Matt Shudtz on CPRBlog {Bio}
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Two House Hearings, One Bad Theme

Today, separate House committees will hold hearings that address two federal agencies’ efforts to regulate toxic chemicals.  The House Energy and Commerce Committee’s Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA).  Simultaneously, the House Education and Workforce Committee’s Subcommittee on Workforce Protections will hold a hearing addressing, among other things, OSHA’s recent attempts to spur better protections for workers who face chemical hazards.  The two hearings have been framed differently and will feature different witnesses, but they share a common thread: each committee’s Republican majority is championing a worldview in which federal agencies should be restricted from engaging in the most basic form of protective action – gathering and sharing information about toxic chemicals’ risks.

The Energy and Commerce hearing, which has a rather conspicuous absence of EPA officials on the witness list, will focus on the provisions of TSCA that relate to chemical testing.  It is commonly accepted that EPA – and especially, the public – lack sufficient knowledge about the hazards presented by toxic chemicals in our environment.  TSCA does not set out minimum requirements for testing that companies must undertake before putting a chemical in the stream of commerce, so we are left to deduce potential toxicity from whatever information companies voluntarily disclose to EPA in their “pre-manufacture notifications” and EPA’s own analysis of potential toxicity using models that compare chemicals of similar structure and composition.  To make matters worse, some 60,000 chemicals were already on the market when Congress wrote TSCA in 1976 and their uses were grandfathered in, meaning that companies were not required to submit any testing information to EPA.  Expect witnesses at the hearing to agree that more information would improve the balance between protecting the environment and protecting chemical companies’ bottom lines.  But don’t expect them to agree on how to get more information.  As we wrote in a July 2013 Issue Alert, the best solution involves multiple pieces:  minimum data sets for all new and existing chemicals, prioritized review of those data sets, and information sharing between EPA and the European Chemicals Agency, which is pulling in large amounts of new information through its revolutionary REACH legislation.

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OSHA’s new tools for addressing chemical hazards could bolster enforcement

Today OSHA announced two new web-based resources designed to help employers eliminate chemical hazards in the workplace.  Both the toolkit for identifying less-hazardous substitutes and the annotated exposure limits table are useful informational resources designed to promote voluntary action by conscientious employers and informed demands by workers and their advocates.  But OSHA has to deal with both the “high road” and the “low road” employers, so using these new tools in enforcement proceedings is a necessary adjunct to voluntary employer efforts.  With some enterprising work by enforcement officials and strong support from the Solicitor of Labor the tools could be the basis for a new wave of enforcement under the OSH Act’s General Duty Clause.

As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective.  Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous.  Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s.  In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit.  Since then, OSHA has initiated and finalized just one new PEL – as part of a comprehensive standard for hexavalent chromium exposure – but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed.  In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA’s standards don’t do enough to protect workers.

The broad recognition that workers face significant hazards even when chemical exposures are below OSHA’s PELs presents an interesting question about employers’ duty to protect their workers.  Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC).  Under the GDC, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  

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SBA’s Office of Advocacy wants even more time to review OSHA’s silica proposal

SBA’s Office of Advocacy has added its voice to the chorus of business interests who want OSHA to delay publication of a new rule that would protect workers from the deadly effects of silica exposure. In a letter to OSHA chief David Michaels, the top lawyers from the Office of Advocacy claim that it will be “nearly impossible” for small business representatives to review OSHA’s proposal and prepare the comments and testimony due in early December.

To be sure, the rulemaking docket is voluminous and the issues are complex. But the bottom line is that each day of delay in publishing the new rule means another day when millions of workers will be exposed to elevated levels of a deadly dust. By OSHA’s estimates, hundreds of workers die each year from silica exposures that are perfectly legal under current standards; thousands of other workers suffer from non-fatal diseases. One of those suffering workers is Alan White; a foundry employee from upstate New York who shared his powerful story with the press on the day OSHA announced it would publish the new proposal. The sooner OSHA finalizes this proposal, the sooner employers will institute controls to protect Mr. White’s co-workers and millions of others who face unnecessary risks of silicosis, lung cancer, emphysema, chronic bronchitis, chronic renal disease, and a host of other maladies. For businesses, delaying the new rules might mean a few more days of avoided compliance costs, but those costs are small compared to the costs that workers pay as a result of the current, inadequate, protections.

The request for delay is especially rich coming from SBA’s Office of Advocacy. SBA and the small business community it purports to represent have already been granted a privileged spot in the rulemaking process. Before representatives of workers or other stakeholders get a chance to see an OSHA proposal, a draft document is run through the gauntlet otherwise known as “SBREFA review” (SBREFA is the Small Business Regulatory Enforcement Fairness Act). During that review, officials from SBA’s Office of Advocacy, the White House, OSHA, and the Solicitor of Labor’s Office work with a panel of “small entity representatives” to get the small business owners’ reactions to the proposal. Their reactions are memorialized in a report, and OSHA must include in its final rule a formal, written response to the concerns raised during SBREFA review. OSHA’s silica proposal and background documents include a draft response to the SBREFA review that clearly indicate SBA and the small business community know enough about the critical issues for this rulemaking to respond within the current comment period.

OSHA must resist the pressure to delay this rulemaking any longer. An early draft went through the SBREFA process a decade ago, it was adjusted to meet small business representatives’ critiques and updated with new scientific and economic research, and in 2011 it went to the White House, where it languished for two and half years. Now the rule is at a critical juncture: the public comment period and rulemaking hearing will give OSHA a chance to fine-tune the proposal based on input from a broad range of experts, but that process will take time. As we noted when OSHA announced the silica proposal, the process of getting from a proposed to a final rule has taken the agency three years, on average, in recent rulemakings. If this administration wants an OSHA health standard to its credit, it cannot afford to delay this rule any longer at the behest of the regulated industries.


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What is a “Small Business,” Exactly? Two Concepts from OSHA’s Silica Proposal

OSHA’s proposed new silica standards promise to improve the health and safety of more than two million workers across the U.S. By reducing exposures to respirable silica dust, the standards are expected to save 700 workers’ lives and prevent 1,600 new cases of silicosis every year. Of course, these impressive benefits come at a cost to employers and those costs will be a major talking point for the business community as OSHA’s proposal moves through the rulemaking process. One argument that we’re sure to hear from the Chamber of Commerce and its allies is that the costs of complying with the new standards will fall disproportionately on small businesses.  The plight of small business owners somehow always seems to pull at the heartstrings of the big businesses owners when federal agencies propose new public health and environmental protections – in stark contrast to the rest of the time the big business owners spend trying to knock their competitors out. OSHA’s proposed silica standards include some surprising numbers regarding the costs of compliance.

Under the federal courts’ reading of the OSH Act, the agency must conduct industry-by-industry “feasibility” analyses for new standards. OSHA’s regulatory team studiously researches the technologies available for reducing or eliminating a given hazard (in this case respirable silica dust), the costs of implementing those technologies, and the ability of each industry to implement the controls without causing severe economic harm to the industry as a whole. The Regulatory Flexibility Act added to the agency’s burdens by mandating that OSHA study many proposed rules’ effects on small businesses.
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Important Strides in OSHA's New Silica Rule but Advocates have a Long Road Ahead

 As we noted on the day of the announcement, OSHA has – at long last – released a proposal to better protect workers from respirable silica. We didn’t have much to say about the substance at the time because we simply hadn’t had the opportunity to read through the massive proposal. (It’s over 750 pages, with almost 1600 additional pages in the risk assessment and economic analysis documents – OSHA clearly doesn’t take their regulatory responsibilities lightly.) Having had a chance to get a bit more familiar with the proposal, here are some initial thoughts:

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New CPR Issue Alert on TSCA Reform: Progressive Principles for Toxic Risk Regulation

Today, Senator Boxer’s Environment and Public Works committee will hold a hearing to discuss the best ways to fix the Toxic Substances Control Act (TSCA), the badly outdated law governing some 80,000 chemicals used in commerce in the United States. Communities across the country are not aware of the dangers present in chemicals in everything from baby bottles to face creams, with little to no regulation because of weak TSCA legislation passed over 40 years ago. Strong toxic chemical regulation is needed that protects the rights of consumers to go to court, that strengthens the ability of states to regulate toxics, and streamlines the EPA’s process for reviewing chemicals instead of bogging it down with repeated analysis and procedures that focus on the profitability of the chemical industry instead of the health and safety of the public. CPR Board Member Thomas McGarity will testify, and CPR Member Scholar Noah Sachs and I have put together a new Issue Alert that provides some context.

TSCA, as interpreted by the courts, puts huge hurdles in EPA’s path even when the agency has clear evidence that a chemical poses unreasonable risks to human health or the environment. Hundreds of new chemicals are approved for the market every year before EPA has a full suite of health and safety data, and EPA must overcome significant procedural hurdles before it can mandate additional testing. States have stepped in to fill the enormous regulatory void with a variety of programs, from restricting individual chemicals in specific uses (e.g., bisphenol-A in baby bottles) to expansive labeling schemes (e.g., Proposition 65 in California) to green chemistry and alternatives-analysis programs (e.g., Maine, Minnesota, and Washington programs for “Chemicals of High Concern”).

The Senate has two vastly different proposals on the table for dealing with the broken law. S.1009, the Chemical Safety Improvement Act, is a compromise bill that has strong support from the chemical industry. S.696, the Safe Chemicals Act, earned plaudits from environmentalists when it was introduced earlier this year. Our new Issue Alert focuses on the principles for TSCA reform that CPR Member Scholars and staff have identified as most important. It is by no means an exhaustive list, but it underscores the different approaches to TSCA reform that the two bills take. 

We cover a handful of issues, including:

Testing: TSCA creates a “Catch 22” for EPA, requiring that the agency show a chemical may present an unreasonable risk of harm to human health or the environment before it can demand new test data that would help the agency determine whether it can make that case. The provision should be scrapped, and replaced with language that gives EPA broad authority to demand new test data for any reason related to implementation of the Act.

Standard of review: The federal courts’ crabbed reading of TSCA has left Americans vulnerable to a regulatory system in which chemicals are assumed safe until proven hazardous, and EPA’s efforts to make a case to the contrary are stymied by insufficient information and limited authority to regulate. The Issue Alert proposes a novel, competition-based standard of review that would transform the TSCA framework from “anything goes” to “the best of what science can offer,” based on the groundbreaking work of CPR Member Scholar Wendy Wagner.

Deadlines: Time and again, Congress has gone back to rewrite public health statutes to demand that regulatory agencies take specific actions according to specific schedules. TSCA has never undergone such revisions, which is why the safety of thousands of chemicals has never been reviewed by EPA. It’s high time Congress set a schedule for review.

Preemption:  State legislatures, regulatory agencies, and courts play valuable roles in preventing toxic exposures and ensuring compensation for people who are adversely affected by dangerous chemicals.  TSCA must encourage vibrant state action to protect people and the environment by preempting only those laws that make compliance with federal standards impossible.

 

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Chemical Safety Board Introduces a Most Wanted List of Reforms to Protect Workers

The U.S. Chemical Safety and Hazard Investigation Board, better known as CSB, is held a meeting today to discuss several recommendations and a newly created “Most Wanted Program.”  CSB has invited public input, so CPR President Rena Steinzor and I submitted comments to CSB yesterday, urging the agency to target the White House in its advocacy efforts related to the Most Wanted Program.

CSB has numerous recommendations that it considers “open” because the target of those recommendations, be it OSHA, another federal agency, a private standards organization like the NFPA, or another target, has yet to implement the recommendation.

The recommendations aimed at federal agencies are an especially tricky group, given the realities of the regulatory system.  As we’ve discussed in this space before, OSHA’s regulatory efforts have been running up against significant resistance from the White House.  A prime example is the proposal to tighten regulations on silica exposure, which has been stuck in the limbo of White House review for over two years.  Until the White House decides that improving occupational safety and health is a priority, OSHA’s regulatory program will struggle to implement much-needed worker protections and CSB’s “Most Wanted” are going to remain at large.

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Shelanski to Testify on Regulatory Look-Back, Hopefully with an Update on the Poultry Slaughter Rule

Tomorrow, the new OIRA Administrator, Howard Shelanski, will testify before the House Small Business Committee on the results of the government-wide “look-back” at existing regulations. It will be an opportunity for the Committee’s Republicans to continue their assault on government programs that keep our food safe, air and water clean, and highways fit for travel. Shelanski could follow in his predecessor’s footsteps by trying to assuage the Republicans’ fears with glowing statistics about the allegedly huge savings that are expected to flow from revising some old regulations, or he could be more supportive of his fellow public servants and highlight the myriad programs that are working just fine and don’t need to be rolled back.

Food safety and occupational health advocates are hoping Shelanski will have an opportunity to give an update on a piece of the look-back program that falls somewhere between the extremes: the Department of Agriculture’s (USDA) poultry slaughter “modernization” rule. While it is true that the poultry slaughter industry could use some 21st century upgrades to ensure that our chicken and turkey don’t arrive at the grocery store with Salmonellae. coli, and other forms of contamination, the proposal that USDA put out last year is the wrong approach.

We’ve written about the problems with the proposal in this space before. The long and the short of it is that USDA’s proposal won’t necessarily improve food safety, but it will definitely increase the risk of injury for the folks who work in the plants.

The USDA Inspector General reviewed a 15 year-old pilot program in which swine slaughter facilities were granted waivers from current regulations, plant employees were given the responsibility of certain inspection tasks, USDA inspectors were moved off of the slaughter lines, and the line speeds were allowed to increase.  Dubbed the HACCP-based Inspection Models Project (HIMP), the program is virtually identical to the proposed poultry inspection rule.  The Inspector General’s review of the swine HIMP system revealed that 3 of the 10 plants cited with the most NRs [noncompliance records] from FYs 2008 to 2011 were HIMP plants. In fact, the swine plant with the most NRs during this timeframe was a HIMP plant—with nearly 50 percent more NRs than the plant with the next highest number.

In a letter today, CPR President Rena Steinzor joined with 28 NGOs and 18 other health and safety experts urging Shelanski to notify USDA that these concerns cannot be addressed without restarting the rulemaking process. Tomorrow would be a great opportunity for Shelanski to say that this part of the look-back process needs another look. 

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House Amendment to Farm Bill Would Spur USDA Action on Flawed Poultry Slaughter Rule

Hot on the heels of a USDA Inspector General’s report that highlights the failings of privatizing pork inspection, the House yesterday approved an amendment to the Farm Bill that pressures USDA to institute the same type of system in the poultry slaughter industry.  The poultry rule, which we’ve written about in this space before, is not yet in final form, but the poultry industry and its supporters are pushing it in that direction.  The Inspector General’s report adds to the growing list of reasons why the USDA should scrap the proposed poultry rule and come up with a better way to modernize food safety inspection programs.

The USDA Inspector General reviewed a 15 year-old pilot program in which swine slaughter facilities were granted waivers from current regulations, plant employees were given the responsibility of certain inspection tasks, USDA inspectors were moved off of the slaughter lines, and the line speeds were allowed to increase.  Dubbed the HACCP-based Inspection Models Project (HIMP), the program is virtually identical to the pilot HIMP project that was more recently introduced in the poultry slaughter industry.  The Inspector General’s review of the swine HIMP revealed that  3 of the 10 plants cited with the most NRs [noncompliance records] from FYs 2008 to 2011 were HIMP plants. In fact, the swine plant with the most NRs during this timeframe was a HIMP plant—with nearly 50 percent more NRs than the plant with the next highest number.

To make matters worse, the report notes that In the 15 years since the program’s inception, FSIS did not critically assess whether the new inspection process had measurably improved food safety at each swine HIMP plant—a key goal of the HIMP program.

To a cynic, it may not be surprising that USDA avoided a thorough review of the HIMP program, given the noncompliance history of the swine plants that were part of the program and the agency’s goal of making HACCP-based inspection systems permanent in swine and poultry slaughter facilities, alike.  To its credit, USDA has completed at least a partial review of the poultry slaughter HIMP, although Food & Water Watch has released reports indicating that USDA’s review missed the mark.

The Inspector General’s report is the second independently researched produced document to raise concerns about the poultry slaughter rule in recent weeks.  The other, an interim report from NIOSH about worker safety in a South Carolina poultry slaughter facility, provided evidence of high rates of musculoskeletal problems in plant workers.  Those serious health problems are likely linked to the ergonomic hazards of quick and repetitive motion, which would only be exacerbated by the increased line speeds allowed under USDA’s proposed rule.

The poultry slaughter rule was on the fast track at one point (OIRA’s 44-day review was inordinately fast).  When public interest advocates raised significant concerns about food safety and threats to workers during the notice-and-comment process, it slowed down.  Congressional pressure to speed it back up is misplaced, especially in light of the Inspector General and NIOSH reports.

    

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Large OSHA Fine for Poultry Processor Highlights Flaw in USDA Proposal to Revise Inspection System

Just days before The Washington Post's Kimberly Kindy published her eye-opening story of chemical showers in chicken processing plants and the untimely death of a federal food safety inspector, OSHA announced fines totaling $58,775 in a case involving a worker fatality at another chicken processing plant – this one in Canton, Georgia. According to OSHA's press release, the worker "became caught in an unguarded hopper while attempting to remove a piece of cardboard." 

The agency does not typically release the full details of an investigation until it is "closed" by virtue of penalties being paid, a settlement, or a court decision, so we'll only be able to glean the basics of this tragic incident from the public inspection file and press release, for now. But the basics tell a troubling story. OSHA cited Pilgrim's Pride, which boasts billions of dollars in chicken sales annually and employs about 38,000 workers, for violating rules that embody some of the most basic safety principles, like the need to have controls in place to prevent life-threatening machinery from starting up while a worker is servicing it. What's worse, the citation for failing to have procedures in place to control "potentially hazardous energy" has been classified as a "repeat" violation because the plant was cited for similar violations just two years ago.

And yet the U.S. Department of Agriculture (USDA) has proposed to give this plant and others like it significantly more leeway to lower their production costs at the expense of providing safe workplaces. USDA's proposed revisions to poultry slaughter inspections will allow plants to speed up their processing lines in a way that poses serious threats to workers' health and safety. Musculoskeletal problems are already rampant in these factories as a result of repetitive motion and awkward positions. But speeding up the lines, which will decrease processing costs by about three pennies per chicken (a cumulative profit totaling millions of dollars per year), is the incentive that USDA is giving to Pilgrim's Pride and other processors to get them to make the capital investments necessary to adopt a new inspection system. That extra profit will be earned on the backs (and shoulders and wrists) of the workers who will have to cope with dizzying new line speeds.

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