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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Saturday, October 22, 2011

A Proposal To Make The Workplace Safer

Jason Bent, Professor at Stetson University, has published an incentive-based proposal to regulate workplace chemicals through the nation's workers' compensation system. 

Abstract: 
"Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.

"The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.


Click here to read the entire report.
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Government Appeals Case Involving MSP Statute of Limitations

A Notice of Appeal has been filed by the United States in a case where a Federal District Court held that the statute of limitations in a Medicare Secondary Payer Act recovery action was limited to only 6 years. The government contented in the matter that the statute of limitations for it to assert recovery/reimbursement was extended under the "implied contract theory."

The case was tried in the U.S. District Court, Northern District of Alabama (Eastern) before Judge Karon O. Bowdre and involved a contract reimbursement claim under the Medicare Act, specifically 425 USC 1395 (HHS). A Final Order was entered on September 13, 2011 the the United States filed a Notice of Appeal on October 11, 2011.

Read the prior posting: CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim 10.1.2010

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama)
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Fracking: US EPA To Develop Natural Gas Waterwaste Standards

The U.S. Environmental Protection Agency (EPA) is announcing a schedule to develop standards for wastewater discharges produced by natural gas extraction from underground coalbed and shale formations. No comprehensive set of national standards exists at this time for the disposal of wastewater discharged from natural gas extraction activities, and over the coming months EPA will begin the process of developing a proposed standard with the input of stakeholders – including industry and public health groups. Today’s announcement is in line with the priorities identified in the president’s Blueprint for a Secure Energy Future, and is consistent with the Secretary of Energy Advisory Board recommendations on steps to support the safe development of natural gas resources. 

"The president has made clear that natural gas has a central role to play in our energy economy. That is why we are taking steps -- in coordination with our federal partners and informed by the input of industry experts, states and public health organizations -- to make sure the needs of our energy future are met safely and responsibly,” said EPA Administrator Lisa P. Jackson. "We can protect the health of American families and communities at the same time we ensure access to all of the important resources that make up our energy economy. The American people expect and deserve nothing less."

Recent technology and operational improvements in extracting natural gas resources, particularly shale gas, have increased gas drilling activities across the country. Production from shale formations has grown from a negligible amount just a few years ago to almost 15 percent of total U.S. natural gas production and this share is expected to triple in the coming decades. The sharp rise in domestic production has improved U.S. energy security and created jobs, and as with any resource the administration is committed to ensuring that we continue to leverage these resources safely and responsibly, including understanding any potential impact on water resources.

Shale Gas Standards:
Currently, wastewater associated with shale gas extraction is prohibited from being directly discharged to waterways and other waters of the U.S. While some of the wastewater from shale gas extraction is reused or re-injected, a significant amount still requires disposal. As a result, some shale gas wastewater is transported to treatment plants, many of which are not properly equipped to treat this type of wastewater. EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

Coalbed Methane Standards:
Wastewater associated with coalbed methane extraction is not currently subject to national standards for being directly discharged into waterways and for pre-treatment standards. Its regulation is left to individual states. For coalbed methane, EPA will be considering uniform national standards based on economically achievable technologies.

Information reviewed by EPA, including state supplied wastewater sampling data, have documented elevated levels of pollutants entering surface waters as a result of inadequate treatment at facilities. To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, EPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coalbed methane in 2013 and a proposed rule for shale gas in 2014.


The schedule for coalbed methane is shorter because EPA has already gathered extensive data and information in this area, EPA will take the additional time to gather comparable data on shale gas. In particular, EPA will be looking at the potential for cost-effective steps for pretreatment of this wastewater based on practices and technologies that are already available and being deployed or tested by industry to reduce pollutants in these discharges.


This announcement is part of the effluent guidelines program, which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable. EPA is required to publish a biennial outline of all industrial wastewater discharge rulemakings underway. EPA has issued national technology-based regulations for 57 industries since 1972. These regulations have prevented the discharge of more than 1.2 billion pounds of toxic pollutants each year into US waters.


Supporting Documents
More Information
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Friday, October 21, 2011

Deadly Delay: The Chemical Industry's Game Play


The Toxic Substances Control Act (TSCA) is in desperate need of reform. Its weaknesses have allowed chemical companies to exploit the act by thwarting the EPA's attempts to finalize health assessments and delaying regulation of chemicals -- sometimes for decades. The chemical industry's roadblocks often follow predictable patterns:
  • Attack early drafts of health assessments
  • Force new reviews
  • Hold workshops populated with industry-funded panelists
  • Introduce new industry-funded studies when assessments are close to final
  • Force more reviews
  • Enlist elected officials to assist with political interference
  • Attack new assessment drafts
Using these tactics, the chemical industry has effectively prevented the EPA from achieving its mission to protect human health.
This report details how the U.S. legal system and TSCA itself have helped the chemical industry to be effective in its efforts to delay regulations. Congress needs to reform TSCA to make it a more effective regulatory tool. The chemical industry should not be able to endlessly postpone regulatory decisions while profiting from unregulated chemical sales until all scientific controversies and uncertainties, large and small, have been eliminated. With good public policy, the EPA should be empowered to make the best decisions it can on a timely basis using existing information, and apply new science to update its evaluations as it becomes available.
Full Report: The Chemical Industry Delay Game : How the Chemical Industry Ducks Regulation of the Most Toxic Substances. By Jennifer Sass. October 2011
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Thursday, October 20, 2011

World Trade Center Health Program Scientific/Technical Advisory Committee To Meet

World Trade Center Health Program Scientific/Technical Advisory Committee (WTCHP STAC or Advisory Committee), National Institute for Occupational Safety and Health (NIOSH) In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:

Committee Public Meeting Times and Dates: (All times are Eastern Standard Time) 
  • 8:15 a.m.-5 p.m., November 9, 2011, 
  • 8 a.m.-12 p.m., November 10, 2011. 
Public Comment Times and Dates: (All times are Eastern Standard Time) 
  • 3:15 p.m.-4:15 p.m., November 9, 2011,
  • 8:15 a.m.-9:15 a.m., November 10, 2011.
Place: Jacob K. Javits Federal Building, 26 Federal Plaza, New York, New York, 10278.

Background: The Advisory Committee was established by Public Law
111-347 (The James Zadroga 9/11 Health and Compensation Act of 2010, Title XXXIII of the Public Health Service Act), enacted on January 2, 2011 and codified at 42 U.S.C. 300mm-300mm-61.
Purpose: The purpose of the Advisory Committee is to review scientific and medical evidence and to make recommendations to the World Trade Center (WTC) Program Administrator regarding additional WTC Health Program eligibility criteria and potential additions to the list of covered WTC-related health conditions. Title XXXIII of the Public Health Service Act established within the Department of Health and Human Services (HHS), the World Trade Center (WTC) Health Program, to be administered by the WTC Program Administrator. The WTC Health Program provides: 

(1) Medical monitoring and treatment benefits to eligible emergency responders and recovery and cleanup workers (including those who are Federal employees) who responded to the September 11, 2011, terrorist attacks, and 

(2) initial health evaluation, monitoring, and treatment benefits to residents and other building occupants and area workers in New York City, who were directly impacted and adversely affected by such attacks (``survivors'').

Matters to be Discussed: The agenda for the Advisory Committee meeting includes: WTC Health Program Overview; Panel Presentations from WTC Responders and Survivors; Presentations from WTC Health Program Medical Monitoring and Treatment Programs and Health Registry; and discussion regarding ways and means of accomplishing the committee's work.

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Occupational Injuries Reported at Lowest Level Since 2003

US BLS: (10/20/11) The total recordable cases nonfatal occupational injury and illness incidence rate among private industry employers declined in 2010 to 3.5 cases per 100 workers--its lowest level since 2003 when NAICS-based estimates from the Survey of Occupational Injuries and Illnesses were first published.


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Secretary of Labor Hilda L. Solis issued the following statement:
"We are encouraged by the reported decline in incidence rates for workplace injuries and illnesses, which is reflective of the joint effort of government, business, unions and other organizations. Nevertheless, 3.1 million injuries and illnesses in the workplace is too high. Serious injuries and illnesses can knock a working family out of the middle class. Workers should not have to sacrifice their health and safety to earn a paycheck.
"We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing, and this group of workers had one of the highest rates of injuries and illness at 5.2 cases for every 100 workers. The Department of Labor's Occupational Safety and Health Administration will continue to work with employers, workers and unions in this industry to reduce these risks.
"Illness and injury rates for public sector workers also continue to be alarmingly high at 5.7 cases for every 100 workers, which is more than 60 percent higher than the private sector rate. We must continue to work with state and local governments to ensure the safety of our public employees.
"A report like this also highlights the importance of accurate record keeping. Employers must know what injuries and illnesses are occurring in their workplaces in order to identify and correct systemic issues that put their workers at risk. We are concerned with poor record-keeping practices and programs that discourage workers from reporting injuries and illnesses. That's why OSHA is working hard to ensure the completeness and accuracy of these data, which are compiled by the nation's employers.
"As our economy continues to rebound and grow, we must ensure that safety and health are a part of that growth. Let's all remember that no job is a good job unless it is also a safe job."
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Trench Safety a Focus of NIOSH

Working in a trench is a dangerous occupation, especially when working with old structures. NIOSH has refocussed on this concern this week and published Preventing Worker Death From Trench Cave-ins.

I was in New York City this week and watched two workers as they attempted to excavate on the street near Lincoln Center (see photo). One worker was digging shovel-by-shovel below ground as the worker above ground kept pounding the tops of large boards into the earth with the end of his shovel to act as walls to restrain the side from falling in. Pipes in NYC under the ground are old and many contain asbestos fiber. There were absolutely no pulmonary precautions being observed. 

Recently NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action. Van Dunk v. Reckson Associates Realty Corp., 415 N.J.Super. 490 (N.J.Super.A.D. Aug 30, 2010), Certification Granted by 205 N.J. 81 (N.J. Jan 27, 2011).

"Workers who dig or excavate trenches are at risk of death if they enter an unprotected trench and the walls collapse. However, hazards associated with trench work and excavation are well defined and preventable. The OSHA standard for excavation and trenching, known as 29 CFR* 1926 Subpart P, describes the precautions needed for safe excavation work."


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