OSHA Ordered to Release Data on Beryllium

WASHINGTON, DC — July 6, 2007 — The Department of Labor must make public its detailed database about beryllium and other toxic substances found at workplaces, according to a federal court ruling. Adam Finkel, a whistleblower and former official at the Department’s Occupational Safety and Health Administration (OSHA), had sued to obtain this disclosure under the Freedom of Information Act. He was concerned because the agency did not provide the results of beryllium disease tests on its own inspectors who had been exposed to beryllium. Mr. Finkel allegedly lost his job because he disclosed a decision that OSHA made in 2002 not to offer medical testing for beryllium disease to the inspectors.

Now a professor of Environmental and Occupational Health at the University of Medicine and Dentistry of New Jersey, Mr. Finkel said that he needed the OSHA information to conduct “statistical analyses of trends in beryllium concentrations by time period, geographic region, industry sector, etc., and to estimate the exposure potential of the OSHA compliance officer workforce.” He also explained that releasing the requested information, consisting of over 75,000 OSHA workplace inspections, was in the interest of the general public.

OSHA eventually released some data, but failed to include employers’ names and addresses, the date of the inspections and encrypted codes for agency employees. The lawsuit followed.

OSHA claimed that disclosing the data would invade the privacy of its inspectors and reveal company trade secrets. However, Judge Mary Cooper of the US Federal District Court in Trenton, New Jersey, did not find these arguments persuasive. “The Court finds the public interest in disclosing information that will increase understanding about beryllium sensitization and OSHA’s response, thereto, is significant,” she wrote.

Chronic Beryllium Disease or Berylliosis

A lightweight metal with a high melting point, beryllium is used in electronics, computers, weapons systems, nuclear reactors, nuclear weapons, some dental alloys and even in sporting equipment. However, exposure to beryllium dust or fumes can lead to chronic beryllium disease or berylliosis, an illness marked by shortness of breath, exhaustion and lung damage. The beryllium victim first develops an allergic reaction called “beryllium sensitization,” before the illness progresses to full–blown chronic beryllium disease.

Because of the dangers posed by inhaling beryllium, the Department of Energy (DOE) sets a “permissible exposure limit” or PEL at 0.2 micrograms per cubic meter of beryllium during an 8–hour shift for its workers and for federal contractors in the weapons industry. For workers in private industries, however, OSHA sets the limit at 2.0 micrograms per cubic meter during an 8–hour shift—an amount 10 times higher than the DOE level. Neither the OSHA beryllium limit or the DOE limit can guarantee that workers will not develop chronic beryllium disease. There is no safe level of beryllium exposure.

Finding Out About Beryllium

The full text of the beryllium decision, Finkel v. Department of Labor, may be found on the web site of Public Employees for Environmental Responsibility. The group has also posted a press release about the ruling. You will need to obtain a copy of Adobe Acrobat Reader to open the file containing the ruling. If you do not already have this software, you may download a free copy at the Adobe Acrobat web site.

At Brayton Purcell, we are concerned about beryllium use and beryllium exposure hazards. If you have been exposed to beryllium and developed chronic beryllium disease, please feel free to contact us. We will review your potential case free of charge and advise you of your legal rights.