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CPR's Steinzor in the Houston Chronicle: With Dupont, OSHA's Tough Talk Falls Faint

This past Sunday, the Houston Chronicle published an opinion piece by CPR Scholar and University of Maryland Carey School of Law professor Rena Steinzor entitled, "With Dupont, OSHA's Tough Talk Falls Faint."

Steinzor recounts the chemical giant's negligence and reckless disregard for safety which ultimately led to the deaths of workers Gilbert and Robert TisnadoWade Baker and Crystle Wise.

She takes OSHA to account for the small penalties the agency levied against Dupont and notes, "Despite ample evidence that gross and reckless neglect of fundamental safety protocols caused the tragedy, OSHA could only muster alleged violations totaling $99,000 in civil penalties, an amount that DuPont could pay out of petty cash. Penalties this small relative to a company's size and revenues do not deter future misconduct by DuPont or its competitors. Instead, they are written off as a mere cost of doing business."

Steinzor acknowledges that OSHA is left with a statute that is far too weak when enforcing stiffer penalties, but lays out a potential path to holding Dupont leadership accountable:

As the poisonous vapor spilled from the valve, the worker standing nearby radioed for help and others ran to assist her. But the plant lacked enough emergency oxygen masks for rescue purposes. Later, two masks lay abandoned near two dead workers. Managers never set up an incident command center. They never called for help from a highly trained industry-sponsored response team organized to respond with specialized equipment. Most incredibly, no one called 911 until a full hour after the leak began. Even then, shift supervisorJody Knowles lied to the 911 operator, claiming that the public was not at risk when DuPont had not yet measured exposure at the plant's fence line. Firefighters sent to the site risked their lives because DuPont never filed an inventory of hazardous chemicals.

All these details suggest that the possibility of sending someone to jail for this pattern of reckless neglect should still be on the table. If the federal government is too intimidated to bring a criminal case, maybe Harris County District Attorney Devon Anderson could step into the breach. She has the authority to charge responsible managers with reckless manslaughter when people die preventable deaths.

To read the entire piece, click here.

 

 

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The Waters of the United States Rule, Congress, and "Washington bureaucrats"

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in Saturday’s New York Times):

"This rule is not designed to protect the traditional waters of the United States.  It is designed to expand the power of Washington bureaucrats."

This is a familiar refrain.  Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act.  On environmental issues, this kind of rhetoric is particularly prevalent.  And in this circumstance--and, I suspect, many others--it's just not true.

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Corporate Crime Is Not 'Civil Disobedience'

Cross-posted with ACSBlog.

The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.

This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating affirmative action policies.  If for no other reason than that Charles Murray is one of almost-candidate Jeb Bush’s favorite authors, his newest salvo bears close scrutiny.

The essential underlying premise of the article is that the Code of Federal Regulations is chock full of senseless regulations, the violation of which could not possibly lead to any actual harm to anyone.  This premise is an article of faith for critics of federal regulation, but it has little basis in fact.  The one actual regulation he cites (an OSHA standard requiring railings for exposed stairway floor openings to be 42 inches high) may be far more detailed in its specification than it needs to be, but it is by no means senseless.  As Murray recognizes, it is intended to prevent workers from precipitous falls.

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The Corps Gets More Blame for Katrina Flooding

It’s been almost 10 years now since Hurricane Katrina unleashed its fury on the Gulf Coast, setting in motion a massive failure of New Orleans’s flood-control system. More than 1,800 people lost their lives when Army Corps of Engineers-designed levees around New Orleans failed, allowing water to engulf the city.

What followed the levee failures was something not seen in an American city in a very long time. In addition to the huge loss of life, Americans outside the region watched on television as the city suffered more than $100 billion in property damage; massive and ill-organized evacuations; and the sight of thousands of Americans trapped in the squalor of the New Orleans Superdome for days, while their government demonstrated just how badly it was prepared for such a disaster. It was a slow-moving, man-made disaster, as CPR observed in a report issued a few days later, tracing the roots of the crisis.

Then-President George W. Bush and his administration were judged harshly in the immediate aftermath of the storm, and in an effort to deflect blame, his defenders in Washington and elsewhere argued that the real villains in the tale were environmentalists, because a lawsuit brought some 29 years earlier had supposedly prevented the Army Corps of Engineers from taking the flood-prevention approach it preferred. The argument, rather like the levees the Corps eventually built, just didn’t hold water.

The lawsuit centered on the Corps’ failure to prepare an adequate environmental impact statement on its preferred approach. When the court ordered it to do so, the Corps delayed for several years, then reexamined the matter and decided to build levees instead. Those levees eventually failed under Katrina’s weight.

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Are We Done with Sweetheart Deals for Too Big Banks?

In her first major criminal settlement since becoming Attorney General, Loretta Lynch has delivered, trussed and on a platter, five of the world’s biggest banks—Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland, and UBS.  The five will actually plead guilty to specific crimes involving manipulation of foreign currency markets and will pay close to $6 billion in penalties for illegally collaborating to drive trading prices up and down. As one not-so-bright bank executive pronounced slyly in an online chat room that the self-named “cartel” used to communicate, “If you ain’t cheating, you ain’t trying.”  

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Federal Agency Inaction amid Growing Concerns about Health and Safety of Nail Salon Workers

Whether you are a frequent visitor to your local nail salon, or just an occasional passer-by, you are likely familiar with the offending chemical stench that emanates from within.  You may have even considered whether the displeasing fumes are safe to breath, especially for the clinicians who work in the store every day.  This is exactly what New York Times reporter, Sarah Maslin Nir, explores in her recent exposé of the nail salon industry entitled, “Perfect Nails, Poisoned Workers.” 

Nir explains that there is limited research on chemical exposure to nail salon workers, which makes it difficult to reach hard conclusions on the long-term or accumulated health effects.  Yet first-hand accounts of workers in the industry reveal that skin and eye irritation, breathing difficulty, and pregnancy complications are commonplace, and there is substantial data showing that the chemicals used by nail salon workers (like acetone, formaldehyde, and toluene to name a few) are hazardous, and are, in some cases, carcinogenic.  

So why is the Occupational Safety and Health Administration (OSHA) doing so little to step in and protect nail salon workers from harm?  

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The Reality of U.S. Oil Transport

The major oil pipeline spills along the Santa Barbara coast and into the Yellowstone River in Montana this past year are only the most recent chapters in the growing list of major spills associated with oil transportation in the United States. These recent spills of 100,000 gallons and 50,000 gallons of oil, respectively, follow a nearly 1 million gallon spill of Canadian tar sands oil from an Enbridge pipeline that burst in the Kalamazoo River in Michigan in 2010, and other similar spills around the country. These spills and many others like them have resulted in significant harm to public health and the environment, created panic among residents, and forced state officials to declare states of emergency in affected area. 

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Counting Sheep: Livestock Stream Fencing Accounting as Easy as Herding Cats

Recently, the Chesapeake Bay Commission released a report Healthy Livestock, Healthy Streams to advocate for stream fencing, one of several dozen longstanding agricultural best management practices (BMPs) recognized by the Chesapeake Bay Program.  Promoting stream fencing is common sense: when livestock loiter near streams, they compact soil, clearing a path for runoff; when they enter the stream, they erode its bank and send sediment into the channel; and when nature calls, they deposit “nutrients” directly into the stream.  It is not just bad for aquatic habitats, it is bad for farmers and their vet bills. 

Despite significant reductions over the past 30 years in nutrient and sediment loading from agricultural sources, the share of these pollutants from the agriculture sector has remained remarkably consistent, contributing, for example, 45% of the nitrogen to the watershed in both 1985 and 2014.  However, the Bay TMDL calls for the agriculture sector to bring this down to about 40% of the total load, requiring the sector to shoulder over 60% of the reduction burden (figures are even higher for phosphorus).  The good news is that reductions from the agriculture sector are widely recognized to be the most cost effective, although, as noted below, there is much uncertainty for stream exclusion BMPs.  In any event, Maryland, Pennsylvania, and Virginia count on stream exclusion for 9%, 20%, and 24% of sediment reductions from the agriculture sector, respectively – a significant reliance on one single practice.

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More Right-Wing Pseudo-Research on the Costs of Regulation

The Competitive Enterprise Institute is out with the latest in a series of industry-friendly reports overcooking the supposed costs of regulation, while understating or simply ignoring the vast benefits to health, safety and the environment. Not surprisingly, The Wall Street Journal and The Washington Times were good enough to put the right-wing echo chamber in motion in its service.

A few quick thoughts: This report isn’t scholarship, it’s arithmetic advocacy—and it’s poor arithmetic at that.  The organization that sponsored the report is more concerned with advancing its political agenda of laissez faire government at all costs than it is with sound public policy. This report is meant to advance that agenda, rather than inform the ongoing debate over the U.S. regulatory system. After all, what good does it do to tally up the costs of regulation without providing an estimate of regulatory benefits with which to compare them? Policymakers and the media would do well to ignore this report.

The report’s findings appear to be based on several inflated regulatory cost estimates, lined up and added together to produce exactly what the author likely intended: a huge number. Some of the numbers come from estimates produced by regulatory agencies themselves, which several retrospective studies have shown to be systematically inflated. Others come from individual reports assembled by the author. To the extent that the CEI report is based on several different sources that relied on a variety of different methodologies, there is a large possibility that simply adding them up will result in a lot of double counting, further inflating the CEI report’s conclusion. The author of the CEI report, however, appears to make no effort to address this problem either.

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Sunshine in the Forecast for Maryland Government

Spring is here in the Chesapeake Bay Watershed, which means plenty of sunshine ahead, and not just in the weather.  Several important government transparency actions taken by the Maryland General Assembly before it adjourned the 2015 legislative session a few weeks ago will provide Marylanders with greater access to state records and shed new light on compliance with environmental goals. 

First and foremost, Marylanders for Open Government spearheaded an effort to address longstanding problems facing concerned citizens, stakeholder groups, and the press in obtaining public information in Maryland, culminating the most significant reform of the Public Information Act (PIA) since its enactment in 1970.  The new law establishes a new compliance board to hear complaints regarding overcharging of fees for PIA requests and sets out a relatively swift timetable for the resolution of complaints.  The law also creates a Public Access Ombudsman, appointed by the Attorney General, who will help resolve complaints between PIA applicants and custodians over the denial of inspection of records, among other issues.  The also law requires a response within 10 working days if a custodian believes that it will take that long to produce a record and, upon denial, to provide an explanation for the denial and a description of the undisclosed record to allow the applicant to understand the legal basis for the denial.  Finally, the law also requires the Attorney General to submit interim and final reports, in consultation with stakeholders, on how to improve the PIA law and process.  So, beginning October 1 of this year, consider whether and how the PIA process is changing and what additional change is needed.  CPR will be keeping a close eye on how the PIA process improves this fall and, particularly, the continued secrecy over agricultural nutrient management plans.

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