Occupational Safety and Health Issues
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The Pander Games: Big Ag, Hispanic Workers, and the Rush to Deregulate

Electoral politics or public policy? Policy or politics? One ripe example of how the White House rides herd on health and safety agencies, thinking about politics, not policy to determine what they should do, is provided by the latest poster child for curbing allegedly “excessive rules”: a U.S. Department of Agriculture proposal to take federal inspectors off the lines at poultry processing plants and substitute inspections by workers who would simultaneously cope with a speed-up on the line from 90 to 175 birds/minute.

According to White House regulatory czar Cass Sunstein, regulatory decisions made in the name of the President are based on an objective consideration of the merits of health and safety rules, and he has the paperwork to prove it. Executive Order 12,866, Executive Order 13563, Circular A-4, and a wad of memoranda intone just what kinds of detailed analyses agencies are expected to perform before their regulatory proposals cross his desk. Some examples from EO 12,866:

  • Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
  • Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.
  • Coordinated review of agency rulemaking [by the White House] is necessary to ensure that … decisions made by one agency do not conflict with the policies or actions taken or planned by another agency.
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The Pander Games: Obama Administration Sells Out Kids Doing Dangerous Agricultural Work, Breaks Pledge to Ensure Welfare of Youngest Workers

Yesterday evening, when press coverage had ebbed for the day, the Department of Labor issued a short, four-paragraph press release announcing it was withdrawing a rule on child labor on farms. The withdrawal came after energetic attacks by the American Farm Bureau, Republicans in Congress, Sarah Palin, and—shockingly—Al Franken (D-MN).

Last year, Secretary of Labor Hilda Solis said: "Children employed in agriculture are some of the most vulnerable workers in America.” “Ensuring their welfare is a priority of the department, and this proposal is another element of our comprehensive approach."

The Administration pledged to protect young workers in dangerous jobs, and now they’ve thrown that pledge out the window.

Yesterday, the Administration said this:

“The Obama administration is firmly committed to promoting family farmers and respecting the rural way of life, especially the role that parents and other family members play in passing those traditions down through the generations. The Obama administration is also deeply committed to listening and responding to what Americans across the country have to say about proposed rules and regulations.  As a result, the Department of Labor is announcing today the withdrawal of the proposed rule dealing with children under the age of 16 who work in agricultural vocations.”

Give that excuse to the families of Alex Pacas (19) and Wyatt Whitebread (14), who were sent into a grain elevator without required safety harnesses to “walk the corn,” breaking up clumps so the grain could be removed from the elevator efficiently.  The boys slipped into a hollow pocket, a common hazard in the industry, which is why the harnesses are required.  They were smothered to death.  Or we could ask the reaction of the families of another pair of boys, Tyler Zander and Bryce Gannon, both 17, whose legs got caught in a giant auger used to pull the grain into storage silos, causing grievous injuries. 

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Why OSHA Can't Regulate

The Government Accountability Office (GAO) released a report today detailing the challenges that the Occupational Safety and Health Administration (OSHA) faces in writing regulations to protect America’s workers from unsafe and unhealthful workplaces.  The report was released at a hearing of the Senate Health, Education, Labor and Pensions Committee, chaired by Senator Tom Harkin (D-Iowa), on “Delays in OSHA’s Standard-Setting Process and the Impact on Worker Safety.”  Both the GAO report and testimony presented at the hearing tell a depressing tale of an agency that, after 30 years of constant attacks from the business community, conservative think tanks, and reactionary members of Congress, has very nearly folded its rulemaking tent.

The GAO found that between 1981 and 2010, the time that it took for the agency to develop and promulgate occupational safety and health standards ranged from 15 months (for an easily promulgated safety standard) to 19 years, and averaged more than 7 years. 

How have we come to this pass?

OSHA got off to a very good start.  During its first ten years of existence, the agency promulgated 21 safety standards and 13 important health standards (one of which addressed 14 different carcinogens), all of which continue to afford substantial protection to workers.  By the late 1970s, however, the Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Businesses had made OSHA the poster child for their demands for “regulatory reform.”

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The Age of Greed: Regulatory Look-Back In Action -- Speeding Up the Line and Endangering Workers at Poultry Processing Plants

The White House’s Cass Sunstein has found another poster child for his crusade to eliminate costly regulation under President Obama's Executive Order 13563.  The order requires agencies and departments to “look back” at existing requirements in order to kill unnecessary health, safety, and environmental requirements.  The U.S. Department of Agriculture (USDA), complying dutifully with the order, has dug deep into the garbage can where abandoned deregulatory proposals go to die, producing a despicable plan regarding  poultry processing plants, already among the most hazardous workplaces in the nation.  The proposed rollback would make corporate owners rather than federal inspectors responsible for scrutinizing slaughtered carcasses to ensure they are free of blood, guts, and (euphemistically) “fecal matter.”  The new rule would save the federal government about $39 million annually—a small amount that accounts for the savings at USDA when a few hundred inspectors are offloaded.  But the proposal would save the poultry industry an estimated $259 million annually.

How, you might be wondering, would a rule that requires companies to shoulder important new responsibilities save them money?  Because without federal inspectors checking individual carcasses as they flash by on an already back-breaking assembly line, multi-billion dollar companies like Pilgrim’s Pride, Perdue, and Tyson’s will be able speed up those lines considerably, requiring workers to process as many as 175 birds per minute or three birds per second while still checking for fecal matter and other nasty detritus. Or, in other words, the existing workforce, with a smattering of additions (about one position for each of the 219 covered plants)—no big job development here!--will be put in the insufferable position of working that much faster, with the added responsibility of safeguarding public health.

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Two Years After Upper Big Branch Disaster, Where Are the Reforms?

Congress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain. 

Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.

Federal regulation of mine safety and health is an excellent example of this phenomenon.

The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 miners and 3 federal inspectors.  That disaster also inspired Congress to enact the Occupational Safety and Health Act of 1970. 

Congress enacted the Federal Mine Safety and Health Act of 1977 in response to explosions on March 11 and 13, 1976 at the Scotia Coal Company’s Scotia mine in Ovenfork, Kentucky.  The initial explosion killed 15 miners, and a second explosion two days later took the lives of three federal inspectors and eight members of two rescue teams.

An explosion at International Coal Company’s Sago mine in Buckhannon, West Virginia on the morning of January 2, 2006 killed 13 miners and motivated Congress to enact the Mine Improvement and New Emergency Response (MINER) Act of 2006.

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One Year Later, OSHA's Rule to Protect Workers from Deadly Silica Still in White House Review

Today marks the first anniversary of an event that received little media attention, but marked a major milestone in the progression of a regulation that is of great importance to thousands of Americans whose jobs bring them into contact with dust particles containing the common mineral silica.  Exactly a year ago today the Occupational Safety and Health Administration (OSHA) completed a proposed rule requiring employers in the mining, manufacturing and construction industries to protect their employees from silica dust particles as they engage in such activities as sandblasting, cutting rocks and concrete, and jackhammering.

Silica dust is no newcomer to the growing list of workplace hazards.  Public health professionals have known for more than one hundred years that exposure to airborne silica dust can cause a debilitating disease caused silicosis. 

In 1929, as the nation entered the Great Depression, hundreds of workers made their way to Gauley Bridge, West Virginia to work on the Hawk’s Nest diversion project, a massive digging operation that created a three-mile long tunnel through Gauley Mountain to divert the flow of the New River for a Union Carbide power generation facility.  Before the project was completed, more than one hundred workers had died of silicosis, and many more faced the prospect of slow and painful deaths as a result of their exposure to silica dust.

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The Age of Greed: Children on Motorcycles Chasing Goats

The debate over whether the government protects people exposed to industrial hazards enough—or whether it engages in ruinous “overregulation”—is only occasionally coherent. Sometimes it’s downright bizarre, and never is it for the faint of heart. Consider the case of kids working on farms. Following a series of gruesome accidents involving teenagers as young as 14 who were smothered in grain elevators or lost legs to giant augers used to shovel crops into storage silos, the Department of Labor (DOL) announced a proposal in September to tighten prohibitions on children doing such dangerous work.  Existing rules have proven shockingly ineffective: the fatality rate for young agricultural workers is four times greater than for their peers in other workplaces.  They were written four decades ago, before many of the machines and methods now commonplace on today’s farms were developed.

The new rules would exempt children working with their parents on a true family farm (DOL last week made the exemptions even broader). They would also allow kids to raise animals for 4-H competitions and enroll in vocational training programs. They would prohibit children 15 years old and younger from operating tractors, augers, and other hazardous farm equipment, much as their peers off-the-farm cannot drive cars alone. Teens younger than 18 could not work inside grain elevators. Children could not work for money on tobacco farms because they are especially vulnerable to a form of nicotine poisoning known as “green tobacco sickness,” caused by dermal absorption of moisture that pools on the leaves. DOL received more than 10,000 comments on the rule, and is considering revisions through the normal, if excessively lengthy, administrative process.

Last week, the House Small Business Committee’s Subcommittee on Agriculture, Energy, and Trade held a hearing that gave agribusiness and Republican members ample opportunity (witnesses against: 4, witness in favor: 1) to excoriate these protections on the grounds that they would end “family” farming as we know it. Rep. Denny Rehberg (R-Mont.), who is trying to unseat Democratic Sen. Jon Tester, threatened to attach a rider to the Labor Department’s appropriation bill to stop the new protections. The justification? They might prohibit him from hiring his 10-year-old neighbor to herd cashmere goats by riding a Kawasaki “youth” motorcycle after the undoubtedly startled critters. 

“I think you’re sitting around watching reruns of ‘Blazing Saddles’ and that’s your interpretation of what goes on in the West,” the self-described fifth generation rancher turned Member of Congress condescended in the direction of DOL deputy wage and hour administrator Nancy Leppink.

Other witnesses at the hearing, provocatively entitled “The Future of the Family Farm: The Effect of Proposed DOL Regulations on Small Business Producers,” told stories about how rewarding it was for their children to feed baby calves, milk cows, and help their parents heft large bales of hay high up into the barn, coming of age in the process. None of these activities would be prohibited by the rule, of course, provided the child was actually helping her parents, and not working for minimum wage at a corporate farm. But imagine for a moment if a factory worker came to testify about how much it developed a child’s self-respect to spend 12 hours a day in a sweat shop, pretending that the experience was equivalent to helping grandma do needlework. There are still countries in the world that put children to work under such circumstances. But the United States made it illegal 74 years ago.  

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Don Blankenship Still Needs to Be Prosecuted

Booth Goodwin, the U.S. Attorney for the southern district of West Virginia, and Attorney General Eric Holder announced today a landmark settlement with Alpha Natural Resources, the coal company that bought out its rival Massey Energy after a catastrophic explosion deep within the Big Branch mine killed 29 miners.  Alpha recently announced that its third quarter 2011 profits had more than doubled in the wake of its purchase of  Massey, up to $66 million in the quarter.  The settlement requires the company to fork over $209 million to pay fines, reimburse families of miners killed and injured, and to fix the chronic safety problems that produced this tragedy.  The announcement had no news on  efforts to hold individuals accountable—most notably, Don Blankenship, the rogue CEO who constantly harassed his employees to “dig coal” faster, and faster, and faster, at the expense of routine safety precautions. 

As I explained here in May 2010, Blankenship monitored production as often as every two hours, deliberately creating an atmosphere in which workers feared for their jobs if they protested routine and egregious safety violations.  The proximate cause of the explosion was methane build-up in an old coal shaft that was never properly sealed—instead, miners stuffed it with garbage and rags.  “Every single day, the levels were double or triple what they were supposed to be,” a foreman who remained unnamed because he was afraid of losing his job told the New York Times.   Blankenship ultimately retired from Massey Energy, and is now enjoying a well-heeled retirement.

Attorney General Holder pledged today that “we continue to investigate individuals associated with this tragedy.” DOL Secretary Hilda Solis said “Anyone determined to have violated a criminal statute in connection with Upper Big Branch should be brought to justice." Ken Ward of the Charleston Gazette’s immensely useful Coal Tattoo blog thinks it’s indeed possible that Goodwin is not finished with this case, and I surely hope that insight is correct.  The U.S. attorney certainly knows how to put people in jail: he brags on his website about a sentence of 57 months in prison his office achieved for an oxycodone dealer who sold between $36,000 and $50,000 worth of the drug out of his home.  Surely the deaths of 29 people as a result of willful negligence in avid pursuit of corporate profits should reap a harsher penalty – or some penalty that goes beyond corporate fines.

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OSHA Expands National Emphasis Program for Chemical Facility Process Safety Management

This week OSHA expanded a two-year-old enforcement program aimed at preventing catastrophic release of highly hazardous chemicals—the type of headline-grabbing event that ruined thousands of lives in Bhopal in 1984 and was narrowly avoided in West Virginia in 2008.  Originally targeted at just three regions (and optional for state-plan states in those regions), the National Emphasis Program for PSM Covered Chemical Facilities (aka “Chem NEP”) has now been expanded nationwide and requires all state-plan states to adopt their own version of the program.  This is a good step toward addressing a serious problem.

In announcing the expansion of the NEP on Wednesday, OSHA chief David Michaels said that “far too many workers are injured and killed in preventable incidents at chemical facilities around the country,” and that inspections during the pilot period “found many of the same safety-related problems that were uncovered during [OSHA’s] NEP for the refinery industry, which is also covered by the PSM standard.”  Those problems were most often issues with equipment and with operating procedures.  Those sound like serious concerns, especially if the problems show up at similar incidence rates around the country as they did in the pilot NEP.

Chris Hamby, of the Center for Public Integrity, has pointed out a concern that’s not unique to this NEP, but is worth repeating:  any facility that’s a part of the Voluntary Protection Program will get a pass on any programmed inspection that would fall under the NEP.  That includes VPP sites where a total of 18 workers have died since 2000—hardly the “model workplaces” that ought to get such special treatment.

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Legs of Two 17-Year-Olds Severed in Grain Auger, White House Sits on Young Worker Safety Rule

Cross-posted from The Pump Handle.

Tyler Zander, 17 and Bryce Gannon, 17 were working together on Thursday, August 4 at the Zaloudek Grain Co. in Kremlin, Oklahoma. They were operating a large floor grain aguer when something went terribly wrong. Oklahoma's News9.com reports that Bryce Gannon's legs became trapped in the auger, Tyler Zander went to his friend's aid and his legs also were pulled into the heavy machinery. Emergency rescue personnel had to cut apart the 12-inch metal auger in order to free the young men. They were flown 100 miles to Oklahoma City for surgery and they remain hospitalized.

The fatality rate for young workers performing hazardous tasks----like working with a grain auger-----is two times the fatality rate for all U.S. workers. The Fair Labor Standards Act (FLSA), administered by the U.S. Department of Labor's Wage and Hour Division (W&H) stipulates dozens of work activities that are too dangerous for workers of certain ages. Individuals under age 18, for example, are prohibited from working most jobs in coal mines, from forest-fire fighting, and from operating meat slicers and cardboard balers in grocery stores. However, the safety rules governing young workers employed in agricultural jobs have not been updated for 40 years.

Labor Secretary Hilda Solis said in December 2010:

"Protecting children and vulnerable workers abroad is a part of our overall efforts here at the Department of Labor."

In fact, just a few weeks earlier, the Labor Department's Wage and Hour division sent a draft proposed rule to the White House's Office of Information and Regulatory Affairs (OIRA) for review. [Why they sent an economically non-significant proposed rule to OIRA is another matter, and one I've written about previously.] The draft rule proposes modifications to Subpart E-1 of 29 CFR 570, entitled "Occupations in Agriculture Particularly Hazardous for the Employment of Children Below the Age of 16." The proposed changes are based in part on evidence assembled several years ago by the National Institute for Occupational Safety and Health (NIOSH) on injuries and deaths among young workers employed in agricultural jobs.

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