• The EPA Turns a Blind Eye on Plans to Demolish Several Buildings Damaged on 9/11 - WBAI Health Action, December 20, 2004
  
  
• Young Worker Occupational Safety - The Montel Williams Show with Susan O’Brien, December 17, 2004
  
  
• What’s Wrong with the Ashcroft - Hatch - Frist - Specter Asbestos Company Bail-Out Bill? - WBAI Health Action, December 13, 2004
  
  
• Attorney General Spitzer Urges Unions To Use Environmental Laws for Job Safety - Daily Environment Report, December 9, 2004
  
  
• The World Trade Center Health Registry - Gotham Gazette, December 2004
  
  
• Anatomy of the 9/11 Risk-Communication Fiasco - SEJournal, November 2004
  
  
• Ground Zero Community Wants Answers, Cleanup for Lingering 9/11 Contamination - Occupational Hazards.com, October 26, 2004
  
  
• Faith Groups Share Resources - Disaster News Network, October 24, 2004
  
  
• Trust Fund Bill Would Exclude Many Asbestos Victims: Medical Criteria Used by Senate Are Outdated, Incomplete, Critics Say - St. Louis Post-Dispatch, October 10, 2004
  
  
• Ergonomics, OSHA Rulemaking Haunt 2004 Election - Occupational Hazards, October 7, 2004
  
  
• Report Reveals Truth about 9/11 Fallout: PEF Partners with Sierra Club in Ground Zero Cleanup -The Communicator, October 2004
  
  
• The Gold Standard -New Solutions, October 2004

Attorney General Spitzer Urges Unions To Use Environmental Laws for Job Safety

By John Herzfeld
Daily Environment Report
December 9, 2004

NEW YORK--Unions and other worker advocates in New York should turn to the state's environmental laws to seek criminal prosecution of workplace safety violations where other state jurisdiction is lacking, New York Attorney General Eliot Spitzer (D) recommended Dec. 7.

Speaking at the annual meeting of the New York Committee for Occupational Safety and Health, a union and public interest coalition, Spitzer said the strategy of using environmental laws to prosecute crimes affecting worker safety offered his office a way to expand the number of workplace cases it can bring despite its limited jurisdiction.

Urging "the labor movement to join forces with the environmental movement," Spitzer said that such an alliance would "permit us all to be more vocal, more powerful, and more successful." Without the environmental hook, he suggested, federal pre-emption by the Occupational Safety and Health Administration would block most attempts by his office to act to protect worker safety.

"As creative as we have been, we have a real problem prosecuting the sorts of occupational safety cases that you want us to do," Spitzer told the audience of union officials and other worker safety advocates. "We have looked at our jurisdiction. We can't do it without a referral; most of the time the state agencies that can give us the referrals themselves are pre-empted, because of OSHA, and we cannot get referrals from the federal agencies."

With environmental cases, however, the attorney general's office has the "sword of Damocles of criminal prosecution hanging over the owner of the company, and criminal prosecution is what people fear, because the sanctions and the consequences are very significant, not only to the individual but also the company," Spitzer said. When that "criminal hook" is available, he said, "then we can begin to get the remedies we want."

Spitzer credited M. Patricia Smith, the assistant attorney general in charge of his office's labor bureau, with initiating the strategy.

Advocates Urged to Be on Lookout

He urged safety advocates dealing with workplace conditions to be on the lookout for environmental violations that would give prosecutors a cause of action. "We will be able to increase our jurisdiction if you think of problems that way, and just as importantly, you will find a greater appreciation among the general public," he said.

The "unfortunate reality" is that, outside of the labor movement, "most people are not as sympathetic to the safety issues in the labor context as they should be," Spitzer said. "But if you begin to recast these issues as environmental problems, suddenly you will find a much larger universe of concerned citizens."

Worker safety advocates would "get more traction politically " for their issues, he suggested, if they point out that the same facility where workers are breathing poisonous fumes, for instance, is also posing hazards to the surrounding community.

"We care about both," he said, "but if you want to get folks exercised and want to build political support for cleaning up the problems that you're talking about, you're going to do an awful lot better if you can say that they are disposing of the hazard by dumping it into the water you drink, by burying it next to the playground where your kids play, by sending it up a smokestack that comes out and pollutes the air that you breathe."

Benefits of Political Support, Information

Spitzer said the approach could bring the "twin benefits" of building political support for worker safety cases and giving his office the information needed to prosecute environmental crimes. He said the result would be "a merger of two social movements that historically have been allies, that have historically been able to build a coalition that is more powerful than the sum of its parts."

As an example of the approach, Spitzer pointed to his Sept. 9 announcement of an indictment charging a Bronx, N.Y., junk yard operator with reckless endangerment and environmental crimes. The action followed an April incident in which, he said, an employee nearly died from exposure to toxic vapors. The case, filed in New York Supreme Court for Bronx County, resulted from investigations by the attorney general's environmental crimes unit, the city Police Department, and the state Department of Environmental Conservation (People v. Bronx Auto, N.Y. Sup. Ct., No. 3671-2004).

In the indictment, the company, Bronx Auto Venture Corp., and its two top officers were charged with first-degree reckless endangerment, as well as second-degree and fourth-degree endangerment of the public health, safety, or environment. The first- and second-degree charges are felonies, while the fourth-class charge is a misdemeanor.

The defendants were charged with repeatedly ordering an employee with no protective equipment to enter an underground tank holding gasoline and other vehicle waste fluids to unclog its intake pipes, Spitzer said. When the employee reluctantly complied and entered the tank, he passed out and suffered serious injury, according to the charges.

In response, an attorney for the company and one of the defendants, owner John Ciapparino, called the case "misguided." Attorney Stanley Zinner told BNA Dec. 8 that within a few days he plans to file a motion to dismiss the charges on the grounds that "there was no release of hazardous substances as defined in the statute."

The case is "an attempt to elevate and transform an unfortunate workplace incident into an indictment," Zinner said, adding that he intends to raise issues over the admissibility of evidence presented to the grand jury and the applicability of the state environmental conservation law to facts in the case. "But we will have to see how the judge rules," he said.

A representative of the other defendant in the case, Sinforiano Calix, could not be reached for comment.

By Michelle Chen
Gotham Gazette
December 2004

http://www.gothamgazette.com/article/health/20041201/9/1199

When federal and city health officials announced in September, 2003 the launching of the World Trade Center Health Registry, they expected it could be the largest public-health investigation ever. Its aim was to understand the health effects of the September 11th terrorist attack and its aftermath by tracking for two decades people who had been exposed to Ground Zero.

More than a year later, there are some concrete findings about health complaints – and perhaps as many complaints about the survey itself.

The Findings So Far

The registry, a collaboration between the New York City Department of Health and Mental Hygiene and the federal Agency for Toxic Substances and Disease Registry, has enrolled more than 70,000 volunteer participants, people who resided, volunteered or worked near Ground Zero.

According to initial health data released recently:

• 47 percent of those analyzed complained of “new” or “worsened” health problems immediately following the attacks.
  
  
• These included respiratory irritations like shortness of breath (42 percent), wheezing (38 percent), and persistent cough (37 percent).
  
  
• Over 40 percent of respondents in the area around Ground Zero (beneath Chambers Street) reported eye problems as a result of the disaster.
  
  
• Over 20 percent of all interviewees said they experienced severe headaches.
  
  
• Eight percent of enrollees reported experiencing “psychological distress,” including anxiety and depression, in the month preceding the interview. This is a 60 percent higher rate than that of the New York City population in general.
  

At a press conference announcing the findings, Health Commissioner Thomas R. Frieden conceded that the prevalence of respiratory symptoms “is not surprising” in light of previous research. However, the results do give new indications as to the scope of the impact, according to Frieden: “What this shows is that tens of thousands of people had significant lung symptoms around the time of exposure to the WTC.”

The Criticism

The most recent findings do not impress critics, who see several things wrong with the survey.

Some, like Micki Siegel de Hernandez, director of occupation safety and health for New York State for the Communications Workers of America, say it says nothing new. Union members who worked at Ground Zero have been complaining of illnesses for years, and previous studies have made all the same points.

Some charge it is not scientifically valid.

The New York Committee for Occupational Safety and Health, a non-profit advocacy organization, has long questioned the survey’s design: “The population under study is not scientifically determined; rather, it is a population of convenience.” Relying only on self-reported symptoms would not accurately reflect the effects of exposure to WTC contaminants.

David Newman, an industrial hygienist with the committee, said the registry’s design overlooks distinctions between “different potentials for exposure” among various subsets, including emergency responders, people caught directly in the dust cloud, and people living, working or going to school in the area. Newman believes that since the survey provides only an incomplete picture of those affected, “the utility of the data that’s going to be collected is limited.”

Some critics say there was inadequate outreach.

Despite efforts by community groups and registry staff to conduct special outreach to minority populations, the demographics of the surveyed population are skewed. Enrollment in the low-income, minority areas on the Lower East Side, at 4 to 10 percent of their respective census populations, was significantly lower than enrollment in the relatively affluent neighborhoods nearby, which ranged from 17 to 38 percent.

Kimberly Flynn, a leader of the advocacy group 9/11 Environmental Action, believes “inadequate public input and inadequate outreach” led to a lack of public trust and engagement in the project.

De Hernandez suggested that members of the Communications Workers of America were generally uninterested in enrolling in part because “neither labor nor the community was consulted in any kind of a meaningful way prior to the development and implementation of the registry.”

Some critics say the money could be better spent on direct services.

The registry was intended strictly as a scientific inquiry, with no promises of treatment for enrollees. “There was no direct benefit to individuals” for enrolling, said Health Commissioner Frieden, “but there will be a major direct benefit to New York City as a whole and to other jurisdictions [that] deal with natural or manmade disasters in the future.” In other words, registry data might someday help society bone up in preparation for the next 9/11.

The problem is, individuals still suffering from the last 9/11 think they are long overdue for some direct benefits. Community members have expressed frustration that some victims of 9/11 struggle with immediate healthcare and financial burdens that have not been addressed to this day.

Past and Future Challenges
Philip Alcabes, an epidemiologist at Hunter College who served on the Scientific Advisory Committee of the World Trade Center Registry, said the planners were challenged from the beginning by many factors, including politics, bureaucracy, and, above all, funding: the budget, he said, “was woefully small” for a project of this scope.

Whether the World Trade Center Health Registry will even fulfill its goal of tracking the health of its enrollees over 20 years is uncertain. Currently, the Federal Emergency Management Agency and the Environmental Protection Agency have committed $21.5 million, which will only cover the next four years of research. Officials are hopeful that funding will be extended.

In September, before the House Government Reform Committee, de Hernandez testified, “additional funding should not be provided for the continuation of the [registry]. Rather, this funding should be used to provide real medical services.”

But experts say it would be premature to tie enrollment to treatment before potential illnesses have been concretely defined.

“Treatment for what? We’re not sure yet,” said Lorna Thorpe, deputy health commissioner. “The registry is empirically trying to identify what the health problems are … in the broadest sense.”

As Alcabes put it: “It’s impossible to say ten years down the road what’s going to turn out to be the most important health consequence.”

By Francesca Lyman
SEJournal (Society of Environmental Journalists)
November 2004

http://www.sej.org/pub/index4.htm

Sept. 11, 2001, awakened Americans to the horrors of terrorism. The images of terror are still vivid, even a few years later. That day, too, the nation also witnessed a new kind of horror, although most people didn't realize it at the time: An environmental health emergency — as well as a communications fiasco in reporting it. With few exceptions, the major media failed to warn the public of the dangers in the smoke and dust following the building collapses. More importantly, the government's communications to the public deliberately downplayed environmental concerns, according to recent investigations, casting a harsh light on what can happen in a terrorist attack.

When the World Trade Center and a wedge of the Pentagon came crashing down on Sept. 11, the rubble left for rescuers and cleanup crews was laced with asbestos, heavy metals, diesel fuel, PCBs and dozens of other poisons. New York City was enveloped in a cloud of smoke, soot and toxic ash, and the fires at ground zero fumed for months, making it the longest commercial fire and one of the worst industrial work sites in history. Immediately the public clamored for advice. But how good was the environmental and health information in the wake of the disaster?

According to a watchdog investigation that grabbed headlines in the days leading up to the second anniversary of 9/11, the public didn't get enough information and what information it did get was misleading.

What's more, the findings of the inspector general of the U.S. Environmental Protection Agency demonstrate that White House officials pressured the agency to downplay the dangers to the public in the first few days after the attack, some observers say.

In her investigation into official statements about air quality after the collapse of the World Trade Center, released Aug. 21, 2003, EPA Inspector General Nikki Tinsley says the agency "did not have sufficient data and analyses" to make a "blanket statement" when it announced seven days after the attack that the air around ground zero was safe to breathe.

The report cited other competing considerations, such as "reopening Wall Street" and "national security" as reasons for the spin.[1] At the same time, "the public did not receive sufficient air quality information and wanted more information on health risks," the inspector general found.[2]

The agency's watchdog arm followed up with a second, separate report that received less attention than the first. In it, the inspector general conducted a survey of some 10,000 New York City residents regarding government communications, and found that most people surveyed "wanted more information regarding outdoor and indoor air quality, wanted this information in a timelier manner and did not believe the information they received."[3]

According to the survey, 81.8 percent of respondents (about 12 percent of those polled) were dissatisfied with information about outdoor air quality, and 84.8 percent were dissatisfied with information about indoor air quality. At the same time, the survey found sizable majorities of New Yorkers who "perceived" both short-term and long-term health risks from breathing air — indoor and out.

In the agency's defense, then acting EPA administrator Marianne Horinko said that EPA, along with other agencies, was only acting on "available data" and its best professional judgments at the time.[4] Furthermore, there was nothing improper in the White House influencing EPA press releases, concluded the Republican controlled Senate Environment and Public Works Committee. After Senate Democrats on the committee threatened to block the Bush administration pick to head EPA during confirmation hearings unless an investigation was mounted, this committee stepped in with an "oversight report" concluding that the agency was at no fault in its response or communications.[5]

That, of course, didn't end the controversy. EPA's 9/11 report remained a lightning rod in fall 2003 and a debating point in the 2004 Presidential election campaign.

Several legislators continued to press the White House for answers. "If EPA's 'Lessons Learned' report documents deceit and neglect within the Agency, then the American people deserve to know about it," said Rep. Jerrold Nadler (D-N.Y.), the congressman in whose district Ground Zero lies, in an Oct. 15 press release. Nadler, an early critic of the agency on this issue, and other legislators have filed a Freedom of Information Act request asking for more data on communications between the White House and EPA.

"EPA's decisions after the terrorist attacks have a direct impact on the health and lives of New Yorkers," charged Nadler. "Two years later the EPA still fails to answer questions from the public, including who at the White House was involved in doctoring public statements regarding air quality following the attacks and why the EPA still refuses to clean up indoor spaces contaminated with WTC dust."[6]

Many New Yorkers and observers of the issue came to feel — and continue to feel — that the government misled the public, prompting the press to leave the subject alone, and causing a buildup of public distrust. Thousands of workers and residents still suffer respiratory ailments from breathing the contaminated air.[7] So how the government responded two years ago is more than just an academic question.

In the heat and smoke of the moment, should the agencies' messages have been more precautionary? If so, what were the factors leading to failures in communicating? What lessons are there in this episode for the future, in the ugly event of another terrorist attack or some other disaster?

The World Trade Center is often seen as a symbol of wealth and power. As an icon, it also functioned as a symbol of communication. With its antenna thrust upwards — 1,368 feet, or more than a quarter of a mile — into the sky, the taller skyscraper, 1 World Trade Center, was once the tallest building on the East Coast, making it an ideal site for communications transmission.[8] From a distance, one might even say it resembled a giant cell phone.

All of New York City's TV stations used the legendary 351-foot antenna of that soaring building, as did many radio stations. Tower 1 and its twin housed a virtual forest of other antennas — 98 in all — on nearly an acre of rooftop, serving a wide range of networks — particularly those centered on public safety — before they went dead that fateful morning on Sept. 11, 2001.

So when the towers came crashing down, communications and information about the crisis became critical commodities, especially when it came to public health and safety. Kelly McKinney, associate commissioner for Regulatory and Environmental Health Services for the New York City Department of Health (DOH) got off the subway, just after the first plane had hit the South Tower, to find his building being evacuated and his cell phone useless. "The technology you rely on most will fail first!" he says.[9] He soon learned that the city's state of the art emergency command center had also been destroyed.

Tragically, police and fire officials and emergency personnel were unable to communicate with each other. A New Jersey volunteer fire fighter, Glenn Corbett, for example, recounted sadly watching his colleagues desperately trying to send emergency messages mounting rescue operations inside the Twin Towers. "It was such a tragedy to see the battalion chief of the first battalion and the first fire chief on the scene of the Trade Center trying to communicate with other officers up in the building and we saw on national television...He kept calling and calling and there was no answer," he said.[10]

Even though the city's complete communications infrastructure, as well as its command center, had been destroyed, public health and environmental agencies had to arrive on the scene and render quick "size-ups." McKinney's first response was to send out trouble-shooters to test for biological, chemical and radioactive threats. "Their primary direction was to be the Department's eyes on the scene, and to communicate to us detailed descriptions of emerging health hazards," McKinney says.[11]

Coordinating communication among agencies was a "huge challenge for us," EPA's Horinko admitted, reflecting on the events two years later.[12] During the first 24 hours, local environmental health department professionals and others faced unprecedented challenges, including mountains of dust and debris containing mostly pulverized cement, fiberglass, glass, and building materials, including as yet unknown and varying amounts of toxic metals, burning plastics and fuels, not to mention smoke and fumes from the building fires.

Yet one of the city's first decisions was to declare lower Manhattan and the ground zero area environmentally "safe" — only seven days later.

"Given the scope of the tragedy from last week, I am glad to reassure the people of New York and Washington, D.C., that their air is safe to breathe and their water is safe to drink," declared then EPA administrator Christie Whitman. New York Mayor Rudolph Giuliani said that tests of air and water had turned up "no significant problems."[13]

Three months later, fires still burned and smoldered beneath the World Trade Center wreckage, releasing high levels of benzene, an organic compound that can lead to leukemia, bone marrow damage and other diseases after long-term exposure, as well as other toxic compounds, such as dioxin.[14] Besides this, the dust created by the initial building collapse and the debris being trucked out — most of it potentially laden with asbestos — was brought through open doors and windows, through ventilation systems and tracked in on shoes, into homes, offices and schools in the area.

Although the official word was that ordinary citizens were at no real risk from being in contact with the ash and dust remains of the trade towers, some recognized the unique issues immediately and urged greater precautions. After all, Ground Zero was a disaster site like no other — with hazards everywhere. Shards of steel lay upon shards of steel, shifting and unstable, uncovering red hot metal beams excavated from deep beneath layers of subfloors, exposing further dark crevasses. All around the 16-acre site lay millions of piles of debris, covered in dust, with noxious smoke smoldering up, carrying unknown toxins, from benzene to heavy metals, into surrounding neighborhoods.

The New York Environmental Law and Justice Project (NYELJP), an advocacy group, was one of several groups that began taking samples of the dust and debris to do its own independent tests and found toxins like asbestos and fiberglass at higher levels than the government was reporting. Within several weeks, too, the New York Committee for Occupational Safety and Health (NYCOSH), began seeing workers turning up with asthma and respiratory problems, and urged rescue workers who worked for prolonged periods to be cautious of the dust.

"Many of the workers involved in the World Trade Center recovery and clean-up operation have received safety and health training, but many other workers will be facing hazards that are unfamiliar, with the potential to cause serious illness, injury or death," wrote Jonathan Bennett, communications director for NYCOSH, in one of several fact-sheets released starting Sept. 21.[15]

[NOTE ADDED BY NYCOSH: This article is in error when it states that NYCOSH began to warn workers and residents of the hazard in Lower Manhattan after “seeing workers turning up with asthma and respiratory problems.” NYCOSH began to warn workers about the hazard on 9/12, based on knowledge of the materials that had been in the collapsed buildings. The article also mistakenly attributes NYCOSH 9/11-related factsheets to one NYCOSH staff member. The factsheets were produced by the staff as a whole.]

These groups worked to identify exposed populations, especially the undocumented and day laborers and the uninsured, and to get information to the public, along with other organizations, such as the Mount Sinai-Irving J. Selikoff Clinical Center for Occupational and Environmental Medicine. Dr. Philip Landrigan of Mt. Sinai also recognized the vacuum in communication. "Many offices and apartments were coated with dust that came in through shattered windows or inadequately protected air handling systems," wrote Landrigan. "One piece of bright news is that many office buildings with alert maintenance staffs rapidly shut down their air intake systems on 11 September and thus kept out much of the dust. Residential buildings, where staff were fewer in number and generally less well trained, fared less well."[16]

In this confusing climate, the city department of health was besieged by phone calls from residents and others. The Health Department was not quite as definite as EPA's Whitman had been. While encouraging people to move back to their homes and restore their lives to normalcy, it urged citizens to take precautions with dust and ash, Sandra Mullin of the city's Department of Health told MSNBC Online, "to protect people with underlying respiratory problems." The agency advised "simple housekeeping tips like removing shoes, keeping windows closed and changing filters in air conditioners."[17]

Among the general public, however, concerns over smoke and dust didn't really erupt until weeks after EPA and Mayor Giuliani had declared the area safe to return to, when, sometime in October 2001, community newspapers began reporting local disgruntlement and confusion.[18] Low-income people living in areas like Chinatown didn't even have computers to visit the websites city officials promoted.

Behind the scenes, too, experts were critical. In a series of memos critical of EPA's response to 9/11, government whistleblower Cate Jenkins, a senior chemist in the EPA's hazardous waste division, argued that asbestos levels in lower Manhattan were high enough to declare the entire area a Superfund site. She compared dust samples drawn from New York apartments in an independent study with similar samples drawn from houses in Libby, Mont., a small town designated as a Superfund site after a surrounding vermiculite mine released deadly asbestos fibers into the air.

Questions continued to bubble up. In December, for example, Mayor-elect Michael Bloomberg faced the quandary of whether to allow residents' dust-contaminated cars to be returned to them. At first, the city health commissioner had said they could be potentially contaminated and therefore unsafe to return to their owners. Then the agency flip-flopped and told car owners they could pick them up at the landfill, giving them specific instructions on HEPA vacuuming them.

Some officials monitoring air, water and soil admitted that pollutants did "climb to hazardous levels" on occasion. "The further you get from the site, the data does not demonstrate significant risks to people," William J. Muszynski, acting regional administrator of the Environmental Protection Agency, told a reporter for CNN. "I think you can sensationalize — I mean, I think you can look at the numbers, a spike, and believe that number is overly significant," Muszynski said. "Most of what we do is based on long-term exposure."[19]

By December, The Wall Street Journal ran a Page 1 story describing growing public fears about air quality and indoor dust. "In the weeks since Sept. 11, government agencies testing the air near ground zero have reached a nearly unanimous conclusion: There is no significant long-term health risk for area workers and residents. Yet hundreds, and possibly thousands, of people who live, work or go to school in lower Manhattan have experienced persistent sore throats and hacking coughs. Area physicians report a surge in new or worsened asthma cases: How to explain the contradiction?"[20]

Health and environmental issues should have drawn more attention, but their full impacts didn't emerge until too late — at least four weeks late.[21] That failure in communication set the stage for little news coverage, especially since national news outlets were already stepping up foreign news.[22]

At first, the media least concerned with reporting on the environmental impacts were the local New York City papers, according to journalist Susan Stranahan, writing in the American Journalism Review.[23]

"Not since the 1979 accident at the Three Mile Island nuclear power plant in Pennsylvania have reporters and government officials faced such an Everest-size task of communicating complex information to a frightened public," wrote Stranahan. "All too often after 9/11, however, journalists simply accepted the party line from city, state and federal officials. With a few notable exceptions, the New York media took months to zero in on a story that touched the lives of thousands."

The first to report on the environmental health aspects of the disaster was not The New York Times but national outlets such as Newsweek, MSNBC, CNN, and others.[24] The first local reporter to flag discrepancies between official statements about health risks and independent studies showing otherwise, however, was Daily News reporter Juan Gonzalez.[25] On October 26, 2001, Gonzalez obtained internal government reports showing that toxic chemicals and metals were released into the environment by the fiery collapse of the twin towers.[26]

The media, by and large, focused on other, "bigger" themes related to terrorism, everything from the cultural and geopolitical issues surrounding the attacks — Islam and the Middle East; the immediate economic dislocation; the search and rescue operations; the process of criminal investigations and the suspects. In a paper on the patterns of media coverage of the terrorist attacks, Christine Rodrigue,[27] a geographer at California State University, identifies ten main themes — and environment is not even one of them.

That's surprising considering, at least on the local level, the physical environment around the World Trade Center had changed drastically — from giant piles of rubble strewn everywhere to trucks hauling debris to empty buildings and displaced residents and the fact that it was difficult to breathe.

Two years later, some of those closest to the event concede that need for better risk communication was one of the biggest lessons learned from the events of 9/11. Kelly McKinney at the city health department admitted that his department needed to communicate what they knew "every day and all day long." He added, "If it is a hazard, be clear about what you know and don't know — and where the uncertainty lies."[28]

Some scientists now criticize the agencies for letting people come back to lower Manhattan so quickly. This was a chaotic time, but there was no basis for the city and federal government to state that the environment was safe to reinhabit so quickly, says Paul Lioy, professor of environmental and community medicine at Rutgers University. "People came back, but they never should have been allowed to be back," says Lioy. "No one should have been back at work. Children should definitely have not been back in school."[29]

So far the White House has issued no response to the Democrats' call for further investigation into who directed the EPA to assure New Yorkers that there was no health threat posed by the air pollution created by the Sept. 11 terrorist attacks.

Others point the finger beyond EPA.

"I wish that the public health leadership had stepped up and added some health perspective during the first few months, when there was so much uncertainty about the dangers in the dust," says Dr. Steven Markowitz, a professor of community health and social medicine at the City University of New York Medical School, in Flushing, N.Y. "It should not have just been left to the environmental experts to communicate the need for precautions."[30]

Congressman Nadler and other advocates in downtown New York say they feel vindicated by the EPA inspector general's two reports and are glad they were finally released. But Nadler points out that while EPA has now vowed to do a better job of risk communicating in the future, the agency has refused to solve the glaring failing identified in the IG report: A full cleanup of the dust in New York, as required under presidential directive after a terrorist incident.

--------------------------------------------------------------------------------
Francesca Lyman is a freelance columnist who also reports for MSNBC. She began reporting on 9/11 environmental questions within days of the attack.

**Excerpt from the current issue of SEJournal, Fall 2004, available to members only here. For information on how to join SEJ, including the benefits of membership, click here.

--------------------------------------------------------------------------------

WORKS CITED IN ANATOMY OF THE 9/11 RISK-COMMUNICATION FIASCO:

[1] Evaluation Report, "EPA's Response to the World Trade Center Collapse: Challenges, Successes and Areas for Improvement," Aug. 21, 2003, Report 2003-P-00012, by Nikki L. Tinsley.

[2] EPA press release, Aug. 22, 2003.

[3] "Survey of Air Quality Information Related to the World Trade Center Collapse," Sept. 26, 2003.

[4] Lyman, Francesca, MSNBC Online, "Anger Builds Over EPA's 9/11 Report," Sept. 11, 2003.

[5] U.S. Senate Committee on Environment and Public Works, Oversight report, Sept. 23, 2003.

[6] Rep. Jerrold Nadler, press release, Oct. 16, 2003.

[7] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[8] James Careless, "Signals from Ground Zero," Mobile Radio Technology, Oct. 17, 2001.

[9] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[10] Tech Live, "Emergency Relief."

[11] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[12] Lyman, Francesca, MSNBC Online, "Anger Builds Over EPA's 9/11 Report," Sept. 11, 2003.

[13] EPA press release, Sept. 18, 2001.

[14] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[15] NYCOSH Factsheet #1, Sept. 21, 2001.

[16] Landrigan, Philip, "Health Consequences of the September 11 Attacks," Environmental Health Perspectives, NIEHS, November 2001.

[17] Lyman, Francesca, "Uneasy Breathing," MSNBC Online, Sept. 26, 2001.

[18] Burger, Michael, Gotham Gazette, October, 2001.

[19] Palmer, Brian, CNN, "Officials downplay risks of pollution near Ground Zero," Nov. 4, 2001.

[20] Maremont, Mark and Jared Sandberg, "Tests Say Air Is Safe, but Some People Near Ground Zero Say They Feel Ill," Wall Street Journal, Dec. 26, 2001.

[21] Rubin, Claire, "The Terrorist Attacks on Sept. 11, 2001: Immediate Impacts and Their Ramifications for Federal Emergency Management," George Washington University, Institute for Crisis, Disaster, and Risk Management. (Disaster analyst Claire Rubin speaks of "the many problems and issues connected with the public management of health and environmental issues that began to emerge about four weeks after the attacks took place.")

[22] Kreamer, Anne, Interview with Tom Brokaw, NBC News, Fast Company, April 2003.

[23] Stranahan, Susan, "Air of Uncertainty," American Journalism Review.

[24] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[25] Gonzalez, Juan, "Fallout: The Environmental Consequences of the World Trade Center Collapse" (New Press, 2002).

[26] Gonzalez, Juan, "A Toxic Nightmare at a Disaster Site," New York Daily News, Oct. 26, 2001.

[27] Rodrigue, Christine, "Patterns of Media Coverage of the Terrorist Attacks on the United States in September of 2001."

[28] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[29] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

[30] "Messages in the Dust," National Environmental Health Association, Sept. 22, 2003.

Last revised November 10, 2004

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By Sandy Smith
Occupational Hazards.com
10/26/2004

http://www.occupationalhazards.com/articles/12552

Approaching the one-year anniversary of the White House Council on Environmental Quality's agreement to have an expert panel provide advice on unmet needs related to 9/11 pollution, a coalition sent a letter to EPA pleading for a clear answer on what action the federal government will take to clean up 9/11 contamination and meet the health needs of the people exposed to the pollution.

The letter, from community, tenant, environmental, small business, religious and labor organizations, sets out seven basic principles for cleanup and for addressing long-term health needs.

"The White House forced us to wait 2 years before it would even agree to have an expert panel. Then EPA stalled that expert panel for another year, arguing for absurdly inadequate approaches. As a result, all testing has been put off until some time after Election Day. We can't help but worry what will be left of this process after the election," said Robert Gulack, a New Jersey resident who was exposed to Ground Zero contamination through his job at the Woolworth Building on Broadway and Park Place. "If the federal government is acting in good faith, then EPA can and should give us an answer today."

The request for EPA to adopt the principles was presented formally at the Oct. 5 meeting of the EPA World Trade Center Expert Technical Review Panel. The White House Council on Environmental Quality had declared its agreement to create that panel on Oct. 27, 2003, as part of negotiations with Senator Hillary Clinton over approval of the nomination of EPA Administrator Michael Leavitt. In her powerpoint presentation at the Oct. 5 meeting, the panel's community liaison, Catherine McVay Hughes, a parent and asthma-educator who lives very close to Ground Zero, urged that the federal agency should make a solid commitment now.

"People are not going to want to open up their homes for testing if they don't also have a firm commitment that if anything is found, it will be cleaned up," Hughes explained.

The letter urges EPA to conduct comprehensive testing for indoor contamination, not only in southern Manhattan but also in neighborhoods of Brooklyn that were covered by the dust cloud. It calls on EPA to commit to clean up contaminated buildings as warranted; assert authority over environmental safety during demolition of 9/11-contaminated structures such as the Deutsche Bank building; and support long-term medical monitoring, and care as needed, for people exposed to the World Trade Center pollution. While EPA has published a proposed design for indoor testing, community representatives note that it falls short of the mark for a credible program. They expressed strong disappointment that EPA had promised to work in partnership with the community, yet did not engage in a dialogue with them before publishing the protocol.

"Community people have invested many hours in these meetings. Sometimes we feel that progress is being made, but then we see some back-sliding," said Suzanne Mattei, executive for the Sierra Club's national field office in New York City. "The bottom line is, we don't know what we have. Is the federal government really going to help these people or not? We don't know."

Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, said EPA's proposed testing program has very little benefit for people whose workplaces are in Lower Manhattan, because EPA wants to leave the decision to test the workplace up to the employer. "If employees want testing done in their workplace, the employer should not have veto power over the employees' right to know whether their workplace is safe," he insisted.

Paul Stein, Health and Safety chairperson for the New York State Public Employees Federation, Division, 199, said his members, who are employees of the New York State Department of Health, are angry that the federal government is doing "such a poor job of protecting the health of New Yorkers who live and work near the World Trade Center site."

The organizations signing the letter represent many thousands of residents and workers in neighborhoods affected by the dust cloud that penetrated buildings upon the collapse of the towers. They include local resident associations, such as the Independence Plaza North Tenants Association, as well as borough-wide groups such as the Met Council on Housing and statewide groups such as Tenants and Neighbors. Unions of workers concerned about renewed contamination from the pending demolition of the highly contaminated Deutsche Bank building, such as the National Postal Mail Handlers Union, Local 300, the Civil Service Employees Association and Public Employees Federation also joined in the call for a clear answer from the federal government.

By Susan Kim
Disaster News Network
October 24, 2004

http://www.disasternews.net/news/news.php?articleid=2464#more

ALBANY, N.Y. (October 24, 2004) — In the wake of the Sept. 11 terrorist attacks, Adem Carroll remembers escorting Muslims from their homes in New York City to the places where they might get help.

Carroll isn't a cop or a security guard - he's relief coordinator for the Islamic Circle of North America, and he has been walking alongside Sept. 11 survivors for more than three years now.

"They were afraid to go out," he said.

There are 600,000 Muslims in the New York City area. "And Muslims who were already feeling disenfranchised before Sept. 11 then hesitated or avoided receiving some of the benefits they could have received. Right after the disaster, an amazing array of services were available but many clients did not come forward at that point."

There were 96,000 "tips" called into FBI officials and local law enforcement shortly after the attacks, he added. "People got rounded up. Authorities had to sift through those. We've helped more than 650 detainees. It has been our second disaster."

And it's not over by any means, he said. "There is a lingering sense that all these people were arrested and linked to terrorism. We are trying to help a man who is having mental health problems. He says every time he drives his car he gets pulled over. Either he feels he's being persecuted, or he is being persecuted or both, I don't know."

For many Sept. 11 survivors who are having mental health problems, physical ailments, or financial challenges, faith-based groups like Carroll's are their only line of hope.

The faith community's response to disasters has unprecedented visibility right now, observed Peter Gudaitis, executive director and CEO of New York Disaster Interfaith Services (NYDIS), a nonprofit that develops and leads faith-based disaster readiness, response, and recovery services for New York.

"It is a myth that the faith community is just one aspect of response," he said. "Because the reality is that, many times, the faith-based community is the only response outside of the government."

In the wake of Sept. 11, both New York City and state officials had trouble finding a consistent point of contact within the faith community, Gudaitis said.

But since NYDIS was created, communications between local government officials and the faith community have opened up, he said.

The ICNA is one of NYDIS's governing members, and linking up with other faith groups has helped stretch limited resources, added Carroll. "It takes time to develop trust and working relationships. I wish more of my community would engage in such partnerships."

In the year 2000, he pointed out, 55% of all mosques around the country had no paid staff. "We are terribly under-resourced," he said, and linking up with other faith groups has offered new ways to access resources and exchange ideas.

Susan O'Brien of the New York Committee for Occupational Safety and Health (NYCOSH) also found surprising resources from the faith community in the wake of the Sept. 11 attacks.

"We started getting calls on Sept. 12 from working people who were in harm's way," she said. "We began to respond to this."

Despite federal reassurances that the air was safe to breathe - later found to have no empirical studies to back them up - workers in and around Ground Zero were suffering from respiratory ailments and other health problems.

"And we heard from these folks we'd never heard from before - the United Church of Christ (UCC) and Church World Service (CWS)," said O'Brien. "They were coming to say they wanted to help, that they wanted to form a coalition. It has been an incredibly wonderful partnership."

UCC and CWS have provided financial support for NYCOSH programs that offered, almost immediately after Sept. 11, mobile medical units for workers and free respiratory protection.

Once again, the faith-based community became a sole lifeline of hope for many people, agreed Diane Stein of the Mt. Sinai Hospital Center for Occupational and Environmental Medicine.

"There was no federal response for people who clearly needed medical examination and care after the disaster," said Stein.

After months of advocacy from a coalition of faith-based and community-based groups, Stein and her colleagues now have federal money that will allow them to conduct a medical monitoring program that will span five years.

But they can't use those federal funds to treat people, said Stein. "So we turned to private fundraising. But even private funds couldn't provide the medication necessary for treatment."

That's where the faith-based community - with significant financial support from UCC - filled the gap, she said, "and I have to say it was the most sane and wonderful process I have ever had doing this kind of work."

But if partnerships between faith-based groups and partnerships between the faith community and government officials are strengthening - how does that filter down to a local pastor?

More training is available to clergy and their congregations, pointed out Gudaitis.

"After Sept. 11, many clergy felt ill-prepared to deal with the needs in their congregations."

In the past year, NYDIS has raised $3.5 million to help meet the lingering needs of Sept. 11 survivors. And training is an increasingly important part of NYDIS's outreach, said Gudaitis.

"I don't think your average religious leader knows what to do in a disaster unless they've had training."

Knowing what to do for a disaster survivor who arrives at your church is crucial, agreed Susan Lockwood, NYDIS's director of disaster planning and training. "People will start asking: Where is God in this? What is the meaning of life?" she said. "Ritual can help with anxiety, and offer comfort and healing. And then clergy end up walking with them through the whole process of rebuilding their lives."

[For an archive of articles and documents concerning 9/11-related occupational and environmental safety and health, visit http://www.nycosh.org/environment_wtc/WTC-catastrophe.html]

Trust Fund Bill Would Exclude Many Asbestos Victims: Medical Criteria Used by Senate Are Outdated, Incomplete, Critics Say

By Andrew Schneider
St. Louis Post-Dispatch
October 10, 2004

SANDPOINT, Idaho - Mick Mills endures the agony of full-blown asbestosis.

The 72-year-old former safety manager for a lumber company, part-time helicopter medic and passionate photographer of Glacier National Park is shackled to an oxygen tube, which helps him breathe. He needs the oxygen to live. Scarring caused by asbestos fibers has made his supple lung tissue rough and leathery, like the covering of a football.

He shuttles between home and hospital, often having four, five or six quarts of suffocating fluid drained from his abdomen each visit.

Congress has spent four years struggling through often rancorous debate to get federal legislation that would help people like Mills and those with asbestos-caused cancers that kill far more quickly. The proposed law is called the Fairness in Asbestos Injury Resolution Act.

The bill was meant to help Americans sickened by asbestos exposure without their having to sue the companies responsible for the exposure. Under the legislation proposed, these people would be compensated from a trust fund. Much of the discord around the measure was over the size of the trust fund and how much was going to be contributed by corporations that used asbestos, their insurance companies and the government. But to those suffering with the disease and to the physicians treating them, the most important deficiency in the bill was the medical criteria that controlled who would get help and who wouldn't.

Now there is a compromise on the table between Republican and Democratic Senate leaders on the size of the fund - $140 billion. Specialists in chest diseases say the bill would still leave many people as sick as Mills - and there are thousands like him - out of luck. They would be on their own, scrambling for the $400,000 to $800,000 usually spent on oxygen, drugs and pain medication before they die. Mills is paying his own medical bills with a combination of insurance and personal money.

The argument that thousands of asbestos victims are wrongly excluded from being eligible for help has flared again with the publication of the American Thoracic Society guidelines for identifying and treating people like Mills.

The ATS guidelines, released last month in the American Journal of Respiratory and Critical Care Medicine, differ dramatically from the Senate criteria.

The Senate's criteria were developed in part by a committee of the American Bar Association and then were presented to Sen. Orin Hatch, R-Utah, chairman of the Judiciary Committee, who had sponsored the bill. Hatch first embraced the ABA offering but modified it after many union officials and public health specialists denounced it as "pro-industry" and unfair to victims who would be prevented from suing.

Many believe that Hatch's plan is still too exclusionary.

"On the basis of the current science and medicine, the diagnostic criteria in Sen. Hatch's bill are outdated, incorrect and incomplete, and if enacted into law, will harm untold numbers of patients," said Dr. Michael Harbut, a co-author of the ATS study and chief of the Center for Occupational and Environmental Medicine at Wayne State University in Royal Oak, Mich.

Major differences

The differences in the two criteria are vivid.

For example, in two of the most easily explained differences, Hatch's bill says people must have been exposed to asbestos for at least five years to qualify for compensation by the trust. ATS says studies have shown that as little as two months of exposure can cause disease. Hatch's legislation says only people exposed to asbestos on the job would qualify. ATS criteria say spouses and children of workers and those who lived near plants using asbestos must be considered.

Hatch's bill centers predominantly on malignant asbestos-caused cancers, including the fast-killing mesothelioma.

The ATS guidelines examine the much more prevalent asbestosis, which is a scarring of the lungs that leads to breathing problems and heart failure, and pleural plaque, a fibrous thickening of the lining of the chest cavity.

"None of this makes sense. Why should workers with asbestosis but less than five years' exposure be left without any recourse?" questioned Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, a nonprofit training and advocacy group with a membership of some 250 union organizations. "Under the Hatch bill, someone who gets asbestosis from nonoccupational exposure will lose all right to compensation, even though the ATS criteria states, as we know perfectly well, that children and spouses of workers exposed to asbestos can, and do, get asbestosis from the fibers that get tracked into homes and cars."

The trust fund was offered up as a way to unclog courts across the nation that have had to deal with tens of thousands of asbestos claims.

For vastly different reasons, people on both sides of the issue believe that the court process must be streamlined. About 70 corporations have filed for bankruptcy protection, with protection against a flood of asbestos claims often being the stated concern. From the perspective of the victims, their claims often languish for years, and many people die before they get their day in court.

Last spring, Senate Majority Leader Bill Frist, a Tennessee Republican and physician, threw his influence behind the Republican-favored legislation, which had stalled for the third time. Frist said it must be passed.

All summer, Frist and Senate Minority Leader Tom Daschle, D-S.D., made offers and counteroffers, and finally agreed that $140 billion would be the size of the trust fund. But the insurance lobby and several unions, including the AFL-CIO, balked, saying the fund was too small to cover existing cases, let alone any new ones.

Worried for future

When the legislation was introduced in the House in 2000 by Rep. Henry Hyde, R-Ill., as the Fairness in Asbestos Compensation Act, the logic was that the tsunami of asbestos cases was over and all that had to be dealt with were the thousands of survivors whose cases were overloading court dockets.

Now, more than four years later, government health researchers are reporting that a new rush of asbestos victims is expected to surface over the next two decades. The ATS study said "asbestos is still a hazard for 1.3 million workers in the construction industry and for workers involved in maintenance of buildings and equipment."

In addition, the study warned of "new products that may contain" asbestos, and listed brake pads, roofing material, vinyl tiles and imported cement pipe and sheeting.

"It is absurd to say that asbestos is not a continuing threat in this country," said Shufro.

"Sen. Frist, who is a medical doctor, is ignoring best and latest science on the subject."

Last month, about 40 miles from where Mills lives, some of the nation's best asbestos specialists gathered in a remote timbered lodge in western Montana. Their goal was to develop a research center for better identifying and treating asbestos disease, especially illness from the type of particularly toxic asbestos that came from a vermiculite mine in nearby Libby, Mont.

None of these participants - from major medical centers, federal agencies and universities - said they believe the asbestos epidemic is over.

"The scope of the asbestos problems is really not known. We need more information on how far the asbestos from Libby has spread and how pervasive it is. But there is significant reason for concern," said Dr. Stephen Levin, co-director for the World Trade Center Workers Medical Screening Program and one of the research group's founders.

X-rays and lung function tests taken in Libby by the federal government have shown that thousands of people in that tiny logging community have signs of asbestos-related disease from the world's largest vermiculite mine, last owned by W.R. Grace & Co.

The U.S. Agency for Toxic Substances and Disease Registry also is evaluating former workers and neighbors of some of the hundreds of plants across the country that processed Libby's vermiculite.

Some in the group were highly critical of the medical criteria proposed by Hatch.

"I am treating about 1,500 patients, and two-thirds of them will not be covered by the Senate criteria," said Dr. Alan Whitehouse, a board-certified pulmonologist who first identified the disease in Libby, which has killed more than 200 miners, family members and neighbors.

"You can't make disease disappear by outlawing it. The government has its head in the sand. They made the criteria so rigid that it excludes far too many people," said the chest specialist, who treats asbestos patients from both Libby and the Hanford Nuclear Reservation in Washington state.

Harbut, also a member of the Montana group, saying he was not speaking for the ATS, said it's "senseless" for Congress to pass any legislation that didn't consider all sources of asbestos exposure.

"The ATS paper also recognizes that persons exposed to vermiculite mined in Libby and used as housing insulation all over America, are at risk of exposure to asbestos and the development of asbestosis and asbestos cancers, if improperly exposed," said Harbut. He is co-director of the National Center for Vermiculite and Asbestos-Related Cancers.

In Washington a week ago, Frist's spokeswoman, Amy Call, said that the senator had not seen the ATS study. Daschle's staff said the minority leader had the new medical criteria and "if the legislation is reintroduced next year," the ATS material will be examined with other new information.

Mills says he doesn't think he'll live long enough to see the legislation passed.

"I'm not sure anyone will," he says. "They're trying to pass that bill without knowing what this disease is all about."

He stops for a moment, tugs on the oxygen tube and tries to find a comfortable position for his skinny frame to sit on the dining room chair.

"I wouldn't wish asbestosis on anyone, but just for a brief moment, I wish those senators creating the asbestos legislation could know what it feels like to be drowning in your own fluids," Mills said last month.

"Some type of legislation is probably needed, but the decision of who gets help and who doesn't must be left up to the doctors who treat people like me and not the politicians who just can't understand the pain."

What's at stake in the upcoming election for partisans of occupational safety? Labor and industry representatives are so at odds, many don't even agree on how divided they are.

By James L. Nash
Occupational Hazards
October 7, 2004

http://occupationalhazards.com/articles/12461

If you want to understand why the workplace safety community is so polarized as the nation prepares to choose a president and a new Congress, OSHA's rulemaking record under President George W. Bush and Sen. John Kerry's support for a new ergonomics standard are the best places to start.

More surprising, however, is that stakeholders differ on how important the 2004 national elections will be for workplace health and safety. While labor representatives use almost apocalyptic language when speaking about what a Republican victory will mean for their issues, the industry people we spoke with doubt much will change no matter who wins the race for the White House.

It's Still About Ergonomics

Ergonomics was, is and promises to be the single most decisive issue in the politics of occupational safety.

Three years ago, Sen. John Kerry voted against repealing the ergonomics standard ultimately quashed by President Bush. Although it is not exactly the centerpiece of his campaign, according to Kerry's Web site he still "strongly supports implementation of a mandatory ergonomics standard."

Nullification of the Clinton administration's ergonomics standard early in 2001 was one of the first acts of the Republican Congress and the newly elected President Bush. The demise of this standard in particular, as well as OSHA's failure to issue any other major rules, delighted many in the business community, embittered organized labor, and further polarized an already deeply divided workplace health and safety community. Worker advocates also say the Mine Safety and Health Administration (MSHA) has bowed to industry pressure and stepped away from rulemaking.

"There are three OSHA program areas: regulation, enforcement and the softer stuff like compliance assistance and voluntary programs," explains Pat Tyson, a former OSHA official who now works as a management attorney in Atlanta at the Constangy, Brooks & Smith law firm. "If Bush is reelected, we will probably continue the same course, consultation first, enforcement a pretty close second, standards at the bottom. My guess is that if Kerry wins, these priorities will be reversed."

Peg Seminario, director of the AFL-CIO's Department of Occupational Safety and Health, while conceding it would be difficult, put ergonomics at the top of her rulemaking wish list if Kerry wins the election. In addition, she believed there would be an attempt to address:

• Reactive chemicals;
• Permissible exposure limits (PELs);
• Silica;
• Hexavalent chromium;
• Safety and health programs.

But it is far from certain Kerry could deliver on an aggressive new regulatory agenda. There are always significant legal and political barriers to issuing new standards, and a new ergonomics rule would face even more formidable obstacles. In addition to fierce industry opposition, OSHA would have to produce an entirely new standard. The Congressional Review Act, which Congress used to nullify the old standard, forbids OSHA from reissuing a regulation that is "substantially the same" as the one Congress rejected.

One Trick Pony?

"Unfortunately, I can't think of any," is what Seminario says when asked to name OSHA's accomplishments during the past 4 years. "This is the only administration since the beginning of OSHA that has failed to issue a single major safety and health rule."

OSHA Administrator John Henshaw, conceding the difficulty of issuing new standards, chose instead to focus on the kinds of voluntary efforts long favored by industry: alliances, partnerships and compliance assistance.

Randall Johnson, vice president of labor, immigration and employee benefits for the U.S. Chamber of Commerce (USCC), defended Henshaw's controversial decision to remove many rulemaking initiatives from the agency's regulatory agency.

"All John was doing was just trying to get some things done, rather than have a whole lot of projects and get nothing done," Johnson explained.

Henshaw justified the decision to withdraw most major rulemaking items from the regulatory agenda by promising to complete those that remained on schedule. However, according to a report issued by OMB Watch, a Washington, D.C. non-profit research and advocacy center, OSHA's most recent regulatory agenda revealed the agency failed to meet three-fourths of the deadlines set in the previous agenda.

Perhaps one indication of OSHA's shift away from issuing standards is that the agency's rulemaking appears to have fallen off the radar screen at the USCC. "I track ergonomics, some enforcement cases and OSHA reform bills," says Johnson. "The other things at OSHA I just don't track because I don't have the staff to do it."

Aaron Trippler, director of government affairs for the American Industrial Hygiene Association (AIHA), praises OSHA for increasing professional certification among agency employees and building partnerships with companies. "OSHA has determined that standard-setting is not the only function of the agency," says Trippler. "Regardless of what one thinks about an ergonomics standard, the reality was there was not going to be a standard. I think putting out [voluntary] guidelines has been an accomplishment."

Not all business groups are satisfied with OSHA's failure to promulgate standards. "To some extent they've become a 'one-trick pony': alliances, guidance and partnerships," comments Frank White, vice president in the Washington, D.C. office of Organization Resources Counselors (ORC) Inc., a consulting firm that represents many of the nation's largest companies.

While recognizing the complex hurdles that block OSHA rulemaking, White believes OSHA needs to find ways to overcome these challenges.

"I think it's a fundamental function of OSHA to issue standards. I don't think OSHA can say implicitly by their failure to issue new standards, 'we're stymied by the system,' so we'll divert our attention to guidelines and alliances."

Provoked Into Unity

While OSHA's rulemaking record has divided stakeholders, in at least two cases, opposition to OSHA and the Bush administration appear to have brought labor, professional associations and industry together.

For over a year, stakeholders have been meeting to try to update OSHA's aging PELs. OSHA chose to do little more than observe the effort, which has made progress but not yet reached agreement on a proposal.

"I think if OSHA were more serious about addressing critical issues, they certainly would have tried to participate in the clear problems with out-of-date PELs," says White, who added that the Clinton Administration's OSHA also failed to address PELs.

"You would think this would be a natural for John Henshaw, as he is an industrial hygienist," says Seminario. "The stakeholders who have been meeting include employers. This shows they [OSHA] are totally anti-regulatory."

According to Trippler, updating PELs remains a top priority for AIHA, where Henshaw once was president.

Stakeholder agreement is even deeper and broader that the proposed reorganization of the National Institute for Occupational Safety and Health (NIOSH) is a bad idea. Many fear the proposal will push NIOSH farther down the bureaucratic food chain within the Centers for Disease Control and Prevention.

"Somebody pointed out after a meeting on NIOSH reorganization that we haven't gotten stakeholder unanimity on an issue for the last decade – except for this," says White.

The consensus is that Kerry would be more likely to revisit the NIOSH reorganization issue.

Edwards vs. USCC

Despite the hurdles of ergonomics rulemaking, Kerry's past and present support for a new standard tops the list of industry concerns about the Democratic nominee. "Sen. Kerry has called for reinstating the ergonomics regulation. That's the biggest buzzword," says Chris Tampio, director of employment policy at the National Association of Manufacturers.

Still, employers have more powerful reasons for opposing the Democratic ticket that are unrelated to workplace safety and health – and perhaps unrelated to Kerry himself.

After Kerry selected Sen. John Edwards, D-N.C., as his running mate, USCC took the unprecedented step of involving itself in the presidential election. Edwards' past career as a trial lawyer, not the ambitious OSHA reform proposal he pushed while still a presidential candidate, drove the decision that tilted USCC toward Bush-Cheney.

"We've never gotten engaged in a presidential election before," explains Johnson. "Our main concern is tort reform, class action lawsuits and his general background as a trial lawyer, not specifically safety and health issues."

Between the 40-Yard Lines?

In fact, Johnson played down the differences between the two parties on OSHA issues.

"The idea that the Bush administration combined with the Republican House and Senate has resulted in a significant roll back in workplace protections doesn't square with reality," Johnson contends. He argues that, in addition to OSHA, there are still an enormous number of employment laws. In nullifying the ergonomics standard, Bush only blocked an effort to expand one piece of the pie.

"The fights we have are important," Johnson argued, "but they're between the 40-yard lines."

To understand how differently labor and industry see the same set of "facts," contrast Johnson's statement with the take on the Bush administration by the director of health and safety for the United Auto Workers.

"Not one single choice they made was protective of workers," Frank Mirer contends. "Essentially, Bush and Cheney put a target on our backs."

Many labor leaders are embittered because they believe OSHA under Bush has essentially ignored them. In addition to the rulemaking failures, they point to the effort to cut worker-training grants that were channeled through unions and the exclusion of labor from nearly all the alliances OSHA formed in recent years.

Tampio and other industry representatives contend OSHA enforcement hasn't slackened under Bush, but once again labor groups disagree, pointing to the decrease in cases with proposed penalties topping $100,000.

In another sign of the deepening partisan split, the chamber's move into election year politics has been matched on the other side by the formation of a group with labor ties and Democratic preferences. But unlike the general litigation fears driving the USCC, supporters of the Political Action Committee for Occupational Safety and Health (PACOSH) say they are motivated by workplace safety.

"For the first time, there's now a political action committee that will support candidates solely because they are advocates for safety and health and support enforcement," explains Joel Shufro, treasurer and executive director of the group. Shufro is also the executive director of the New York Committee for Occupational Safety and Health, a labor-oriented, non-profit organization based in New York City.

The impetus for PACOSH?

"It's in response to the previously unprecedented organization of industry groups opposing OSHA, workplace safety and health rules and enforcement," says Shufro. "In the past, many safety advocates gave money to candidates, but the money went into a pot and the candidate, while grateful, really didn't understand the concern."

Shufro concedes PACOSH cannot match the money and organization of industry trade associations who, he says, want to weaken OSHA. "But it's important for us to support those candidates willing to stand up on our issues."

Whither OSHA?

For those with long experience within and around OSHA, the growing politicization of OSHA has taken a toll on the agency's morale and effectiveness that will persist no matter who wins the election. As a result, some weary OSHA veterans also wonder how much difference the next president can make on the agency's future direction.

"We've watched two administrations more or less fail," comments one OSHA insider. "Maybe Kerry understands there's got to be a new approach, but I don't know that."

Even those at OSHA who favor more aggressive rulemaking worry that a Kerry victory won't automatically lead to success. "There have to be new rules, but if they just try to turn back the clock it won't guarantee effective rulemaking," says an OSHA observer. "You need the expertise and creativity to look at problems in a new way."

After the failure of the ergonomics standard and 4 years of voluntarism, some current and former OSHA employees say whomever is named to head OSHA will find a national headquarters drained of morale and rulemaking talent. Just as the budget deficits will limit OSHA initiatives, this brain drain may hinder new rulemaking.

But while industry leaders and OSHA insiders wonder how much difference the election will have on the government's approach to workplace safety, labor leaders are convinced this election is a critical turning point.

"If we have 4 more years of Bush and Cheney," predicts Seminario, "you'll have an OSHA and an MSHA that will basically be consultation agencies to help business."

Sidebar: OSHA Reform: Does It Matter Who Wins the Senate?

The AFL-CIO's Peg Seminario and Randall Johnson of the U.S. Chamber of Commerce don't often see eye to eye on OSHA issues, but they agree about one thing: when it comes to the control of Congress, it's OSHA oversight – not legislation or appropriations – that's most critical.

"I think one thing reporters miss about changes in elections is Congress's oversight function," says Johnson, who used to work in the Department of Labor under President Ronald Reagan, when Sen. Ted Kennedy, D-Mass., sat in the oversight chair. "I'm familiar with the pressure that can be brought to bear on an administration by Senate oversight, and believe me, it is significant."

Most political insiders believe the odds are against Republicans losing control of the House. Democrats have a better chance in the Senate, where they only need to pick up two seats to gain control.

There are currently several OSHA reform bills knocking around the halls of Capitol Hill. But because major legislation requires a 60-vote super-majority to win passage in the Senate, only items that have broad consensus are likely to pass. At this point, none of the OSHA measures have bi-partisan support.

Rep. Charlie Norwood, R-Ga., has proposed forcing the federal government to pay the legal fees of companies who prevail when contesting alleged OSHA violations, a bill that has the strong support of industry – and is fiercely opposed by Democrats.

Labor supports Sen. Jon Corzine, D-N.J., who wants to make it a felony punishable by up to 10 years in prison when a worker dies because of an OSHA willful violation.

Most recently, Sen. Mike Enzi, R-Wyo., has reintroduced a bill that, among other things, encourages employers to conduct third-party safety audits. Enzi would also make it a felony when a worker dies because of an OSHA willful violation.

Few political insiders think any of these bills are likely to be passed anytime soon.

"Nobody's pushing for OSHA reform. The status quo is fine for the business community, so why invest the political capital when you're not unhappy with how things are going?" explains Pat Tyson, a partner at Constangy, Brooks & Smith LLC.

© 2004 Penton Media, Inc.

By Deborah A. Miles
The Communicator
October 2004

http://www.thecommunicator.org/oct05/groundzero.htm

Three years after the terrorist attacks on the World Trade Center, crews continue working around Ground Zero, and the dust and fumes from demolition and construction may cause health-threatening pollution. So, PEF members from the state Department of Health (DOH) and Public Service Commission (PSC), who are slated to move to lower Manhattan next year, have teamed with the Sierra Club and other organizations to fight for cleaner air.

"PEF is working with a number of downtown organizations to make sure air quality is safe for our members," said Paul Stein, PEF Division 199 council leader.

In August, the Sierra Club released a report that blasted the federal Environmental Protection Agency for failing to find toxic hazards that caused hundreds of people to become ill after exposure to the pollution caused by 9/11.

After the report was released, the Sierra Club, PEF, elected officials and other community groups participated in a news conference and vigil in lower Manhattan. The purpose was to draw attention to the long-term threats caused by the 9/11 fallout and the deficient studies and inadequate cleanup done by the Bush administration.

Stein said it was important for PEF to partner with the Sierra Club and other environmental groups because of the various demolition and construction projects that will take place around Ground Zero during the next decade.

More dust in the air

The future worksite for the staff at DOH and PSC is 90 Church Street — a 15-story building next to Ground Zero that was severely contaminated by asbestos, lead, fungi and other toxic substances by the events of 9/11. And two nearby buildings — the Deutsche Bank building and Fiterman Hall — also contaminated after the terrorist attacks, are now scheduled to be demolished.

"Our concern is the buildings be carefully demolished to prevent the release of contaminants into the air," Stein said. "The Sierra Club has credibility and the ability to get press if proper standards aren’t met."

By next March, approximately 350 PEF members from DOH and PSC who are now assigned to other locations will be relocated to 90 Church Street.

"We want to make sure the air we will be breathing on a daily basis is safe," Stein said. "We are appalled by the reckless disregard for the health of workers and residents in lower Manhattan by the EPA and other governmental entities. The EPA testing was very incomplete."

Uncovering the truth

The Sierra Club report uncovered through independent studies that significant levels of cancer-causing chemicals — polycyclic aromatic hydrocarbons (PAHs) — were generally released by combustion of mixed materials in air and dust, something the EPA tests never detected. (You can view the entire report at www.sierraclub.org.)

"The public has a right to know the truth," Stein said. "This report tells the truth about environmental contamination after 9/11 and what actions our government must take to protect us."

Strength in numbers

"Without the cooperation of the Sierra Club, the Civil Service Employees Association, 9/11 Environmental Action, NYCOSH and union activists from the New York City Housing Authority and the U.S. Postal Service, which are also located at 90 Church Street, we wouldn’t be as successful," Stein said, referring to the unions’ winning campaign to get double-pane windows and higher efficiency filters on all air-distribution units at 90 Church Street.

Stein said the topic of indoor air quality will remain on the labor-management committee agenda until all the issues are resolved.

"We’ve made significant progress with management," Stein said. "The next step is to make sure there is clearance testing of all the air intakes and air-handling units and to receive the results of those tests."