Today, OSHA announced that it is seeking new ideas from stakeholders about preventing workplace injuries caused by exposure to harmful chemicals. The agency wants to identify new ways to develop Permissible Exposure Limits (PELs), the basic standards for reducing air contaminants.
CPR's Executive Director Matthew Shudtz responded to the development:
It’s great that Dr. Michaels is continuing to seek new ways to eliminate or manage chemical hazards in the workplace. OSHA has been relying on outdated standards for too long. But rulemaking is not the only way to address these hazards. OSHA needs to use the enforcement tools it has available, especially the General Duty Clause. With the General Duty Clause, OSHA can cite employers who are lagging behind industry standards for chemical exposure.
Last year, OSHA released new web-based tools to help employers voluntarily limit the exposure of workers to hazardous substances. In a blog Shudtz noted that the agency could use the General Duty Clause within the OSH Act to compel low-road employers to protect workers from harmful chemical exposure. According to the blog:
As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL – as part of a comprehensive standard for hexavalent chromium exposure – but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA’s standards don’t do enough to protect workers.
The broad recognition that workers face significant hazards even when chemical exposures are below OSHA’s PELs presents an interesting question about employers’ duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
As interpreted by the Occupational Safety and Health Review Commission (OSHRC) and federal courts, OSHA must prove four elements to establish a GDC violation:
1. Employees are exposed to a hazard;
2. The hazard is recognized by the employer or the industry generally;
3. The exposure has caused or is likely to cause death or serious physical injury; and
4. There is a feasible means of abating the hazard.
Elements (1) and (3) are not generally significant hurdles when dealing with toxic chemicals. The difficult points for OSHA to prove are that a chemical hazard is “recognized” and that there are feasible means of abatement. But with the new annotated table of exposure limits, employers are on notice that exposures below OSHA’s PELs and above other organization’s OELs present hazards that are recognized by the occupational health community and the industry generally. And the new substitute-chemical toolbox may provide feasible means of abating those hazards.
GDC cases are not easy matters for OSHA’s enforcement staff or the agency’s lawyers, so we can’t expect to see a flood of new cases in the wake of today’s announcement. However, selective use of this enforcement theory could create a ripple effect that would ensure better protections for the many workers who are exposed to dangerous levels of toxins.
Today, the National Association of Manufacturers released a report produced by economic consultants Crain and Crain on the "cost of regulations to manufacturers and small businesses."
CPR Senior Analyst James Goodwin responded to the study:
Past Crain & Crain reports on the costs of regulation have been roundly and rightly criticized for unreliable research methods, including basing their studies on opinion polling. Not much has changed about their method in this latest iteration, unfortunately. They still pretend to project actual costs by relying on opinion surveys, and they still refuse to account for the enormous benefits of regulation to the economy and to Americans’ health and well being. This is not surprising considering that National Association of Manufacturers V.P. Ross Eisenberg admits that they have instructed previous consultants to only look at the potential costs of regulations. The only good thing that can be said about this study is that at least the American taxpayer isn’t footing the bill this time.
Full textToday CPR Member Scholar and Indiana University School of Law professor Robert Fischman is testifying today for the House Committee on Natural Resources on potential amendments to the Endangered Species Act.
According to the testimony:
I. THE ENDANGERED SPECIES ACT SHOULD BE A LAST RESORT FOR CONSERVATION, NOT THE PRINCIPAL TOOL.
Though Congress intended the ESA to conserve “the ecosystems upon which” imperiled species depend,1 the act almost exclusively focuses on preventing species from going extinct. By the time species are listed for protection under the ESA, populations are already so depleted that there remains little flexibility for further declines. The famous inflexibility of the Act, to “halt and reverse the trend toward species extinction, whatever the cost,”2 is borne of the emergency situation facing a species when it declines to the very brink of extinction. Isolated fragments of habitat, low genetic diversity, and precious few populations raise the costs of conservation and heighten the consequences of failure.
To read the testimony in full click here.
Full textIn a press call today, USDA Secretary Tom Vilsack announced that the poultry slaughter “modernization” rule is final and effective immediately.
CPR President Rena Steinzor reacted to the rule's finalization:
The rule is a travesty from the perspective of every child who has chicken nuggets for lunch and every low-wage worker who stands in a fetid, overcrowded room cutting chicken carcasses thousands of times a day.
The new inspection system will allow plants to operate their slaughtering and evisceration lines at speeds that have proven hazardous for workers. It will pull federal inspectors off the processing line, ensuring that carcasses caked in blood, guts, and feathers whir by at the rate of 2.3 bird per second.
The Government Accountability Office has written two scathing reports on the scant data used in promulgating the rule and the Southern Poverty Law Center has released reports documenting the already harrowing musculoskeletal injuries poultry workers are subjected to.
We’re disappointed that the Obama administration has turned its back on workers and left consumers at the mercy of Big Chicken.
Full textToday, Roll Call published a piece by CPR President Rena Steinzor in support of the "Hide no Harm" bill.
According to the piece:
The “Hide No Harm Act” includes a definition of the “responsible corporate officer” against whom such cases could be brought, clarifying an existing legal doctrine by saying higher-level executives have the “responsibility and authority, by reason of his or her position in the business entity . . . to acquire knowledge of any serious danger.” The key is that the person could or should have known, not that he or she admits to having known.
It concludes:
The Department of Justice is undoubtedly negotiating fervently with company lawyers to reach a corporate settlement. But the prospect of allowing GM to buy its way out of having caused at least 13 deaths without even admitting criminal liability, casts a shadow over the proceedings. Why should the responsible parties at GM escape prosecution because the corporate “person” that employs them can afford to pay a hefty monetary penalty, giving federal prosecutors brief bragging rights without deterring other bad actors? Why not jail is now the most pressing question.
To read the piece in full, click here.
Full textNew legislation introduced by Senator Blumenthal (D-CT) and co-sponsored by Sens. Bob Casey (D-Pa.) and Tom Harkin (D-Iowa) would ensure that corporate executives who knowingly market life-threatening products or continue unsafe business practices are held criminally responsible when people die or are injured.
Under the Hide No Harm Act, key corporate managers will be required by law to report serious dangers to relevant government agencies, employees and affected members of the public.
CPR Member Scholars wrote in support of the bill to Senators in a letter last month.
According to the letter:
The recent General Motors (GM) ignition switch scandal vividly illustrates the catastrophic consequences that can result when corporations fail to disclose the known dangers associated with their harmful business activities. The now highly profitable auto manufacturer—$3.8 billion last year alone—determined that the estimated $2.3-million-fix for the problem ($0.90 fix for 2.6 million cars total) was just too costly to undertake. Instead, GM concealed the problem for more than a decade as part a concerted campaign that included repeatedly lying to its customers, the media, and the National Highway Traffic Safety Administration (NHTSA), the federal agency charged with overseeing car safety. All the while, GM’s customers continued to climb into cars that the company knew were not safe. GM admits that 13 people died in crashes caused by the faulty switch.
Similar to GM, other companies appear to have prioritized profits ahead of public wellbeing in this manner. The available evidence indicates that in 2007 and 2008 Peanut Corporation of America knew its peanut paste had tested positive for salmonella, but shipped it out anyway, ultimately killing 9 and sickening 714. Similarly, government-led investigations suggest that the New England Compounding Center—the compounding pharmacy that sold fungal-contaminated medication leading to the 2012 meningitis outbreak that killed 64 people and sickened at least 751 others in 20 states—knew that it was not taking adequate precautions to ensure that the drugs it produced and packaged were safe.
It is within Congress’s power to ensure that corporations are properly held accountable for putting the public at unnecessary risk by failing to disclose the dangers of the business activities. As morally reprehensible as this behavior is, corporations face strong economic incentives to leave their customers and workers in the dark. Too many corporations will continue to act according to those incentives, unless Congress enacts some form of legislation that makes the costs of not warning the public too great to ignore.
The letter concludes:
If enacted, this bill would strongly discourage most companies from taking unreasonable risks with the lives and safety of their customers and workers. For those scofflaw companies who decide to keep the public in the dark anyway, the bill would provide a critical avenue for obtaining some measure of justice for those who harmed or killed as a result of those companies’ failure to warn.
We urge that you make it a top priority to enact legislation that would address the ongoing crisis of corporations failing to disclose to the public the dangers associated with their business activities, and in particular consider Senator Blumenthal’s Hide No Harm Act.
Full textToday, CPR President Rena Steinzor testifes at a House Energy and Commerce Subcommittee on the Environment and the Economy Hearing entitled, "Constitutional Considerations: States vs. Federal Environmental Implementation Policy."
According to her testimony:
As I understand the situation, the Subcommittee’s leadership called this hearing in part to explore the contradiction between the notion that legislation to reauthorize the Toxics Substances Control Act (TSCA) should preempt any state authority to regulate chemical products with the notion that the federal government should depend on the states to regulate coal ash and has no role to play in protecting the public from such threats.
These positions are a dichotomy if there ever was one. The contradictory ideas that the federal government must dominate the field in one area but that the state government should be exclusively in control in another seems irreconcilable as a matter of principle.
Of course, as a practical matter, these irreconcilable positions have consistent pragmatic outcomes: they help big business. The chemical industry feels much more confident about its ability to browbeat the Environmental Protection Agency (EPA) into quiescence under the weak provisions of the TSCA legislation under discussion, so long as proactive states like California are knocked out of the equation. The electric power industry is much happier submitting to state regulators, who, as the recent spill in North Carolina clearly illustrates, have done almost nothing to control the severe hazards of improper coal ash disposal than it would be dealing with EPA’s more stringent regulatory proposals. Or, in other words, states should prevail as long as they aren’t doing much to gore the ox of big business. Once they get started down the road to regulate more stringently, however, the federal government must step in to halt a “patchwork” of overly aggressive regulation.
This debate has been going on, in one iteration or another, for decades. Congress has grappled with it, the Supreme Court has grappled with it, the states have participated in the debate, as has the Executive Branch, and out of all this intense debate have come two fundamental principles well-recognized by mainstream constitutional scholars:
One. The wide range of federal programs dealing with health, safety, and the environment are grounded appropriately in the Commerce Clause. While the Supreme Court has imposed some limits on federal authority, they do not apply to the structure of the federal environmental law.
Two. A coherent set of eminently reasonable principles defines the cooperative partnership that prevails in the health, safety, and environmental area, and I urge the subcommittee to return to these principles in allocating responsibility to federal and state governments.
To read her testimony in full, click here.
Full textToday, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans' Times-Picayune entitled, "Gov. Jindal, don't sign away our legal claims against BP."
The piece notes:
Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority – East's lawsuit against oil and gas companies. But does our governor realize that, if he signs this bill, he may also be killing scores of claims that his own his own state and associated local governments have brought against BP for the Macondo oil spill?
For, whatever the governor or state lawmakers may believe, that is precisely what SB469 might do.
SB469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource damages under the Oil Pollution Act of 1990 (OPA) – the very basis for pending claims against BP.
It continues:
But the state, as well as several parishes, have already brought economic claims under OPA...So have coastal cities...And fire districts...And airports...And school districts...And SLFPAE itself, which presented a claim against BP for more than $79 million, mostly to recover tax revenues it lost because of the oil spill.
These OPA claims are not frivolous or opportunistic. Indeed, Governor Jindal has said for months that one of the reasons he opposed the SLFPAE lawsuit is that he thought it threatened state and local governments’ OPA claims against BP. communities that are bringing these claims were hit hard by the Macondo oil spill. They're trying to recover just some of what they lost.
For example, in its OPA suit against BP, Jefferson Parish has alleged that it suffered:
1.Ecological damage
2.Damage to the quality of life of its citizens
3.Loss of sales tax revenues, use tax revenues, Parish tax revenues, inventory tax revenues, hotel and motel tax revenues, reverence tax revenues, royalties, rents and fees
4.Increased costs of providing services to the citizens of the Parish of Jefferson
5.Damage to the natural resources of the Parish of Jefferson
6.Increased costs for the monitoring of the health of its citizens and the treatment of physical and emotional problems related to the oil spill
7.Costs for educating and retraining employees
8.Increased promotional costs
9.Increased costs to borrow money
10.Increased costs for debt service
11.Loss of fees for permits and licenses
12.Loss of fines and forfeitures income
13.Increased administrative costs
14.Damages to the reputation and image of claimants in the business and tourism communities
Because SB469 works retroactively, it could undo all of these claims. Did Governor Jindal know that, when he pushed SB469 in the legislature?
To read the entire piece click here.
Professor Verchick also drafted a memo with fellow CPR Member Scholars and law professors Christine Klein and William Andreen on the consequences of SB469's passage and they urge the Louisiana legislature to vote against the bill.
To read the memo click here.
June 3 update, Jindal Blinks: According to a June 3 story in the Baton Rouge Advocate, Governor Jindal backed off of plans to sign the bill at a news conference called for the purpose:
Jindal had planned to sign SB469 at a news conference Monday afternoon, but he left the bill untouched after Attorney General Buddy Caldwell asked for time to look into a claim it could be used by lawyers for BP to scuttle suits brought for economic damages during the 2010 oil spill. That claim, put forward by law professors, first arose over the weekend.
“We’re not signing the bill today,” Jindal said Monday. “The attorney general asked for some additional time to look at it, and out of an abundance of caution, we’ll give the attorney general time to do that,” he said.
Full textCenter for Progressive Reform Member Scholar and Professor of Law and Emory University School of Law William Buzbee will be testifying today at a House Committee on Small Business Administration Hearing entitled, “Will the EPA’s ‘Waters of the United States’ Rule Drown Small Businesses?”
According to Buzbee’s testimony:
The purpose and logic of the new “waters” proposed regulations, in brief:
These proposed regulations and a massive accompanying science report referenced and summarized in the Federal Register notice are an attempt to reduce uncertainties created by three Supreme Court decisions bearing on what sorts of "waters" can be federally protected under the Clean Water Act. The two most important recent cases are the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and United States v. Rapanos, 547 U.S.715 (2006) (Rapanos). Judicial and regulatory treatments of these cases and the earlier related decision in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), have resulted in an increasingly confused body of law, creating both regulatory uncertainty and occasionally bold new assertions about reduced protections for previously jurisdictional “waters of the United States.” These cases, and resulting confusion, have increased regulatory transaction costs for everyone and reduced the protections afforded to America’s waters. The proposed 2014 "waters" regulations are a logical and legally well justified means to bring clarity to the law and, to the extent permissible under the Supreme Court’s recent decisions, restore protections long provided to America’s waters during three decades of bipartisan agreement about when and why various sorts of waters should be protected. If finalized, they should greatly reduce legal uncertainty, regulatory skirmishing, and attendant litigation resulting from the uncertain intersection of these three important cases.
To read the entire testimony click here.
Full textToday, the Seattle Times published an op-ed by CPR scholar and University of Seattle law professor Catherine O'Neill with University of Washington professor and public health officer Frank James entitled, "Protect water and health by updating state’s fish-consumption rate."
According to the piece:
GOV. Jay Inslee is currently considering how much fish Washingtonians may safely consume — a question that will, in turn, determine how protective our state’s water-quality standards should be.
As professionals who have worked for two decades with people impacted by contamination in our fish, we see this as a serious question.
Washington’s current water-quality standards permit people to safely eat just one fish meal a month. Those of us who eat more fish than this do so at our own peril.
Eating fish is the primary way that humans are exposed to polychlorinated biphenyls (better known as PCBs), mercury and many other toxic pollutants. These chemicals cause cancer, permanent neurological damage and other harms.
Although Washington’s Department of Ecology is poised to update its current standards, it remains to be seen whether the new standards will be more protective by requiring the water to be clean enough for people to eat fish more than once each month.
Professor O'Neill has recently blogged on Washington State's Department of Ecology's potential move to weaken water quality standards in the region, thereby affecting the ability of tribal communities to have access to their native diets.
And play is precisely what industrial polluters and their consultants do, as they take aim at each variable, with the ultimate goal of weakening the resulting water quality standards. I have discussed some of these efforts in the Pacific Northwest here and here, as well as here.
The latest tactic - advanced by an industry consultant - and currently embraced by Washington’s Department of Ecology as its “preferred approach” – is to alter the standard assumption for adult bodyweight, increasing it from 70 kg to 80 kg. This change to Ecology’s (and EPA’s) longstanding practice was suggested on the theory that tribal people, on average, currently have a higher bodyweight, i.e., 79 kg or 81 kg, according to two recent surveys in the Pacific Northwest. The “average American,” too, it was suggested, is currently heavier than in prior years. The difference in the resulting water quality standards as a consequence of this change? The standards would be roughly 10% - 15% less protective.
Which means that the fish will be that much less safe to eat – or, to put a finer point on it: tribal people seeking to put a healthy, uncontaminated meal of fish on their table will be able to do so less often.
Full text