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Methodology of Unequal Risk investigation

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Our data analysis behind the Unequal Risk investigation into work-related diseases in America.

CANCER RISK

Our interactive cancer-risk graphic is based on an analysis by Adam M. Finkel — a former director of OSHA’s health regulatory divisions who is now at the University of Pennsylvania Law School — and the Center for Public Integrity. It tackles a thorny question: If 1,000 workers are exposed to a chemical’s legal limit over their entire careers, how many will likely get cancer as a result of that exposure? What, in other words, is the excess risk above and beyond the cancer risk everyone faces?  

First, an important note: Any risk analysis produces estimates, not exact numbers. Its value is showing how much hazards can vary under the law. (This analysis doesn’t look at average exposures, but rather the impact of what exposure at exactly the legal limit would be. But the Center also mined an OSHA inspections database for a separate analysis to find out how often the agency detected several toxic substances above the legal level. See the exposure-data section below for more on that.)

Our group of theoretical workers is 1,000-strong for a reason. OSHA considers a grave risk such as cancer that affects one worker in 1,000, all equally exposed over the length of their careers, to be “clearly significant.”

That means the agency should enact workplace standards that lead to less risk, particularly since OSHA says it doesn’t see 1 in 1,000 as the dividing line between too much and OK. But for all the years the agency has quantified risk — since the Supreme Court required it in 1980 — OSHA has never enacted a standard on the right side of that threshold, it says. Court decisions have made clear that limits must be set based on what is technologically and economically feasible — a hotly contested issue.

Americans enjoy much stronger federal protections from chemicals when they’re off the clock than on it. The U.S. Environmental Protection Agency, operating under different laws and court decisions, aims to protect the public so no more than one cancer case in 10,000 results from pollution in the community — and more often, no more than one in 1 million. On paper, that’s 10 to 1,000 times more protective.

What our analysis with Finkel suggests is that the actual difference is far worse. That’s because cancer risks at OSHA’s exposure limits are often much higher than 1 in 1,000.

The analysis relied on cancer-risk figures developed by the U.S. EPA and California’s EPA for certain known or likely human carcinogens. These “inhalation unit risk” figures allow researchers to calculate cancer risk over a lifetime of community exposure at a specified level. We adjusted these figures to account for on-the-job exposure: 40 years instead of 70, 50 weeks a year instead of 52, five days a week instead of seven and the amount of air inhaled by the typical employee during a workday compared with a resident off work all day (10 cubic meters of air vs. 20, which takes into account both the difference in hours and breathing rates).

We used U.S. EPA risk figures when available, and if not, CalEPA. After adjusting the figures for occupational exposure, we used them to calculate the risk at OSHA limits as well as the risk at voluntary guidelines called “Threshold Limit Values.” TLVs, as they’re known, are developed by the nonprofit American Conference of Governmental Industrial Hygienists and are often tighter than OSHA’s “Permissible Exposure Limits.”

OSHA, in fact, recommends that companies look to voluntary limits such as the TLVs rather than its own standards to protect workers. In 2013 the agency released a side-by-side comparison to make that easier: OSHA limits vs. TLVs, the National Institute for Occupational Safety and Health’s guidelines and California’s workplace limits, which are mandated only in that state. (California is one of the few states that sets its own exposure limits.)

Our analysis relied on that side-by-side comparison for information on OSHA limits and the ACGIH’s TLVs. The vast majority of OSHA’s limits are actually decades-old TLVs, adopted by the then-new agency in 1971. While the ACGIH has kept updating since, most of OSHA’s limits haven’t changed. (Why? More on that here and here.)

Finkel developed the initial analysis that estimated the cancer risks at OSHA limits and TLVs. He shared that with us and advised us as we fact-checked the underlying figures, pulled in California data and tweaked the method with input from him and other experts.

California conducted an analysis similar to ours in 2007 when it looked at workplace health hazards at legal exposure limits. Julia Quint, who launched and co-managed the project before retiring from the California Department of Public Health, was among the experts who reviewed a sample of our analysis. She said it is consistent with California’s method, which that state uses as it considers tighter exposure limits.

For some substances, OSHA has produced its own cancer risk estimates. In those cases, we show the agency estimate alongside our calculations. Sometimes they’re about the same; in other cases, they’re far apart. OSHA calculates risk based on a 45-year career rather than a 40-year one, which explains some differences. In addition, the agency’s assessments delve more fully into risk quantification, particularly the specific way a substance’s risk varies as exposure levels change. On the other hand, most of OSHA’s estimates are more than two decades old, so the science underpinning them can be out of date.

OSHA’s calculation for o-toluidine, as an example, is from the 1980s and suggests the exposure limit (unchanged since 1971) carries far less risk than one cancer case in 1,000. But the National Institute for Occupational Safety and Health, or NIOSH, later implicated the chemical in a cluster of bladder-cancer cases among workers at one plant — people exposed to levels well below the legal limit. The inhalation risk figure California’s EPA produced in 1992 suggests the cancer risk at OSHA’s workplace limit is 197 in 1,000, nearly two in 10.

The country needs modern, full-blown risk assessments for workplace chemicals, said Andrew Maier, an occupational toxicology and risk assessment scientist who is an associate professor at the University of Cincinnati College of Medicine. The method we used for our analysis is likely to produce “upper-bound” estimates, he said, but he considers it a useful approach to prioritize the chemicals “that need the most attention.”

Finkel, who has a doctorate in environmental health sciences and has worked on the cutting edge of risk assessment for more than 30 years, said there’s been a “raging debate” that entire time about whether risk estimates such as the EPA’s are really at the upper end of the spectrum, and if so, how much. He says there’s underestimation issues at work, too, and he believes risk is much less likely to be overstated when exposures are higher — like at OSHA’s legal limits.

Quint, for her part, thinks OSHA should take a page from California’s book and convert the risk work the EPA has already done so it’s relevant for workers.

“OSHA, frankly, does not have the personnel … to do detailed risk assessments for each one of these chemicals that need to be assessed,” said Quint, a toxicologist. “You don’t have to repeat all that work. You can use existing information, tweaked as we do for occupational health.”

Not included in our analysis: Risks from carcinogens that don’t have EPA or CalEPA risk factors. Non-cancer risks aren’t accounted for, either. Many substances, such as beryllium, can cause other types of diseases that are serious or even lethal.

We wish we had more comprehensive details about the chemicals’ uses, including all the sectors and industries where exposures occur. Such information is spotty. (One frequently cited source is NIOSH’s survey of workplace exposures — from three decades ago. The agency says it has not had the funding for an update.)

We relied on information from the Agency for Toxic Substances and Disease Registry, the EPA and other government sources, including the New Jersey Department of Health, to explain how chemicals are used and to give insight into which sectors (such as manufacturing or construction) come into contact with them. But much of the sector information, and all of the detailed industry information, came from a Center analysis of OSHA sampling data taken by inspectors at workplaces.

That’s a limited snapshot: OSHA can sample at only a fraction of workplaces. But the sampling results offer details we couldn’t find anywhere else. We looked at chemicals detected from 2000 to 2013 and, in cases where a substance was found in more than five different industries, included a varied selection in our graphic.

We also analyzed the sampling data for a separate look at overexposures. Read on for details about that.

 

EXPOSURE DATA

When OSHA conducts health inspections at workplaces, investigators can sample the air for potentially dangerous substances. All the samples collected by federal inspectors, and some of those taken by state OSHA inspectors, are analyzed at OSHA’s lab near Salt Lake City.

OSHA made a database of those samples, dating back to 1984, available online after Finkel — the former OSHA official — won a lawsuit in 2007 to get the agency to release it.

We analyzed the database through 2013 to see how often the levels of certain substances topped legal limits. Why not all substances? Because there’s no handy “over the limit” data point. You need to find the limits yourself and delve into their history to see if they were once looser. The samples also require work before comparison is possible. (More on that in a moment.) We ultimately looked at several chemicals and metals that are well-known hazards, including lead and formaldehyde. 

Our analysis focused on the types of samples that characterize potential inhalation exposures: “personal” samples — air grabbed by sampling devices attached to workers — and “area” samples that measure air in a workspace where multiple people might labor.

We knew we couldn’t find out what the average U.S. worker, or even the average worker in a select industry, gets exposed to. That’s because OSHA doesn’t have nearly enough staff to sample every workplace. If federal OSHA inspectors were to try, the AFL-CIO calculated this spring, it would take 140 years to get to each workplace under their jurisdiction a single time.

So the samples are, quite literally, a sample. And they’re not a random one, because inspections can be launched by complaints, accidents and OSHA’s determinations about which industries or employers are high-hazard, not only by chance selection.

So instead, we asked an answerable question: When samples test positive for a substance — the lab’s equipment detects it — how often do levels exceed legal limits? We also wondered how sample results would compare with exposure recommendations from the National Institute for Occupational Safety and Health, often tighter than OSHA’s hard-to-update limits.

But, as OSHA’s Salt Lake City experts explained, you can’t simply compare sample results to the agency’s limits. That’s because inspectors will often change sampling devices on workers through the day, so a single worker might produce two, three or more samples that together represent a full workday. You need to combine all the related samples to compare to OSHA’s eight-hour-average limits. (How? Multiply the individual samples’ results by the amount of time sampled, add the related ones together — they have a unique ID — and then divide by 480, the minutes in an eight-hour day.)

The Salt Lake technical staff walked us through those steps and looked at key results to check that we hadn’t tripped ourselves up. We appreciate their patient assistance.

You can see our results in several places: hexavalent chromium and lead in this story, mercury vapors in this piece and formaldehyde in this list of eye-popping facts. Lead was striking because samples, taken at workplaces ranging from construction sites to foundries to indoor shooting ranges, frequently exceeded the legal limit. Formaldehyde samples, by contrast, rarely did — but most with detectable levels topped the amount NIOSH recommends employers not exceed.

Side note: OSHA enacted stricter industry-wide limits for two of the substances after 1984. That puts them among the relatively few changed since the agency adopted its thresholds in 1971, a sign of how very well-established the dangers are. We looked at samples for the relevant years: 2006 onward for hexavalent chromium (OSHA’s most recently tightened exposure limit), and 1988 onward for formaldehyde.

The lead limit for most industries was set in 1978, but an exception was made for construction until mid-1993, when that sector’s limit was brought in line with the one for other businesses. We analyzed lead samples for 1984-2013, with construction firms compared to their looser limit, as well as 1994-2013 and found approximately the same percentage of overexposures for both periods.

http://www.publicintegrity.org/2015/06/29/17563/methodology-unequal-risk-investigation

Read their stories: How job-related illnesses upended these families' lives

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Jamie Smith Hopkinshttp://www.publicintegrity.org/authors/jamie-smith-hopkinsJim Morrishttp://www.publicintegrity.org/authors/jim-morrisMaryam Jameelhttp://www.publicintegrity.org/authors/maryam-jameelhttp://www.publicintegrity.org/2015/06/29/17573/read-their-stories-how-job-related-illnesses-upended-these-families-lives

Slow-motion tragedy for American workers

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PORT BYRON, New York— Six weeks before Chris Johnson was born in 1974, the U.S. government issued a warning about a substance that would nearly kill him 30 years later.

The substance was silica, a component of rock and sand that is the scourge of miners, sandblasters and other workers who breathe it in. When pulverized into dust, it can cause silicosis — a scarring of the lungs that leads to slow suffocation — as well as lung cancer.

This was no newly discovered hazard. The ancient Greeks and Romans were mindful of it. Labor Secretary Frances Perkins launched a national campaign against it in the 1930s after the knifelike particles dispatched hundreds of tunnel workers in West Virginia.

The 1974 warning by the National Institute for Occupational Safety and Health said the workplace exposure limit for silica put people in danger. NIOSH urged the U.S. Department of Labor’s Occupational Safety and Health Administration to cut the limit in half.

OSHA finally did so in 1989, only to see its work undone by a court decision. It didn’t try again until 2011. In the interim, Johnson became a bricklayer and developed acute silicosis after a five-month job that enshrouded him in dust. He’s 40 and, on paper, can expect to survive less than five years.

As Johnson’s experience shows, inaction has consequences. Silica — which OSHA says threatens 2.2 million workers, mostly in construction— is a striking example of the government’s failure to properly regulate toxic substances in American workplaces. The silica rule still isn’t finished. If it is enacted despite industry protests, it will be only the 37th health standard issued by the agency in its 44-year history.

It’s an ignominious record given the human and economic costs of work-related disease in the United States. According to a widely cited University of California, Davis, study, an estimated 53,000 people died in 2007 from on-the-job exposures — outnumbering those killed in suicides, motor vehicle accidents, falls or homicides. More than 400,000 others got sick. The price tag: an estimated $58 billion. OSHA puts the annual toll at more than 50,000 deaths and 190,000 illnesses.

An 18-month investigation by the Center for Public Integrity has found that the epidemic of occupational disease in America isn’t merely the product of neglect or misconduct by employers. It’s the predictable result of a bifurcated system of hazard regulation — one for the general public and another, far weaker, for workers. Risks of cancer and other illnesses considered acceptable at a workplace wouldn’t be tolerated outside of it.

For years, the best OSHA has been able to do is set chemical limits so that no more than one extra cancer case would be expected among every 1,000 workers exposed at the legal maximum over their entire careers. The U.S. Environmental Protection Agency’s standards for the public are 10 to 1,000 times more protective. The real gap is often worse, a former OSHA official says.

“I can’t see any justification for treating people that differently,” said Adam M. Finkel, who heads the Penn Program on Regulation at the University of Pennsylvania Law School and was director of health standards programs at OSHA from 1995 to 2000.

Among the Center’s findings:

• Most of OSHA’s 470 chemical exposure limits are, by the agency’s own admission, grossly outdated and don’t protect workers from a variety of ailments. Cancer, for instance: The agency’s own analyses of 16 substances estimate that cancer risks associated with legal exposures to workers over their careers are as high as six in 10. Analyses of an additional 31 exposure limits by the Center and Finkel found cancer risks above 1 in 10 for nearly half of the chemicals.

• The vast majority of the tens of thousands of chemicals made or used in the U.S., including some very common and toxic substances, have no workplace exposure limits. The lung-ravaging food flavoring diacetyl. The widely used herbicide glyphosate, recently named a probable carcinogen by the World Health Organization. The agents in chemotherapy drugs, hazardous to the health care workers preparing and handling them.

• Even apparent success stories — rare cases in which chemical limits were tightened — can be Pyrrhic victories. OSHA’s own calculations suggest, for example, that the cancer risk for hexavalent chromium, a metal used in specialty paints and coatings, was as high as one in three at the limit in effect from 1971 to 2006. At the current, stricter standard, the risk is still as high as one in 22, OSHA acknowledges.

• Sampling for chemicals has fallen over the last three decades as workplaces multiplied but OSHA’s staff levels stagnated. Even so, OSHA still finds exposures above legal limits, a Center analysis found. One in six samples containing hexavalent chromium, taken after the 2006 rule change, topped the limit of 5 micrograms per cubic meter of air. Samples containing lead, a brain-damaging metal that can accumulate on a worker’s clothing and hurt the whole family, have exceeded the limit 40 percent of the time since 1984.

• NIOSH last did a nationwide workplace exposure survey more than three decades ago because it has not had the funding to update it. Critical information on both old and emerging chemical hazards across industries is missing, putting regulators and researchers at a disadvantage.

A profound toll

Job-related illness is a slow-motion tragedy few seem to understand or acknowledge. Its victims usually die one by one, out of public view, though disease clusters emerge on occasion.

More than 50 cases of bladder cancer, for example, have been tied to a small Goodyear chemical plant in Niagara Falls, New York, far above the expected number in the general population. NIOSH investigators identified the suspect chemical years ago: ortho-toluidine, used to keep tires from cracking. Exposures in the plant weren’t extreme; in fact, they were “well below” the legal limit, the investigators reported.

Goodyear, which made changes to its factory after the problem came to light, said in a statement that all but one of the 54 bladder-cancer cases identified through its own screening program involved workers who came to the plant before 1990.

“While the ortho-toluidine exposure levels in the plant have generally been far below the permissible exposure limits, engineering controls were put in place in the 1980s to further reduce levels in the plant,” the company said.

Steve Wodka, a lawyer in New Jersey who represented about half the Goodyear victims in claims settled out of court, said he knows of 62 bladder cancer cases from the plant. He calls that cluster “probably the best example of the inadequacy of the system.”

Ortho-toluidine is in a family of chemicals — aromatic amines — known since the 1930s to cause bladder cancer, Wodka said. Yet its exposure limit of 5 parts per million, adopted by OSHA in 1971, was fashioned only to protect workers from the chemical’s acute effects, not cancer.

“It remains the law of the land today,” Wodka said.

The blight of disease contracted on the job isn’t confined to factory workers. It consumes hairdressers, grocery store meat-wrappers, scientists and people in a variety of other professions. Many are stricken by middle age.

The panoply of illnesses, from nerve damage to dementia to virulent cancers, takes a profound toll on workers and their families. Careers are lost, finances shredded, marriages tested. In some cases, workers opt for macabre, last-ditch procedures to try to save their lives.

“They basically clean you out like a fish,” cancer victim Mike Dennen, who worked in asbestos-contaminated textile factories, said of his 2013 surgery. “They tell you before surgery you can end up without a bladder, you can end up without your intestines.”

Federal regulators are overwhelmed by the scope of the problem, which didn’t materialize by chance. Congress has exacerbated the situation by refusing to fortify the weak 1970 law specifying what OSHA can do. Trade groups have challenged health standards in court while workers lose their lives. The White House’s Office of Management and Budget is a vortex that sucks in proposed agency rules and doesn’t spit them out for months — or years.

David Michaels, head of OSHA since 2009, speaks frankly about the results.

“With a few exceptions, OSHA’s standards to protect workers from chemical exposures are weak and out of date, or simply non-existent,” he said in a recent interview.

He cited as an example the solvent hexane, which can wreck the nervous system. OSHA’s exposure limit for the chemical is 500 parts per million, 10 times the level NIOSH says is safe.

“We know workers get sick at levels below 500 parts per million,” Michaels said. “We can’t do anything about that.”

OSHA’s exposure limits almost all date to its founding in 1971, he noted, when the agency adopted 1960s-era voluntary numbers embraced by industry. Few have been updated since, and only those few became full standards with specific technological and medical requirements.

“The law under which OSHA operates … forces us to go through a very, very complex, onerous process for regulating any individual chemical,” Michaels said. “It takes many years and millions of dollars in studies to issue one standard. And that’s why we’ve got only a few dozen standards.”

An ancient hazard

Silicosis and other dust-related diseases, the 1974 NIOSH document reported, “have probably existed since man began to dig into the earth’s crust.” Silica was a cruelly efficient killer of stone-cutters in the 17th century; slicing through the workers’ lungs during necropsy was “like cutting a mass of sand,” a Dutch physician reported in 1672. It silenced 19th-century sandstone masons in England long before they reached old age.

Silica also precipitated America’s worst industrial disaster: the deaths of more than 750 workers — many African-American — who drilled a water-diversion tunnel through silica-rich rock near Gauley Bridge, West Virginia, in the early 1930s. Death estimates reached as high as 2,000, but the full count will never be known. Sick workers were booted out of company housing. Some who died on site were carted off to unmarked graves.

Four decades after that, in December 1974, Christopher Scott Johnson was born in Auburn, New York. His life almost perfectly tracks silica’s tortured regulatory history.

The month of Johnson’s birth, OSHA published an “advance notice of proposed rulemaking,” indicating movement toward a new silica standard. That effort fizzled due to a lack of funds, according to the head of OSHA at the time.

Silica-related death and disease continued. As bad as things were in foundries and other dusty, fixed establishments, where workers legally could be exposed to twice the NIOSH-recommended silica limit, construction was far worse. Employers in that sector could subject workers to five times the recommended limit without breaking the law.

That’s still the case.

Johnson landed in the construction category in 1993. He became a bricklayer, also known as a mason, following in the footsteps of two uncles. He crafted sidewalks and floors with bricks and stone, and helped repair and put up buildings.

“I was very happy with my job,” he said in an interview at his home in Port Byron, west of Syracuse. “I felt fulfillment.”

Johnson said he was oblivious to silica’s destructive properties. That didn’t matter until he was assigned a job in Rome, New York, in April 2004. Standing on hydraulic lifts, Johnson and his co-workers at a small contracting firm removed and replaced damaged brick from the façades of three apartment buildings operated by the Rome Housing Authority.

The work, which lasted through September of that year, generated “a tremendous amount of dust,” Johnson said. “You’re in a basket that’s maybe six feet wide and two or three feet deep, so you’re pretty much stuck right there.”

The workers were given disposable paper masks, known by experts to be ineffective against microscopic silica particles. The one half-face respirator on the job had a broken strap, “so we didn’t really use it,” Johnson said.

They had tools to suppress the dust: Their diamond-bladed, 14-inch demolition saws came equipped with hose attachments for “wet cutting.” But the project manager for the housing authority refused to allow the practice, fearing it would “make too much of a mess,” according to an affidavit given by a former co-worker in a lawsuit Johnson later filed against the authority. OSHA rules, moreover, don’t require it.

Johnson did “about 90% of the saw cutting and grinding on the job,” his former colleague said in the affidavit. “In fact, he was often so covered in dust we nicknamed him ‘Dusty.’”

Jim Baldwin, who joined the housing authority as executive director years later, said he would have allowed wet cutting “because of the danger caused by the inhalation of the fine dust.”

“Not having proper respirators on the job was certainly a factor in the worker’s illness,” he added by email. “For that I would have shut the job down until that equipment was made available and was being used.”

There is no way to know how much silica Johnson inhaled. But the current rule for construction is so weak, even employers that stay within the legal limit can be “sentencing someone to death from lung disease,” said Celeste Monforton, a lecturer at George Washington University and a former Labor Department analyst and adviser.

By the time the Rome job ended, “something was not right with me,” Johnson said. He was short of breath, losing weight rapidly, unable to do simple tasks without exertion. “I had no clue what was going on.”

The answer came early in a three-week stay at the University of Rochester’s Strong Memorial Hospital in December 2004. Johnson’s parents drove him there after his right lung collapsed following a biopsy, and further tests showed he had acute silicosis triggered by mixed dust exposure.

He underwent an unusual procedure called a lavage, in which his lung was flushed of sticky material filling up the air sacs and robbing him of oxygen. He stayed on a ventilator for nine days.

“None of the doctors really even knew if he was going to pull through or not,” said his wife, Beverly.

The procedure didn’t help much. Johnson continued to struggle for air as he rested fitfully at home in early 2005. He was a candidate for a double lung transplant, a prospect he found unappealing once he learned the odds of survival: less than half of patients would live five years, and less than a quarter would survive 10.

He opted instead for a second lavage at the Cleveland Clinic in May 2005. This one took. By 2006 his lung disease had stabilized, though it hadn’t been cured.

Internist and lung specialist Dr. William Beckett treated Johnson in Rochester and was so struck by the severity of the young mason’s condition that he co-authored an article about it for a medical journal. In an interview, he noted the banality of the substance that had gummed up Johnson’s lungs.

“This is not an unusual material. It’s not exotic,” Beckett, now affiliated with Harvard Medical School and Mount Auburn Hospital in Cambridge, Massachusetts, said of silica. “It’s something that everybody is around, but the people who cut through it or work with it are susceptible to getting disease from it.”

Beckett chaired an American Thoracic Society committee that called for a stricter OSHA silica limit in 1997. To his dismay, the old one is still in place.

“There are many, many, I’m sure, young men in the United States who are doing the same kind of job [Johnson did],” he said, “and probably getting the same kinds of exposures.”

Forty years of futility

OSHA’s 40-years-and-counting quest to keep silica from killing workers is a study in inertia and frustration. The agency tried to tighten exposure limits for silica and 375 other substances in a 1989 rule, but a federal appeals court struck it down, saying the analyses OSHA used to justify the rule weren’t detailed enough.

It took OSHA nearly two decades to regroup, even though it deemed silica a regulatory priority in 1995 and 2002. In the meantime, evidence hardened that silica could cause lung cancer in addition to silicosis.

It’s unlikely any group of workers has felt the sting of lax silica controls more than sandblasters, who use pressurized guns to shoot sand at corroded surfaces to prepare them for painting. The sand breaks apart as it strikes metal, creating clouds of dust laced with invisible shards of quartz that scar the lungs.

NIOSH, noting available alternatives such as nut shells and sawdust, suggested in 1974 that sandblasting with silica be banned. Britain and a swath of mainland Europe had already done so by that point.

But industry groups in the United States, like the euphemistically named Silica Safety Association, composed of purveyors and beneficiaries of sandblasting, lobbied successfully in the 1970s to fend off a ban, predicting economic hardship.

In February 2011, OSHA finally sent a proposed silica rule to the Office of Management and Budget for vetting. It emerged 921 days later in 2013. OMB officials will not say why it took so long; 90 days, plus a single 30-day extension, is supposed to be the maximum unless the rulemaking agency asks for more time.

Apart from trimming the silica exposure limit to the NIOSH-recommended number for all workers, the proposed standard would require employers to control dust with methods such as water or vacuum systems and provide medical monitoring for highly exposed workers. OSHA predicted it would save nearly 700 lives and prevent 1,600 new cases of silicosis per year.

The Labor Department held 14 days of hearings in Washington, D.C., in the spring of 2014. Among the witnesses was construction worker Santiago Hernandez, who’d come to the United States five years earlier from Tlaxcala, Mexico, expecting to find safer conditions.

Instead, he said in written testimony, “things are actually much worse here than in Mexico. ... The protections you receive here are useless. Employers give you a little paper mask that, when you finish, is just as dirty and dusty on the inside as on the outside.”

Dale McNabb, a tile setter from Warren, Michigan, spoke of developing “breathing problems at night” in his 20s. “By the time I was 30 I felt it more. I could hear my labored breathing and wheezing, and it shocked me.”

In 2008, when he was 42, he volunteered to use a grinder to remove thinset — a mortar made of cement and sand — from a wall over the course of several weeks. “At the end of the project I was feeling pretty bad,” McNabb testified. Tests showed “shadowing in my pleural membrane so severe that the membrane was almost opaque, and there were several lesions on my lungs.”

“When I get exposed to dust now — and not just silica dust, any dust — it feels like I have a plastic bag around my head and someone’s trying to pull it shut on me,” McNabb said. He got a job as a shuttle bus driver, then in financial services, and is thankful he can work. But the stress that followed his health crisis left a lasting mark. “In the end, silica exposure cost me my job, my health and also my marriage.”

Industry witnesses also shared doleful stories — what would happen to companies if they had to comply with the proposed rule.

The American Foundry Society, disputing OSHA’s cost estimates, said the standard would eat up 10 percent of the industry’s revenue and “threaten the viability of foundries across the country.”

The American Chemistry Council, the chemical industry’s main trade group, said the silicosis death rate has dropped more than 90 percent since 1968. Neil King, a lawyer for the council, blamed newer cases on exposures “that occurred decades ago” and more recent exposures that far exceeded the current limit — something that happens regularly, he said.

And the U.S. Chamber of Commerce, which represents more than 3 million businesses, suggested that OSHA ought to take more time on an effort already four decades old.

“We have serious concerns about this rulemaking being rushed,” said Henry Chajet, a lawyer who spoke for the chamber.

Industry groups have kept up the pressure as the rule inches toward final form. That includes pointed comments from the chamber, a lobbying powerhouse that spent $124 million to press for its members’ interests in 2014 — more than the next four top-ranked groups combined.

OSHA’s economic analysis projected that while affected businesses would spend an estimated $664 million annually to comply with the proposal — about $1,242 for the average workplace — the net benefits would range from about $2.9 billion to $4.7 billion a year, values OSHA applied to avoided disease.

In a congressionally requested 1995 review of past OSHA actions, the since-dismantled Office of Technology Assessment found that the agency tended to overestimate the cost its health rules would impose on industry — often in a big way.

Nonetheless, in March the Construction Industry Safety Coalition, composed of 25 trade groups, said its own study concluded that a new silica standard would cost construction companies nearly $5 billion a year — 10 times what OSHA had calculated for that industry. It could be “the most expensive OSHA standard ever for the construction industry,” the coalition warned.

OSHA is undeterred, Michaels told the Center. “President Obama has made it very clear he is committed to getting the silica standard out while he’s president.” A final rule is expected by the end of 2016, a Labor Department spokeswoman said.

But the Senate Appropriations Committee last week approved an appropriations-bill rider that would require more study before the rule could be issued, which would put the proposal at the mercy of the next president. And even if the rule is enacted, that may not be the final word. Industry almost always challenges OSHA standards in court, which can delay or overturn them.

Reports from public health officials, meanwhile, show that silica remains a workplace menace.

In 2012 NIOSH researchers said they collected 116 air samples at sites in five states where shale deposits were tapped with the oil and gas extraction technique known as hydraulic fracturing, or fracking. Vast quantities of high-silica sand are used to hold open fissures underground, allowing the product to flow into wells; the NIOSH team found that nearly half the samples were above the current OSHA exposure limit, creating an “inhalation health hazard.”

Almost 80 percent were above the NIOSH-recommended limit — the number OSHA wants to enact.

Another group of NIOSH researchers reported in June that silicosis deaths, after decreasing for years, are rising again. Silicosis was listed as the underlying or contributing cause of death for 88 people in the U.S. in 2011, down from 164 a decade earlier, but such deaths rose to 103 in 2012 and 111 in 2013.

Those who died during the three-year period included a dozen people younger than 45. Researchers called this “concerning,” saying it suggested that intense exposures, of the sort that sickened Chris Johnson, were occurring. Their data didn’t reflect other illnesses linked to silica, such as lung cancer, chronic obstructive pulmonary disease and kidney disease.

The five-decade plunge in silicosis deaths cited by trade groups reflects a shift from manufacturing to service jobs, NIOSH said in a statement to the Center.

“That does not mean that the risk for developing silica-related diseases … is acceptable in those that still work in dusty trades,” the agency said.

‘Scott’s not here’

Last summer, encouraged by his tolerable if imperfect state of health, Johnson tried to get back into masonry. The experiment lasted a few weeks.

“I just couldn’t do it anymore,” he said. “And then I did try to do a factory job, and that didn’t work.”

A stepfather to three boys, Johnson lifts weights, runs on a treadmill and busies himself with household projects. Six feet tall and 250 pounds, he betrays no outward sign of infirmity. Having settled his lawsuit against the Rome Housing Authority, he’s in decent financial shape and is determined to exceed his predicted life span of 45 years.

Still, Johnson said, “I’m affected a lot by my lungs now. I’m constantly getting sick.” A cold that would sideline the average person for a day or two immobilizes him for weeks. “It puts me right down to where I have no energy,” he said.

But Johnson is grateful to be alive. He’s already had more time than some workers struck with silicosis.

Scott Allen Whipps — like Johnson, a mason — died at 38 in 2006, four years after being diagnosed with the disease. His final months were agonizing.

“He coughed non-stop,” said his mother, Judy Schoon of Fergus Falls, Minnesota. “He coughed up blood. He coughed so much that he’d vomit.”

Schoon and her husband Jim, Whipps’s stepfather, witnessed it all firsthand. They’d taken in Whipps during those last months, and his bedroom was next to theirs.

“The goal was always a lung transplant, but he could never get the infection out of his body, so he couldn’t be considered for one,” Judy Schoon said.

One of his lungs turned gangrenous, and shortly after surgery, his condition deteriorated until his hold on life was “very tenuous,” according to a doctor’s report. Whipps would wake screaming in the hospital for his mother. Doctors tried another surgery to save him, to no avail. He died an hour and a half after medical personnel unhooked him from life support, his family telling him to go where the pain would not follow.

It’s been nine years. Judy Schoon still hasn’t processed her son’s early death. Losing a child, she said, is “unnatural.”

“I wake up sometimes,” Schoon said, “and think, ‘Oh — Scott’s not here.’ ”

This story was co-published with Slate

Jim Morrishttp://www.publicintegrity.org/authors/jim-morrisJamie Smith Hopkinshttp://www.publicintegrity.org/authors/jamie-smith-hopkinsMaryam Jameelhttp://www.publicintegrity.org/authors/maryam-jameelhttp://www.publicintegrity.org/2015/06/29/17518/slow-motion-tragedy-american-workers

Center investigation into nursing homes wins National Press Club award

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A Center investigation of nursing home quality has won the Joseph D. Ryle Award for Excellence in Writing on the Problems of Geriatrics from the 2015 National Press Club journalism contest.

Understaffed and Underserved: A Look Inside America’s Nursing Homes” by freelance reporter Jeff Kelly Lowenstein detailed irregularities in the staff levels reported by nursing homes nationwide to a federal website used by consumers. The series also reported on HUD financing of low-rated nursing homes, and revealed that nursing homes serving minorities were offering less care than those housing whites.

“Using sophisticated techniques of data collection and reporting, the Lowenstein series shows how the information on a government site for consumers overstates the hours nurses are available to care for patients,” said the contest judges. “And it documents cases of the same nursing homes getting financial help from the federal government for refinancing and rebuilding.”

The press club contest also honored politics reporter Michael Beckel with an honorable mention for his “revealing work on political fundraising.”

Beckel tracked down hidden money and its influence in last year’s Kentucky Senate race, and in Montana uncovered state senators raising more than $900,000 through secretive nonprofit, and nonprofit political machines like America Votes and Americans for Prosperity.

“It wonderful to have this recognition for the imagination and story-telling flair Center reporters put into their investigative work,” said Center chief executive officer Peter Bale.

Winners will be honored in July at an awards dinner at the National Press Club.  

Edna Irvin lies in her bed at the Arkansas Health Center in Benton, Arkansas. A Center for Public Integrity analysis of more than 10,000 nursing homes across the country found that Arkansas was one of two states where the daily level of registered nurse care listed on public website Nursing Home Compare was at least twice the level the Center calculated than an analysis of annual financial cost reports. The Arkansas Health Center was not included in the analysis. William Grayhttp://www.publicintegrity.org/authors/william-grayhttp://www.publicintegrity.org/2015/06/29/17588/center-investigation-nursing-homes-wins-national-press-club-award

Gridlocked elections watchdog goes two years without top lawyer

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The Federal Election Commission, a bipartisan agency charged with enforcing and administering the nation’s campaign laws, will next month zoom past a fairly preposterous milestone given its mission: two years without anyone leading its nonpartisan legal office.

Such a power vacuum persists amid what will assuredly become the longest and most expensive presidential race in U.S. history, with candidates of all political persuasions waltzing along the increasingly blurry boundaries of what’s legal during federal elections and what’s not.

FEC commissioners parsing the legality of candidates canoodling with their supportive super PACs? Regulating so-called “dark money” flowing freely into elections?

Forget it.

The general counsel stalemate is emblematic of the FEC's broader ideological cold war with itself, waged by commissioners who, for example, spent much of a recent public meetingdebatingwhetherthey’re actually people— or, alternatively, aliens— for the decidedly odd purpose of petitioning their own gridlocked agency to write new campaign finance rules.

Three FEC employees familiar with the general counsel hiring process tell the Center for Public Integrity that conservative commissioners insist on a person who reliably supports political actors’ ability to campaign with minimal restrictions. And they don’t want a bomb-thrower who frequently clashes with them.

Liberals, for their part, refuse to back someone who won’t press for a more tightly regulated election environment. They’d particularly love a general counsel who believes the law compels all organizations — namely nonprofit groups — to reveal their donors when advocating for or against political candidates.

The FEC had, late last year, identified two potential general counsel candidates after what was already an unprecedentedly long search for a top lawyer.

But FEC commissioners couldn’t agree on one of the candidates — it takes four of the agency’s six commissioners to appoint a general counsel — and never put the person up for a formal vote.  

The other general counsel candidate accepted a job elsewhere.

Since then, FEC commissioners have made no meaningful progress. Once advertised on the federal government’s jobs website, the general counsel position is no longer posted. The agency’s top Republican and Democrat acknowledged they aren’t formally considering candidates at the moment, and lawyers aren't exactly clamoring to be hired by an agency deemed by its own leader to be "worse than dysfunctional."

“It’s extremely demoralizing to the agency and the employees of the agency not to have anyone in this position,” said Ann Ravel, a Democrat who’s halfway through her one-year term as the FEC’s chairwoman and generally backs tighter campaign finance rules. “There was no appetite from the majority of the commission to fill that position.”

Matthew Petersen, a Republican and the FEC’s vice chairman, said that “all of us will agree it’s far from ideal not to have this position filled” and that he’ll work with fellow commissioners this summer to determine “what would be the best way now to go about filling it.”

Further complicating matters is one point on which Ravel and Petersen do agree: The general counsel job doesn’t pay nearly enough.

Congress has ignored requests by FEC commissioners to raise the position’s salary cap — it was last advertised at $147,200 per year, which is hardly workman’s wages, but far less than what prominent private-sector election lawyers make. Consider an assistant general counsel for the National Labor Relations Board stands to earn up to $183,300 annually.

Petersen and Ravel say the position’s relatively modest pay has hurt the agency’s ability to attract good candidates in the first place.

Regardless, general counsel is one of two positions at the FEC (the other is staff director) mandated by federal statutes.

It’s a powerful position. The general counsel’s many functions include overseeing the FEC’s enforcement, litigation, policy, complaints and legal administration divisions. He or she also serves as FEC commissioners’ chief nonpartisan adviser on legal issues, helping determine what matters they prioritize.

It used to be that transitions between FEC general counsels were smooth, even perfunctory.

Until now, the agency had never gone a full year without a bona fide general counsel. Typically, gaps lasted only a few months. Even during times when the FEC lacked a permanent general counsel, commissioners almost immediately designated one of their top staff lawyers as an “acting general counsel.”

And during 2011 — no less a period of ideological turbulence among liberal and conservative commissioners — the commission unanimously appointed lawyer Tony Herman as its general counsel, balancing (among other factors) his history of donating money to Democratic political candidates against his resume representing big business as a private law practitioner.

But Herman quickly grew weary of the commission’s antics. He resigned on July 5, 2013, in part frustrated by constant infighting and the body’s unwillingness to act on variety of legal recommendations his office made to it.

One particularly high-profile matter involved the Herman-led FEC general counsel’s office asserting that conservative nonprofit group Crossroads GPS likely broke federal law by spending too much money on politics. The commission couldn’t muster the requisite four votes needed to affirm Herman’s finding — and dismissed the matter nearly three years after the FEC first began investigating it.

It also sparred with him over how much information his office could share with the Justice Department, which, unlike the FEC, has power to pursue suspected election scofflaws with criminal charges.

Herman is now again a partner at Covington & Burling LLP, one of Washington, D.C.’s more prominent law firms.

“It’s all bad — it’s bad for the agency, it’s bad for the staff, it’s bad for the public,” Herman said of the FEC operating without a general counsel. “It’s a reflection of the polarization at the agency among the commissioners.”

Other former top FEC lawyers concur with Herman.

“There was a sense of shame in the past that doesn’t exist now,” said Lawrence Noble, the FEC’s general counsel from 1987 to 2001 and now senior counsel with the Campaign Legal Center, a nonpartisan campaign reform organization. “It’s clear now [commissioners] don’t want anyone making recommendations they disagree with.”

Said Wamble Carlyle attorney Jim Kahl, an FEC deputy general counsel from 2002 to 2007: “Clearly, it’s going to be a challenge to find a general counsel given the state of relationships over there now.”

For now, the FEC’s general counsel duties are shared by the agency’s two deputy general counsels, Gregory R. Baker and Lisa J. Stevenson.

In addition to lacking a firm commission endorsement, Baker and Stevenson, who declined to be interviewed, are hurting for help: Two of the FEC’s three associate general counsel positions, like the general counsel post, are also vacant. They’re filled in the meantime on an “acting” basis by lower-ranking attorneys. FEC fine assessments, once in the millions of dollars annually, have dropped to historic lows.

When someone without a commission mandate assumes a general counsel’s duties, “you’ve upset the agency’s balance, and you’ve weakened the ability of that person to fulfill his or her statutory mandate,” said Larry Norton, a partner at Venable LLP who served as FEC general counsel from 2001 to 2007. “You can’t act with strength and independence.”

The size of the FEC’s Office of the General Counsel has also shrunk in recent years.

During the 2008 fiscal year, it housed the equivalent of 119 full-time positions. FEC officials confirmed that figure is now 110, with 101 of those jobs occupied.

This largely mirrors a years-long trend of staffing declines and stagnant congressional funding that only in the past year began ticking upward again.

Jason Torchinsky, a partner at the Holtzman Vogel Josefiak PLLC law firm who regularly represents conservative political clients before the FEC, singled Stevenson out for praise.

“Lisa Stevenson is doing a fine job of running [the Office of the General Counsel], moving matters along internally and dealing with the litigation and regulatory matters before the agency,” he said.

Other lawyers who regularly work with the FEC disagree.

One is Marc Elias, chairman of law firm Perkins Coie’s political law practice and general counsel for Hillary Clinton’s presidential campaign.

Elias, who’s represented numerous clients including the Democratic National Committee to the FEC, says that “whatever the ideological differences the commissioners have, the legal department would run much better with a leader.”

What’s to be done about the FEC’s general counsel saga?

At the moment, the various government bodies best positioned to exert external pressure on the FEC are in little hurry to do much.

President Barack Obama could immediately nominate new commissioners, who the U.S. Senate must confirm. After all, five of the FEC’s six commissioners continue to serve despite their terms having expired, with Ravel the only one currently with an active Senate mandate.

But Obama has not floated new FEC commissioners since mid-2013, when he nominated Ravel and Republican Lee Goodman, who served as agency chairman during 2014. The White House did not respond to the question about whether Obama will attempt to this year replace current FEC commissioners.

Congress could pass a bill, such as one introduced Thursday by Rep. Derek Kilmer, D-Wash., that scraps the FEC’s six-member commission — instituted after the Watergate scandal to defend against partisans dominating the agency — for a five-member body.

An odd number of commissioners — two Republicans, two Democrats and an independent — mirrors Washington state’s reasonably collegial congressional redistricting commission and would be less prone to ideological impasses, Kilmer argues.  

“The FEC today makes Congress look comparatively functional,” Kilmer told the Center for Public Integrity. “We, as taxpayers, are paying for an agency in constant gridlock. We can do better.”

But Congress, writ large, isn’t much interested in campaign finance-related bills of late. Most languish in congressional committees and never even get a vote. Kilmer, who has two Republican co-sponsors for the bill, said he’s hopeful both parties will find merit in legislation that makes a government agency more efficient.

Meanwhile, two congressional bodies — the Senate Rules and Administration Committee and the Committee on House Administration — oversee federal election matters, and by virtue, the FEC.

But neither committee has conducted an FEC oversight hearing this year, where lawmakers could formally and publicly question the agency’s commissioners. None are scheduled.

For Senate Rules Committee Chairman Roy Blunt, R-Mo., the onus of appointing an FEC general counsel is on the agency’s six leaders.

“It would be preferable to have one in place,” Blunt spokesman Brian Hart said, “but the commissioners need to come to a consensus on a candidate.”

This story was co-published with TIME

The Federal Election Commission is located at 999 E St. in downtown Washington, D.C. — a nondescript building situated across from FBI headquarters and next to a Hard Rock Cafe. Its entrance features a quotation attributed to Supreme Court Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants." But funding and staffing woes, along with political infighting, have rendered it a weakened watchdog. Dave Levinthalhttp://www.publicintegrity.org/authors/dave-levinthalhttp://www.publicintegrity.org/2015/06/30/17566/gridlocked-elections-watchdog-goes-two-years-without-top-lawyer

9 things to know about Chris Christie

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With the shadow of the Fort Lee bridge scandal still looming, New Jersey Gov. Chris Christie will today make a long-anticipated announcement that he’s running for president.

The two-time Republican governor and former U.S. Attorney for New Jersey, known for his combative style, has been on the road much of the year, making multiple trips to states that host some of the nation’s earliest presidential primaries and caucuses.

Last week, during his fifth trip to Iowa this year, Christie laid out plans to reform the rising costs of higher education and practices of teachers unions. Christie also made nine visits to New Hampshire so far, bringing his “Tell It Like It Is” town hall series to the Granite State.

Christie will likely have to ramp up fundraising efforts as he wades into a race with more than a dozen others already vying for the Republican nomination.

Here are nine things to know about this latest presidential hopeful’s political and financial history:

Sources: Center for Public Integrity reporting, Federal Election Commission, National Institute on Money in State Politics.

Image sources: AP/Jim Cole, AP/Andrew Harnik, AP/Julio Cortez

Erin Quinnhttp://www.publicintegrity.org/authors/erin-quinnJared Bennetthttp://www.publicintegrity.org/authors/jared-bennetthttp://www.publicintegrity.org/2015/06/30/17582/9-things-know-about-chris-christie

Prison inmate forms super PAC

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Super PACs have been formed by journalists. By space nerds. Even comedian Stephen Colbert.

Now, for the first time, a super PAC is being masterminded from behind bars.

Adam Savader this week formed Second Chance PAC — it may raise and spend unlimited amounts of money to influence elections — even though Savader himself can’t vote. That’s because Savader is serving a 30-month sentence in federal prison for cyberstalking and extortion after pleadingguilty in November 2013 to the crimes.

A budding political activist who attended The George Washington University in Washington, D.C., Savader had previously volunteered for the 2012 presidential campaigns of Mitt Romney and Newt Gingrich.

Around the same time, Savader was hacking into women’s email accounts, stealing nude photos of them and threatening to publish the pictures unless they sent more, according to court filings.

Several campaign finance lawyers, normally a tough bunch to surprise, said this appears to be the first super PAC set up by a jailbird.

“That’s a new one,” Brett Kappel, a campaign finance lawyer at law firm Akerman LLP, told the Center for Public Integrity. “I’ve seen former convicted people come out of prison and run for Congress again, but never saw someone set up a committee while in prison.”

“This is a first,” said Michael Toner, a former Federal Election Commission chairman who’s now a lawyer at Wiley Rein. “I haven’t recalled this. It really does show you how omnipresent super PACs are today.”

Paperwork for Second Chance PAC lists Savader as the group’s treasurer, custodian of records and “founder / director.” It also notes the PAC doesn’t have a bank account and hasn’t yet raised money.

Second Chance PAC uses the address of a post office box in Great Neck, N.Y., which is also the address used by a municipal credit analysis company called Savader Asset Advisors, LLC.

Perry Leardi, the company’s representative of sales, confirmed the company’s chief executive officer, Mitchell Savader, is Adam Savader’s father. But Leardi said he knew nothing about Adam Savader’s super PAC.

Mitchell Savader did not immediately respond to a request for comment.

(Update, 8:05 p.m. Tuesday, June 30, 2015: Mitchell Savader explained by phone Tuesday evening that he helped his son set up the super PAC.

“My son has a deep belief that people who have done something wrong” should have “a true second chance,” Mitchell Savader said.

He said the point of the super PAC is to help influence legislation that would support people who have spent time in prison and are trying to start over.

The paperwork was filed just to establish the group and allow it to secure its name and email address, Mitchell Savader said. He said the group won’t engage in fundraising until after his son is released.

At that point, he said, his son plans to finish college and will work on the super PAC as a side project.)

The super PAC’s paperwork arrived at the Federal Election Commission in an envelope return addressed to Adam Savader at “Federal Correctional Institution” in New Jersey.

The Bureau of Prison’s inmate search lists Adam Savader as an inmate in Fort Dix Federal Correctional Institute, a low-security prison in New Jersey.

“We have people who set up super PACs going to prison over it, but this guy is getting out in front of it,” said Kenneth Gross, the head of the political law practice at Skadden, Arps, Slate, Meagher & Flom.

It isn’t clear whether prison rules specifically address inmates forming political committees, and the Bureau of Prisons did not immediately respond to questions.

Forming a super PAC isn’t inherently difficult. Fill out and submit several pages of paperwork, mail them to the FEC, and voilá, you’re on your way.

Operating a successful super PAC is another matter: Only a small fraction of the roughly 1,000 federally registered super PACs that today exist have raised significant amounts of money, and many haven’t raised any money at all.

Savader doesn’t indicate in his super PAC paperwork what candidates or causes the committee intends to support. The FEC doesn’t require such detail, either.

Michael Soshnick, Savader’s defense attorney at the time of his guilty plea, could not immediately be reached for comment by the Center for Public Integrity.

The judge overseeing the case acknowledged Savader had mental health issues, but that they weren’t excuses for his crimes.

According to a Politicostory about Savader’s sentencing, the judge agreed that working on Gingrich’s campaign was his “breaking point.”

Savader’s scheduled release date is July 27, 2016 — the week after Republicans are slated to formally nominate a presidential candidate.

This story was co-published with the Daily Beast.

 

 

Republican Mitt Romney, left, posing in 2012 with then-presidential campaign intern Adam Savader. Savader is serving a 30-month prison sentence after pleading guilty to cyber stalking and extortion.Carrie Levinehttp://www.publicintegrity.org/authors/carrie-levinehttp://www.publicintegrity.org/2015/06/30/17601/prison-inmate-forms-super-pac

Ohio legislature strikes back against pot legalization effort

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A campaign to legalize marijuana in Ohio took a step closer to making November’s ballot Tuesday, after its promoters turned in more than twice the required number of signatures.

But the measure will face competition at the polls. Ohio legislators also approved their own ballot measure on Tuesday to undermine the pot plan, which lawmakers worried would amount to a “marijuana monopoly” because of its provision that only 10 growers would control the wholesale pot market.

The lawmakers’ measure would block other measures that benefit select economic interest groups.

The marijuana ballot measure campaign, dubbed Responsible Ohio, is just one of many ballot measures in recent history that are designed to benefit their backers. The companies funding the Responsible Ohio campaign  would control and likely profit from the marijuana growth sites should the measure pass.

As detailed by the Center for Public Integrity, the campaign’s director, Democratic activist Ian James, came up with the idea and is planning to pay his own firm $5.6 million to push the ballot initiative.

Ohio Rep. Mike Curtin, a Democrat, said he sponsored the anti-monopoly measure because he opposes the way Responsible Ohio is using the citizen-initiated constitutional amendment, not because he opposes pot legalization.

“Are we going to allow a small group of investors, who have literally no background in drug policy… to carve themselves a special niche in our state’s founding document?” he said. “To me it’s galling. It’s nauseating.”

But James said voters should have the right to decide the issue.

“Some statehouse politicians believe the voters are smart enough to elect them, but they aren’t smart enough to decide ballot issues like marijuana legalization,” he said in an earlier statement.

James’ group still has to wait for the Secretary of State to determine if enough of its signatures are valid to make the ballot, which could take several weeks. It submitted 695,273 signatures to the state, far more than the 305,591 registered voters it needs to qualify.

If voters approve both of the conflicting measures, Ohio law says whichever gets the most votes would win.

But Secretary of State Jon Husted, a Republican, recently said that if both passed, the legislatively referred anti-monopoly measure would block Responsible Ohio’s plan because citizen-initiated measures take 30 days to go into effect.

The issue could end up before a judge.

If both pass, “we have a very interesting court fight on our hands,” Curtin said.

One of dozens of professional signature gatherers working on Responsible Ohio's campaign, Donnie Dawson asks passersby on a Columbus sidewalk to sign his marijuana legalization petition. “Give us the right to go vote in November against that failed drug war,” he told potential signers. Liz Essley Whytehttp://www.publicintegrity.org/authors/liz-essley-whytehttp://www.publicintegrity.org/2015/06/30/17597/ohio-legislature-strikes-back-against-pot-legalization-effort

The impenetrable world of Mark Flores

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SAN JOSE, California — In the photograph, a frozen moment of optimism, Yvette Flores is smiling.

It’s the summer of 1979. Yvette, in a flower-patterned dress, is 22 years old and five months pregnant. To her right is her husband, David, a big man wearing tinted aviator glasses, a T-shirt and an inscrutable expression. They have no idea what’s coming.

Mark Rueda Flores was delivered at the Kaiser Permanente Santa Clara Medical Center on December 3, 1979. There were many problems from the start: His eyes were crossed. His testicles had failed to descend. His hips were dislocated. He was unable to suck on a breast or bottle. His head was covered with large blood blisters, known as hematomas.

By the time Mark was 4, it was clear that he was profoundly disabled. He was still crawling. He wasn’t talking normally. “The words were coming out like a foreign language,” Yvette said.

In December, Mark turned 35. He is six feet tall. Before he had gall bladder surgery last summer he weighed nearly 400 pounds. He speaks  mostly in monosyllables, often repeating the last word or phrase his mother says. He watches Sesame Street on a loop and likes trains, forklifts and Chuck E. Cheese. Not long ago, he learned to draw a circle.

For the first 29 years of Mark’s life, Yvette had no reason to suspect his condition was the product of anything other than misfortune. Had she not heard a radio ad 6 ½ years ago, she might believe that still.

The ad was sponsored by a law firm. As Yvette remembers it, the announcer asked, “Have you worked in the electronics industry? Do you have a child with these defects?” Yvette: “I go, ‘Yeah, yeah.’ ” She wrote down the phone number and called a few days later.

Risks to workers and their offspring

When it comes to protection against toxic hazards, workers in America are treated differently — that is to say, more callously — than the general public. This legal disparity allows someone who toils inside a factory to face higher risks of cancer and other maladies than someone who lives just beyond the plant fence.

The damage, it turns out, isn’t confined to the workers themselves. Building on science more than a century old, recent studies have found ties between parental exposures and childhood afflictions such as brain tumors, malformations and learning disabilities. A bicoastal consortium of toxic-tort lawyers has begun targeting electronics manufacturers, blaming chemical-intensive processes for skeletal abnormalities, developmental delays, heart defects and other problems in workers’ children.

The little-publicized litigation comes on the heels of hundreds of lawsuits filed against IBM Corporation and its chemical suppliers in the late 1990s on behalf of cancer-stricken workers and their injured offspring. It raises questions about the control of teratogens — substances, such as lead, which can interfere with tightly sequenced fetal development — in the workplace.

Across all industries, air samples testing positive for lead by the Occupational Safety and Health Administration from 1984 through 2013 exceeded the exposure limit 40 percent of the time, a Center for Public Integrity analysis shows. Just how many workers have been exposed to unsafe levels of lead in electronics manufacturing is unclear because the sampling was so much more limited.

“There are not enough government protections for the types of exposures that occur,” said Tracey Woodruff, director of the Program on Reproductive Health and the Environment at the University of California, San Francisco. “OSHA’s not even really dealing with cancer, so this is another order down.”

Indeed, OSHA itself says that many of its exposure limits for dangerous substances don’t offer sufficient protection for workers. Parsing 30 years of agency data, the Center found that when air samples across all industries tested positive for teratogenic mercury vapor, they were above the legal limit less than 1 percent of the time. But a third of the samples topped the much stricter limit recommended by the National Institute for Occupational Safety and Health.

The placenta was long thought to provide a barrier against most toxic insults to the fetus. Scientists now understand that “it’s nowhere close to a closed system,” said Emilie Rissman, who heads the biological sciences department at North Carolina State University. “It has to get nutrition from the mom and has to get rid of waste, so there is some exchange that has to happen. In the same way that nutrients and oxygen get to the fetus, other things in the mom can come in.”

A father’s exposures also can cause trouble, Rissman said, given that an embryo gets its DNA from both parents. Mutagenic chemicals like dioxins can affect the ability of sperm to fertilize eggs and also can alter genetic material, leading to embryo loss or disease in babies.

‘I never questioned anything’

Mark Flores’ mother was born Yvette Yturralde in Carlsbad, New Mexico, on May 27, 1957. Her family moved to San Jose when she was 2. Her father, Santana, was a plasterer. Her mother, Velma, was a seasonal cannery worker. She had two brothers and one sister.

By the time she was 18, in 1975, Yvette was a few credits short of completing high school. She enrolled in a program that helped her get a GED diploma and find a job. She landed at a company called Spectra-Physics, which made lasers at a plant in Mountain View, northwest of San Jose in what was becoming known as Silicon Valley.

For 4 ½ years, eight to 10 hours a day, five or six days a week, Yvette worked in a small, stuffy room in Building 5, fusing together glass tubes at a precise angle. A man worked behind her.

Yvette sat at her assembly station with a spray gun, applying a greenish adhesive to the glass tubes and using a blow torch to cure it. A fan turned weakly above her. “It was like no air was coming in there,” she said. When it got too bad, she’d flee to the larger glass-blowing area in Building 5 for relief.

Yvette mixed the adhesive in a beaker using powder from a box and liquid chemicals. “I was never told to cover myself up or anything when I did that,” she said. She would learn many years later that she was being exposed to lead and the solvent methanol, both of which can sabotage a fetus. At the time, she said, “I never questioned anything.”

In 1978, the year before she gave birth to Mark, Yvette had a miscarriage in the women’s restroom at Spectra-Physics. “I had severe cramping. … I went in there and I was bleeding and I just remember being in such excruciating pain.” None of her managers ever followed up to ask if she was all right, she said. She recalls going back to work two days later.

Early evidence of fetal harm

Decades before Yvette Flores became pregnant a second time, researchers knew that a parent’s exposure could impair, and perhaps kill, an unborn child.

In a 1911 lecture to the Eugenics Education Society in London, Sir Thomas Oliver, a physician, spoke of his hard-won success “in securing the emancipation of female labour from the dangerous processes of lead-making …. Lead hits hard the reproductive powers of man and woman, but especially of woman.”

In the 1950s came alarming reports out of Minamata Bay, Japan, where a chemical manufacturer had dumped an estimated 27 tons of methyl mercury over nearly four decades, contaminating fish, a staple of the local diet. More than 900 people died of mercury poisoning and some 2 million suffered neurological damage or permanent disability. Babies born to mothers who had eaten the tainted fish also developed symptoms, akin to cerebral palsy, of what became known as Minamata disease.

Around the same time, thousands of children worldwide whose mothers who had taken the drug Thalidomide for morning sickness during pregnancy were born with limb deformities.

Over the course of a year, beginning in June 1975, the children of three men who worked in the same building at a GAF Corporation chemical plant in Rensselaer, New York, were born with heart ailments. Suspicion fell on a herbicide, oryzalin, which was made in the building. Federal health investigators later confirmed what they called an “unusual cluster of birth defects” at the plant but stopped short of blaming oryzalin.

One of the GAF babies, Brian Purcell, died at five days old. “Nobody expects to lose a child that quick,” said Brian’s father, Doug, now retired. “He was delivered by C-section, and once his heart problems developed they moved him to another hospital. We never got a chance to say goodbye.” He and his wife had no more children.

In early 1979, just before Mark Flores was conceived, newspapers including The Washington Post and The Wall Street Journal carried a story out of Willow Island, West Virginia. Female workers of childbearing age at an American Cyanamid chemical plant said the company had pressured them to undergo sterilization so they could continue to work around lead in the plant’s pigments division. Those who refused were told they’d be reassigned to lesser-paying jobs or fired. Five women went through with the procedure.

Yvette knew none of this, logging her hours in Building 5 to the very end of her pregnancy with Mark. Had she suspected her work could hurt him, “I would have run out of that place,” she said. “I would have worked in fast food.”

Rude encounters

As Mark grew, his parents came to anticipate his quirks and deficiencies. He’d take off running and have to be chased down. He could ride a tricycle but couldn’t stop. He could be coaxed into talking only with an offer of food and began putting on weight. His father, David, a truck driver, once told Yvette, “I would give my right eye, my arm, anything, just to go for a minute into his brain and see what he’s thinking.”

Yvette and David insisted that Mark get out in the world. This policy led to some uncomfortable, occasionally unnerving, encounters. People would stare rudely. When Mark was 12, he accidentally bumped into a woman at a crowded Target store. The woman’s husband, convinced that Mark had acted intentionally, became enraged and was preparing to punch him when Yvette stepped in.

The episode appears to have traumatized Mark. As Yvette was recounting it last summer, Mark, sitting next to her on the sofa in their mobile home, snapped out of his torpor and began crying. “Mom, I’m sorry,” he said, putting his head on Yvette’s left shoulder. She assured him it wasn’t his fault. “Mama takes care of you. It’s you and me, right?”

Mark was especially close to his father, whom people called Güero — Spanish slang for someone who’s light-skinned. After David died in a motorcycle accident on December 23, 2007, Mark was beside himself and began ransacking the house. “He was very physical because he couldn’t verbalize,” Yvette said.

He found solace at the Multiple Intelligence Training Center, an adult day care center founded by one of his former teachers. He joined the other clients in dancing, singing and gardening. On holidays, Yvette has him draw pictures for his father. “He does 75 pages of circles. I say, ‘OK, put them by your bed and the angels will come and pick them up and take them to your daddy up there in heaven.’”

From canneries to Silicon Valley

The revelatory radio ad Yvette heard in December 2008 was sponsored by Waters & Kraus, a personal-injury law firm based in Dallas. After answering a series of questions, she was contacted by Amanda Hawes, a lawyer in San Jose.

Hawes, who prefers to be called Mandy, is gaunt and barely five feet tall. She talks fast and says she has a photographic memory.

A native of Bergen County, New Jersey, Hawes graduated from Harvard Law School in 1968 and moved to the Bay Area, where she joined the San Francisco Neighborhood Legal Assistance Foundation. She started off representing people of limited income, mostly immigrant pensioners, who were being evicted from residential hotels in the city’s Yerba Buena district in the name of redevelopment. A settlement with the city put them in decent, affordable housing.

In the early 1970s Hawes moved to the Legal Aid Society of Alameda County in the East Bay, where she began representing women, most of them Hispanic or African-American, who performed grueling, low-paying seasonal work at fruit and vegetable canneries throughout Northern California. “Most of the year-round jobs were for the white guys,” Hawes said. “Women’s labor was always welcome if it was a shitty job that no one else wanted.” It was typical for women in the canneries to work 12-hour shifts in hot, noisy conditions with no overtime; some experienced sexual harassment of the crudest sort, an invitation to “get into the camper with the supervisor,” as Hawes put it, in exchange for a marginally better job. Hawes helped scores of them file discrimination claims with the Equal Employment Opportunity Commission and win back pay.

As the canneries began to relocate to California’s Central Valley and Mexico, the electronics industry was booming in the Santa Clara Valley south of San Francisco. Companies that made the brains of computers and other devices — semiconductors, circuit boards, disk drives — were in need of what Hawes calls “cheap, malleable labor.” Women who’d been pitting apricots soon were spin-coating chemically complex and highly reactive “photoresist” mixtures onto silicon wafers, cleaning them with solvents, baking them, dipping them in acids. The clamor of the conveyor belt was replaced by the calm of the so-called clean room, where the primary goal was to protect the product against any particle contamination, from dust to dandruff, by using equipment made expressly for this purpose. The workers themselves were largely an afterthought, breathing re-circulated air that, unbeknownst to them, was laced with chemicals.

In 1977, Hawes went into private practice in San Jose and began representing female electronics workers. Her first three clients in this field had worked in an R&D laboratory at Signetics, a semiconductor manufacturer in Sunnyvale. They’d been reassigned to the cafeteria and given essentially nothing to do after complaining of being made sick by acids, solvents and heavy metals. They were fired after the company said it couldn’t find work for them. Hawes filed workers’ compensation claims and a lawsuit on their behalf; all were settled.

Investigators with the National Institute for Occupational Safety and Health — NIOSH — visited the Signetics building on several occasions in 1979. They interviewed five employees who complained of severe and lingering headaches, tightness of the chest, metallic tastes in their mouths and nosebleeds. The investigators concluded that “a significant occupationally related health problem exists at the Signetics Sunnyvale facility” and suggested that the company improve ventilation.

In 1981, the California Department of Industrial Relations published the results of a survey of workers in semiconductor chip manufacturing. The survey revealed a range of cancer-causing chemicals used in the industry — including arsenic, chromium, asbestos, beryllium and nickel. The same year, 65,000 customers of the Great Oaks Water Company in south San Jose learned that their drinking water supply had been contaminated with trichloroethylene and other solvents that had leaked from underground storage tanks at plants owned by IBM and Fairchild Semiconductor. Two epidemiological studies later confirmed what some residents had suspected: There were increased rates of miscarriage — also known as spontaneous abortion — among women who’d drunk the water, and of congenital malformations, such as holes in the heart, among children exposed in the womb.

The tainted-groundwater incident “started to change the landscape,” Hawes said. People stopped thinking of companies like IBM, whose landscaped grounds looked like college campuses, as benign neighbors. “The chemicals don’t really end up in the product, so where do they go? Well, they either end up as hazardous waste that you’ve got to do something about, they evaporate into the air, they go into the water or they go into workers’ bodies.”

In 1988, researchers with the University of Massachusetts published a study that found elevated miscarriage rates among workers in clean rooms and other departments at a Digital Equipment Corporation factory in Hudson, Massachusetts. The authors cautioned that the study population was small and recommended that it be repeated with a larger number of workers and better exposure data. They offered no conclusions about possible triggers for the miscarriages, though they noted that a group of solvents called ethylene glycol ethers, used in photoresist, had been flagged as teratogens in animal experiments and also had been seen to cause atrophy of the testicles, behavioral abnormalities and bone marrow depression. Workers’ exposures to these chemicals appeared to be “well below federal industrial standards,” suggesting that such standards might be too weak.

The Digital study led to two bigger ones in the 1990s: one commissioned by IBM and the other by the Semiconductor Industry Association, a trade group. Both drew a connection between miscarriage and exposure to ethylene glycol ethers. Katharine Hammond, now a professor of environmental health sciences at the University of California, Berkeley, worked on the SIA study, which involved 14 companies. Hammond went into the project convinced that “we’re not going to find anything,” she said. Instead, she and her co-investigators documented a nearly twofold risk of spontaneous abortion among women who’d been exposed to selected solvents, and a nearly threefold risk among those exposed to the highest levels of ethylene glycol ethers.

Even the highest exposures were only fractions of federal limits, which had been established to protect workers from acute effects — headaches, nausea — and not carcinogenic or reproductive ones. “Teratogens are very poorly understood,” Hammond said. “I don’t see employers necessarily being evil in these cases. I think they do care. It’s just that we have a huge ignorance here.”

The industry responded to the findings by phasing out ethylene glycol ethers, leaving the impression that the problem had been addressed. No follow-up studies were done to see if the miscarriage rates declined. No one looked at birth defects.

In 1970, Dr. Joseph LaDou opened a medical practice in Sunnyvale, 12 miles northwest of San Jose. Many of his patients worked in the electronics industry. “From the outset I saw an extraordinary number of injuries and a high rate of occupational illness,” said LaDou, now retired. Workers, he said, would be overcome by fumes and vapors and be “standing in the parking lot” in a state of fear when he arrived on the scene. There were many cases of asthma and bronchitis. Some workers had solvent exposures so intense that they arrived at his office “in the first stage of anesthesia. They were driving drunk from solvent fumes.”

LaDou, a former professor of medicine at the University of California, San Francisco, and former editor of the International Journal of Occupational and Environmental Health, said he began pressing companies to tell him which chemicals they were using and to share any exposure data they had. “I was completely, totally blocked by the industry,” he said.

The excessive secrecy continues today, LaDou said: “People have just gotten tired of not being told what the companies use.”

In a written statement to the Center, the Semiconductor Industry Association said its members have “a legitimate business need to protect proprietary chemical formulations as confidential business information.” Federal regulations require companies to provide workers with safety data sheets listing ingredients in their products, the SIA said, though some “trade secret” ingredients are exempt from such disclosure.

In addition to eliminating ethylene glycol ethers, the industry began using “enclosed processes that reduce routine exposures to process chemicals including potential reproductive [and] developmental toxins,” the SIA said. Its members adopted “policies that offered pregnant employees (and those trying to become pregnant) the choice to opt out of working in the [fabrication-room] environment during these time periods.”

The group said it didn’t pursue birth-defect studies because companies had taken protective measures and because of “the complexity of studying birth defects and the limited number of exposed study participants.”

‘It was a catastrophe’

In the late 1990s, IBM workers who believed they had developed cancer or their children had suffered defects because of chemical exposures began filing legal claims. An expert hired by the plaintiffs, epidemiologist Richard Clapp of Boston University, reviewed an internal IBM “corporate mortality file” unearthed during discovery. Analyzing nearly 32,000 worker deaths between 1969 and 2001, Clapp found significant excesses of brain, kidney and pancreatic cancer, along with melanoma, in male manufacturing workers. Female workers had higher-than-expected numbers of deaths from kidney cancer, lymphoma and leukemia. Clapp detailed his results in a 2006 paper whose publication IBM tried to block.

“Initially, it was a group of guys with testicular cancer, a ridiculously large number, just an improbable cluster,” said Steven Phillips, a toxic-tort specialist in New York who worked on the cases with Hawes and other lawyers. “It was rapidly turning into birth-defect litigation, because as we started investigating, all these birth defects came jumping out. They were so severe and unusual, and there were so many of them. It was a catastrophe.”

One case against IBM was filed on behalf of Kate and Kelly Daley, twins born in 1979 with a rare skin disease called epidermolysis bullosa, or EB, which caused a whole-body blistering requiring constant care and countless surgeries. Their father, Chris, was a technician who delivered chemicals and disposed of waste at the IBM plant in East Fishkill, New York. He’d started at IBM in 1971.

“He would spill things on him during the day,” said his wife, Nancy. “Early in his career he would bring those clothes home and they would go into the [washer] with the rest of the laundry.”

The Daley twins’ affliction would punish them physically and emotionally until their deaths 13 days apart in 2006, though they managed to graduate from college and become eloquent writers and speakers. “If you ask a burn victim what it’s like to be burned — that’s the level of suffering they experienced their entire lives,” their mother said. “Each one could take up to eight hours for wound care. EB became their job.”

In 2003, Chris Daley was diagnosed with non-Hodgkin lymphoma, a blood cancer associated with exposure to benzene and other organic solvents. He sued IBM’s chemical suppliers; like other workers, he was barred by the New York workers’ compensation statute from suing his employer. He died not quite a year after his daughters.

The twins' lawsuit against IBM and their father's case against the suppliers were resolved under terms that are confidential.

Only two of the IBM cases went before a jury. The plaintiffs were Jim Moore, who was dying of non-Hodgkin lymphoma, and Alida Hernandez, who’d had breast cancer; both had worked at the company’s disk drive plant in San Jose. Hawes, who helped represent them, was able to overcome the workers’ comp bar in California by claiming IBM had fraudulently concealed the chemical sources of Moore’s and Hernandez’s illnesses, causing their conditions to worsen.

The four-month trial ended in February 2004, the jury siding with IBM. Hawes blamed the defeat on the judge’s refusal to allow jurors to consider crucial evidence, notably the corporate mortality file. An IBM lawyer called the verdict “a slam dunk” for the company.

Moore died not long after the trial. Hernandez, who worked for IBM from the late 1970s to the early 1990s, is convinced she lost a breast because of the company’s failure to warn her about chemicals. “There were lots of women who were losing their babies, lots of young men who were getting sterile,” she said. “They kept it all quiet.” Her comp claim against IBM and lawsuits against the chemical suppliers were settled out of court.

IBM spokesman Todd Martin said in a written statement that the company “is committed to the safe operation of all its facilities, as well as to the health and well-being of our employees.” IBM, Martin wrote, “has been transparent in addressing” matters raised by the 1990s litigation “and the quality of our operations and health and safety programs are well documented.”

Martin did not respond to a question about a 2014 NIOSH study that found a higher-than-expected number of deaths from non-Hodgkin lymphoma and other cancers, and more frequent occurrence of testicular cancer, among 34,494 workers employed at an IBM plant in Endicott, New York, from 1969 to 2001.

He also did not respond to a request to disclose the names of chemicals used at IBM facilities today.

New claims on behalf of children

All the IBM litigation was resolved by the mid-2000s. Then, a few years later, came another round of lawsuits with a different set of defendants. Lawyers who had brought the IBM cases began representing workers at other electronics companies who’d had children with severe developmental or structural defects.

Dozens of claims have been filed against Motorola Solutions, successor to Motorola Inc., which at one time operated a series of semiconductor manufacturing plants in the Phoenix area and Austin. The complaints allege an array of defects among workers’ progeny: spina bifida, leaking heart valves, cerebral palsy, club foot, blindness, seizures. They maintain that Motorola officials allowed workers to be exposed to ethylene glycol ethers — despite having been “personally warned” by a federal health investigator in 1981 that the chemicals were reproductive hazards — and that the company tracked the “incidence of adverse reproductive outcomes among the offspring of its employees.” Workers also were exposed to solvents such as benzene, heavy metals such as arsenic and many other toxic substances, the complaints charge.

“What we have seen is a pattern of the industry as a whole ignoring the rights and safety of their employees and their employees’ unborn children for the sake of profit,” said one of the plaintiff’s’ lawyers, David Bricker of Los Angeles. “We have families who are living in poverty because everything they have goes toward caring for a profoundly injured child.”

Co-counsel Phillips said that while ethylene glycol ethers were phased out by U.S. semiconductor manufacturers in the 1990s, “the use of [other] crappy solvents and these heavy metals is continuing ….If you’re standing over one of these goddamned vats, dipping [components] all day long, you’re getting a snoot full — I mean, huge levels, gigantic levels.” The so-called bunny suits worn by the workers “are designed to keep your noxious body parts, like dandruff or eyelashes, off the product,” Phillips said. “In no way do they keep the vapors from getting into your lungs.”

In a written statement, Motorola Solutions spokeswoman Tama McWhinney said the company does not comment on pending litigation and has not been in the semiconductor business for more than a decade. In a court filing, it denied the allegations in the lawsuits, saying “it is Motorola’s policy to conduct all its operations in a responsible manner free from recognized hazards.”

A legal case stalls — and is revived

Mandy Hawes approached the Mark Flores case in 2009 as she had many others of its ilk. She knew she’d have to track down Yvette’s ex-colleagues, dredge up internal documents — assuming they hadn’t been lost or destroyed — and depose uncooperative or forgetful defense witnesses. The odds of success weren’t good, given that Yvette had worked in the stuffy room at Spectra-Physics 30 years earlier. “I thought, ‘How are we gonna figure this out?’ ” Hawes said.

She went forward with a lawsuit, reasoning that Mark’s mental disability likely came from something his mother worked with while she was pregnant. Mark’s brother and sister, both younger than he, were normal; they’d been conceived years after Yvette left Spectra-Physics at the end of 1979. Hawes was especially curious about the green powder Yvette had mixed with the liquid chemicals and used, day after day, to fuse small pieces of beveled glass onto the tips of laser tubes, the guts of barcode scanners that were beginning to be installed at grocery stores.

Early in her investigation, Hawes sent a request to the company for any air sampling data taken, or written descriptions of chemicals used, during the four-plus years Yvette was there. “All we got was, ‘Well, we can confirm she worked here as a laser assembler,’ ” Hawes said. Her attempts to find former co-workers proved fruitless, and the case stalled. Lawyers for Spectra-Physics asked the court to throw it out.

Then, in 2013, two breakthroughs: A woman named Dora Jimenez, who’d worked with Yvette in Building 5, called her to say she’d been contacted by a defense investigator. Yvette asked Jimenez if she’d be willing to speak with Hawes, and she agreed. Jimenez gave a deposition and was a strong witness, Hawes said. “She remembered that shitty little room where Yvette worked. She remembered the extent of safety training was being told not to touch something so hot it would burn your fingers.”

A representative of Newport Corporation, a successor company to Spectra-Physics, also proved unexpectedly helpful. In a deposition, David Marshall, like an earlier defense witness, used the word “frit” to describe the green powder Yvette had handled. Hawes already had a 1985 company document showing frit contained more than 1 percent lead oxide, a teratogen, but found it to be of little value. Marshall produced another document from 2007 that put the proportion at less than 75 percent. “Well, that’s kind of different from ‘more than 1 percent,’” Hawes said. Accounting for its other constituents, like silicon dioxide, and doing some simple math, she concluded that frit was about 62 percent lead oxide.

Marshall also confirmed the use of organic solvents, mainly methanol, in Yvette’s former work area.

Hawes knew she had something at this point. Lead’s savage effects on fetuses were well documented, and solvents, as she put it, had their own “affinity for brain tissue.”

Still, she needed to connect Yvette’s exposures with Mark’s problems. This was where the medical experts came in.

Among them was Dr. Cynthia Bearer, chief of the Division of Neonatology at the University of Maryland School of Medicine. In a May 2013 declaration, Bearer explained that fetuses are “exquisitely sensitive to environmental toxicants” such as lead and methanol, and that fetal harm could occur even when workplace exposure levels were well below legal limits. In Yvette’s case, methanol levels regularly were above the limit, Bearer wrote, citing exposure estimates from another expert; the hematomas on Mark’s oversized head at birth, she wrote, were classic signs of methanol poisoning.

While Mark has many burdens — poor vision, skeletal anomalies, undescended testicles — his “most disabling feature is his extensive cognitive impairment,” Bearer wrote. “He is and will always be totally dependent on a small group of trusted family members and service providers for help in all aspects of daily living, from feeding, dressing, undressing, bathing, urinating and defecating to crossing a street, finding words to express needs, and protecting himself from strangers.”

The doctor wrote that in utero lead exposure could produce these very deficits and that Yvette’s body was a “toxic warehouse before Mark was conceived, upon conception and throughout Mark’s gestation because of the release of stored lead from her bones into her blood stream and across the placenta into Mark’s blood stream and the amniotic fluid in which he was contained.”

There was no evidence of a genetic flaw, Bearer wrote. “To attribute all of Mark’s problems to a purely genetic cause requires a suspension of disbelief that Yvette Flores’ exposure to lead and methanol had any impact or played any part in the severe damage apparent in Mark from birth onward.”

A defense expert, pediatric geneticist Gregory Enns with the Stanford School of Medicine, disagreed. “I think that Mr. Flores has a genetic condition,” Enns testified in an April 2013 deposition. “I do not think that any environmental exposures explain any of his condition.” Mark, he speculated, might have fallen victim to a de novo mutation — i.e., “something spontaneous” — carried by one or both of his parents but not expressed in the genes of either. In short, bad luck.

Under questioning by Hawes, Enns said that he and his Stanford colleagues tracked their patients’ symptoms, diagnoses, inheritance patterns and ethnicities, but not their parents’ occupations. Could he estimate how many worked in electronics, with its attendant metals and solvents, or agriculture, where pesticide exposures were common? ”You can ask me about any profession,” Enns told Hawes, “and I wouldn’t know.”

The Flores case was settled out of court in July 2013, shortly before trial was to begin. Hawes declined to disclose the details.

Calls and emails to Newport Corporation and its lawyers in the Flores case were not returned. In a court filing prior to the settlement of the case, the company asserted that Mark’s condition was “not known to be caused by chemical exposure” and was, “more likely than not, the result of genetic or other factors.”

'He's taught me patience'

As a result of his gall bladder surgery and some dietary changes, Mark Flores’ weight has dropped to 218 pounds, according to his mother. The legal settlement enabled her to buy a dark-gray Toyota Tundra pickup truck, and she’s in the market for a three-wheeled bike Mark can ride. Longer term, she wants to move from their mobile home in south San Jose into a house. “I want a big backyard for Mark,” said Yvette, whose own health is frail. “That’s my dream.”

Yvette, who admits to feeling exhausted and depressed at times, nonetheless says that caring for Mark has been a blessing. “He notices the small things that we all tend to forget sometimes,” she said. “He’s taught me patience.”

As Yvette eyes the future, scientists and regulators are making incremental progress on the sorts of workplace poisons that debilitated Mark.

NIOSH researchers are collaborating with others in government to add questions about occupational exposures to large studies of birth outcomes and children’s health, and to analyze occupational data already captured.

“There’s a lot of work happening, but there’s still a long way to go,” NIOSH epidemiologist Carissa Rocheleau said. “While we can easily detect the dramatic examples like Thalidomide, subtle impairments in children as they are developing might not be easy to detect.”

The state of California, acting on evidence that lead is harmful at far lower levels than once believed, is nearing the end of a five-year process to tighten its occupational lead standard — and not by a little.

The state’s, and the federal government’s, current limits for lead are 50 micrograms per cubic meter of air and 30 per deciliter in a worker’s blood. California is moving to change those to 10 and 10 — the strictest in the nation. Recent studies have shown “significant health outcomes” at even those low numbers, said Steve Smith, manager of the Research and Standards Health Unit in the state’s Division of Occupational Safety and Health. Among them: high blood pressure, heart disease, decreased brain function and reproductive effects.

Hawes, who has been representing women in workplace litigation for more than 40 years, is unsympathetic to employers who try to blame conditions like Mark Flores’ on happenstance. By the late 1970s, she said, it would have been almost impossible for managers at companies like Spectra-Physics not to know that lead could injure fetuses; OSHA recognized the threat and began working on a well-publicized lead standard in 1975. The following year, The New York Times reported that General Motors Corporation in Canada had “ordered that no women of childbearing age work at its battery plant because of the danger.” In 1978, OSHA director Eula Bingham warned in a memorandum that infants who survived “the lead intoxication of their parents may be mentally retarded or physically disabled.”

Mark Flores was conceived the year after that.

Jamie Smith Hopkins and Maryam Jameel contributed to this story.

This story was co-published with Slate.

Yvette brushes Mark’s hair at their home in San Jose. Jim Morrishttp://www.publicintegrity.org/authors/jim-morrishttp://www.publicintegrity.org/2015/07/01/17562/impenetrable-world-mark-flores

12 things to know about Jim Webb

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Former Sen. Jim Webb, who today announced his bid to become the Democrats’ presidential nominee, has been a dark horse before.

In 2006, Webb, a former Secretary of the Navy who had never occupied political office, ran for U.S. Senate in Virginia against former Sen. George Allen. Allen, a Republican, spent about twice as much as Webb. He was expected to easily win. But after a liberal campaign operative captured Allen using a racial slur, Webb pulled off an upset.

Webb is hoping for an even more unlikely upset — this time in a Democratic primary field dominated by Hillary Clinton, the former secretary of state, senator and first lady.

Sen. Bernie Sanders of Vermont, former Maryland Gov. Martin O'Malley and former Rhode Island Gov. Lincoln Chafee are also running.

Webb must demonstrate he can raise money to stay competitive. Here’s more on Webb’s political and financial history:

Sources: Center for Public Integrity reporting, as well as Business Insider, Center for Responsive Politics, Federal Election Commission, IMDB.com and U.S. Senate

Image sources: Cliff/Flickr, Nati Harnik/AP, Steve Helber/AP

Carrie Levinehttp://www.publicintegrity.org/authors/carrie-levineJared Bennetthttp://www.publicintegrity.org/authors/jared-bennetthttp://www.publicintegrity.org/2015/07/02/17395/12-things-know-about-jim-webb

Supreme Court justices bolstered by free travel, royalties, rental income

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Before inspiring celebration, debate and dictionary searches last week, the majority of the U.S. Supreme Court managed to squeeze in some globetrotting — on someone else’s dime.

Six of the court’s nine members received paid trips to Europe in 2014, including to Berlin, London and Zurich, as reported on the justices’ annual financial disclosure reports released Thursday. The excursions are just some of the many perks that come with having the final word on the nation’s laws.

The reports — which detail the stock holdings, travel, spousal income, gifts and debts of the nine Supreme Court justices — show the many ways that the judges can pad their finances beyond their judicial salary. Associate Supreme Court justices earn a salary of $244,400, while the chief justice earns $255,500, according to the Federal Judicial Center. The judges hold significant investments that have helped turn most of them into millionaires.

The justices do not have to disclose the costs of their reimbursed travels, which included a three-week multi-stop trip that Justice Anthony Kennedy took to Salzburg, Austria, San Francisco and Aspen, Colorado, last July, paid for by the Aspen Institute and the University of the Pacific. New York University also paid for Sonia Sotomayor and Ruth Bader Ginsburg to travel to Florence, Italy. Chief Justice John Roberts taught a class on the history of the Supreme Court to students of the New England School of Law in London.

All of the justices received at least some free travel, even if not international.

Teaching and giving one-off lectures was a common side venture for the justices, seven of whom reported income from universities. Kennedy was an adjunct professor at the University of the Pacific’s McGeorge School of Law, Justice Samuel Alito taught at Duke University Law School and Justice Elena Kagan was a visiting professor at Harvard Law School.

Justices Antonin Scalia and Stephen Breyer both reported income from book royalties, though Scalia’s books seem to be selling far better, earning more than $33,000 in 2014, compared with the $7,000 Breyer reported. However, Scalia’s books did not sell as well as they did the year before, when he reported nearly $77,000 in royalties.

Besides their side gigs as teachers and book authors, six of the nine justices were also landlords. For example, Scalia’s property in Charlottesville, Virginia, netted him at least $5,000 a year in rent, while Breyer’s property on the island of Nevis in the West Indies earned less than $1,000 a year in rent. Justice Clarence Thomas reported owning one third of a rental property in Georgia but said he received no rent in 2014.

The reports reveal that the majority of the justices do not own individual stocks, reducing the likelihood that a conflict of interest would require a justice to remove him or herself from ruling on a case.

Only Alito, Roberts and Breyer own individual stocks, and all three have recused themselves from cases involving companies in which they were invested. Roberts stepped aside in at least two cases involving Time Warner Inc., in which he owned at least $350,000 worth of stock. Breyer sat out of a patent case because of at least $50,000 in Cisco Systems Inc. stock.

Alito sold his Coca-Cola Co. stock on April 16, 2014, just before the court heard oral arguments in a lawsuit against Coca-Cola on April 21, allowing him to rejoin the rest of the court for the case after recusing himself from the initial proceedings.

The disclosures were released Thursday, the day before the Fourth of July holiday and after delivery of the final opinions of the term. Typically the court has made them available in mid-June. The disclosures appear to have been delayed by Alito’s filing, which was amended on June 30, a month and a half after the May 15 filing deadline.

Though Roberts has hailed “modern technology” for making the financial interests of public officials more transparent, the federal judiciary remains old-school in its disclosure system. To check out the financial interests of the more than 3,200 federal judges, members of the public must request the documents by snail mail from court administrators in Washington, D.C., pay for reproduction costs, then pick them up either in person or have them shipped. By comparison, Congress makes its members’ reports available in a searchable database.

The Center for Public Integrity has has made the justices’ reports, which cover calendar year 2014, available online as PDFs, below.

This story was co-published with TIME

 

 

Justice Antonin Scalia delivers a keynote address at the Library of Congress in 2014. He earned more than $33,000 from his own book sales that year.Reity O'Brienhttp://www.publicintegrity.org/authors/reity-obrienRachel Bayehttp://www.publicintegrity.org/authors/rachel-bayehttp://www.publicintegrity.org/2015/07/02/17604/supreme-court-justices-bolstered-free-travel-royalties-rental-income

After 44 years, halting progress on workplace disease

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On May 28, 1971, exactly one month after opening its doors, the already reviled Occupational Safety and Health Administration handed out its first citation.

The citation went to Allied Chemical Corporation, which had allowed highly toxic mercury to pool on floors and working surfaces at its chlorine plant in Moundsville, West Virginia. It was issued under the so-called general duty clause of the Occupational Safety and Health Act of 1970, which says that workplaces must be “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Forty-four years and some 9 million violations later, health hazards such as mercury continue to plague America’s workers. OSHA has issued only 36 health standards and relies on mostly outdated exposure limits for the 470 substances it regulates; many more substances go unregulated. It rarely uses the general duty clause to cite alleged health violations, having concluded that the burden of proof is too steep. Hindered by court decisions, the White House, an often-hostile Congress, a weak underlying statute and — some say — its own timidity, the agency is still searching for ways to protect workers from fumes, vapors, dusts, fibers and liquids that can kill or incapacitate them.

While OSHA’s overall record on worker health is undistinguished, it has seen periods of productivity. The most notable came during the Carter administration in the late 1970s, when the agency rammed through standards for benzene, arsenic, lead and other substances known to cause cancer, neurological problems and other ailments. Unions were influential then, government employees motivated. “We had such loud, knowledgeable, vibrant voices,” said Eula Bingham, who ran OSHA from 1977 to 1981. “The time was right.”

The momentum died when Ronald Reagan defeated Jimmy Carter in the 1980 presidential election. Bingham was replaced by Thorne Auchter, a construction company executive who, like Reagan, argued that overregulation was hurting American enterprise and set OSHA on a more conciliatory course.

Reagan insisted that “we can relieve labor and business of burdensome, unnecessary regulations and still maintain high standards of environmental and occupational safety.” But many believe OSHA never recovered from the change in administrations.

“We were a cadre of people who were really serious,” said Nicholas Ashford, a professor of technology and policy at MIT who chaired the National Advisory Committee on Occupational Safety and Health while Bingham led the agency. “If we had had four more years, we would have really, really protected the American public from a variety of hazards.”

The following account is based on interviews with scores of current and former government officials — including OSHA leaders spanning administrations from Richard Nixon to George W. Bush — and others in the fields of medicine, law, labor, industry and science, as well as thousands of documents from the National Archives in College Park, Maryland; the Reagan and Nixon presidential libraries in California; and private collections.

‘Gestapo’

A division of the U.S. Department of Labor, OSHA faced an uphill battle from the day it began operation in April 1971. Business owners and lawmakers bemoaned and belittled it. Its inspectors elicited oddly visceral reactions; references to Adolf Hitler and the Gestapo became too numerous to count. In a handwritten note to Nixon in October 1971, a self-described “lifelong conservative Republican and … Nixon booster” from Ann Arbor, Michigan, wrote that if the president had played any role in OSHA’s creation, “you should be thrown out of office at once.”

In fact, Nixon had played a major role. In a message to Congress in August 1969, he observed that technological progress could be a “mixed blessing. The same new method or new product which improves our lives can also be the source of unpleasantness and pain.”

At the time, 14,000 workers were dying of traumatic injury each year, and many thousands more were being hurt or sickened. While the occasional factory or mine disaster made headlines, “most dangers are realized under less dramatic circumstances,” Nixon said. “Often, for example, a threat to good health will build up slowly over a period of many years. To such situations, the public gives very little attention. Yet the cumulative extent of such losses is great.” Nixon had been influenced as vice president in the 1950s by James Mitchell, Dwight D. Eisenhower’s labor secretary; known as the “social conscience of the Republican party,” Mitchell had shepherded a maritime safety bill through Congress but had wanted to do more. Legislation submitted by Nixon's predecessor in the White House, Lyndon Johnson, had failed.

For 16 months following Nixon's appeal to Congress, Republicans and Democrats haggled over a bill that would spawn a federal worker health and safety policing agency to replace anemic, corruptible state programs. Hearings were held on what former Labor Secretary George Shultz, who’d moved over to the White House's Office of Management and Budget, called the “grim current scene.”

An October 1970 report from Democratic members of the Senate Committee on Labor and Public Welfare noted that “substantial numbers [of workers], even today, fall victim to ancient industrial poisons such as lead and mercury.” Moreover, “new materials and processes are being introduced into industry at a much faster rate than the present meager resources of occupational health can keep up with.”

Nixon signed the Occupational Safety and Health Act into law on December 29, 1970, calling it “probably one of the most important pieces of legislation … ever passed by the Congress of the United States.”

At the time, Democrats controlled both houses of Congress; the vote in the Senate was 83 to four, in the House 310 to 58. The act, a compromise between bills introduced by Senator Harrison Williams, a New Jersey Democrat, and Representative William Steiger, a Wisconsin Republican, included a catchall clause that held employers responsible for providing safe environments — recognition, as the 1970 committee report put it, that “precise standards to cover every conceivable situation will not always exist.”

George Guenther, the former president of a hosiery factory in Reading, Pennsylvania, and a former official in that state’s and the federal labor departments, was tapped to lead the new regulatory agency. Resistance was fierce from the beginning.

One writer from Seattle complained in a letter to the White House of “un-American” and “ludicrous” regulations covering subjects such as worksite privies. Members of a bricklayers’ local in Iowa lamented the “assinine” [sic] requirement that they wear hardhats, saying “the only danger of injury to our heads is the falling of the sky and an occasional low flying bird.”

OSHA was not without support. In a letter to the secretary of health, education and welfare, a worker at a General Tire & Rubber plant in North Carolina said some of his fellow employees were “subjected to so much carbon dust that they have to use liquid detergent to cleanse their skin, not to mention the black carbon coughed up…” A worker at a Hughes Aircraft factory in Tucson asked the secretary of labor to investigate noxious fumes he believed had ruined his health.

The negative responses fielded in Washington, however, far exceeded the positive; members of Congress from conservative states like Wyoming and Nebraska seethed. Guenther championed his battered agency at a White House conference in February 1972, saying it had targeted for special action five toxic substances — asbestos, lead, silica, cotton dust and carbon monoxide — and adopted a “broad set of initial standards” that were under constant review. If OSHA continued “on the path we have established,” he said, “I believe in 1990 we will be able to look back on the toll of workplace injury and illness as a thing of the past in much the same way we can now look back on polio and tuberculosis.”

Guenther, who was way off on his prediction, left the agency in early 1973. It later came out at the Watergate hearings that he’d written a memorandum discussing “the great potential of OSHA as a sales point” to win business support for Nixon’s 1972 re-election campaign. Some saw this as a craven offer to go easy on industry in exchange for political favors. Guenther had also suggested in the memo that the agency not propose any controversial standards in the short term.

In one of his final acts as president, Nixon decreed that environmental and safety rules under consideration be screened to ensure that the nation’s economic goals were not being “unduly sacrificed.” His successor, Gerald Ford, continued the policy. “Inflationary impact statements” became a sore point for union leaders. In a letter to Labor Secretary William Usery in September  1976, AFL-CIO president George Meany charged that the statements were a “macabre charade” that led to insufferable delays, and “a means of providing business management with a sounding board to set forth exaggerated claims” about the costs of complying with new rules.

The issue became moot when Ford lost to Jimmy Carter in November 1976. In a parting memo, the head of OSHA under Ford and in the latter part of the Nixon administration, Morton Corn, defended his tenure, saying he’d emphasized health and implemented a team approach to standard-setting, bringing together Labor Department lawyers and scientists at the start of the process rather than the end to move things along. “I estimate,” Corn wrote, “that a productivity rate of 15 to 20 health standards promulgated per year is a noble ambition in 1978 or 1979.”

In a recent interview, Corn said: “I was an optimist.”

Turning over rocks

In early 1977, Eula Bingham, a Kentucky-born environmental health researcher at the University of Cincinnati, got an unexpected call from the Carter transition team. Would she take over for Corn? “I laughed at them,” Bingham said. “I said, ‘I couldn’t do that; I’ve got children.’ I was divorced.” The new labor secretary, University of Texas economist Ray Marshall, talked her into it.

Bingham knew from her own work in Cincinnati that she would be besieged by requests for help from unions like the Oil, Chemical and Atomic Workers, the United Steelworkers and the United Autoworkers, whose members were succumbing to chemical exposures in alarming numbers. “We were turning over rocks all the time,” she said. “Here would be a horrible disease, or people literally falling over. The five years before I went to OSHA, it was just zip, zip, zip, zip, zip. There was so much going on.”

OSHA had issued its first health standard, for asbestos, in 1972. In 1974 it regulated a group of 14 carcinogens — among them beta-naphthylamine, a pernicious chemical used in dyes — after litigation by the OCAW and Ralph Nader’s Public Citizen Health Research Group. The following year, responding to a cluster of rare liver cancers among workers at a B.F. Goodrich plant in Louisville, the agency moved quickly to reduce its exposure limit for vinyl chloride — used to make PVC plastic — by a factor of 500.

Bingham picked up the pace. She and Marshall won swift praise when they announced they were scrapping about 1,100 rules that had no real effect on worker health or safety — specifications for toilet seats, prescribed heights for fire extinguisher mounts — so inspectors could concentrate on more important matters. “We’re going to get tough on the health hazards in the workplace that cause irreversible injury,” Bingham told U.S. News & World Report. The magazine quoted the head of a group called Stop OSHA as saying that Bingham, like Corn, would be “eaten alive.”

For the most part, Bingham kept her word. In 1978 alone OSHA put out standards on benzene, arsenic, lead, cotton dust, the pesticide DBCP and acrylonitrile, a flammable liquid used in plastics. It developed a generic policy that would require employers to set “lowest feasible” exposure limits for known or probable carcinogens identified by either human or animal evidence. The idea was to avoid the drawn-out, substance-by-substance vetting process; Steelworkers representative Daniel Hannan testified at an OSHA hearing that in the 5 ½ years it had taken the agency to adopt a standard for coke oven emissions, as many as 1,440 workers who operated the big, sooty ovens may have developed fatal diseases. “It has been a long and sad history, and we feel there has to be a faster and better way,” Hannan said.

Industry was knocked back on its heels. Trade groups like the American Iron and Steel Institute said the cancer policy could impose costs of more than $1 billion a year on businesses and urged OSHA to do a risk-benefit analysis. The policy “is characterized by a pervasive inflexibility that takes no account of variations in the properties of different chemical substances, in the production processes involved, or in the characteristics of the industries that produce or use the chemicals,” the institute said.

It was “the same kind of crap” that had been used to try to derail the coke oven standard and others, Steelworkers staffer Mike Wright, now the union’s health, safety and environment director, complained in a July 1978 memo. Wright worried that White House economic advisors would try to “gut” the policy.

His was not an unreasonable fear. Seven months into the Carter administration, news outlets reported that a White House task force had recommended replacing most OSHA regulations with economic incentives for employers. The idea was abandoned after union leaders complained bitterly. “This proposal essentially entails the placing of a price tag on a worker’s life,” OCAW president A.F. Grospiron wrote to Marshall.

In most cases, Carter himself proved to be a supporter of worker health regulations. The textile industry, for example, opposed OSHA’s plan to crack down on cotton dust, which caused an often-lethal respiratory disease called byssinosis — brown lung. Bingham had met with victims and been moved by their plight. “The head of the group said, ‘Would you mind if we started with a prayer?’ and I said, ‘No, sir,’ and all during that prayer I could hear that [wheezing],” Bingham recalled, imitating the sound.

Under a court-imposed deadline, OSHA was preparing to issue a cotton dust standard in 1978 when Bingham and Marshall were summoned to the White House to discuss a potential snag — a claim by a textile industry official that the rule would bankrupt the industry. Bingham said she was prepared to quit if Carter insisted that the standard be watered down. Instead, he suggested something “stronger than what we had asked for. It was a shockeroo.” The final standard came out on June 23 of that year.

Carter was unhelpful, though, when it came to beryllium, a superlight, lung-damaging metal used in weapons production. Marshall sought the president’s blessing of a muscled-up beryllium standard but was outmaneuvered by the secretaries of energy and defense, who argued that the substance was vital for national security. Carter said no to a new rule; more than three decades later the old one, dating to the late 1940s, is still in place.

With a boost in funding from Congress, Bingham launched a grant program for health and safety training called New Directions; the money went to unions and regional worker advocacy groups. She commissioned and distributed edgy films such as “Can’t Take No More,” which featured blue-collar workers describing some of the horrific conditions they endured.

Work-related disease took prominence. Bingham and the heads of the Environmental Protection Agency, the Food and Drug Administration and the Consumer Product Safety Commission met regularly to discuss ways to regulate toxic chemicals. A 1978 paper by the National Cancer Institute, the National Institute of Environmental Health Sciences and the National Institute for Occupational Safety and Health estimated that at least 20 percent of all cancers in America were occupational in nature; previous estimates had been as low as 1 percent.

A Labor Department brochure announcing a 1979 seminar in Chicago decried the “massive yet silent slaughter” of “at least 100,000 Americans” a year from exposure to chemicals on the job. The florid language peeved John Danforth, then a Republican senator from Missouri, who complained in a letter to Marshall that “this kind of rhetoric fails to serve any constructive purpose, and can only strain the relationship between business and government.”

Getting government ‘off our backs’

On election eve, November 3, 1980, Reagan gave a preview of what his administration would look like if he ascended to the White House. He would bring about “reforms that will get government off our backs, out of our pockets and up to the standards of decency and excellence envisioned by the founding fathers.”

The following month, Democratic Congressman Charles Bennett, dean of the Florida delegation, recommended to the president-elect a replacement for Bingham: Thorne Auchter, who owned a construction company in Jacksonville. Bennett described Auchter as a “truly exceptional individual . . . the kind of young, articulate, attractive person that would be a real asset to any administration.” Auchter’s curriculum vitae offered a more precise picture. “At age 28 organized the lobbying effort which killed the adoption of the Occupational Safety and Health Act by the State of Florida,” read the first item under “successful accomplishments.”

Nine days into his term, Reagan ordered a freeze on “midnight regulations” issued by the Carter administration in its waning days. Bingham’s generic cancer policy was one of them; it never went forward. Another was a rule mandating that workers receive written information about the chemicals they encountered — the hazard communication standard. (The standard was reissued by OSHA in 1983 after industry leaders complained that states were filling the void by passing their own rules; some went beyond what the federal government had planned to do).

A review of the cotton dust standard, in particular, drew the ire of labor and triggered a vigil on behalf of brown lung victims in Washington. Murray Finley, president of the Amalgamated Clothing and Textile Workers Union, accused the administration of being “determined to find a basis for tearing out the heart of the standard.”

Reagan followed up the rule freeze with an executive order requiring agencies to seriously ponder the costs of all proposed regulations. Any rule that went forward would have to be reviewed and approved by the Office of Management and Budget.

Auchter, for his part, set about changing OSHA’s tenor. He suspended distribution of the Bingham films, which he deemed inflammatory, and ordered the withdrawal of a brochure whose cover included a poignant photo of a brown lung victim.

He denied a petition from Nader’s Health Research Group and the American Federation of State, County and Municipal Employees seeking an emergency temporary standard for ethylene oxide, a carcinogenic gas mainly used by health care workers to sterilize instruments. In a letter to Health Research Group director Sidney Wolfe, Auchter said there was no evidence that ethylene oxide posed a “grave danger” to workers. A federal judge later upbraided OSHA for failing to act, saying it had made “a clear error of judgment” that put some 140,000 workers at risk.

Now retired in North Georgia, Auchter said in an interview that he sought to bring management rigor to an agency that “had a lousy reputation in the business community from which I came as being arbitrary, capricious and overbearing.” He had his staff use injury and illness data to target high-hazard industries; injuries leading to days away from work decreased. He created a voluntary program — criticized by government auditors many years later — that exempted supposedly safety-conscious companies from routine inspections. “My feeling is that the government should regulate as little as possible,” Auchter said.

This hands-off approach won fans in the business community. OSHA’s enforcement staff was cut 22 percent during Auchter’s tenure; the inspectors who remained were “to give appropriate attention to matters of dress, conduct and comportment and to use the time of employers and employees wisely,” Auchter said in congressional testimony.

In a January 1982 report, the Chemical Manufacturers Association’s Occupational Safety and Health Committee offered a glowing appraisal of the new regime. “We have a unique opportunity here to revise and put in place some rules and regulations that we can live with rather than coast these [next] three years only to be blitzed vindictively again in the future,” the committee said.

Some within the agency, however, were deflated. One of Auchter’s underlings tried to fire Peter Infante, then head of OSHA’s Office of Carcinogen Identification and Classification, in 1981 after Infante testified before the Consumer Product Safety Commission, and wrote on agency letterhead to a branch of the World Health Organization, that formaldehyde caused cancer in animals, a position contrary to the administration’s. The Formaldehyde Institute, a trade group, had taken umbrage; a letter from one of its lawyers was attached to the notice of dismissal. Infante kept his job after then-Congressman Al Gore held hearings on the episode, calling it “a blatant attempt to rid the government of a competent scientist who happened not to agree with an industry whose profits are at stake.”

Infante, who left OSHA in 2002 and consults for plaintiffs in toxic-tort litigation, described Auchter as “totally anti-worker. The only thing he wanted to do was pull back standards and make sure no new standards got out.”

Elisa Braver, an epidemiologist who worked for Infante, said the agency’s health staff was “extremely demoralized” during the Auchter era. People who’d logged “crazy, crazy hours” under Bingham suddenly found themselves with not enough to do, said Braver, who left OSHA in 1984 and works for the National Transportation Safety Board. “I got quite depressed seeing what was happening.”

Auchter appears to have few regrets about his three-year stint at OSHA. Asked if the death of his son in a construction accident in 2000 had changed his thinking on workplace regulation, he answered, “No. No. No.”

Auchter did admit to one frustration: the length of time it took to set health standards, three of which came out on his watch. “I felt we improved every function of the agency except for the rulemaking process,” he said. “I spent a lot of time searching for some approach, some group of experts who could say, ‘Here’s a way you could improve it.’ I’ve not found anybody. I don’t know how to fix that.”

“If I were sitting in the chair today, the first thing I’d say is, ‘It’s pretty clear we’re not gonna regulate 80,000 chemicals,’” Auchter said. “Good golly, I just think there ought to be a better way to do this.”

A courtroom loss, little progress since

In January 1989, OSHA made an audacious play: It set or tightened 376 chemical exposure limits in a single rule, a move the agency estimated would eliminate 55,000 work-related diseases and 683 deaths each year, at an annual cost of $150 per worker and $6,000 per affected plant — “a fraction of 1% of the sales for all affected industry sectors.”

Legal challenges by both industry and labor — the former thought some of the exposure limits too strict, the latter too lenient — led to a crushing loss three years later. The 11th Circuit Court of Appeals vacated all 376 of the new limits, saying OSHA had failed to demonstrate significant risks existed under the old ones.

Reagan OSHA appointee John Pendergrass was behind the 1989 effort.  “Rather than cherry-pick, which had been done over the years, I naively said, ‘Let’s do it all at one time,’” Pendergrass said from his home in Mobile, Alabama. “The court just shot down the whole thing. Frankly, it was a big disappointment. I don’t think it was good for the workers.” The 11th Circuit denied the Labor Department’s request for rehearing, and department lawyers decided not to petition the U.S. Supreme Court for review.

In the 1990s OSHA managed to issue 11 standards for substances such as methylene chloride, a solvent that attacks the central nervous system and is a possible carcinogen. It identified 60 other “priority substances” in need of further investigation; the list was trimmed to 20, then seven. Among the seven were manganese, a metal linked to neurological disorders, and Glutaraldehyde, a medical sterilizing agent tied to asthma.

Mindful of the 11th Circuit decision, OSHA spent several years delving into the risks these substances posed and whether it was feasible for industry to control exposures. In the end, no standard was proposed.

OSHA spent a good deal of the 1990s working on a standard designed to reduce crippling musculoskeletal injuries from repetitive-motion work, such as meatpacking and sewing. The ergonomics rule, issued in final form in November 2000, would have offered protection to more than 100 million workers, OSHA said. But a Republican Congress, taking its cue from the newly elected president, George W. Bush, and trade groups like the U.S. Chamber of Commerce, voted to repeal it. Bush called the rule “unduly burdensome and overly broad” and said it could cost employers billions of dollars.

In the 14-plus years since the ergonomics rule was thrown out, OSHA has put out only two health standards — one on hexavalent chromium, a metal that causes lung cancer, and another reflecting an update of the hazard communication standard, which requires that workers be informed about chemicals they’re using.  The chromium standard was issued under court order; by OSHA’s own calculation, it is so feeble that exposed workers still face greatly elevated cancer risks.

As the Obama administration winds down, OSHA is trying to finish a standard for silica, a component of rock and sand that can cause the fatal lung disease silicosis as well as lung cancer and kidney disease. The need for such a standard was noted by the National Institute for Occupational Safety and Health — NIOSH — more than 40 years ago.

‘The current paradigm’

In October 2013, OSHA issued an extraordinary press release saying that its exposure limits were “not adequately protective” and that employers should consider adhering, voluntarily, to stricter ones recommended by NIOSH or enforced by the state of California. It’s hard to imagine another regulatory agency admitting failure in such a public manner.

This is not to say that OSHA has given up. Last year it put out a “request for information” — an appeal to the public for suggestions on how to fix the broken standard-setting process. One is to regulate chemicals by category instead of individually, said David Michaels, the agency’s chief: “Let’s not worry so much about what the safe level is but say, ‘If you have a chemical in this category, here are all the things you have to do to make sure workers are protected.’”

“We’re going to come up with some ideas,” Michaels said. Most of them, however, probably “won’t be things we can do through regulation but we’ll need to do through legislation.”

This seems an unpromising route. “We’re going to see more timely standard-setting when Congress and the White House are more concerned with worker safety,” said Michael Silverstein, who was OSHA policy director for two years of the Clinton administration. “The politics are pretty grim at the moment.”

Some wonder if the agency has been paralyzed by self-doubt, seeing hurdles where they don’t exist.

In 1980, OSHA was stung by a Supreme Court ruling that overturned its benzene standard, saying the agency hadn’t demonstrated “significant risk.” The following year, however, the court upheld the cotton dust rule after an industry challenge and made it clear that OSHA could not do a cost-benefit analysis — in effect, pricing out a worker’s life — before issuing a health standard.

And yet OSHA — which, by law, does have to demonstrate that a proposed rule is feasible — has continued to perform “de facto cost-benefit analyses,” said Eric Frumin, the former health and safety director for the Amalgamated Clothing and Textile Workers Union, now with the labor consortium Change to Win. “It’s an intellectual corruption of the [1970] act, and it’s a tremendous waste of resources.”

Chuck Gordon, a lawyer in the Labor Department’s Office of the Solicitor from 1975 to 2008, agreed that OSHA “does more analysis than it needs to. It takes too many internal steps, does too many internal reviews, writes too many long documents.”

Gordon believes OSHA could stand up more forcefully to the Office of Management and Budget. “I was at meetings with them on benzene, cotton dust and other standards,” he said. “We had to give in on some things but in all cases maintained the integrity of the standard.” In congressional testimony in 1981, the U.S. Chamber of Commerce had made a case for strong OMB review, saying employers were “sometimes compelled by OSHA to expend much of their time, effort and safety and health dollars abating what is, in fact, a non-hazard.”

Asked to respond to criticisms of its fortitude, OSHA said in a statement that it “promulgates standards that comply with its statutory mandate.  As well as the OSH Act, this includes the Paperwork Reduction Act, the Regulatory Flexibility Act and others. OSHA works closely with OMB and in accordance with laws, executive orders and legal precedents to issue standards that protect workers.”

Lawyer and former OCAW official Steve Wodka maintains that OSHA could make more frequent use of the law’s general duty clause — invoked in citation No. 1 against Allied Chemical for the pooled mercury — to punish employers that fail to control chemical hazards. Michaels himself had endorsed the idea in congressional testimony in 2007, when he was a professor at George Washington University.

Wodka, who, with his firebrand boss, Tony Mazzocchi, filed a complaint against Allied on behalf of the union, said that he and others who helped draft the act assumed OSHA wouldn’t be able to knock out many individual health standards. The law “was set up so that there would be no gaps in coverage,” he said. “It became a huge battle that runs right up to today. OSHA takes a few steps out to cite someone under [the general duty clause] and this uproar occurs.”

OSHA said it used the clause about a dozen times from 2011 to 2014 to cite violations involving airborne chemical exposures. A “very high evidentiary burden” kept it from doing so more often, the agency said in a statement. For each violation it wants to issue under the clause, OSHA has to find that the hazard can cause death or serious harm, that workers are exposed, that the hazard is recognized by the employer or the industry, and that a feasible fix exists. Moreover, there can’t be a related standard on the books.

As experts inside and outside of OSHA debate the best way forward in what seems a hopeless situation, Raphael Metzger, a lawyer in Long Beach, California, is doing brisk business.

For the past 25 years, Metzger has devoted his practice to representing workers afflicted by toxic exposures. He estimates that he’s had about 1,000 such clients, among them a young man who developed myelodysplastic syndrome — also known as pre-leukemia — after being splashed with benzene-tainted fuel on a floating dock, and a middle-aged golf club maker who needed a double lung transplant after inhaling beryllium, the metal OSHA declined to regulate in the 1970s.

“These are all people who are just trying to make a living and they get horribly, horribly sick at work,” Metzger said. “Basically, we have a legal structure that allows workers to be exposed to chemicals that cause cancer and other diseases. That is accepted. That’s the current paradigm.”

This story was co-published with Slate.

President Richard Nixon signing the Occupational Safety and Health Act of 1970.Jim Morrishttp://www.publicintegrity.org/authors/jim-morrishttp://www.publicintegrity.org/2015/07/06/17558/after-44-years-halting-progress-workplace-disease

Coming health insurance mergers will cost consumers

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The number of health insurers competing for your business almost certainly will decrease in coming months as the big for-profit firms merge or acquire each other.  The companies insist that the results will enable them to operate more efficiently  through the elimination of redundancies. But don’t expect your premiums to go down when the dust settles. In fact, if the past is prologue, premiums will go up.

The biggest beneficiaries will be the shareholders and a handful of top executives; they’ll make tens of millions of dollars on the day the transactions become final.  Among the losers—in addition to the people enrolled in the insurers’ health plans—will be many of the employees of the acquired companies. And taxpayers in the cities that come out on the short end of the stick when the combined companies decide where the corporate headquarters will be.

Every one of the big five—Aetna, Anthem, Cigna, Humana and UnitedHealthcare—are either in play, rumored to be in play or have gone public with their intentions. Published reports late last week indicated that Aetna had agreed to buy Humana  for $34.1 billion in cash and stock. Anthem Inc., the largest by membership, has offered even more, $47 billion, to buy Cigna. If approved, it would be the biggest deal in industry history. UnitedHealthcare would like to have Aetna and could still make a bid for it. 

We’ve seen this movie before, and the ending can be predicted with some certainty. In almost every case, the rich get richer and the poor get poorer.

One of my jobs at Cigna was to help manage communications when the company bought another insurer, as it did in 1997, acquiring Healthsource, based in Hooksett, N.H.,  for $1.45 billion.  Among the winners in that transaction: Healthsource’s CEO, Norman Payson. As part of the deal, Payson got a $100,000 a month—yes, a month—as a consultant with Cigna, in addition to $94.2 million for tendering the stock he owned in Healthsource.

Over the next several months, almost all of Healthsource’s employees were laid off. And Hooksett lost a boatload of high-paying jobs when all the administrative functions of the combined company were eventually moved to Cigna’s offices in Philadelphia and Bloomfield, Conn., a Hartford suburb.

When merging companies talk about becoming more efficient through the elimination of redundancies, what they are really talking about is getting rid of employees.

Other deals in the years before and after the Healthsource acquisition had the same result.  In 1995, many Metropolitan Life and Travelers employees in New York and Connecticut and elsewhere were given pink slips when those companies sold their health insurance operations to UnitedHealthcare for $1.6 billion. The next year, Hartford-based Aetna completed an $8.8 billion merger with Philadelphia-based U.S. Healthcare. Then in 1999, Aetna bought Prudential’s health care operations for $1.6 billion.  In every case, the executives and shareholders of the acquired companies made out like bandits. Thousands of rank-and-file employees, meanwhile, found themselves unemployed. In just the Aetna-Prudential deal, as many as 2,000 jobs were axed.

In the current round of consolidations, the two men likely to gain the most if their companies get bought are Cigna CEO David Cordani and Humana CEO Bruce D. Broussard, both of whom hold hundreds of thousands of shares of their respective companies’ stock.  Other big winners: the big institutional investors that own most of the companies’ shares. At Cigna, 87.5 percent of its shares are own by institutional investors like the Vanguard Group and State Street Corporation. At Louisville, Ky. -based Humana, the ownership is even more concentrated.  Almost 95 percent of Humana’s shares are owned by Capital World Investors, J.P. Morgan Chase and several other huge investors. Those investment firms stand to reap hundreds of millions of dollars if the deals are approved by regulators.

But if I were a regular nine-to-fiver at either Cigna or Humana, I’d be spending a lot of time on LinkedIn.  And if I were mayor of Bloomfield (where Cigna is now based) or Louisville, I’d be plenty worried about the loss of both headquarters bragging rights and hundreds of millions of dollars in taxes.

As for health plan premiums, researchers who’ve looked at previous mergers and acquisitions found that they typically went up, even as the “redundancies” (jobs) were eliminated. As Hartford Courant reporter Dan Harr reported last week, a 2012 analysis of the Aetna-Prudential deal, published in the American Economic Review, found that that merger actually raised premiums by an average of 7 percent by 2006.

Not only that, but millions of Aetna’s newly acquired health plan enrollees were soon scrambling to find another insurer because Aetna considered them “unprofitable.” The company said it “shed” 8 million of its 21 million health plan enrollees as part of its strategy to return to profitability after all of its M&A activities.

Let’s hope that regulators examine that historical record—especially what has happened to regular folks—when they consider whether to approve or reject the deals that will likely be announced in the coming weeks.

Wendell Potter is the author of Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans and Obamacare: What’s in It for Me? What Everyone Needs to Know About the Affordable Care Act.

Wendell Potterhttp://www.publicintegrity.org/authors/wendell-potterhttp://www.publicintegrity.org/2015/07/06/17621/coming-health-insurance-mergers-will-cost-consumers

How government, business and labor can better protect workers

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The country’s safeguards against toxic workplace exposures are dangerously weak, but they don’t have to stay that way.

The Occupational Safety and Health Administration takes years, sometimes decades, to develop rules for individual chemicals and other hazardous substances. That’s why most of the agency’s exposure limits haven’t been updated since 1971, and why the vast majority of chemicals have no workplace limits at all. It’s part of the reason that an estimated 50,000 Americans die from job-related illnesses each year.

Sweeping changes would require action from Congress, given how courts have interpreted what OSHA must do to set chemical limits. The agency could wait a long time for such assistance — Congress sometimes intervenes to make the process even harder.

But OSHA, employers and worker advocates can make strides against workplace disease and death right now. Here are some of the ways:

Approach health standards differently

OSHA sets exposure limits one chemical at a time, each with a long-slog rulemaking. As a result, it’s a rare substance that has an up-to-date limit in the U.S., and setting one can trigger “regulatory Whac-a-Mole,” as OSHA chief David Michaels puts it, with some companies turning to substitutes that have no legal threshold.

OSHA already tried updating many standards all at once, in 1989. A federal court ruled three years later that the abbreviated analyses the agency did weren’t sufficient.

But nothing’s stopping OSHA from regulating an entire industrial process, said Adam M. Finkel, who directed the agency’s health standards programs from 1995 to 2000. By setting standards for operations such as welding or dry cleaning, OSHA could reduce exposures for a variety of substitutes an employer might use, he said.

He suggested that idea to OSHA in the 1990s, and the agency included it in a list of possibilities released last year in a request for help to fix its bogged-down standard-setting process. Regulating chemicals by characteristic — for instance, the type of hazard — is also on the list.

Another thought kicked around over the years: Avoiding long fights by getting industry and labor on the same page. Finkel said he asked representatives from both sides in the mid-1990s whether they’d agree to live with the result if they helped set the ground rules. (Answer: Nope. But he thinks it could work if OSHA championed it.) When the American Industrial Hygiene Association got industry and labor groups to the table not long after, participants talked about asking for an OSHA advisory committee — with members drawn from both sides — that would hammer out recommendations for exposure limits in at least some cases.

“You could start with the noncontroversial ones and you’d build confidence in the process,” said Frank White, a senior official at OSHA in the 1980s.

Basing standards on what outside parties can agree on could run afoul of OSHA’s requirement to protect workers from significant risks with the lowest feasible exposure limits. Finkel, now at the University of Pennsylvania, sees a workaround: Make such agreements “enforceable partnerships” instead of standards and hold signers accountable.

There’s also the tack the United Steelworkers and beryllium producer Materion tried for that metal, which can trigger a potentially fatal lung disease. The two sides developed a recommended standard for the substance in hopes of speeding up OSHA’s efforts to enact its own rule. (The agency sent a proposal to the White House’s Office of Management and Budget for vetting last September. It’s still in review.)

Work together

Why wait for a rule? The asphalt industry offers a model for cooperating to protect workers in the absence of specific requirements.

As concern heightened that asphalt fumes might cause cancer, OSHA proposed a standard in 1992Nothing has come of that. But industry and labor representatives helped fill the gap even though they didn’t see eye-to-eye on the science.

It started with an idea in the 1990s from the National Asphalt Pavement Association: Why not adjust the paving equipment? To introduce a system that could protect workers and be widely adopted, trade group members decided to cooperate with labor and government. Soon, they were meeting regularly to develop paver ventilation systems that would keep fumes away from workers.

“There needed to be a paradigm shift,” said Mike Acott, president of NAPA, which represents asphalt producers, paving contractors and equipment manufacturers. “I would go to meetings, and it just seemed like we all wanted roughly the same thing.”

Dr. Jim Melius, director of research for the Laborers’ Health and Safety Fund of North America, was involved from the start. “The usual approach would be that we would go complain to NIOSH” — the National Institute for Occupational Safety and Health — “and OSHA and demand that studies be done, and industry would fight that,” he said. “But we thought we could work together. There were some pretty practical, straightforward solutions that could be applied.”

Manufacturers designed engineering controls that NIOSH tested, and by the mid-2000s, virtually all U.S. pavers had such technology to keep fume exposures below recommended levels.

The partnership opened the door to larger, industry-changing collaborations. Among them: development of lower-temperature asphalt mix that’s safer — and cheaper, too.

Use less-toxic chemicals

Workers wouldn’t need so many protections from chemicals, toxicologists say, if the U.S. had a good system for policing what’s safe for use. OSHA standards are the equivalent of chasing horses around the field after a massive barn escape.

“Chemicals need to be tested and they need to be monitored before they enter the market,” said Julia Quint, a toxicologist who ran California’s Hazard Evaluation System and Information Service before retiring in 2007. “Once they enter the market, it’s very hard to control them. … Consumers, workers, some small employers and others assume that they’re OK, why would they be on the market if they’re not OK … and then all of a sudden, it’s like, ‘Oh, no, it causes cancer.’”

Reforming the system is a big fight, as the battle over the federal Toxic Substances Control Act illustrates. So what can companies do now? OSHA has a guide for firms (and workers) looking for safer alternatives to the chemicals they use, often dubbed “green chemistry.”

Pick up the pace

Even if new methods for setting health standards catch on, OSHA probably will need to address certain substances one by one. Doing so more expediently is critical.

The court decisions that require substantial analyses before OSHA can propose health rules were largely handed down in the 1980s. The last major one that spoke to the issue came out in 1992. And yet the agency managed to enact 11 health standards that decade. In the decade and a half since then? Just four, only one of which involves chemical exposure limits. Some of the delays, say former agency officials, are OSHA’s to control.

Educate workers

People who know what’s unsafe can avoid hazards and advocate for their own health. That’s why New Jersey worker-rights center New Labor recruited a group of day laborers in Newark to become “safety liaisons” in 2009. The workers trained in occupational safety practices and laws, then built up the courage to demand safe working conditions despite their concerns that speaking out might cause trouble for them.

Safety liaison Selvin Trejo joined the program four years ago, shortly after emigrating from Honduras and starting work in construction. “You begin to learn that you have rights in this country like anyone else,” he said. “That we have a right to dignified work and a dignified salary, and a job that’s free of hazards.”

The liaisons teach monthly safety classes and go to day-labor hiring spots in the mornings to help educate workers on their rights. Liaisons tell their employers and co-workers about the protections they need, sometimes reporting job sites to OSHA or refusing to work when a boss won’t fix hazards. They say they’ve seen results.

“We are the eyes and ears of our own circumstances,” said New Labor Executive Director Lou Kimmel. “So we should monitor them, knowing that OSHA can’t always be there for us.”

Asphalt pavers widen a Washington state highway. Engineering controls developed through an industry, labor and government partnership have reduced fume emissions in the breathing zones of workers by about 80 percent.Jamie Smith Hopkinshttp://www.publicintegrity.org/authors/jamie-smith-hopkinsMaryam Jameelhttp://www.publicintegrity.org/authors/maryam-jameelhttp://www.publicintegrity.org/2015/07/06/17614/how-government-business-and-labor-can-better-protect-workers

How we visualized cancer risks to American workers and how you can help us

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Last week, we published an interactive about how American workers can be legally exposed to dangerously high levels of carcinogens and other toxic substances, and where the regulation is lacking. We would like to share some of the challenges we went through during the conception and creation of the interactive.

Make data relatable to people

When we got the data, it was just a series of chemicals with alarmingly high cancer risks. We had no idea what those long chemical names stood for and who should be worried. It was hard to imagine anyone who saw the visual representation of it would be able to relate to it. We realized that it would be crucial to find out more information about the chemicals in order to make this visualization useful to people at all.

We put a lot of efforts into finding out where these chemicals are used and which industries are exposing workers to them. We relied on government sources including the Agency for Toxic Substances and Disease Registry, the EPA and in most cases, OSHA sampling data taken by inspectors at workplaces. Our findings were far from exhaustive, but it at least put the data into perspective and could inform workers in particular industries and sectors of potential harm.

In the end, the graphic itself served as a navigation to explore the 44 carcinogen chemicals.

Convey uncertainty without confusing the readers

No dataset is perfect. Often we struggle to find the best way to present the data elegantly while explaining the limitations.

In our cancer risk visualization, we wanted to show the risk per thousand workers in a single clear number. But we had different numbers from different sources for a handful of chemicals. How can we be transparent about the estimated risk without confusing our readers with different numbers?

The cancer risk graphic is based on an analysis by Adam M. Finkel – a former OSHA official now at the University of Pennsylvania Law School – and the Center for Public Integrity.

It shows how many workers per 1,000 would likely get cancer after 40 years of exposure to a chemical at exactly the legal limit. The analysis relied on cancer-risk figures developed by the U.S. EPA and California’s EPA. For a handful of substances, OSHA has its own cancer risk estimates. OSHA’s assessments consider the way a substance’s risk varies as exposure levels change, which might make them more accurate than Finkel’s study. However, most of OSHA’s estimates are more than two decades old and might not reflect up-to-date research.

We wanted to show readers both of these figures so to not hide any information that is different from the study we featured.

We went through many iterations of this graphic. At one point, we had people toggle between two graphics in order to perform apples to apples comparison. By that point, the main idea that federal limits are not protecting workers from high cancer risks, was getting lost in the shuffle. We ended up noting the OSHA’s estimate alongside our calculations, instead of including it within the graphic. This way, readers can focus on the most important information and also have additional information if they are interested.

Accessibility on mobile

More than 50% of our traffic comes from mobile, so we wanted to make the interactive equally accessible to this significant slice of readers. Making the interactive completely responsive was not enough, as it was impossible for mobile users to click on very small areas and navigate through the interactive.

We initially had a line which people could drag to locate one chemical. That didn’t work out well as dragging a line vertically is not a gesture that mobile users are trained and it interferes with the scroll gesture that people are most tempted to use.

Eventually, we rotated axes 90 degrees and had a completely different design for mobile and tablet. People can navigate through the interactive by simply clicking left and right arrows on the screen and also filter the chemicals by sector.

Accuracy, clarity, relatability: how did we do?

We know that the most important thing for a data visualization is to get it right. During the process of producing the interactive, we were constantly in touch with experts, officials and scholars in the field to try to ensure accurate representation of the data. Beyond its accuracy, we were most concerned with helping the data be as effective as possible by making it clear and navigable.

Did you find the interactive relatable? Were the cancer risk numbers confusing to you or was this easy to understand? We would love to hear about your experience with the interactive and suggestions for the future.

If you would love to tell us more about how we did, please get in touch at yqiu@publicintegrity.org or leave a comment below.

Editor’s note, July 8, 2015: Read How journalists visualized cancer risk from workplace chemicals from Storybench.

View this interactive to explore cancer risks and OSHA exposure limits.Yue Qiuhttp://www.publicintegrity.org/authors/yue-qiuhttp://www.publicintegrity.org/2015/07/07/17624/how-we-visualized-cancer-risks-american-workers-and-how-you-can-help-us

Nuclear weapons lab lobbied with federal funds to block competition for lucrative contract

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Top officials at one of the U.S. nuclear weapons laboratories secretly drew up a careful list of targets in 2009.  But these were not Russian missile silos or Chinese leadership targets. The officials’ aim was instead to hit a small group of policymakers in Washington with enough political pressure to ensure that the laboratory’s managers could get a lucrative new, 7-year federal contract.

To ensure victory – which to the corporation controlling the lab meant avoiding a messy competition with any other corporations – those at the helm of Sandia National Laboratories devised what they called a “capture strategy” for senior Obama administration officials, according to a laboratory internal document. In part, it entailed hiring three high-priced consultants, at a total expense to taxpayers of up to half a million dollars, who helped craft the target list.

Those on the list were in many cases the usual suspects – members of Congress who served on key committees, their staffs, top Department of Energy officials, a governor of New Mexico and a retired senator. Meetings were held, emails were sent, letters were written, and Washington-based corporate staff was enlisted, all with the aim of keeping the Lockheed Martin Corporation in control at Sandia.

This was, Sandia said in one of its position papers, not merely in the corporation’s best interest, but in the country’s. “We believe,” one of the lab officials said at one point, “it is best for LM [Lockheed Martin], Sandia, and the nation to work together towards influencing DOE to retain this team.” Another message was blunt: “It is in the taxpayer’s best interest to not compete for competition’s sake, but to use the regulatory processes already available” to keep the existing contractor.

While this might seem predictable – after all, what federal contractor would not be eager to keep the federal monies coming in? – it is nonetheless noteworthy for one reason in particular: The analyzing, the strategizing, and the lobbying to get a new contract were all funded by the existing federal contract, according to the Energy Department’s Inspector General, who said this was a violation of federal law, not to mention Sandia’s contract language.

“We recognize that LMC [Lockheed Martin Corporation], as a for-profit entity, has a corporate interest in the future of the Sandia Corporation contract,” said Inspector General Gregory H. Friedman in his Nov. 7, 2014 “Official Use Only” report, which was released to the Center for Public Integrity under a Freedom of Information Act request. “However, the use of Federal funds to advance that interest through actions designed to result in a noncompetitive contract extension was, in our view, prohibited by Sandia Corporation’s contract and Federal law and regulations.”

“Given the specific prohibitions against such activity, we could not comprehend the logic of using Federal funds for the development of a plan to influence members of Congress and federal officials to, in essence, prevent competition,” Friedman said in the report.

Sandia did not see it that way. Its officials told Friedman’s investigators they were merely  trying to inform officials in Washington about the work they were doing, an explanation Friedman said was contradicted by the  lab’s internal documents.

At stake in the three-year effort was the Lockheed Martin Corporation’s proposal for a 7-year contract extension, with the option for a 5-year renewal after that.  While the company’s prospective revenues were not stated in the report, the existing contract called for spending, on average, about $2.4 billion a year. So the total revenues might have exceeded $16 billion.

“Sandia National Laboratories has cooperated fully with the government’s review of this matter,” Heather Clark, a spokeswoman for Sandia National Laboratory, said in language that resembled a statement she issued when a truncated summary of Friedman’s report was first released by the Energy Department last November. “We will continue to work closely with the Inspector General’s office, the Department of Energy and the National Nuclear Security Administration to address all the IG’s recommendations. We are hopeful this matter will soon be resolved.”

In 2009, the report explains, Sandia Corp. hired a consulting firm headed by former U.S. Rep. Heather Wilson, R-New Mexico, and two unnamed former employees of the Energy Department’s National Nuclear Security Administration, at least one of whom previously had oversight authority at the lab. Wilson’s company, Heather Wilson, LLC, provided explicit directions about how to influence the most crucial decision-makers in the contract-award process, according to the IG report.

“Lockheed Martin should aggressively lobby Congress, but keep a low profile,” Wilson’s firm advised, according to notes from a meeting obtained during the investigation.

The notes showed that Wilson’s firm instructed Lockheed Martin to “work key influencers” by targeting then Energy Secretary Steven Chu’s staff  -- as well as his family, friends, and even his former colleagues at another Energy Department laboratory -- and by enlisting former members of Congress to endorse extending Lockheed Martin’s contract without competition.

Wilson has publicly denied that she personally took part in the interactions between her firm and Lockheed Martin involving the Sandia contract. Reached by phone, she declined to answer questions, but later sent a written statement saying that she never contacted federal officials about the Sandia contract extension. Sandia Corp. has said it already repaid the Energy Department $226,378 for the federal money that it spent with Wilson’s firm.

But Friedman went further: He urged the department to determine whether it should recover the money spent by Sandia on the other two consultants, and on the salaries of Sandia officials and employees who worked on the new contract “capture strategy.” Asked if anyone at the department had pursued this effort, Michelle Laver, a spokeswoman for the National Nuclear Security Administration – which oversees Sandia's work – said the NNSA has not yet determined if it will seek to recoup more money.

A Justice Department spokesman, asked if a federal  investigation was under way into what Friedman depicted as a violation of federal laws, declined comment.

The copy of Friedman’s report that was released to the Center for Public Integrity was heavily redacted to withhold names. But it made clear that Sandia’s push for a long-range, no-bid contract extension under the present administration was not the first attempt to lobby public officials at taxpayers’ expense. “Perhaps [Sandia National Laboratories] felt empowered because it had improperly directed Federal funds to similar activities in the past,” the Inspector General’s report said, in a phrase that did not appear in the November public summary.

A Department of Energy official in 2009 warned lab leaders that their actions “crossed the line” when reports to Congress recommended funding levels for particular programs and policy positions, actions the officials compared to illegal lobbying, according to the report.  But in a 2010 email, one of Sandia’s officials – whose name was redacted – said that using federally funded laboratory staff for purposes of pursuing contract extensions was not a big deal, because it had been done before.

“We used operating costs in the same way in securing the extensions in [1998] and 2003,” the lab official wrote.

Lockheed Martin has received a series of one-year contract extensions since 2012, but its push to lock in a longer-term contract failed. Currently, the management and operation contract for Sandia National Laboratory is up for competitive bid – the precise result that Sandia and Lockheed worked to block. The corporation’s existing contract expires April 30, 2017.

This story was co-published with TIME.

The Sandia National Laboratory campus.Patrick Malonehttp://www.publicintegrity.org/authors/patrick-maloneR. Jeffrey Smithhttp://www.publicintegrity.org/authors/r-jeffrey-smithhttp://www.publicintegrity.org/2015/07/08/17628/nuclear-weapons-lab-lobbied-federal-funds-block-competition-lucrative-contract

Report says girls being misdirected into juvenile detention

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Girls who are victims of abuse are being inappropriately funneled into juvenile detention halls that fail to treat them for mental-health needs, a report unveiled Thursday argues.

The Sexual Abuse to Prison Pipeline: The Girls’ Story” was produced by the Human Rights Project for Girls in Washington, D.C., as well as the Center on Poverty and Equality at Georgetown University Law Center and the Ms. Foundation for Women. The Human Rights Project for Girls’ leaders have fought for legislation to require prompt help for sex-trafficking victims who are foster-care children, and to expose sex trafficking of minors through Craigslist ads.

The report notes that girls’ involvement in juvenile justice systems nationally is “growing disproportionately,” and that girls of color are especially affected; the girls are sent to juvenile facilities largely because they’re accused of offenses of some kind, but critics say many of those infractions are minor, and should not result in incarceration. And many of these young women have at some point been victims of abuse.     

The authors of the report note that Congress has an opportunity to address lapses in how girls in crisis are treated by tying state funding to certain requirements under federal law.

As the Center for Public Integrity recently reported, Congress is currently reviewing how it might reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. The act governs rules states must abide by when they confine and treat prosecuted juveniles, if they want federal money for related programs.  

The reasons why girls are being disproportionately referred to juvenile-justice systems require more study, the report says, but existing research shows that the phenomenon is not driven by increases in violent or criminal behavior.

Instead, according to the report, girls are getting arrested and detained mostly for misdemeanors, technical violations, such as disobeying probation orders, or so-called status offenses—which are infractions that only minors can commit, such as running away from home and truancy from school.

The report notes that even though these girls’ problems are often rooted in emotional, physical and sexual abuse, no national requirements exist to screen detainees for such trauma.

A number of state surveys suggest that many or the majority of girls held in detention have experienced physical or sexual abuse at home or elsewhere.

“Yet when girls enter the juvenile justice system,” according to the report, “mental health screenings are rarely administered by licensed professionals, and follow-up assessments and treatment are frequently inadequate.”

Based on recent research findings, the report says, most confined youth are held in facilities in which mental-health counselors are not licensed professionals.

The authors of the report urge Congress to amend the 1974 federal juvenile-justice act to require states to evaluate all children for trauma as they enter juvenile-justice systems, and then provide specific treatment.

The authors also urge a requirement that states—if they want federal juvenile-justice funds—“screen children at intake for commercial sexual exploitation and divert identified victims away from the juvenile justice system whenever possible.”

In addition, the report calls for states to end arrest and prosecution of minors for prostitution.

“Such laws,” the authors write, “would be consistent with state laws that declare minors to be legally incapable of consenting to sex, as well as federal law, which defines any act of commercial sex with a person under the age of 18 as a severe form of trafficking in persons.”

In 2013, as the Center reported, agencies under the auspices of the National Academy of Sciences also urged all states to treat child prostitutes as victims and prohibit their arrest, prosecution and detention.

Teenaged girls hold hands as they wait for individual interviews about alleged abuses at the Columbia Training School, during a Mississippi Youth Justice Program news conference in Jackson, Miss., in July 2007. Susan Ferrisshttp://www.publicintegrity.org/authors/susan-ferrisshttp://www.publicintegrity.org/2015/07/09/17629/report-says-girls-being-misdirected-juvenile-detention

All about inequality - the issue of our time

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Inequality – the issue of our time

It never ceases to intrigue me that so much of the Center’s work whether explicitly or just by virtue of dealing with those who are hit by the collision of politics and money is ultimately about inequality. Thomas Piketty identified that even in the ICIJ work on tax havens: “Financial opacity is one of the key drivers of rising global inequality.”

Interesting then to see one of the Center’s most important long-term backers and a major philanthropy leader, The Ford Foundation, announce a shift to focus almost solely on issues of inequality, announced by its new president Darren Walker.

Whether it is the recent Warren Buffett mobile homes rip-off story, theSusan Ferrispiece on the incarceration of children or the Allan Holmes saga on over-priced and uncompetitive broadband denying access to the poor, so much of our coverage is about this issue. You’ll also recall it was central to  President Obama’s State of the Union address.

Perhaps our most comprehensive coverage in this area also touches on the environment and what I see as an almost 1930s climate for workers’ rights. Jim Morris’ team package called Unequal Risk has run over the past three weeks and still has more to go. With 18 months of work behind it and based on 30-years of health and safety records it is a dismal account of the failure of government agencies to protect U.S workers, often hobbled by the lobbying of politicians by big business.

It is an epic set of work with strong long reads and some superb data and video to illustrate the problems and truly bring it home. As so often Jim’s team found heartrending real-life stories to illustrate the thousands of lives shortened by working conditions I suspect few Americans would imagine still prevailed in this country. Yue Qiu did a remarkable data visualization — look at the numbers affected. Maryam Jameel did compelling videos and Jim and Jamie Smith Hopkins did a great history of how we go here and a what can we do piece.

Slate was the primary publishing partner and we did a Reveal podcast which is well worth listening to.

The Columbia Journalism Review made some of the points I do above about how rare it is to see reporting on these issues of workers’ rights and went deep into the journalism behind Jim’s team’s work.

Salon did a large Q&A with Jim and his team today.

Not to give everyone in the entire Center a herogram but I easily could. This sort of impact doesn’t happen by accident and the project had big assists from communications expert Bill Gray, engagement editor John Ketchum and Jared Bennett and the digital team.

What we’re reading at the Center

Jeff Smith and I both were struck by this 30,000 word takeover of Bloomberg Business with a single article on coding and why it matters. Irritatingly smartass in places but worth reading and learning from.

Midcenturymodernmag.com had an intriguing piece on our board member and Craigslist founder Craig Newmark  who also made news with his $1m donation of a settlement to the Electronic Frontier Foundation.

Dick Costolo, bumped off as CEO of Twitter this month, wrote a passionate piece in The Guardian about the importance of Twitter as a driver of free speech and what Americans think of as First Amendment rights and which few elsewhere have guaranteed. I have a theory about this area I would like to explore more and I was struck by something similar at a conference I was at recently where Google counsel David Drummond said "We want to preserve You Tube as a First Amendment space”.  He later elaborated on that at the Cannes Lions advertising conference with a rather different twist of trying to avoid YouTube being hijacked by ISIS and hate speech.

Thanks for reading this far and I welcome any feedback.

Peter Balehttp://www.publicintegrity.org/authors/peter-balehttp://www.publicintegrity.org/2015/07/09/17635/all-about-inequality-issue-our-time

More Medicare Advantage audits reveal overcharges

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Government audits just released as the result of a lawsuit detail widespread billing errors in private Medicare Advantage health plans going back years, including overpayments of thousands of dollars a year for some patients.

Since 2004, privately run Medicare Advantage plans, an increasingly popular alternative to traditional Medicare, have been paid using a risk score calculated for each patient who joins. Medicare expects to pay higher rates for sicker people and less for those in good health.

But the internal audits, never before made public, provide striking new evidence of billing mistakes – mostly overcharges –in the Medicare Advantage program. Four of the audits were recently obtained by the Center for Public Integrity through a court order in a Freedom of Information Act lawsuit.

The audits involve four health plans: an Aetna Health Inc. plan in New Jersey, Independence Blue Cross in the Philadelphia area; Lovelace Health Plan in Albuquerque, NM, and a Care Plus plan in South Florida. Care Plus is a division of Humana, Inc.

Last month, the Center for Public Integrity reported on a fifth such audit at PacifiCare in Washington State, an arm of giant UnitedHealth Group, the nation’s largest Medicare Advantage plan.

In all five audits, two sets of auditors inspected medical records for a sample of 201 patients at each plan for 2007. If the medical chart didn’t document that a patient had the illnesses the plan reported, Medicare asked for a refund. Auditors also gave plans credit for underpayments they discovered.

Among the findings:

  • Medicare paid the wrong amount for 654 of the 1,005 patients in the sample, an error rate of nearly two thirds. The payments were too high for 579 patients and too low for 75 of them. The total payment error topped $3.3 million in the sample.
  • Auditors concluded that risk scores were too high for more than 800 of the 1,005 patients, which in many cases, but not all, led to hefty overpayments. Medicare’s annual payment for more than 200 patients was at least $5,000 higher than merited, according to the audits.
  • Auditors could not confirm one-third of the 3,950 medical conditions the health plans reported, mostly because records lacked “sufficient documentation of a diagnosis.” The names of the medical conditions were redacted by federal officials.

The federal Centers for Medicare and Medicaid Services, or CMS, which conducted the audits, had no comment.

None of the health plans would discuss the audit findings. Aetna, in a statement, said the company had “raised a number of questions and concerns” regarding the results and was “awaiting a response from CMS.”

Clare Krusing, a spokeswoman for America’s Health Insurance Plans, the insurance industry’s primary trade group, said the audits “overstated” the payment errors. Health plans have since improved their record keeping and offer better care for people with chronic health conditions than traditional Medicare, Krusing said.

“The evidence is overwhelmingly clear that these programs (Medicare Advantage) deliver the right care for beneficiaries,” she said.

The records are coming to light at a time of rapid expansion – and consolidation—in the Medicare Advantage market. Enrollment has neared 17 million, about one of every three people eligible for Medicare. Last week, Aetna announced plans to buy competitor Humana for $37 billion.

But the industry also is drawing scrutiny over the accuracy of risk-based payments—and a penchant for secrecy.

The Center for Public Integrity first reported last year that billions of tax dollars are wasted every year due to plans that appear to exaggerate how sick their patients are, a practice known as “upcoding.”

The government audits, known as Risk Adjustment Data Validation, or RADV, are the government’s primary tool for catching these sorts of billing mistakes and holding the industry accountable.

Yet the process has proven unwieldly at best, partly due to a complex and lengthy appeals process and partly to indecision over how much the health plans should refund to the government. It’s not clear how the five audits were settled because CMS officials have refused to release these records. The five RADV audits were launched in 2008, but findings weren’t issued until August 2012, when CMS officials sent each plan a form letter detailing the amount of the overpayment and the plan’s extensive appeal rights. CMS has refused to make public the status of the audits—or even how many total RADV audits have been conducted. CMS cites an exemption to the Freedom of Information Act that shields “trade secrets.”

This stance has largely concealed Medicare Advantage billing records. It wasn’t until April 15, 2011 that CMS announced it would release minimal billing data annually. Doing so would “inform the public on how their tax dollars are being spent,” the agency said at the time, citing President Obama’s January 2009 Memo on Transparency and Open Government.

But much to the chagrin of some researchers, CMS has never expanded on what is released, even though it has made public a huge cache of billing data and audits centering on thousands of doctors, hospitals and other medical suppliers.   

“It’s astonishing. They are dumping huge amounts of data in other areas. Medicare Advantage is now 30 percent of the Medicare program,” said Brian Biles, a professor at George Washington University who successfully sued CMS to win release of the limited billing data now available. (Biles assisted the Center for Public Integrity with its 2014 analysis of that data).

Timothy Layton, a Harvard Medical School researcher who recently co-authored a paper on health plan “upcoding,” said scholars “are definitely hindered” by the lack of data. For instance, researchers can’t examine individual risk scores and the various medical conditions that raise and lower them, he said.

“Without the ability to answer these questions, we can keep pointing out how big the overpayment to MA (Medicare Advantage) is, but we can never really provide the optimal solution to the problem,” Layton said.

David Himmelstein, a physician and professor in the CUNY School of Public Health at Hunter College who supports a single payer medical system, agreed.

“Medicare publishes detailed data on almost every doctor and hospital that gets paid a penny, but it leaves the public—and researchers—almost completely in the dark about the giant Medicare Advantage plans that will collect more than $150 billion from Medicare this year,” he said.

Still, Medicare Advantage insurers are facing calls for closer scrutiny of their operations. In May, Senate Judiciary Committee Chairman Charles Grassley wrote to Attorney General Loretta Lynch and CMS administrator Andrew Slavitt asking how many risk score fraud investigations had been conducted over the past five years and their results. He’s still waiting for an answer.

“Sen. Grassley continues to expect responses to his letters and will continue to press for responses. This is an important issue involving a large amount of taxpayer money,” said Grassley spokeswoman Jill Gerber.

In a separate letter, Sen. Clare McCaskill, the senior Democrat on the Senate Aging Committee, asked  CMS officials to advise her of government efforts to curb Medicare Advantage billing abuses.

“After meeting with CMS we have continued concerns about the level of oversight taking place with respect to Medicare Advantage plans and will continue working to increase oversight and accountability in this area,” said McCaskill spokesman Drew Pusateri.

This story was co-published with NPR

Fred Schultehttp://www.publicintegrity.org/authors/fred-schultehttp://www.publicintegrity.org/2015/07/10/17634/more-medicare-advantage-audits-reveal-overcharges

Explore the data: where Australian mining leaves its mark

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There were more than 150 publicly traded Australian mining companies present in 33 African nations at the end of 2014, some of them linked to alleged injustices that would never be tolerated in better-regulated nations.

The International Consortium of Investigative Journalists (ICIJ), a project of the Center for Public Integrity, reviewed financial reports, announcements and news articles reporting fatalities directly or indirectly connected to mining activities in Africa. We were able to document more than 380 deaths in 13 African countries since 2004.

ICIJ also reviewed more than 1,000 annual or quarterly reports and company announcements to investors to identify all mining companies listed on the Australian Securities Exchange (ASX) that were actively exploring or producing minerals on the African continent as of December 31, 2014. We found 152 companies active in 33 countries.

     

International Consortium of Investigative Journalistshttp://www.publicintegrity.org/authors/international-consortium-investigative-journalistshttp://www.publicintegrity.org/2015/07/10/17641/explore-data-where-australian-mining-leaves-its-mark
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