regulation

“A gift to the construction industry”: catchy quotes from Court of Appeals argument on OSHA’s silica standard

cmonforton — Sat, 14 Oct 2017 15:19:29 +0000

“A gift to the construction industry”: catchy quotes from Court of Appeals argument on OSHA’s silica standard

OSHA took the long road to adopt a standard to address respirable crystalline silica. Although the final rule was issued in March 2016, it is being challenged by both industry and labor groups. The first says OSHA went too far, the other says OSHA didn’t go far enough.

The long road, however may be coming close to end. The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments last week from parties that are challenging the rule. Judges Merrick Garland, David Tatel and Karen LeCraft Henderson spent more than two hours listening to arguments from the National Stone, Sand and Gravel Association (NSSGA), the Brick Industry Association (BIA), the U.S Chamber of Commerce, the North America Building Trades, the United Steelworkers and others. Attorneys with the Department of Labor’s Office of the Solicitor were there, too, to defend the OSHA rule.

I enjoyed listening (and relistening) to the court’s audio of the oral argument. What made it particularly enjoyable was listening to the judges---they did their homework!

Judges Garland and Tatel, in particular, probed, cajoled, and challenged the attorneys to clarify their arguments. The judges pressed the attorneys on issues concerning economic feasibility, health risks, and the legal standard for substantial evidence. There were plenty of references to prior litigation on OSHA health standards. They mentioned significant previous court decision on OSHA standards, such as for asbestos, lead and formaldehyde. I felt a bit like an outsider, listening to the attorneys speak about those rulings. They described them as if they were old friends who remain relevant today. And like relationships with old friends, we don't always agree about what she said or remember events in the same way.

There were times during the oral arguments that the presenting attorney rose to a judge’s challenge for a cogent response. But I cringe a few times when I heard nervous laughter from an industry attorney who knew he was stumped by the judge’s question.

Below are just some of my favorite quotes and exchanges. The text doesn't capture the animation I heard in the audio from the courtroom or the commitment of the attorneys to their arguments. I've included a time stamp at each quote so you can listen for yourself. (I had difficulty distinguishing Judge Garland’s from Judge Tatel’s voice. If I incorrectly attribute the quotes, please leave a comment and I’ll correct it.)

NSSGA and BIA argue that OSHA overstates the risk of health harm caused by exposure to respirable crystalline silica. Their attorney, William L. Wehrum, said:

“We assert that OSHA had a thumb on the scale. We believe the record makes clear that OSHA came to this rulemaking with a determined goal of reducing the level of the standard. We believe it clouded OSHA’s judgement and caused it to lose objectivity, which we believe permeates the entire proceeding." [00:02:36]

Judge Tatel chimed in:

"You say that OSHA had its thumb on the scale, which is a curious statement given our standard of review. The question is: is there significant evidence in the record to support OSHA’s position for what it did? You can certainly point to contrary evidence, but OSHA has explained all that. ...You have to make your argument in terms of our specific standard of review, which is the substantial evidence question. Our case law is very specific about that."

Sounding like a law professor Tatel added:

"What’s your best argument regarding the substantial evidence test?" [00:04:19]

Wehrum had difficulty providing a short and sweet and precise answer.

Judge Garland addressed the problem for the court of dueling scientists. William Wehrum tried to describe the evidence from his side's experts, but Garland interrupted:

"We have scientists on both sides and the law here is quite clear. When there are scientists on both sides, OSHA is permitted to take the ones that are most likely to protect worker safety. There is supposed to be a thumb on the scale in terms of safety. ...That's what our own case says. It is perfectly appropriate for OSHA to weight in favor of worker safety. That's right, isn't it. [00:09:56]

William Wehrum: "Correct your honor to a point, but that dosen't insulate OSHA from review.

Soundly a bit frustrated, Garland said:

"That's what we doing here, but it is not enough to say there is a plausible mechanism. You have to be able to show that OSHA's studies are not themselves substantial evidence."

The attorney representing the U.S. Chamber of Commerce was also schooled by Judge Garland. This time it was a math problem.

Attorney Michael Connolly argued that there are so few deaths today is the U.S. from silicosis that OSHA has not met its burden of demonstrating that exposure to respirable silica poses a significant risk of harm to workers. Connolly pointed to the low number of silicosis deaths reported on death certificates and compared to the millions of workers in silica-related industries.

Judge Garland asked [00:18:50]:

"Is that the right division? Dividing the total number of deaths that are reported on the death certificates by the total number of workers in industry? Or is the right number the total number of deaths at a certain level of exposure? That is, in terms of the 1 in 1,000 test.

(The "1 in 1,000" comes from a 1980 Supreme Court ruling about OSHA's benzene standard. The Supreme Court justices did not offer a specific ratio but indicated that the threshold likely fell somewhere between 1 death per 1 billion (which would not be considered significant) to 1 death per 1,000 (which would be significant.))

Judge Garland continued:

"It's not supposed to be just 1 over the entire population of the United States, or 1 over everybody who works. It’s supposed to be 1 over 1,000 people who work at a certain exposure level, isn’t that right?"

Michael Connolly: "Sure. That’s correct."

Judge Garland:

"Isn't it exposed to silica at a certain exposure levels that matters? Not all people who may have been exposed to silica? [20:03]

Score one for the judge.

I wish I'd been in the courtroom for that exchange. I would have turned my head to see if Judge Garland's remark brought a smile to the attorneys who were defending OSHA's rule.

Labor Department attorney Kristen Lindberg was charged with responding to some of the arguments raised by the industry petitioners. Among her excellent synopsis was this:

[00:35:00] "It's worthwhile to step back a little bit and review the support OSHA had in the record for its findings. Their risk assessment findings were supported by nearly all of the occupational health and medical organizations that commented on the rule, including NIOSH, the American Cancer Society, the American College of Occupational and Environmental Medicine, the American Thoracic Society, the Association of Occupational and Environmental Clinics, and the American Public Health Association."

"... Industry petitioners want you to reject conclusions that have overwhelming support among scientists and that were supported by the independent peer reviewers who scrutinized OSHA’s risk assessment. They want you to reject this extensive body of scientific evidence on the flimsy basis that there are flaws in some of the studies that OSHA relied upon and that there is uncertainty in epidemiology. They want you to impose a legal burden on OSHA that the agency could never meet."

[00:36:53] "The broad support for OSHA’s conclusions within the scientific community should increase the court’s confidence that OSHA’s analysis is sound. The courts understand that OSHA, in marshalling scientific evidence to support a risk assessment, cannot ever reach perfection because the science those risk assessments are based on is not perfect. There will be flaws in studies, there will be stronger and weaker studies, there may be some uncertainty, but what OSHA has done here, its extensive analysis based on a huge body of evidence conforms fully with the OSH Act and with the requirements of courts that have interpreted the OSH Act."

Bradford Hammock argued the case on behalf of the National Association of Home Builders and other industry groups. He tried to convince the judges that OSHA's requirements for the construction industry are not technological feasible.

Victoria Bor, the counsel for North America’s Building Trades Unions dismissed Mr. Hammock's assertions. Her argument began with the following [00:67:40]

"By way of context, Table 1, which is the centerpiece of the construction standard, is a gift to the construction industry. Most OSHA standards set a permissible exposure limit and require employers to monitor their workplaces and devise their own strategies following the hierarchy of controls to bring exposures below the permissible exposure limit (PEL). The silica standard gives employers options. They can follow the traditional approach or they can follow Table 1, which is in effect is a manual that lists 19 of the 23 construction tasks that most commonly generate significant silica exposure, and specifies control strategies for each. Employers who fully and properly implement the controls listed on Table 1 are freed from monitoring their workplace and have a safe harbor for complying with the PEL.

"...OSHA assumes that most employers will follow table, which is a completely reason assumption because it tells employers exactly what they have to do, frees them from monitoring, and gives them a safe harbor for complying with the PEL."

"Now rather than accepting this gift, as Mr. Hammock already explained to you, the industry petitioners point to Table 1 and argue that to the extent it requires the use of respirators....OSHA is conceding that the standard isn't feasible. ...The petitioners’ argument completely ignores that Table 1 does not require employers to comply with the PEL. What it requires is for employers to implement the listed controls. So whether the PEL can be reached without the use of respirators---the question that the industry petitioners focus on--- is actually completely irrelevant."

Victoria Bor continued:

"What is relevant, as Ms. Goodman [of the Labor Department] said, is that the typical employer can comply with Table 1 most of the time. On this question, the petitioners argument on feasibility rests on vague assertions that in certain circumstances, certain employers may not be able to use certain of the wet methods listed in Table 1 at some time. …Petitioners point to no evidence that undermines OSHA’s conclusions that most employers will be able to comply with Table 1 by utilizing those controls most of the time."

There was dead silence after her rebuttal. None of the judges asked Victoria Bor to clarify or further defend her arguments. They seemed convinced.

The excerpts above are just some of memorable moments from the oral argument. Another was a lengthy argument by the unions and rebuttal by the Labor Department about OSHA's provisions for medical surveillance and medical removal protections. It was the one time that the Labor Department's case seemed on shaky ground.

If you listen to the audio for yourself you'll hear the word "grapple" used numerous times by attorneys for the unions. You'll hear the Labor Department attorneys repeat the phrase"de minimis benefit." You'll hear one judge say to an industry attorney "it's not your principle argument, it's your only argument" and another judge mention "a shopping list." You'll hear all the parties claim that OSHA's decisions are, or are not, "supported by the record." Finally you'll hear many references to previous Supreme Court and Appeals Court decisions on other OSHA standards.

It's been many years since OSHA started down the road toward a comprehensive silica standard. People will disagree on when the agency actually hit the road, but they know that last week's stop at the U.S. Court of Appeals means the road may soon be coming to an end.

Judges Garland, Henderson, and Tatel are now at the wheel. They will decide whether OSHA's rule will stand as is, or whether the agency needs to make a U-turn.

I relished listening to the oral arguments. I'll be eager to read the judge's opinion when it's issued.

cmonforton Sat, 10/14/2017 - 11:19

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Medicine

Gun control laws can impact death rates. But we need more research to find what works.

kkrisberg — Thu, 05 Oct 2017 16:30:31 +0000

Gun control laws can impact death rates. But we need more research to find what works.

Guns are the third leading cause of injury-related death in the country. Every year, nearly 12,000 gun homicides happen in the U.S., and for every person killed, two more are injured. Whether Congress will do anything about this violence is a whole other (depressing) article. But there is evidence that change is possible.

Last year, a study published in Epidemiologic Reviews “systematically” reviewed studies examining the links between gun laws and gun-related homicides, suicides and unintentional injuries and deaths. Researchers eventually gathered evidence from 130 studies in 10 countries, finding that in certain places, gun restrictions are associated with declines in gun deaths. For instance, laws that restrict gun purchasing, such as background checks, are associated with lower rates of intimate partner homicide; while laws addressing access to guns, such as safe storage policies, are associated with lower rates of unintentional gun deaths among children. Study co-authors Julian Santaella-Tenorio, Magdalena Cerdá, Andrés Villaveces and Sandro Galea write:

This heterogeneity in approaches and implementation methods makes it critical to identify approaches that are less likely to be effective and to identify which strategies, looking forward, may be more likely to work. In addition, examining the associations between specific policies and firearm-related deaths across countries can improve our understanding about which types of laws are more likely to be successful in reducing firearm mortality rates in similar contexts or within diverse legal frameworks.

The study’s findings are a mixed bag — some of the gun laws studied seemed to reduce gun deaths, while others seemed to make no difference or increase deaths. For example, a number of studies examined found no association between concealed carry laws and gun homicides in the U.S. However, one study using injury data from southern Arizona found higher proportions of firearm injuries and deaths associated with concealed carry. Yet another study in Colombia examined the effects of laws banning the carrying of guns during weekends after paydays, holidays and elections days in two Colombian cities, Cali and Bogota. That study found a 14 percent reduction in homicide rates in Cali during no-carry days and a 13 percent reduction in Bogota.

Studies on background checks and waiting periods came in mixed as well. For example, one study cited found no association between waiting periods and homicides and suicides. On the other hand, researchers have found that gun purchase bans for people with certain mental health conditions were associated with fewer homicides. One study found more stringent background checks were linked with fewer gun homicides. States with laws banning people with domestic violence restraining orders from owning and purchasing a gun also experienced reductions in intimate partner homicide. But one study found no homicide effect for laws that restricted gun access among those convicted of domestic violence.

Two cross-sectional studies analyzed found that gun permits and licenses were associated with lower rates of gun suicide. In Missouri, researchers studied the effect of repealing requirements that people need a valid license to buy a gun, finding the repeal was associated with a 25 percent increase in homicide rates. On laws regulating gun storage, one study found that such child access prevention laws were associated with fewer unintentional gun deaths among children younger than 15, but not among older teens. Another found child access laws were linked to a reduction in all suicides among people ages 14 to 17. A study using hospital discharge data found that such storage laws were associated with lower nonfatal gun injuries among those younger than 18.

The Epidemiologic Reviews study included research on particular laws as well. For example, a study on the U.S. Gun Control Act of 1968 — which restricted the sale of so-called Saturday night specials, among many other measures — did not find associated changes in homicide rates. But a study on Washington, D.C.’s 1976 law banning ownership of automatic and semiautomatic firearms and handguns found an “abrupt” reduction in homicide and suicide rates. Globally, Australia’s 1996 National Firearms Agreement, which banned certain kinds of firearms, was linked with a significant reduction in gun death rates. In addition, Australia has not experienced a mass shooting since the law was enacted. Control gun laws in Brazil, Austria and South Africa were also associated with fewer gun deaths.

Overall, researchers were able to identify some “general observations” in combing through the 130 studies — most notably finding that the simultaneous enactment of laws targeting multiple gun regulations were associated with fewer gun deaths in certain countries. Another big finding: we simply need more research to understand what works and what doesn’t to prevent gun deaths. The researchers also noted that few studies have delved into the impact of gun safety laws on particular populations or whether such laws affect social attitudes, norms and behaviors. The authors write:

To conclude, we have provided an overview of national and international studies on the association between firearm-related laws and firearm injuries/deaths. High-quality research overcoming limitations of existing studies in this field would lead to a better understanding of what interventions are more likely to work given local contexts. This information is key for policy development aiming at reducing the burden posed to populations worldwide by violent and unintentional firearm injuries.

In more recent gun research, a study published this month in Health Affairs set out to quantify the clinical and economic burden associated with emergency room visits for gun-related injuries in the U.S. Researchers examined data from the Nationwide Emergency Department Sample, identifying 150,930 people between 2006 and 2014 who showed up to an ER alive, but with a gun-related injury. That number represents a weighted estimate (that’s a fancy term for adjusting data to represent the greater population) of 704,916 patients.

ER visits for gun injuries was lowest among those younger than 10 and highest among ages 15 to 29. Incidence of gun injury was about nine-fold higher for male patients — among men ages 20 to 24, more than 152 patients per 100,000 visited the ER for a gun injury. Most of the patients had been injured in an assault or unintentionally. The proportion injured in an attempted suicide was more than two-fold higher among Medicare beneficiaries. Handguns were the most common cause of the injury, followed by shotguns and hunting rifles.

Among the more than 150,000 cases of gun injury at the ER, 48 percent were discharged home, 7.7 percent were discharged to other care facilities, about 37 percent were admitted to the hospital and just more than 5 percent died during their ER visits. Overall, 8.3 percent of the gun injury patients either died in the ER or as an inpatient. The average charge for gun injury in the ER was about $5,250; the average charge for those admitted was more than $95,000. Over the entire study period, gun-related injuries cost $2.9 billion in ER charges and $22 billion in inpatient care.

Authors of the Health Affairs study also pointed out the need for more research, citing a 1996 federal measure known as the Dickey Amendment that said injury research funds at the Centers for Disease Control and Prevention could not be used to advocate or promote gun control. Co-authors Faiz Gani, Joseph Sakran and Joseph Canner write:

Researchers, politicians and government officials must work together to ensure that research funds are allocated to promote the understanding of the complex interplay between social, economic and medical factors associated with firearm-related injuries. Only through the adoption of an evidence-based public health approach can the resulting substantial medical and financial burden be reduced.

To request a full copy of the ER study, visit Health Affairs. For a copy of the gun policy study, visit Epidemiologic Reviews.

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for 15 years. Follow me on Twitter — @kkrisberg.

kkrisberg Thu, 10/05/2017 - 12:30

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Medicine

Cal/OSHA’s disappearing funds – where’s the money?

garrettbrown — Thu, 14 Sep 2017 08:20:10 +0000

Cal/OSHA’s disappearing funds – where’s the money?

Starting in July 2015, the California Division of Occupational Safety and Health (Cal/OSHA) was authorized to hire several dozen more field compliance officers to protect the state’s 19 million workers. Because Cal/OSHA’s hiring has not filled all new positions or kept up with retirements, there has been an average of 34 vacancies of these fully-funded positions since then, resulting in $11 million in unused resources through August 2017. Not only is this a missed worker protection opportunity, no one knows what’s happened to these funds and where they are.

Another mystery is the whereabouts of estimated $4.3 million dollars that has been collected from California’s 15 oil refineries in a new assessment that began in 2014. But not all collected fees have been spent on activities by the 10 inspectors assigned to enforce “process safety management” (PSM) regulations at these refineries.

It is a little-known fact that Cal/OSHA does not control its budget or its hiring, instead the agency’s parent – the Department of Industrial Relations (DIR) – has total control and final approval of Cal/OSHA’s spending, hiring and policies. When I worked at Cal/OSHA headquarters between 2011 and 2013, we could never get a straight answer from DIR about our budget. Moreover, we went through several cycles where we were told we could hire inspectors on one day only to have that permission revoked a few days later.

These unused resources are important because Cal/OSHA needs all the money it can get to meet its own, state and federal benchmarks for performance, which is not currently the case. These resources could be used for more inspections of high hazard industries and employers; for more follow-up inspections; for more planned inspections of trenching, lead and asbestos operations; and for effective implementation of the state’s new PSM regulations of oil refineries.

The fact that Cal/OSHA’s job “is not done yet” is reflected in recent reports by Federal OSHA and the National Safety Council.

Inspector position vacancies and unused resources

Funding for Cal/OSHA comes from three main sources: grants from Federal OSHA; the state Occupational Safety and Health Fund (“OSH Fund”); and various fees for services provided by Cal/OSHA. The major state funding is the OSH Fund which assesses a tiny fee (0.23 percent) on employers’ worker compensation insurance premiums. The Governor and Legislature collaborate on the state budget that then authorizes a determined amount of spending for Cal/OSHA from the combined revenue streams.

Doing the math of the resources “left on the table” by DIR, starts with the annual salary, benefits and operating costs for each Cal/OSHA compliance safety and health officer (CSHO) which amounts to $150,000.

With an average of 34 CSHO vacancies per month between July 2015 and June 2017, the unused resources for these compliance officers amounts to $10.2 million. In July 2017 there were 30 vacant CSHO positions, and 29 vacant CSHO positions in August 2017 – for a combined total of $737,500 in unused resources for the two months.

So the unused enforcement resources arising from vacancies in fully-funded CSHO positions between July 2015 and August 2017 is just shy of $11 million.

The question then becomes where is this money? What is it being used for?

The money certainly is not being used by Cal/OSHA to enhance its protections of Californian workers. Mostly likely, as per Section 15606 (f) of the California Code of Regulations, DIR’s Director Christine Baker is holding the funds in a trust account to be used for future reductions of the fees that employers are assessed annually for the OSH Fund.

In other words, these resources are lost to Cal/OSHA and are used to reduce fees on employers in following years. But since DIR handles Cal/OSHA’s budget as an impenetrable “black box” – even for Cal/OSHA headquarters, let alone for workers and the general public – no one really knows.

One constant rumor has been that DIR has a giant “slush fund” – used for the DIR Director’s pet projects – drawn from the multiple funds DIR controls for Cal/OSHA, three other state agencies, and the Commission on Health and Safety and Workers’ Compensation. In the last state fiscal year, DIR directed the expenditure of more than $641 million of its sub-agencies.

But, because of the lack of basic transparency at DIR, no one really knows what happens to funds that are authorized by the state Legislature and collected from employers for the OSH Fund, but then not used, as has been the case of the CSHO vacancies since July 2015.

Unspent refinery fee funds

Another mystery related to DIR’s control of Cal/OSHA funds is the fate of funds raised from a new fee on oil refineries but, again, not spent on Cal/OSHA enforcement.

Following the massive 2012 fire at Chevron’s refinery in Richmond, CA, the state legislature approved a new fee on the state’s 15 oil refineries to finance enhanced enforcement of the “process safety management” (PSM) rules by Cal/OSHA’s designated PSM Unit.

In the two state fiscal years from July 2015 through June 2017, DIR collected a total of $9,568,000 in refinery fees (page 6). The fees are restricted to enforcement activities at refineries, and are not for use at the 1,900 non-refinery facilities that handle hazardous chemicals and are also covered by PSM regulations.

During these two years, the PSM Refinery unit had 10 CSHOs, with annual costs of $150,000 per inspector, or a total of $3 million. Manager, supervisory and clerical staff for the two PSM field offices ran another $1,860,00 for the two years. Office operating costs could be an additional 100,000 a year per office, for a two-year sum of $400,000.

This means that the refinery-fee expenses for the two years would be no more than $5,260,000. But DIR collected $9,568,000 in refinery fees.

This means that $4,308,00 of the refinery fees collected between 2015 and 2017 went unused. What happened to this $4.3 million – and where the money is now – is a question that refinery workers and the communities just across the fence line of the 15 refineries deserve to know.

Perhaps Section 15606 (f) has also been applied to these funds and the oil giants already have and will receive refunds in the form of reduced future fees from DIR. Transparency on the part of DIR is needed here as well.

The need for answers to these questions is more critical than ever. Enhanced PSM regulations are set to take effect in California on October 1^st. All available resources are needed for enforcement and to support the new participation rights of refinery workers.

DIR's bad precedent with the Elevator Fund

How DIR handled the Elevator Fund bodes ill for making full use of resources for worker and public safety.

In 2015, the Elevator Fund had a surplus greater than $35 million dollars, a level which violated state rules. DIR, with the support of the Labor Secretary and Governor’s Office, declared a “fee holiday” on the building owners and operators who pay the annual fees for inspections and other activities by Cal/OSHA’s Elevator Unit.

In 2015, the Elevator Unit had more than three dozen vacancies of fully-funded inspector positions. Moreover, at least 35 percent of the state’s elevators had expired permits, and the Unit did not have the inspectors needed to conduct the annual inspection and renewal of elevator permits.

Instead of using the Elevator Fund surplus to fill the inspector vacancies and reduce the backlog of uninspected elevators – as required by state law – DIR declared a fee holiday.

In January 2017, DIR promulgated an emergency regulation to permanently slash elevator fees by 25 percent for inspections, certifications, installation and alteration of elevators. This emergency regulation was extended for another six months in July, and DIR intends to make it permanent by the end of the year.

All this occurred in 2017 while the Elevator Unit still had 14 vacant inspector positions and a backlog of uninspected elevators with expired permits reported to be more than 20 percent throughout the state.

It is clear that providing building owners, developers and corporations with refunds took precedence for DIR over using existing funds to hire inspectors and protect the public and workers in buildings with uninspected and potentially unsafe elevators.

How the resources could be used

For more than two years, DIR has “left on the table” millions of dollars. These resources could have been used for important worker protection activities such as:

More inspections of high hazard industries and employers. Cal/OSHA’s the High Hazard Unit had vacancies for District Manager in both District Offices and four inspector vacancies (i.e., 20 percent of total CSHO positions);
More follow-up inspections of workplaces where serious citations were issued but not corrected by the end of the inspection. Cal/OSHA is well below the 20 percent follow-up inspection rate required by state law;
More planned (“programmed”) inspections of worksites where operations include demolition, trenching, lead and asbestos use. Cal/OSHA is well below its own benchmark for these “permit inspections” which often reveal unsafe conditions arising from these dangerous job tasks;
More “health” inspections involving evaluation of worker exposures to airborne chemicals, noise, ergonomic and repetitive motion hazards. These health inspections are more time consuming to conduct. As a result, they receive lower priority when there are not enough CSHOs to open the mandatory accident and worker complaint inspections; and
More support activities for the 10 PSM inspectors assigned to refinery enforcement. This is especially important because of the October 1^st effective date for PSM regulations being enforced by Cal/OSHA and Cal/EPA.

Cal/OSHA's work is not yet done

Cal/OSHA is considered by many to be the “premiere OSHA state plan.” It offers full coverage of both private and public sector workers, has numerous regulations that are stronger than Fed OSHA’s, and the state provides more resources than required by Fed OSHA. Yet Cal/OSHA’s performance needs improvement beyond the truism that “everything can be improved.”

California’s injury rates are worse than the injury rate in states covered by Federal OSHA for Fed OSHA and other major industrial states. (The state’s fatality rate is below the national average.)

Fed OSHA’s latest assessment of Cal/OSHA’s performance – the Federal Audit and Monitoring Evaluation report (FAME) – was issued in 2017 and covers the period of October 2015 to September 2016. This FAME report was a follow-up to the comprehensive evaluation report issued in 2016.

Fed OSHA still noted several significant deficiencies:

Cal/OSHA conducted 344 “high hazard” inspections during the federal fiscal year, which was 14 percent short of the federal benchmark of 400 inspections. The report stated the shortfall was due to “staffing vacancies;”
Cal/OSHA’s “case lapse time” needed to close an inspection and issue citations is still more than 20 percent longer than the national average. California has an average lapse time of 68.5 days for safety inspections and 73.9 days for health inspections, compared to the national average of 45.2 days and 57.3 days, respectively; and
California’s fatality rate in construction and agriculture rose between 2013 and 2015, increasing from 6.5 deaths per 100,000 workers to 6.8 in construction, and from 9.2 to 17.1 in agriculture, forestry and fishing;

Fed OSHA’s FAME report continued to document California’s abysmal performance in investigating worker complaints of employer retaliation and reprisals for raising health and safety concerns. These investigations are not done by Cal/OSHA, but rather by the Division of Labor Standards Enforcement (DLSE), which is also overseen by DIR.

The report noted that the number of retaliation complaint investigations completed within 90 days – the federal benchmark – was only 7 percent. The average number of days taken by DLSE to complete an investigation was 462 days – a year and three months! And in only 20 percent of these investigations were the worker complaints of retaliation found to be “meritorious.”

In June 2017, the National Safety Council (NSC) released its first annual report on safety performance in the 50 states in the areas of roadway, home, community and workplace safety. The report had four levels of performance: “on track,” “developing,” “off track” and “not graded.”

The NSC gave California a grade of “C” for the five workplace safety criteria in the report. According to the NSC, workplace prevention, preparedness and enforcement in California is at the “developing” level; worker health and wellbeing is also at the “developing” level; and California’s workers’ compensation system is “off track.”

Conclusion

In the last two years, the California Legislature has provided DIR with significantly increased financial resources to enhance the effectiveness of Cal/OSHA and better protect the state’s 19 million workers. DIR has failed to take full advantage of these resources to strengthen Cal/OSHA, and at the same time has provided refunds to employers who have paid the fees that generate these unused resources.

The Governor, his Labor Secretary, and DIR director are putting the interests of employers, building operators, and refineries ahead of worker and public protection.

The net effect is a Cal/OSHA that is weaker and much less effective than it could be if all available resources were put to work. The people who pay the cost of these resources “left on the table” are the workers of California and their families and communities.

Garrett Brown is a certified industrial hygienist who worked for Cal/OSHA for 20 years as a field Compliance Safety and Health Officer and then served as Special Assistant to the Chief of the Division before retiring in 2014. Since retiring, Brown continues to follow Cal/OSHA issues and established the “Inside Cal/OSHA” website. Brown also has been the volunteer Coordinator of the Maquiladora Health & Safety Support Network since 1993 and has coordinated projects in Bangladesh, Central America, China, Dominican Republic, Indonesia, Mexico and Vietnam.

garrettbrown Thu, 09/14/2017 - 04:20

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Chemical facility safety

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Occupational Health & Safety

Occupational Health News Roundup

kkrisberg — Fri, 25 Aug 2017 18:30:36 +0000

Occupational Health News Roundup

At the Tampa Bay Times, Neil Bedi, Jonathan Capriel, Anastasia Dawson and Kathleen McGrory investigate a June 29 incident at Tampa Electric in which molten ash — commonly referred to as “slag” — escaped from a boiler and poured downed on workers below. Five workers died.

A similar incident occurred at Tampa Electric two decades earlier. If the company had followed the guidelines it devised after that 1997 incident, the five men who died in June would still be alive, the newspaper reported. In particular, the five deaths could have been avoided if the boiler had been turned off before workers attempted maintenance. Tampa Electric says cost wasn’t a factor in deciding to leave the boiler on; however, experts say it costs hundreds of thousands of dollars each time a boiler is shut down. Bedi, Capriel, Dawson and McGrory write:

Tampa Electric officials said they had done similar work hundreds of times, including six maintenance jobs on slag tanks this year.

But experts told the Times the June 29 procedure — removing a blockage from the bottom of a slag tank while the boiler is running — is always risky.

Randy Barnett, a program manager at industrial training company National Technology Transfer Inc., who worked in coal-fired power plants for decades, called the practice “obviously unsafe” because it exposes workers to a trio of hazards: slag, high temperatures and extreme pressure.

Said Charlie Breeding, a retired engineer who worked for the boiler manufacturer Clyde Bergemann: “It does not take a genius to figure out that it is dangerous. Common sense tells you that when you’re dealing with molten ash well above 1,000 degrees in temperature, it’s dangerous.”

There is no guarantee the slag building up in the boiler will stay there.

Even the smallest change in conditions inside the boiler — a slightly different composition of coal feeding its fire, for example — can cause a plug to melt, sending the molten lava rushing into the tank below.

“All of a sudden, you’ve opened up the hole,” said George Galanes, who spent decades working in power plants in Illinois before becoming a consultant for Diamond Technical Services.

Galanes said the plants he worked at would never do that. “Too much risk,” he said.

Read the entire investigation at the Tampa Bay Times.

In other news:

Politico: Ian Kullgren reports that OSHA has erased data on worker fatalities from its home page and replaced it with how companies can voluntarily cooperate with the agency. The worker fatalities didn’t only get buried on an internal web page, the list was also narrowed to only include workplace fatalities for which a citation was issued. Previously, OSHA had a running list of worker deaths on its home page that included the date, name and cause of death and included all deaths reported to the agency, regardless of any citations issued. A Department of Labor spokesperson told Politico that the change was to ensure the public data was more accurate. However, worker advocates disagree. Kullgren quoted Debbie Berkowitz, senior fellow at the National Employment Law Project, who said: “It’s a conscious decision to bury the fact that workers are getting killed on the job. That is totally what it is, so that [Labor Secretary Alexander] Acosta can say, 'Hey, industry is doing a great job and we’re going to help them.'"

Wisconsin Public Radio: Danielle Kaeding reports that three new lawsuits have been filed against Fraser Shipyards in northern Wisconsin for failing to protect workers from unsafe lead exposures. The suits mean the company is now facing four lawsuits on behalf of 44 workers. Earlier this year, Fraser agreed to OSHA fines of $700,000 for exposing workers to lead. Now, workers are seeking compensation for injury, illness, medical care and lost work. Last year’s OSHA investigation, which revealed that Fraser Shipyards was aware of the lead risk, also found that 75 percent of 120 workers tested had elevated blood lead levels. Fourteen workers had blood lead levels up to 20 times the legal exposure limit. Kaeding quoted attorney Matt Sims: "A gentleman who could speak fluidly and without hesitation before this toxic exposure now stutters when he speaks. He’s had changes in his personality. He finds it difficult to focus on everyday mundane tasks that any person wouldn’t have trouble with, and he experiences tremors to the extent that he’s unable to hold a welding torch anymore."

CNN: Wage theft at the White House? Daniella Diaz reports that the Secret Service can no longer pay hundreds of agents to protect President Trump and his family, with more than 1,000 agents already having hit federally mandated caps for salary and overtime. The caps and salaries were initially devised to last the entire year. Secret Service Director Randolph Alles told CNN the budget problem isn’t just related to the Trump family, but has been going on for many years. Diaz reported: “According to the report, Alles has met with congressional lawmakers to discuss planned legislation to increase the combined salary and overtime cap for agents — from $160,000 per year to $187,000. He told USA Today this would be at least for Trump's first term. But he added that even if this were approved, about 130 agents still wouldn't be able to be paid for hundreds of hours already worked.”

ProPublica & NPR: In response to Michael Grabell’s and Howard Berkes’ investigation into a Florida law that allows employers to escape workers’ compensation costs for injuries to undocumented immigrant workers, the second-highest ranking member of the Florida Senate has pledged a legislative review of the law in question. During their investigation, the reporters found that nearly 800 undocumented workers in Florida had been charged with workers comp fraud for using fake identification during the hiring process or in filing for workers’ comp. Some of those injured workers were detained and deported. Grabell and Berkes write: “(Republican state Sen. Anitere) Flores said she is especially concerned about companies who may hire undocumented workers knowing that the threat of prosecution and deportation may keep them from pursuing workers’ comp claims if they are injured at work. ‘That’s borderline unconscionable,’ Flores said, adding that she’ll seek the legislature’s review of this use of Florida law as part of a planned broader look at the state’s workers’ compensation law.”

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for 15 years. Follow me on Twitter — @kkrisberg.

kkrisberg Fri, 08/25/2017 - 14:30

This is scary as hell.

Trump administration’s de-regulatory agenda: “Watching the American safety net unravel before our eyes”

lborkowski — Mon, 07 Aug 2017 08:07:19 +0000

Trump administration’s de-regulatory agenda: “Watching the American safety net unravel before our eyes”

In late July, while many of us were preoccupied with Republican Senators’ attacks on healthcare, the Trump administration released its first regulatory agenda (technically, the Current Unified Agenda of Regulatory and Deregulatory Actions). These routine updates are published so the public can see what they can anticipate from federal agencies in the way of rulemaking. (Celeste Monforton has been tracking the Department of Labor regulatory agenda for years.)

The Trump administration’s first entry into this genre is better described as a de-regulatory agenda. It’s a dizzying array of delays, abandonment of in-process rules, and decisions not to act for the foreseeable future on a wide array of public-health hazards. Fortunately for those of us who have insufficient time to digest the many horrors coming out of the Trump administration, the Center for Progressive Reform has sorted through the agenda specifics. CPR Executive Director Matt Shudtz aptly responded to the Spring 2017 Unified Agenda by stating, “We are watching the American safety net unravel before our eyes.”

CPR’s Rena Steinzor and Elise Desiderio took a look at the reg agendas for several agencies important for public health: Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the Department of Labor (DOL) Wage and Hour Division (W&H) and Occupational Safety and Health Administration (OSHA), the National Highway Traffic Safety Administration (NHTSA), the Consumer Product Safety Commission (CPSC), and the Consumer Financial Protection Bureau (CFPB). They compared the Trump administration’s first regulatory agenda to the Obama administration’s final one and generated a striking set of charts. They report that the Trump administration appears to have abandoned 131 rules that appeared in the 2016 agenda but not the 2017 agenda. This is in addition to at least 42 rules that Steinzor and Desiderio identified as being delayed between January 20 and July 14 of this year.

Steinzor and Desiderio analyzed the kinds of rules that the Trump administration dropped to see if some rationale might be evident. The abandoned rules were “notable winners for public health, consumers, workers, and the environment,” and we don't have evidence that the hazards are effectively addressed by state governments, the market, or voluntary programs. So, they consider other explanations, writing:

Clearly, the administration had some kind of quota in mind and was slashing as many rules in both the proposed and final stages of development as possible. President Trump wanted to brag that he had cut hundreds of regulations. As devoid of a coherent policy explanation as this approach may be, we suspect something even more disturbing was going on.

We envision conference rooms at the Chamber of Commerce, the Business Roundtable, the American Petroleum Institute, the American Chemistry Council, the Heritage Foundation, and law firms along the K Street corridor. Occupants of these rooms are compiling lists of the rules that their constituents find irritating and unduly expensive in response to the White House siren song that anything and everything could get moved to the chopping block. Some of these organizations have released very public complaints against many of the abandoned rules, although no one has bragged about transmitting lists to the White House that were cut and pasted into the Trump regulatory agenda. President Trump, though, constantly extols his efforts to help business "thrive again" and even sent "landing teams" to the agencies soon after his inauguration to make sure they were brought under control. We cannot prove definitively that the cuts resulted from industry lists because participants aren't talking, but we are confident that's what happened.

Various blog posts from CPR legal experts take a closer look at problematic rule delays and losses from specific agencies:

Department of Energy: Hannah Wiseman explains, “The U.S. energy sector, finally catching up with the rest of the world, has modernized by leaps and bounds in recent years with the help of limited but targeted governmental support. But Trump's agenda would bring this all to an abrupt halt and send us skidding back into the dark ages of energy.” The Trump administration’s agenda slashes pending programming at DOE’s Office of Energy Efficiency and Renewable Energy while repealing modest regulations on hydraulic fracturing and delaying (likely with an eye toward revising or rescinding) a rule on methane emissions from oil and gas wells on Bureau of Land Management lands.

Environmental Protection Agency: Matt Shudtz writes of EPA's Office of Chemical Safety and Pollution Prevention, “the office is in a deep freeze, with nearly all actions delayed, save for a few items that are obvious handouts to favored industries. What's striking about this list is the degree to which regulatory delay and shifting priorities undermine a core function of toxic chemical regulation – protecting people from the hazards that can cost them dearly in terms of health, well-being, and the ability to earn a living.” Problems include delayed action on formaldehyde, lead paint, pesticides, and solvents, as well as slowing more than a dozen rules that would have increased public access to information on chemical manufacturing, releases, and hazards.

Food and Drug Administration: Steinzor and Desiderio highlight FDA’s proposed delay of a rule prohibiting compounding pharmacies from making or selling three drugs that are no longer for sale from manufacturers because they are either unsafe or ineffective. This rule, they note, came after steroid injections from the New England Compounding Center were contaminated with fungal meningitis, leaving 64 people dead and more than 700 seriously ill.

Housing and Urban Development and US Department of Agriculture: David Flores warns, “If we were a society that made substantial investments in community resilience, we might accept policies that curtail implementation of disaster assistance programs. But America has historically – and, with President Trump, will very clearly continue to – vastly and dangerously underinvest in pre-disaster mitigation, climate adaptation, and community resilience needs.” He notes that the Trump administration has halted USDA rules for assisting disaster-affected agricultural producers and low-income communities and appears to have abandoned HUD rules providing emergency housing for homeless individuals, veterans, and rural communities.

National Highway Traffic Safety Administration: Steinzor and Desiderio note the death of a rule that would have required heavy trucks to install speed limiting devices in order to reduce the death toll from crashes. The “free” market won’t fix this problem, they warn, because trucking companies hold so much power over drivers.

Occupational Safety and Health Administration: Katie Tracy asks whether OSHA is getting out of the worker protection business, citing the Trump administration’s weakening of recently finalized Obama-era beryllium standard, proposed delay of electronic reporting of workplace injuries and illnesses, and slow-walking of standards to protect emergency workers from on-the-job hazards, healthcare workers from infectious diseases, and workers in a range of industries from combustible dust fires and explosions. She writes, “The White House released the agenda amid what it called 'Made in America' week, but instead of recognizing workers and advocating for safe and healthy jobs and fair wages, Trump brought manufacturers to the nation’s capital to show off their products. When it comes to working families, Trump is ignoring what should be his highest priority – ensuring that every person who leaves home for a job in the morning returns at the end of the day without injury or illness.”

And looking at the big picture, CPR's James Goodwin writes, “All of this may seem like technical 'inside baseball,' but the Regulatory Agenda, if carried out as planned, would have significant real-world impacts on workers, consumers, families, and communities. It would place an especially heavy burden on the backs of the most vulnerable among us, including low-income and working-class families and communities, children, and workers in dangerous industries, while benefiting well-connected corporate special interests.”

Each of these abandoned and delayed rules involved countless hours of work from agency staff who used research, stakeholder input, and expert advice to draft rules and revise them based on public comment. This work can be undone quickly, though, and with little apparent thought for the lives that will be lost as a result.

lborkowski Mon, 08/07/2017 - 04:07

Tags

Environmental health

Environmental Protection Agency

Occupational Health & Safety

OSHA

regulation

regulatory agenda

Center for Progressive Reform

"Utinam populus Americanus unam cervicem haberet."

Would you be so kind as to translate this for those of us ignorant of Latin and with access only to Google Translate?

GT renders it as "If only one neck American people."

UCS tallies assaults on science during Trump’s first six months

lborkowski — Mon, 24 Jul 2017 06:04:13 +0000

UCS tallies assaults on science during Trump’s first six months

Members of the public health community are aware of many of the ways the Trump administration and the 115^th Congress are hindering and reversing evidence-based actions for public health – from an executive order requiring agencies to scrap two regulations each time they create a new one to advancing legislation that would make it harder for EPA to obtain and use the most up-to-date science in its work. With so many threats to public health arising each month, it can be hard to catch all of them, though. The Union of Concerned Scientists has performed a tremendous service by producing the report Sidelining Science from Day One: How the Trump Administration Has Harmed Public Health and Safety in Its First Six Months.

The authors of the UCS report – Jacob Carter, Gretchen Goldman, Genna Reed, Peter Hansel, Michael Halpern, and Andrew Rosenberg – remind us it’s so important for the US government to encourage, conduct, and make use of science:

Research in the 1970s about the neurological effects of lead on children resulted in policies to phase-out its use in paint and gasoline. Research on chemicals and metals has improved the quality of our air, water, and soil. Research on infectious diseases has saved innumerable lives by helping governments prevent or anticipate responses to future outbreaks. Advancements in technology have made household appliances, automobiles, and other consumer products safer, cleaner, and more cost-effective and energy-efficient. Government science has improved weather predictions, and climate studies have helped communities across the United States prepare for rising sea levels, drought, extreme heat, and other impacts of climate change.

All modern presidents have politicized science to some degree, they write, but “these threats to the federal scientific enterprise have escalated markedly” under the Trump administration. Here’s their summary of the current situation:

President Trump and his advisors and appointees, along with allied members of Congress, have willfully distorted scientific information, targeted scientists for doing their jobs, impeded scientists’ ability to conduct research, limited access to taxpayer-funded scientific information, disregarded the science in science-based policies, and rolled back science-based protections aimed at advancing public health. They have appointed officials with severe conflicts of interest to oversee industries to which they are tied, and, in some cases, they now lead agencies they have previously disparaged or even sued. They have dismissed climate science despite overwhelming evidence of the devastating impacts of climate change. And they have restricted agencies from considering scientific evidence fully in the decision-making process. Further, the president’s budget blueprints reveal the administration’s desire to scrap investments in basic data collection and research at major agencies, threatening the government’s ability to enforce our nation’s public health and environmental laws.

Attacking work on climate and other aspects of public health
It’s not a surprise that many of the harmful actions the report describes focus on climate change. These include the cancelation of CDC’s Climate and Health Summit; temporary media blackouts focused on agencies doing climate work; instructing employees at the Energy Department’s Office of International Climate and Clean Energy to avoid using the term “climate change” in written communications; removing language on climate change and sea level rise from a press release on new work by US Geological Survey scientists; failing to link greenhouse gas emissions and human activity in a NOAA news release; and an executive order reversing and stalling multiple climate-related policies from the Obama administration. And, of course, President Trump’s decision to withdraw from the Paris Climate Agreement will have grave consequences for public health.

The UCS report also catalogs some of the many public-health regulations that the Trump administration has delayed, with serious consequences for those who work with hazardous substances and live in communities with high levels of pollution. For instance, the administration is re-reviewing regulation of vehicle emissions standards; delayed implementation of the Risk Management Plan program intended to prevent disasters like the deadly fertilizer facility fire in West, Texas; put off the effective date of a regulation to better protect workers exposed to beryllium; rejected a petition to ban the pesticide chlorpyrifos, which studies have linked to neurodevelopmental problems; delayed enforcement of a rule to reduce workers’ exposure to lung-destroying crystalline silica; delayed implementation of a 2015 ozone pollution rule; and made chemical-industry-friendly changes to EPA rules implementing the updated Toxic Substances Control Act.

Although environmental and occupational health got the brunt of anti-regulatory fervor, other aspects of public health haven’t gone unscathed. The Department of Health and Human Services quietly removed a question about sexual identity from a survey of older individuals and abruptly terminated multi-year projects on teen pregnancy prevention. FDA has indefinitely delayed rollout of a nutrition label that reports added sugars. Attorney General Jeff Sessions has declined to renew the National Commission on Forensic Sciences that the Obama administration created in 2013.

Executive Order 13771, which instructs federal agencies to rescind two existing regulations each time it adopts a new one, considers the financial costs of regulations without appropriately recognizes their public-health benefits – and will mean fewer health-protective regulations overall. Public Citizen, NRDC, and Communications Workers of America have sued to block it.

In some cases, Congress and the administration have worked together to roll back public health protections and make it harder for public health agencies to do their jobs. Congress passed and Trump signed laws rescinding the Obama administration’s Stream Protection Rule, which limited the dumping of coal mine waste into streams, and Fair Pay and Safe Workplaces rule, which sought to reduce the extent to which federal contracts are awarded to companies engage in wage theft or violate laws on workplace safety.

The House has also passed the REINS Act, which would require regulations with $100 million in projected annual impact to be reviewed by a political appointee before taking effect; the HONEST Act and EPA Science Advisory Board Reform Act, which would make it much harder for EPA to receive and use up-to-date scientific advice and information; and the Regulatory Accountability Act, which would significantly disrupt the science-based rulemaking process at all agencies.

Making life harder for federal scientists

The day before the six-month mark of the Trump administration, federal employee Joel Clement took a brave and important step. With an opinion column in the Washington Post, he blew the whistle on the Trump administration’s involuntary reassignment of dozens of senior Department of Interior employees. Clement writes:

Nearly seven years ago, I came to work for the Interior Department, where, among other things, I’ve helped endangered communities in Alaska prepare for and adapt to a changing climate. But on June 15, I was one of about 50 senior department employees who received letters informing us of involuntary reassignments. Citing a need to “improve talent development, mission delivery and collaboration,” the letter informed me that I was reassigned to an unrelated job in the accounting office that collects royalty checks from fossil fuel companies.

I am not an accountant — but you don’t have to be one to see that the administration’s excuse for a reassignment such as mine doesn’t add up. A few days after my reassignment, Interior Secretary Ryan Zinke testified before Congress that the department would use reassignments as part of its effort to eliminate employees; the only reasonable inference from that testimony is that he expects people to quit in response to undesirable transfers. Some of my colleagues are being relocated across the country, at taxpayer expense, to serve in equally ill-fitting jobs.

I believe I was retaliated against for speaking out publicly about the dangers that climate change poses to Alaska Native communities. During the months preceding my reassignment, I raised the issue with White House officials, senior Interior officials and the international community, most recently at a U.N. conference in June. It is clear to me that the administration was so uncomfortable with this work, and my disclosures, that I was reassigned with the intent to coerce me into leaving the federal government.

Clement has filed a complaint with the US Office of Special Counsel, but we don’t need to wait for their decision to know that the environment has grown harsher for federal employees whose work involves science. The UCS report notes that the House of Representatives’ revival of the 1876 Holman Rule, which allows members of Congress to target specific federal offices or employees for elimination and reduce an individual employee’s salary, can create a climate in which federal employees feel pressured to avoid releasing information or issuing regulations that members of Congress are known dislike. Congress may also get distorted information from federal agencies if political appointees pressure agency employees or advisors to revise their testimony – something that happened to EPA Science Advisory Board’s Deborah Swackhamer as she prepared to testify to the House Science Committee on the role of states in environmental policy. And, when scientists are told not to attend conferences – for instance, the Alaska Forum on the Environment or an international conference on nuclear energy – it makes it harder for them to stay current and connected in their fields. Throw in a few political appointees who are underqualified and antagonistic to the agency’s work, and you’ve got a climate that seems engineered to demoralize federal employees involved with science.

Moving forward

As the UCS report notes, members of the scientific and public-health communities are mobilizing to defend federal science and evidence-based rulemaking against recent attacks. Carter and his co-authors write:

Recognizing the stakes, scientists and science supporters are speaking up, taking advantage of the momentum of successful marches and new opportunities for political engagement. Scientists and science supporters are connecting the administration’s actions to consequences for public health and the environment. By understanding current and evolving threats and taking advantage of new vehicles for advocacy, we can defend the scientific enterprise our democracy depends on and preserve the public health, safety, security, and environmental protections that make our nation great. Scientists and science supporters, Congress, and the media can all play a role.

They make recommendations for scientists and science supporters, Congress, and the media:

Scientists and science supporters should scrutinize administration and congressional actions and sound the alarm when science is misused. They can also play a unique role in articulating to others the importance of science in our daily lives. Communicating the importance of science and science-based policies to the public and decisionmakers is crucial to fighting attacks on science in this highly charged political environment.
Congress should use its oversight authorities to investigate and hold accountable the administration for actions that threaten scientific integrity and science-based policies, and it should act to protect whistleblowers. With the growing trend of abuses against science in the Trump administration, Congress must exercise its full authority as a check against the executive branch. Also, Congress should pass legislation to better protect federal scientists and the integrity of science in our federal agencies.
Journalists must continue to hold administration officials and members of Congress accountable for their words and actions and investigate cases of suppressing, misrepresenting, manipulating, or otherwise politicizing science, along with related allegations of wrongdoing in our federal government. The media should seek out scientists as sources when possible and call out agencies that place unnecessary barriers on communications between journalists and government scientists.

Without strong action to oppose current assaults on science, it will only become harder to address threats to public health from infectious diseases, pollutants, and unsafe consumer products. Agency efforts to encourage healthier behaviors and built environments may see recent gains reversed and future progress stalled. Responding to the threats described in the the UCS reports is essential for the health of future generations.

To download a copy of Sidelining Science from Day One and see an interactive timeline of Trump Administration and Congressional Actions, visit the UCS website.

lborkowski Mon, 07/24/2017 - 02:04

Tags

chemicals policy

Environmental health

Environmental Protection Agency

Food and Drug Administration

Occupational Health & Safety

Union of Concerned Scientists

Categories

Labor Secretary talks nominations, safe jobs at Senate hearing

cmonforton — Tue, 27 Jun 2017 19:19:03 +0000

Labor Secretary talks nominations, safe jobs at Senate hearing

I had one ear tuned this morning to the webcast of Labor Secretary Alex Acosta’s appearance before a subcommittee of the Appropriations Committee on his Department’s FY 2018 budget request. You never know what bumble bee might be in a lawmaker’s bonnet or how they might use their time to gush about Department-funded pet project in their home State. That's why I tuned in.

Two moments during the hearing were most memorable to me. The first involved Tennessee Senator Lamar Alexander (R) who expressed dissatisfaction with the Administration’s slow pace of nominating individuals for top jobs at the Labor Department. That would include nominees to lead OSHA and MSHA.

The Senator remarked:

President Trump is setting some records for not sending up subcabinet nominees for us to consider. Under President Obama, had sent 10 Dept of Labor nominees by now, President Bush had sent 9, President Trump has sent 2. ....When are we going to get some more nominations for your Department? [43:00]

Labor Secretary Acosta responded:

I appreciate the question. I am approaching my own 60 day mark as Secretary. I have set as a personal goal to have the vast majority of my sub department leadership identified and in clearance at the 60 day mark. I believe that goal is something that can be reached.

Hmmm....60 days. If the Secretary is referring to calendar days, his choices are already going through background checks and likely being interviewed. If his count only includes Monday through Friday, he has until the end of July to meet his goal. [For comparison, President Obama nominated MSHA chief Joe Main in early July 2009 and late that month nominated OSHA chief David Michaels, PhD.]

A second memorable moment---not so much memorable as interesting---occurred when the Labor Secretary was reading his prepared remarks. It was an abbreviated version of his longer written testimony and deviated slightly from it. I paid particular attention to his comments about worker safety. I listened for phrases that might have distinguished him from his predecessors.

The following are a few statements from Secretary Acosta's testimony today and statements from his two immediate predecessors: Hilda Solis and Tom Perez. Can you match the statement with the correct Labor Secretary? (Answers at the end of the post.)

"The Department believes that a vast majority of employers across the nation are responsible actors, fully committed to following worker protection laws.”
"The vast majority of employers want to keep their workers safe.”
"The Department has placed a priority on helping American employers understand and remain in compliance with those laws, but the Department likewise takes very seriously its responsibility to enforce the law."
"Enforcement must go hand-in-hand with compliance assistance. We will vigorously enforce the law against wrong doers. A good job should also be a safe job."
"OSHA uses enforcement and compliance assistance activities to ensure that this nation’s employees are able to return home safely from work every day."

Senator Joe Manchin (D-WV) was the only lawmaker who asked questions specifically about worker safety. The exchange went like this:

Manchin:

"...the President's budget request includes a small cut to OSHA and shifts their focus away from enforcement and inspections. It will cut 26 employees and conduct almost 1,000 fewer inspections. OSHA's resources are already strained, too many workers are put in danger... Given the danger that so many workers face in workplaces, why do you believe the Department of Labor is shifting OSHA resources away from inspections and don't you think this might endanger more workers? [01:30:32]

Acosta:

"The OSHA budget does shift approximately $2 million into compliance assistance and that does reflect a belief that some of the programs that are longstanding--the VPP [Voluntary Protection Program] and others--that work with particular companies to foster compliance assistance that may produce, not may, do produce, the evidence shows they produce better safety outcomes. It's a net of about a $2 million shift."

Manchin:

"It looks like your shift is away from enforcement and inspections. How would it be safer?"

Acosta:

"Let me just say that when you are talking about a funding request of $543 million, a $2 million shift, with due respect, is pretty much under 1 percent. That is so we can fund the VPP program that has, in fact, been shown to be very successful..."

He explained it this way:

"When I was a United States attorney, I would talk in chambers about prosecuting cases, but preventing wrong doing in the first place is more successful. Isn't it better to have a traffic light that prevents accidents rather than give people tickets after the accident has occurred?" (56:20)

The Secretary's stoplight analogy doesn't work for me. A stoplight is an intervention designed to reduce vehicle crashes. It's not compliance assistance. It's a prevention step.

The OSHA equivalent to his traffic light example are safety regulations. The rules developed by the agency to prevent injuries, such as fall protection standards or those governing confined spaces. Instead of making the case for compliance assistance, the Secretary's traffic light example argues the benefits of regulations. Strange coming from him given his Department's proposal published the morning of the hearing. It would roll back protections for workers exposed to the carcinogen beryllium.

Whether compliance assistance or traffic lights, actions speak louder than words.

=====

Answers: 1 (Acosta); 2 (Perez); 3 (Acosta); 4 (Acosta); 5 (Solis)

cmonforton Tue, 06/27/2017 - 15:19

Tags

government

labor rights

Occupational Health & Safety

Scientists join case against Trump’s 2 for 1 regulatory order

cmonforton — Fri, 16 Jun 2017 12:26:33 +0000

Scientists join case against Trump’s 2 for 1 regulatory order

The Union of Concerned Scientists (UCS) filed an amicus brief in support of a lawsuit against one of President Trump’s deregulatory efforts. Executive Order 13771 (EO) requires an agency to rescind two regulations for each one it wants to adopt, and have the action's combined incremental costs total no more than $0, regardless of the benefits. When the President announced it in January 2017, I called it the "one step forward, two steps back" edict.

A lawsuit filed in February by Public Citizen, the Natural Resources Defense Council and the Communications Workers of America argues that the EO is unconstitutional, among other things. The suit names 15 agency heads as defendants, including OSHA’s and MSHA’s.

UCS’s amicus brief describes the ways in which the EO undermines the organization's mission.

“By precluding meaningful consideration of anything besides costs and the raw number of regulations on the books, the Executive Order undercuts the role of science in shaping public policy and impairs UCS's ability to utilize scientific research and related advocacy to work for the safe-guarding of public health, safety, and the environment.”

The non-profit organization has more than one-half million members.

As stated in the lawsuit by Public Citizen, et al., UCS concurs the EO is invalid on its face. Public health agencies such as the EPA, National Highway Traffic Safety Administration and OSHA, have been directed by Congress to protect individuals and communities from health and safety harms. Some are directed to make decisions based on cost-effectiveness or economic feasibility, while others on cost-benefit analyses and other considerations. Those instructions are established in the agencies' authorizing statutes and often restated in judicial decisions.

When President Trump signed EO 13711 in January, he said:

“This will be the biggest such act that our country has ever seen.”

President Trump relishes actions he can say are unprecedented.

This 2-for-1 nonsense is indeed unprecedented, but so is his belief that rules don’t apply to him. The President can’t just order agencies to ignore their statutes and violate the law. Kudos to scientists and UCS for saying it, and the public interest groups for challenging the EO in court.

cmonforton Fri, 06/16/2017 - 08:26

Tags

Union of Concerned Scientists

regulation

i think we should turn Trump over to the Union of Concerned Robots.

Health advocates threaten lawsuit against firm importing asbestos to U.S.

cmonforton — Tue, 13 Jun 2017 10:18:57 +0000

Health advocates threaten lawsuit against firm importing asbestos to U.S.

[This post is dedicated to Doug Larkin. Doug was the co-founder of the Asbestos Disease Awareness Organization. He suffered in recent years with Amyotrophic Lateral Sclerosis (ALS) and passed away yesterday.]

Dallas-based OxyChem imports about 300,000 pounds of asbestos each year. Yes, asbestos. The deadly mineral that most Americans think is banned (it's not) and responsible for about 15,000 U.S. cancer deaths annually.

OxyChem is likely the largest asbestos importer in the U.S. The company is required under the Toxic Substances Control Act (TSCA) to report its asbestos imports to the EPA. A group of health advocates assert that the firm failed to do so. The Asbestos Disease Awareness Organization (ADAO); Safer Chemicals, Healthy Families (SCHF); and Environmental Health Strategy Center are using TSCA's “citizen enforcement” provision (15 USC 53 §2619) to alert OxyChem of their “notice of intent to file suit” because of company’s failure to report their asbestos imports.

OxyChem uses asbestos in its outdated chloralkali technology to produce chlorine. Plants in Europe, however, have moved to more advanced and safer technology which doesn't rely on the deadly carcinogen. Of the 31 countries of the European Union and European Free Trade Association, only one chloralkali plant out of 75 is still using asbestos in their chlorine production process.

The health groups relied on commercially-available U.S. Customs and Border Protection records to identify OxyChem’s asbestos imports. The records revealed imports totally nearly 900,000 pounds during 2013 through the end of 2015. Most of the shipments---more than 20 in total---come from the one remaining asbestos mine in Brazil. The import data, however, does not match up with records required by EPA. The health groups found this out by filing a FOIA request with EPA to determine whether OxyChem complied with EPA’s Chemical Data Reporting (40 CFR, Part 711.) It requires firms to report every four years their use of certain "significant" chemicals. Asbestos is one of those "significant" chemicals and users are required to report quantities that exceed 2,500 pounds per facility per year. OxyChem's use of asbestos over the last four years should have been reported to EPA by October 31, 2016.

The American Chemistry Council (ACC) recently submitted comments to EPA on documents the agency is preparing pursuant to the 2016 amends to TSCA. In their comments, ACC insists that asbestos can be used safely. That EPA should believe ACC's assertions that chloralkali plants, such as OxyChem's, are pristine, error-free operations in which asbestos never touches human hands or enters the air or surrounding environment. ACC also conveniently ignores the life cycle of the toxic, from the asbestos exposure that occurs in the Brazilian mining town of Minacu, the processing and shipping, to the handling, use and disposal of asbestos somewhere in the U.S.

I tip my hat to Safer Chemicals, Healthy Families (SCHF), the Asbestos Disease Awareness Organization (ADAO), and Environmental Health Strategy Center for using TSCA's "citizen enforcement" provision. OxyChem and EPA have until the end of July to respond to the health groups' notice of intent to sue. If EPA fails to take action to compel OxyChem to comply with the TSCA reporting provision, the health groups could file a lawsuit in a U.S. district court.

cmonforton Tue, 06/13/2017 - 06:18

Tags

asbestos

cancer

chemicals policy

Environmental Protection Agency

Legal

regulation

Toxic Substances Control Act

Toxics

Asbestos Disease Awareness Organization

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What?? Trump administration says unions don’t have role in defending OSHA regulation?

cmonforton — Thu, 01 Jun 2017 19:58:37 +0000

What?? Trump administration says unions don’t have role in defending OSHA regulation?

Add this to the list of absurdities from the Trump Administration: the Justice Department (DOJ) is arguing that the AFL-CIO and the United Steelworkers (USW) should rely on DOJ attorneys to defend an Obama-era OSHA regulation. Seriously?

The rule that DOJ says it will defend on the unions' behalf was adopted by OSHA in May 2016 and concerns the reporting of injuries by employers. It is being threatened by a frivolous lawsuit brought the U.S. Chamber of Commerce, National Association of Home Builders, and the National Chicken Council. The business associations filed their lawsuit in the U.S. district court for the western district of Oklahoma---a venue they believe will favor them---to argue against the OSHA rule.

Soon afterwards, the AFL-CIO and USW filed a motion to intervene in the case to defend the OSHA rule. The unions argue they should be granted the right to participate in the lawsuit because they have more than 12 million members who are affected by the new regulation and they were active participants in the rulemaking proceedings which led to the new OSHA reporting rule.

But in a brief dated May 30, DOJ attorneys told the court that the unions do not meet all of the requirements to justify being a party to the litigation. They say:

“The unions do not satisfy the fourth requirement because they have not shown—and could not show—that the Government would inadequately represent their interests.”

They also write:

“any member of the public who seeks to intervene as of right in defense of a regulation must first clear a high bar…. [that their] interest is not adequately represented by existing parties.”

In other words, the unions should rely on Trump’s DOJ to defend OSHA’s regulation. Let's think about that for a moment. This is the same Trump administration that is requiring agencies to identify two regulations to repeal for any single regulation the agency may want to implement. It's also the same Trump administration that has teams set up in every agency to identify regulations to repeal, replace, or modify. And the same Trump administration that has already suspended indefinitely the compliance date for this exact OSHA injury reporting rule. So why would unions trust this administration to defend the rule vigorously against the Chamber of Commerce et al's frivolous lawsuit?

In OSHA’s 47 year history, it is unprecedented for the government to object to a union intervening to defend an OSHA regulation. But I've gotten used to the words “unprecedented” and "Trump" being used in the same sentence.

But I learned the following by reading the AFL-CIO and USW’s motion to participate in the lawsuit:

“Even when an applicant for intervention and the government seek the same outcome in a lawsuit, the Tenth Circuit has “repeatedly recognized that it is ‘on its face impossible’ for a government agency to carry the task of protecting the public’s interests and the private interests of a prospective intervenor.” (citing Utahns for Better Transp. v. U.S. Dept. of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002));

A group of public interest organizations also filed a motion to participate in the litigation to defend the OSHA injury reporting rule. They are the American Public Health Association (APHA), Public Citizen, the Council of State and Territorial Epidemiologists, and Center for Media and Democracy. These groups are expecting to hear from DOJ by June 12 about their motion. I suspect they will read the same DOJ nonsense to "trust us" that the unions heard.

As an APHA member, I say "trust Trump's DOJ? Not gonna happen."

[Update 6/13/2017: As expected, the DOJ filed a motion to restrict APHA and the other groups from being intervenors in the case. I await the judge's decision.]

cmonforton Thu, 06/01/2017 - 15:58

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government

labor rights

Legal

Occupational Health & Safety

OSHA

regulation

AFL-CIO

American Public Health Association

Georg Orwell's 1984 is coming true. In Afghanistan, we have the "permanent state of warfare" predicted by Orwell. In the OSHA situation described quite well above, thank you, we have double-think and many other aspects of Big-Brotherism.