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Beginning in December 2006, I’ve written five blog post commenting on the content of the Department of Labor’s (DOL) regulatory agenda for worker health and safety rulemakings.  Most of my posts [see links below] have criticized the Labor Secretary and senior OSHA and MSHA staff for failing to offer a bold vision for progressive worker protections.  Now that the Obama & Solis team have been on board for more than a year, I’m not willing to cut them any slack for being newbies.  Regrettably, as with the Bush/Chao agendas, my posts today will question rather than compliment the OSHA team (and any bigger fish up the food chain) who are responsible for this plan.

I’ll start with the good news from OSHA’s reg agenda.   In the month of July, OSHA projects it will issue two final rules, one on cranes and derricks in construction and another to revise the OSHA 300 log with a column to record musculoskeletal disorders.  The first is a rule that has been in the works for 7 years and long overdue (here, here, here, here, here, here, here.)  The second will simply reinstate a change in injury recordkeeping requirements that should have taken affect in early 2001, but was axed by OSHA officials under direction from the Bush/Chao Administration.

Now, the reg agenda items that have me perplexed.  We’ve heard the Secretary Solis and Asst. Secretary Michaels talk about green jobs, and we know that construction workers are a large part of that workforce.  But, construction workers continue to get short-shrift at OSHA when it comes to mandatory H&S protections.

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Last week Labor Secretary Solis released in the Federal Register on April 26, 2010, her Spring 2010 regulatory agenda for the Department, including her rulemaking priorities for MSHA and OSHA.  As required by the Regulatory Flexibility Act it was published on time in April, in contrast to her Fall 2009 agenda which was six weeks late. 

This document is described by the Secretary as a:

“…listing of all the regulations it expects to have under active consideration for promulgation, proposal, or review during the coming 1-year period.  The focus of all departmental regulatory activity will be on the development of effective rules that advance the Department’s goals and that are understandable and usable to the employers and employees in all affected workplaces.”

As my mentor Dr. Eula Bingham used to say to her staff (during her tenure as OSHA chief the Carter Administration): the only rulemaking activies that truly count for worker health and safety are publishing proposed and final rules.   Efforts that distract, divert, or delay the regulation writers’ duties should be avoided.  Currently, OSHA has about 100 full-time (FTEs)  individuals assigned to its H&S standards office, and MSHA has about 17 FTEs.

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Reporter Anietra Hamper of Columbus (OH)’s WBNS puts names and faces to the serious health consequences linked with exposure to the butter-flavoring agent diacetyl.  In part I of her six-month investigation, Common Food Flavoring Changed Lives Forever, she introduces us to Cynthia White-Rhoads, Rocky Kline, Dalea Hawkins and Ed Hawkins, who are all former workers of the ConAgra plant in Marion, Ohio, and are suffering from bronchiolitis obliterans.  One former workers says she has lungs of an 85-year-old, another says she coughs constantly and is exhausted all the time, another says performing simple tasks causes him to lose his breath.   It’s bad enough hearing how these individuals’ health is impaired, but then to learn that the workers knew something in the plant was making them sick, but it fell on ConAgra’s deaf ears.

Everybody was sick, coughing, nose bleeds, skin irritations, eye irritations.  …We asked for breathing masks at one time (and were told) they were too expensive. 

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The sentinel cases of the debilitating lung disease bronchiolitis obliterans were among workers at a microwave popcorn facility.  It wasn’t too long before NIOSH researchers suspected the illnesses were related to workers’ exposure to the butter flavoring agent used in the plant.  The compounds are typically a mixture of volatile organic compounds (VOC), many of which can irritate severely the skin, eyes and respiratory tract.  Diacetyl, a 4-carbon alpha-diketone, was one of the VOCs identified in the microwave popcorn plant environment.  Diacetyl has come to serve as the catch-all name for the butter-flavoring agents, although NIOSH researchers noted:

“the vapors emitted from butter flavoring are a complex mixture that produces necrosis that cannot be explained by the known toxicological properties of any of its components.” (Hubbs, et al. 2002)

Although popcorn makers began selling still buttery-flavored product labeled “no diacetyl,” Sphere’s Andrew Schneider has been investigating whether a ‘no diacetyl’ claim translates into less health risk to exposed workers and consumers.  His sources have consistently said “No.”   Now, so does NIOSH Director John Howard.

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One of my all-time favorite investigative journalist and public health heroes, Andrew Schneider, is writing for the new AOL News venture: Sphere.    Schneider is exceptional because of the dogged way he pursues topics and sticks with them over the long haul—not a couple of weeks or a few months, but for years.  He understands the health and safety regulatory system moves like cold molasses, but never stops asking: why that is, especially when evidence of harm continues to mount, or when we ignore lessons from public health history. 

In “Just When You Thought It Was Safe to Make Popcorn,” Schneider reminds us that two years ago, microwave popcorn manufacturers removed the butter-flavoring agent diacetyl from their product.  Their rapid response followed reports that a heavy user-ingester of extra buttery microwave popcorn had developed the severe lung disease called bronchiolitis obliterans.  Schneider now reports:

“government health investigators are reporting that the ‘new, safer, butter substitutes’ used in popcorn and others foods are, in some cases, at least as toxic as what they replaced.  Even the top lawyer for the flavoring industry said his organization has told anyone who would listen that diacetyl substitutes are actually just another form of diacetyl.”

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The first regulatory agenda under OIRA chief Cass Sunstein was published today in the Federal Register [link to its 237 pages .]  The document includes a narrative of Labor Secretary Solis’ vision for worker health and safety, mentioning these specific hazards: crystalline silica, beryllium, coal dust, airborne infectious agents, diacetyl, cranes and dams for mine waste.   The document purports to “demonstrate a renewed commitment to worker health,” yet the meat of the agenda tells a different story for particular long-recognized occupational health hazards.

Take, for example, MSHA’s entry on respirable coal mine dust, a pervasive hazard associated with reduced lung function, chronic bronchitis, emphysema, progressive massive fibrosis, and more.  Despite an announcement last week by Labor Secretary Solis and MSHA Asst. Secretary Joe Main saying they want to “end new cases of black lung among the nation’s coal miners,” they aren’t planning to PROPOSE any regulatory changes for 10 months.   That’s a “renewed commitment to worker health”?   Hardly.

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Senator Sherrod Brown (D-OH) is urging Labor Secretary Solis to expedite rulemaking to protect workers from exposure to diacetyl.  In a letter dated November 25, the Senator writes:

“I am concerned that OSHA has not acted fast enough to compel employers to reduce workplace exposures to this deadly additive.”

and mentions Mr. Keith Campbell, a worker from Caledonia, Ohio who is suffering with bronchiolitis obliterans.

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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.

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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.

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