunity for input into the process. In addition, the agency worked through the normal personnel process and with the union to refine it. Implementation of the new policy is already underway, says the agency, and OSHA is putting together an education and outreach plan for employees to discuss exposure and testing procedures.

"The Office of the Special Counsel has already investigated Dr. Finkel's complaint that OSHA retaliated against him with respect to agency policy on beryllium exposures to its employees. OSHA cooperated fully with OSC's investigation," says the statement. "The OSC completed its investigation and determined that no further OSC action was warranted and closed its file."

Finkel admits in his latest disclosure, "Although I am a nationally recognized expert in the quantitative risk assessment of occupational and environmental disease, and have extensive experience evaluating exposure-response relationships, I am not an expert on beryllium per se. However, I have discussed this issue extensively with the nation's preeminent physician treating CBD patients, and he has told me that in his opinion at least 1 to 2 percent of OSHA's active and retired inspectors (i.e., between 3 and 10 individuals) likely already are sensitized to beryllium based on their known and likely exposure histories." Finkel also claims the expert, whom he did not name but offered to reveal to the Special Counsel, said that for every year of continued delay, the number of current and former OSHA inspectors sensitized to beryllium could grow, as could the number of sensitized inspectors who progress to clinical disease.

The only known cause of chronic beryllium disease (CBD), a fast-progressing and potentially fatal lung disease, is exposure to beryllium. A blood test - the beryllium lymphocyte proliferation test (BeLPT) - used by industry and the U.S. Department of Energy can detect whether a person has been sensitized to beryllium. The test costs approximately $150 per application.

"OSHA is supposed to be setting appropriate workplace health standards yet it is failing to take the prudent steps required to protect its own inspectors from a lethal lung disease," commented PEER Executive Director Jeff Ruch, noting that OSHA recently spent more money than it would cost to test all exposed inspectors on consultants and focus groups to develop its new slogan "Safety and Health Add Value."

"It is both outrageous and ironic that the very professionals whose job is to ensure safe workplaces themselves face needless occupational risks due to bureaucratic indifference," Ruch added. A call to Finkel was returned by Ruch.

The Office of Special Counsel must rule on the merits of Finkel's disclosure in 15 working days. The Special Counsel may order an agency head to investigate and report on the disclosure, and, after any such investigation, the Special Counsel must send the agency's report, with the whistleblower's comments, to the president and Congressional oversight committees.

Finkel's disclosure can be found at www.peer.org/OSHA/10-9-03_Finkel_Disclosure.html.

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