How American Chemical Regulations Failed the Public
The federal government is planning to reform a workplace safety program that was scrutinized in a recent ProPublica investigation.
The Star Program recognizes workplaces with strong safety programs and rewards them by curtailing the number of times government regulators show up randomly. It is based on the theory that motivating companies to adhere to best practices on their own is more effective than punishing them when they fall short.
But last year, workers at one chlorine plant in New York state told ProPublica that they were “swimming” in asbestos while their plant took part in the program from 1996 to 2021, and that participating had helped the company conceal the issue from the public.
After ProPublica revealed problems at other asbestos-dependent chlorine plants, the American Public Health Association questioned whether plants that use the carcinogen should be allowed to apply.
“On its face, a company whose business model relies on using asbestos does not have an exceptional health and safety management system,” the group wrote in a letter to the Occupational Safety and Health Administration, which runs the program. “There are alternative processes available and used by [chlorine] plants in the U.S. and in other nations.”
At the time, OSHA declined to comment on the content of the letter. The agency released a statement saying it was “focused on improving our efforts and looking at ways to protect workers from occupational exposure to asbestos moving forward.”
More recently, however, OSHA has signaled that big changes may be coming to the Star Program and other initiatives included in its Voluntary Protection Programs. The agency has said it wants to “modernize” the initiative as it works to expand it, and it is asking the public to answer a series of questions to help with the effort.
The questions range from technical to broad. Some touch on the issues raised in ProPublica’s reporting, including a question that asks if the exemption from random inspections creates concerns about workplace safety and health at the facilities.
Another echoes the question posed by the public health association about workplaces that use hazardous materials.
In a statement, OSHA said that it had started the process of modernizing the program before ProPublica’s stories were published, but that several of its questions were informed by ProPublica’s reporting. OSHA will hold a meeting for stakeholders on the subject on June 15, and comments from the public are due by Sept. 30.
The Star Program dates to the Reagan administration. To participate, plants must prove they follow best practices and submit to a rigorous inspection. But after that, they are no longer subject to random inspections.
OSHA reevaluates the facilities every three to five years.
Former workers at the facility in New York, an OxyChem chlorine plant in Niagara Falls, told ProPublica they spent months preparing for visits and shut down the dirtiest, most dangerous parts of the plant when OSHA evaluators were on site.
Still, records show that during one visit in 2011, evaluators found asbestos “scattered in certain areas of the floor” and covering much of the mechanical equipment. The plant did not receive a formal citation. It was readmitted to the program anyway.
OxyChem has repeatedly told ProPublica it complies with federal regulations and noted that OSHA has never cited its chlorine plants for asbestos-related violations.
In its letter to OSHA, the public health association raised concerns that the plant’s management had used its status in the Star Program “to game the system” to hide asbestos problems. The group pointed out that other chlorine plants using asbestos were also in the program, and it asked to meet with OSHA leaders.
The February meeting took place just before OSHA posted its questions for the public.
So far, the agency has received several dozen replies from company representatives, industry groups and safety experts. Many expressed satisfaction with the program while also offering suggestions for improvements. One individual, a self-described contractor who said he worked for multiple participants, called the program “a joke.”
A joint response from OSHA’s former Deputy Assistant Secretary Jordan Barab and former Assistant Secretary David Michaels questioned whether the program was worth the resources the agency puts into it.
Addressing the issue of plants that use hazardous substances like asbestos, Barab and Michaels said it was “inevitable” that some companies would use, store or manufacture dangerous materials and that that alone should not preclude their involvement in the program.
“If, however, there are safer alternatives to certain exceptionally hazardous substances or processes that can be feasibly implemented, OSHA should expect [program] participants to set an example by implementing those safer alternatives, even if the hazardous substance — such as asbestos — is still legally permitted to be used in the workplace,” they wrote.
Asked to respond, OSHA said in a statement: “It is premature for OSHA to comment on public comments as we are still engaging in the process, but we value the input and the important point that all employers should strive for safer alternatives.”
ProPublica’s reporting on asbestos has resonated widely. Late last year, it prompted public health advocates and two U.S. lawmakers to renew calls for Congress to ban the carcinogen, a move that would put the country in line with dozens of others across the world.
The lawmakers cited ProPublica’s work when reintroducing the bill this March.
In addition, the Environmental Protection Agency, which is finalizing its own ban, asked the public to weigh in on new information it had received on the issue, including ProPublica’s reports. Soon after, in a dramatic turnaround, one of the few U.S. manufacturers still using asbestos, Olin Corp., said it would support outlawing the carcinogen.
The EPA has said it is “moving expeditiously” to finalize the action this year.
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