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Last week, the Small Business Advocacy Review Panel submitted its “Small Business Regulatory Enforcement Fairness Act” (SBREFA) Panel Report to acting OSHA chief Jordan Barab, on the draft proposed rule on worker exposure to diacetyl. The 259-page document summarizes (and attaches) the comments of 16 “small entity representa-tives” (SERs) who would be potentially affected by the rule. SER participants included Weaver Popcorn, American Popcorn and Tee Lee Popcorn, (see full list on page 40 of the report) and the issues seem to fall out naturally among three types of employers: the microwave popcorn and flavor-manufacturing industries, firms in industries that are users of flavorings, and firms with naturally-occurring diacetyl, such as beer and wine producers.
A few days ago, I expressed my annoyance with OSHA about its SBREFA meeting on the draft proposed rule on diacetyl, the lung-damaging, butter-tasting food additive. OSHA had announced earlier in the year that this pre-proposal dialogue with small employer would be “open to the public.” I anxiously awaited public notification about the open meeting, only to find out on Wednesday afternoon it had already taken place. I asked myself: Did OSHA make an announcement about the date, time and place of the meeting and I just failed to see it?
I contacted OSHA’s Office of Communications, left a message with Richard DeAngelis (media specialist), and asked the manner and content of OSHA’s notice to the public for this open meeting. Mr. DeAngelis returned my call later that day, leaving a voice mail that directed me to: Read the rest of this entry »
Two months ago, I applauded OSHA for announcing that its SBREFA panel meeting on a draft diacetyl proposed rule would be open to the public. Today, I feel schnookered. OSHA hosted its teleconference-meeting yesterday (5/19) and today (5/20) with specially-selected small employers, but failed to provide meaningful notice to allow the public to participate. Is a meeting really “public” if you don’t tell the public? Or is it really public if you only tell a select few?
Not in my book.
Labor Secretary Solis announced today the next step in OSHA’s effort to propose a rule to protect workers exposed to the butter-flavoring agent diacetyl. The Small Business Administration and OSHA identified 13 “small-entity representatives” (SERs, defined by SBA as companies with 500 or fewer employees nationwide) to serve on the panel which allows them to review the proposed regulatory text and regulatory analysis, and make recommendations for changes to the draft proposed rule before it is published in the Federal Register for the standard public comment period. In OSHA’s letter to the SERs, the agency indicated that it expected to hold the teleconference panel meeting during the week of May 18. The SERs invited to participate in this pre-proposal review include:
The lung disease bronchiolitis obliterans came to be called “popcorn workers lung” because this once-rare disease started afflicting workers from microwave popcorn plants with an alarming frequency. Scientists traced the disease, which destroys sufferers’ lungs, to the butter-flavoring chemical diacetyl. Two unions petitioned the Occupational Safety and Health Administration to issue an emergency temporary standard for diacetyl, and to begin the rulemaking process for a permanent standard on flavorings. (For more on this, read our diacetyl case study or diacetyl page.)
Health officials first notified OSHA of ten sick popcorn workers from the same Missouri plant in 2000, and the unions petitioned the agency in 2006. During those years, OSHA’s response was distinctly underwhelming. When Congress and The New York Times started paying attention to the problem in 2007, OSHA responded with a National Emphasis Program – but it focused only on popcorn facilities, and not on all workplaces using diacetyl flavorings. Then, in 2008, when a heavy microwave-popcorn consumer was diagnosed with bronchiolitis obliterans (a case first publicized here on The Pump Handle), the major manufacturers of microwave popcorn emphasized to the public that if they hadn’t already, they’d soon be removing diacetyl from their microwave-popcorn products.
In some people’s minds, removing diacetyl from the product from which it was most associated solved the problem. As we and many of our colleagues warned, though, popcorn isn’t the only product that uses butter flavoring, and other workers are still at risk. Now, investigative reporter Andrew Schneider brings us news of bronchiolitis obliterans among candy-factory workers:
With an announcement today in the Federal Register, Labor Secretary Solis’ OSHA is moving in a new direction to address occupational exposure to diacetyl. The butter-flavoring agent is associated with respiratory harm, including bronchiolitis obliterans. Just six days ago, Ronald Kuiper, 69, a former American Pop Corn Co succumbed to the disease.
OSHA announced it is withdrawing the advanced notice of proposed rulemaking (ANPRM) issued on January 21, 2009, and planning to convene a panel of small business representatives (SERs) as required by SBREFA.* With this move, OSHA may be one step closer to proposing a rule on diacetyl because the SBREFA process requires OSHA to complete and then share its proposed regulatory text and economic analysis with the SERs.
[See update at end of post]
The OMB website which lists those rules currently under review by OIRA has a new item today: something from OSHA on Diacetyl. (See this screenshot for the OMB listing, and this reference to the rule on Regs.gov.) You’ll recall this is the butter-flavoring agent associated with severe respiratory disease in exposed workers, including individuals working in microwave popcorn plants.
It’s difficult to determine from either of these screenshots exactly what kind of document OMB/OIRA is reviewing for OSHA. The only hint I see is the ”prerule” classification which suggests that it might be an advanced notice of proposed rulemaking (ANPRM)—-a pre-regulatory action that IGNORES the substantial evidence of the grave health risk to exposed workers. In July 2006, when the United Food and Commercial Workers Int’l Union and the Teamsters petitioned Labor Secretary Chao for a health standard to protect diacetyl-exposed workers, they asked specifically for an emergency temporary standard due to the gravity of the risk.
TO: All worker health and safety advocates, seekers of justice and protections for working people, and friends of healthy work environments:
The American Public Health Association’s (APHA) OHS Section has not, and will not, forget about the deadly and disabling illnesses caused by workplace exposure to the butter flavoring agent diacetyl. Our solidarity with workers is demonstrated through our scientific research, teaching and policy practice, and advocacy—and most recently, in song.
Four U.S. Senators have written to Labor Secretary Chao and OSHA Asst. Secretary Foulke expressing serious concern that “OSHA has failed to make significant progress in addressing the continuing hazards” of diacetyl. They asked for a response by October 8 to four simple questions, including a list of inspections conducted as part of OSHA’s national emphasis program on diacetyl.
It was nearly 10 years ago when an alert physician in Missouri linked rare cases of the lung disease bronchiolitis obliterans to his patients’ workplace exposure at a microwave popcorn manufacturing plant. Soon after, the Missouri Department of Health (MDOH) contacted OSHA and NIOSH. Now, dozens of workers have been identified with the debilitating disease and others diagnosed with other respiratory impairments. OSHA previously told the Senators that it “intends to propose a permanent standard addressing the hazards of flavoring containing diacetyl,” but the wait continues.
The Seattle Post-Intelligencer’s Andrew Schneider reports on another lawsuit from a consumer who says his lungs have been damaged by years of microwave popcorn consumption. The most famous microwave-popcorn consumer, Wayne Watson of Denver, filed suit earlier this year. Watson drew national attention after he was diagnosed with bronchiolitis obliterans, a disease previously found only in workers from plants that used the butter-flavoring chemical diacetyl. (The Pump Handle was the first to publicize the fact that a popcorn consumer had been diagnosed with the disease; check our diacetyl page for more.)
Schneider reports that Spokane businessman Larry Newkirk was in the habit of eating four to six bags of microwave popcorn each day; Newkirk’s lawyer points out that the problem wasn’t from the popcorn itself, but from the butter-flavored vapors released when a hot bag is opened. The companies named in the suit include ConAgra (whose spokesperson emphasized that the company has phased diacetyl out of its microwave popcorn); Shopko Stores, where Newkirk bought ConAgra’s Act II popcorn; and companies that manufacture or have manufactured flavorings containing diacetyl.
There’s some debate – certainly among Schneider’s readers, and probably from lots of people reading about this case – about who should be sued. There’s also a question of which government agency should have stepped in before so much lung damage occurred. This case demonstrates that our regulatory system is too weak and poorly integrated to respond to such threats effectively.
