Matt Shudtz on CPRBlog {Bio}
[ Next ]

USDA Submits Poultry Rule to OMB: The Facts

Yesterday, USDA submitted its draft final rule on poultry slaughter “modernization” to OMB for formal review.  This rule, as regular readers of CPR Blog will remember, would remove USDA inspectors from poultry slaughtering facilities, transfer some of their food safety and quality control duties to plant employees, and allow the plants to increase their line speeds to an astonishing 175 birds per minute.  On top of that, the rule allows each plant to develop its own testing protocols for E. coli, salmonella, campylobacter and other food-safety concerns.  It’s the foxes guarding the henhouse, for sure.

Along with many of our allies in the worker health and safety and food safety communities, we have been urging USDA since early 2012 to go back to the drawing board with this ill-advised rule.  USDA published its proposed rule in January 2012 without consulting with its inspection advisory committee, without holding public meetings to solicit other stakeholders’ views, and – especially galling – without seeking input from OSHA.

In the two and a half years since USDA proposed the rule, we’ve seen a steady stream of bad news for the proponents of the rule:

  • April 2013: NIOSH releases an interim Health Hazard Evaluation (HHE) report on a poultry slaughter facility that was attempting to get special permission to adopt the “modernized” inspection scheme before the final rule goes into effect.  Interim HHE reports rarely surface publicly, but this one had such striking results that its release was inevitable.  Among other findings, NIOSH discovered that 42 percent of worker-participants had evidence of carpal tunnel syndrome and 41 percent of worker-participants worked in jobs above industry standards for hand activity and force.

  • April 2013: Kimberly Kindy, writing in the Washington Post, highlights the tragic story of a USDA inspector who died of kidney and lung failure potentially linked to the chemical brew that was used to disinfect chicken at the plant where he worked.  Plants are likely to increase the use of these chemicals if the rule goes forward.

  • September 2013: GAO criticizes USDA for failing to thoroughly evaluate the performance of pilot projects that USDA had initiated to test the validity of its “modernization” proposal.  In its characteristically dry tone, GAO concluded: “USDA may not have assurance that its evaluation of the pilot project at young chicken plants provides the information necessary to support the proposed rule…”

  • October 2013: Kimberly Kindy, writing in the Washington Post, highlights the potential for increased animal abuse problems if poultry slaughter facilities increase their line speeds as the rule would allow.

  • March 2014: NIOSH releases its final HHE report on the facility described above, noting an “alarming prevalence” of carpal tunnel syndrome among workers in the plant and cautioning that “increasing the number of birds processed per worker may result in an even higher prevalence of carpal tunnel syndrome than seen in this NIOSH evaluation.”

  • April 2014: The NIOSH final report led to an “interagency throwdown,” in which USDA officials tried to downplay the findings only to have their claims repudiated by NIOSH’s Director, Dr. John Howard, who called USDA’s spin-attempt “misleading.”

For workers and consumers, this rule presents huge risks.  USDA has been operating in a black box since proposing the rule in early 2012, so it is unclear what changes might have been made to answer the concerns raised by the public interest community and other government agencies.  OMB should send this rule back to USDA with a “return letter” that instructs the agency to at least release the draft publicly, if not start from scratch.

Full text

NLRB gets an earful on its “joint employer” definition

A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of “joint employer” for purposes of collective bargaining.  It’s a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships.  The workers who got your last-minute Father’s Day gift from the Amazon warehouse to your front door, for instance, don’t all get paychecks from Amazon, but they all operate at “Prime” speed because Amazon demands it.

From a health and safety perspective, it’s important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes – to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs – are best achieved when all of the employers with a connection to the job are at the table.

Full text

Winning Safer Workplaces

Thousands of U.S. workers die on the job each year, the victims of unsafe workplaces. Countless more are injured, some permanently disabled, or exposed to toxic substances that could eventually harm or kill them. While the federal Occupational Safety and Health Administration has made progress to improve workplace safety since Congress passed the OSH Act in 1971, a new advocacy manual from the Center for Progressive Reform focuses on the progress on worker safety issues  likely to come at the state and local levels, far from the general dysfunction in Washington.

Winning Safer Workplaces: A Manual for State and Local Policy Reform, written by a team of lawyers and public health researchers, offers local advocacy groups a series of policy proposals, all ripe for enactment by state legislatures, city or county councils, or state or local agencies. 

Full text

New NAS report breathes life into EPA’s IRIS program

The National Academies’ National Research Council released its long-awaited report on IRIS this week, and the results are good for EPA.  The report praises the IRIS program and its leadership, including Drs. Olden and Cogliano, for making great strides to improve how IRIS assessments are developed.

To get a real appreciation for how positive this report is, it’s important to put it in context.  In 2011, a different NAS/NRC committee led by the same chairperson went out of its way to criticize the IRIS program for creating what the committee viewed as overly ponderous, sometimes confusing documents.  That committee, which was organized to peer review a draft assessment of formaldehyde, went beyond its charge to complain about an IRIS assessment development process that it cast as not being fit for its weighty purpose (developing the scientific evidence upon which agencies regulate drinking water, Superfund cleanup, and other public health concerns).  The 2011 report led to much Sturm und Drang about the future of the IRIS program, controversy that was further stirred by Members of Congress beholden to the chemical industry.  In negotiations over the agency’s multi-billion dollar budget, the relatively puny IRIS program was singled out for special attention and EPA relented to sponsor the NAS committee that produced this week’s report.

Full text

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.

Full text

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.”  

Full text

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.


Full text

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.
Full text

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:

Full text

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.

 

Full text