Brakes Warning Remains: OSHA Statement on Asbestos Exposure Hazard Survives Challenge

Brakes Warning Remains: OSHA Statement on Asbestos Exposure Hazard Survives Challenge

By Andrew Schneider, Baltimore Sun

17 December 2006

WASHINGTON -- A government warning to mechanics that exposure to asbestos in brakes can cause deadly disease will not be removed from a federal Web site, and the Occupational Safety and Health Administration has decided not to suspend a scientist who had refused to water down the warning, OSHA officials said.

Edwin Foulke Jr., the head of OSHA, made the decision to keep the five-page warning, called a Safety and Health Information Bulletin, on the agency's Web site.

The safety bulletin was posted on an OSHA Web site in July and, like a similar Environmental Protection Agency warning to backyard mechanics and small garage operators, has been called scientifically invalid by industries that used, and use, asbestos. Many of these companies, including makers of cars, trucks, aircraft and friction products, are targets of personal injury suits brought by brake workers or their survivors.

"There is no proof of asbestos in brakes ever harming those working on or around them. Not a single case has ever been documented. Not one," Michael Palese, a spokesman for Daimler-Chrysler Corp.'s legal communications, told The Sun last month.

He added that 18 "comprehensive" studies have been done by "top scientists" that showed the absence of danger from asbestos in brakes.

Worker-safety specialists tell the opposite story.

Richard Lemen, former acting director of the National Institute for Occupational Safety and Health (NIOSH) and a former assistant U.S. surgeon general, and other public health experts have presented case studies and medical records of scores of brake and friction-material workers who were reportedly sickened or killed by asbestos-related diseases.

Trying to stay above the fray are the three agencies involved with asbestos safety issues -- OSHA, the EPA and NIOSH. Their physicians and scientists say that asbestos exposure can cause asbestosis, cancer and mesothelioma, and have said so for years.

"Nothing has changed. We consider asbestos to be a health hazard regardless of its source," said Joe Burkhart, deputy director of the Division of Respiratory Disease Studies for NIOSH, which does worker health and safety investigations under the U.S. Centers for Disease Control and Prevention.

"EPA's policy hasn't changed in that we believe exposure to asbestos fiber is still harmful," said Wendy Cleland-Hamnett, deputy director of the EPA's Office of Pollution Prevention and Toxics.

OSHA echoed that view.

Foulke called for the warning to stay on the Web site until "a thorough review" had been done of all the information on which the bulletin was based. The review was completed, and no need was found to remove or modify the bulletin, according to a senior Labor Department official, who requested anonymity because agency policy does not permit him to speak on the record.

The Sun reported last month that Ira Wainless, an agency scientist who wrote the bulletin, was told that he would be suspended without pay for 10 days because he refused requests by supervisors to add references to asbestos studies that he and other asbestos experts said lacked credibility.

The Sun also reported that John Henshaw, a former OSHA director who left the agency in December 2004, had e-mailed science director Ruth McCully on Aug. 15, expressing concern about the bulletin and saying that it should be pulled until changes were made.

Henshaw says he is now an occupational safety consultant for industry and has appeared as an expert witness twice for companies that manufacture brakes and are being sued by workers claiming they were harmed by asbestos exposure.

Henshaw told The Sun on Thursday that he had done nothing wrong and that his e-mail suggesting changes in the brake warning was "my own idea" and "was not undertaken on behalf of anyone but myself."

The Labor Department has begun an examination to determine whether Henshaw violated federal ethics policies by weighing in on the brake warning within two years of leaving office, according to the senior department official.

Last week, after several hours of negotiations between a labor union and OSHA officials, the agency signed an agreement to withdraw its proposed suspension of Wainless, who refused to be interviewed.

"It's as it should be. Wainless will not be punished for following the best science and the law," said Eleanor Lauderdale, executive vice president of Local 12 of the American Federation of Government Employees, AFL-CIO, which had challenged the proposed suspension. "He stood up for the safety of workers, as is the job of everyone in OSHA."

This month, three Democratic members of Congress contacted the Labor Department, OSHA or the Government Accountability Office about the safety warnings. The three -- Reps. George Miller of California and Dennis J. Kucinich of Ohio and Washington Sen. Patty Murray -- are on committees involving work force issues including health and safety.

Miller requested all documents of OSHA communications with Henshaw, the White House Office of Management and Budget and all other policy papers, studies, e-mail, notes and letters involving the brake warning. Kucinich requested a meeting with OSHA to discuss the delay in the warning and the efforts to suspend Wainless. Murray's staff said the senator will be working with House members to "design an investigative study on the larger issue of" the agency's actions.

A chronology of the OSHA brake bulletin obtained by The Sun showed that as recently as Oct. 3, OSHA was communicating with the White House agency on the content of the warning. In the past, the OMB has refused to discuss its recommendations to an agency.

In 2003, Morgan, Lewis & Bockius, an international law firm, using a newly instituted OMB policy that eased the challenging of government regulations, petitioned to have the EPA remove and disavow its 20-year-old asbestos warnings for mechanics, called the Gold Book. The lawyers said the EPA warning struck an "alarmist and inflammatory tone."

"The Gold Book has been used to try to sway jurors, who are told that it represents EPA's current position and thinking on the question of whether asbestos-containing friction products are dangerous to users," the petition said.

As of last week, the EPA's mechanics warning is designated as a draft, Cleland-Hamnett, of the agency's toxics program, told The Sun. But she added that the finished warning should be available soon and that the agency was "waiting for OSHA."

However, she said, the 1986 Gold Book and the new draft are available on the agency's Web site.