A LICENSE TO KILL IS NO SOLUTION
by Raphael Metzger and James Nevin
June 11, 2004
https://www.dailyjournal.com/article/379106-a-license-to-kill-is-no-solution
In her May 29 article published in the Los Angeles Times, “California could require licenses for stonecutting shops amid deaths of young workers,” Emily Alpert Reyes reports that Jim Hieb, chief executive of the stone industry trade association, suggests that licensing stone countertop fabrication shops will prevent severe illness and death to thousands of young Hispanic immigrant workers from exposure to artificial stone dust.
Stone dust has been known since ancient times to cause scarring of the lungs, a disease that is now known as silicosis. Artificial stone, which has been sold in the US for the past 25 years, contains the highest amount of silica (about 95%) of any product in commerce. As a result, engineering controls such as wet processing tools and respirators are not effective in preventing disease. This new product is claiming the health and lives of thousands of workers worldwide, with Los Angeles being the epicenter of the new silicosis epidemic in California.
The manufacturers of artificial stone blame the illness and deaths of young workers on “unscrupulous” Los Angeles employers and Cal-OSHA’s failure to enforce existing regulations – not their deadly product. They seek to persuade the County Board of Supervisors to require stone fabrication shops to be licensed and Cal-OSHA to enforce regulatory compliance, rather than to ban the deadly products as Australia has done. However, a license is not a solution to the problem, but is merely a ploy to allow the deadly products to remain on the market so manufacturers can continue to reap billions of dollars in profits while their products continue to sicken and kill young immigrant workers.
The licensure proposal is based on three assumptions: (1) that artificial stone countertops can be fabricated safely, (2) that Cal-OSHA can enforce existing regulations to prevent workers from getting silicosis from artificial stone dust; and (3) that the problem is limited to certain irresponsible Los Angeles employers. All of these assumptions are false.
While artificial stone countertops can theoretically be fabricated safely, the cost of doing so is prohibitive. Dr. Jenny Houlroyd, a research scientist at the Georgia Institute of Technology, recently issued a report titled “Economic Feasibility of Complying with the OSHA Silica Standard in the Cut Stone Industry.” In this report, she calculated that the initial investment cost for a fabrication shop to install the equipment and implement the protocols to make fabrication safe for workers is $3,475,211, and that the annual cost of maintaining the equipment and implementing the protections is $637,691.
Most fabrication shops are small mom-and-pop family businesses that employ a few workers and have annual gross revenues of about $300,000. While it is theoretically possible to make artificial stone fabrication safe, Dr. Houlroyd’s study shows that it is economically impractical, indeed impossible, to do so. Her report validates the conclusion of the Australian Industrial Hygiene Association that fabricating artificial stone countertops cannot be made safe. That is why Australia banned these products and the Board of Supervisors is considering banning these deadly products in Los Angeles County.
Enforcement by Cal-OSHA also cannot work. Merely issuing a license to fabrication shops will not assure that they will or even can fabricate artificial stone countertops safely. The licensing scheme puts the onus of inspection and enforcement on Cal-OSHA. According to Jim Hieb, there are about 3,000 fabrication shops in California. Cal-OSHA lacks both the financial resources and the manpower to monitor exposures at all these work sites and to enforce compliance with the health and safety regulations.
Recognizing that artificial stone cannot be fabricated safely and that licensure and enforcement regulations cannot stop the carnage, the Australian government concluded that the only solution to the problem was to ban these products throughout the country. So Australian regulators decided to ban importation and use of all artificial stone products – to prevent another terrible occupational lung disease epidemic like the asbestos epidemic of the last 50 years.
The manufacturers of artificial stone claim that the problem is due to a small number of unscrupulous employers in Los Angeles County. This is obviously not true, because the epidemic is international in scope. Before fabrication workers were diagnosed with silicosis in California, outbreaks of silicosis were reported in Spain, Israel, and Italy, with later outbreaks in Australia and China. Fabricators have also been diagnosed with silicosis throughout California, as well as in Oregon, Washington, Nevada, Colorado, Texas, Wisconsin, Florida, and New York. Los Angeles is just the epicenter of this new epidemic.
The licensure proposal presumes that this is only a Los Angeles problem and puts the onus of compliance on small fabrication shops that cannot afford the huge expense of making their small shops safe and on Cal-OSHA to enforce compliance, though it lacks both the financial resources and the personnel to enforce compliance. The result will be thousands of more illnesses and deaths among young immigrant workers.
The solution to the problem is not a licensing program. The product is too deadly to be used safely. The Board of Supervisors should so conclude and ban all artificial stone products in the County, just as these products have been banned in Australia. That will prevent even more young, immigrant workers from suffering and dying from this deadly new fashion product.
Raphael Metzger is the founder of the Metzger Law Group P.A., and James P. Nevin is a partner at Brayton Purcell LLP.
Online bios:
Raphael Metzger is the founder of the Metzger Law Group, a boutique law firm in Long Beach that sues chemical companies for poisoning and killing workers. James P. Nevin is a partner at Brayton Purcell LLP, an occupational disease and catastrophic injury plaintiffs law firm in Novato, California. Together they represent hundreds of Hispanic immigrant stone countertop fabricators who have been diagnosed with silicosis and have received or are hoping to receive lung transplants to save their lives.
