Last week, we learned that the nation suffered the deadliest outbreak of foodborne disease in the last decade or more. As Jensen Farms of Granada, Colorado recalled millions of potentially contaminated “Rocky Road” cantaloupes, scientists at the Centers for Disease Control concluded that 15 deaths and 84 serious illnesses in 19 states were caused by melons containing the rare but exceedingly virulent bacterium Listeria monocytogenes. The disease they contracted, called Listeriosis, has a mortality rate of around 25 percent. Those victims who are fortunate enough to survive are at risk for meningitis and encephalitis.
In addition to being one of the most vicious of the known foodborne pathogens, Listeria is one of the more insidious bugs. The tiny bacteria can hide in the crevices of cantaloupes, remaining there after the fruit has undergone multiple washings. When the melons are sliced, the bacteria can find their way into the fruit where they can thrive at room temperature and even at temperatures commonly found in the refrigerator. Once the contaminated fruit is consumed the disease can germinate in the body for weeks before the victim feels its ill effects. The current outbreak is the first known outbreak attributable to Listeria in cantaloupes, but it will almost certainly not be the last.
Listeria is one of many pathogens that prior to the 1980s were associated primarily with beef and poultry. During the past twenty-five years, however, growers of produce have faced greater pressures from distributors and wholesalers on the efficiency of their production processes and procedures. The growers reacted by paying more attention to reducing costs and less attention to the safety of their products. The result has been a series of outbreaks of foodborne disease caused by contaminated produce. By 2004, the number of produce-related outbreaks exceeded that of beef, poultry and fish combined. The Centers for Disease Control reported that almost 100 outbreaks of illnesses attributable to fresh produce between 1996 and 2006 caused over 10,000 illnesses and 14 deaths.
Full textLast Friday, President Obama ordered EPA Administrator Lisa Jackson to withdraw EPA’s new ambient air quality standard for ground level ozone (smog). The order came in a letter from Cass Sunstein, the head of the Office of Information and Regulatory Affairs in the Office of Management and Budget.
The order does not pretend to be based on science. Indeed, it flies in the face of the available science on the human health effects of ozone as determined on at least two occasions by EPA’s Clean Air Scientific Advisory Committee (CASAC). The White House acknowledges – even touts – that the order is based on economic considerations (President Obama wrote in a statement Friday that “I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time.”) But the Supreme Court, in a unanimous decision written by Justice Antonin Scalia, held that costs are not to be considered in setting ambient air quality standards.
If Administrator Lisa Jackson obeys the order, her action may not strictly violate the letter of Clean Air Act, but it will violate the spirit of that statute. It will also be the wrong thing to do from a public policy perspective. Leaving the current standard in place will (according to EPA’s own calculations) result in up to 2,200 heart attacks and up to 4,300 deaths per year.
Administrator Jackson should therefore disobey the order or resign.
Full textOn Monday, the White House announced that President Obama had signed a new executive order on federal regulation to supplement January’s executive order to executive branch regulatory agencies. The new executive order is aimed at the “independent agencies,” so named because the heads of those agencies do not serve at the pleasure of the president. By statute, they serve for a term of years and can be removed from office only “for cause,” which usually means misbehavior unrelated to the exercise of the agency’s policymaking functions.
The new executive order urges the independent agencies to use cost-benefit analysis in promulgating new regulations, to adopt “flexible” approaches to regulation, and to engage in retrospective analyses of existing regulations with an eye toward modifying or withdrawing regulations that are “outmoded, ineffective, insufficient, or excessively burdensome.”
As Professor Rena Steinzor argued in this blog in January, the original executive order was a very bad idea. The new executive order is not just a bad idea; it could delay the critical work of the banking agencies as they struggle to promulgate and implement regulations needed to head off the next financial meltdown.
Congress may decide to make an agency “independent” for many reasons, including a desire to insulate it from political interference, a desire to avoid regulatory capture, or a general desire to achieve policymaking stability across presidential administrations. But the one overriding purpose of creating an independent agency is to allow it to function independent of presidential control.
Full textThe report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal.
Although the Mine Safety and Health Administration (MSHA) and Massey Energy have conducted their own investigations (MSHA's is forthcoming) into the causes of the tragic explosion, Joe Manchin, then the Governor, correctly assumed that the full story was not likely to come out of two entities with such an obvious stake in the outcome. He asked Davitt McAteer, the head of MSHA during the Clinton Administration and a long-time advocate of greater safety in the nation’s underground mines to assemble an independent and objective panel to investigate the explosion. McAteer brought together a team composed of experts without any special connection to the coal industry or its regulators.
The tightly drafted 120-page report provides a clear and detailed account of events that preceded and followed the explosion and of what we know about its causes based on its own examination of the physical evidence and on more thant 300 interviews with persons involved in the explosion and in the management of the Massey Energy Company.
The panel concludes that the immediate cause of the explosion was methane gas that had reached unsafe levels in the mine. Massey Energy took the position that there was a massive entry of methane into the chamber through a crack in the floor that inundated the mine. The governor’s panel, by contrast, concluded that the explosion was caused by a small amount of methane that, once ignited by a spark from a shearer, caused a fireball that spread to coal dust that had inexcusably been allowed to build up for miles throughout the mine. The coal dust in turn carried the explosion throughout more than two miles of the large mine. The report implies that the ignition of a small amount of methane would not have caused the massive explosion and that absent the negligent accumulations of coal dust, the miners might well have survived the explosion.
Full textOn March 23, 2005, the worst industrial accident in 15 years killed 15 workers and injured more than 180 others as highly flammable liquids from a distillation tower were vented directly to the ground and were ignited by a spark at the huge BP Corporation Refinery in Texas City, Texas. A two-year investigation by the Chemical Safety and Hazard Investigation Board (CSHIB) concluded that the BP Texas City refinery was “an extremely dangerous workplace by any objective standard.” An “Independent Review Panel” that BP assembled to investigate the explosion and BP’s safety practices throughout all of its operations issued a similarly devastating critique.
The CSHIB also found that the Occupational Safety and Health Administration (OSHA) had acted irresponsibly. The facility was subject to OSHA’s 1992 process safety management standard, but plant managers had failed to implement many of its requirements. The standard itself was out of date, but, lacking the resources to update it, the agency substituted ineffective guidance documents and voluntary outreach programs. Even though the BP plant was the third largest refinery in the United States, OSHA had never undertaken a comprehensive, planned process safety inspection at the facility. Indeed, between 1995 and 2005, the agency had undertaken only nine process safety inspections in the entire country, and none of those were at refineries.
The problem was by no means limited to the BP plant. Similar explosions had killed or seriously injured workers at five other refineries and chemical plants during the preceding seven years, but OSHA had lacked the resources to step up its enforcement efforts.
Indeed, for most of its 40-plus years, OSHA has lacked sufficient resources to protect American workers from irresponsible employers who all too often treat their employees as expendable pieces of equipment.
Full textNow that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law.
The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive consumer advocate during the entire financial crisis, should be the President’s choice. The banking industry’s position is “anyone but Warren.”
Elizabeth Warren (who was my colleague at the University of Texas for many years) is the most qualified candidate. Although she would inevitably have to make compromises in launching the new agency, she is a charismatic leader who would remain a strong consumer advocate and will not be bullied or hoodwinked by the banking industry.
As importantly, the appointment will make a strong symbolic statement about the President’s priorities. The appointment offers a unique opportunity for the President to demonstrate to the American public that he is on the side of consumers and not Wall Street.
We should bear in mind, however, that the future of this important agency also depends on other decisions that are being made in the Administration over the next few months. The bureaucratic realities facing a new agency may have as great an impact on its future as the credentials and personality of its first leader.
Full textCross-posted from ACSblog.
The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.
When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.
The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.
During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.
Full textThe debate over whether Congress should create a Consumer Financial Protection Agency, as recommended by President Obama, has recently taken a disturbing turn. Apparently, some congressional Democrats have been receptive to complaints from the big national banks that the current bill does not preempt state laws and regulations that are more stringent than the regulations that the new agency will promulgate.
National banks have traditionally been protected from state regulation by virtue of express preemption clauses in the federal statutes under which federal agencies like the Office of the Comptroller of the Currency provide their charters. This has arguably been a disaster for consumers. For example, when New York Attorney General Andrew Cuomo launched an investigation into discriminatory banking practices, the federal agencies literally cut off the investigation in mid-stride by filing a lawsuit in federal court for injunctive relief, and the Supreme Court agreed with the agencies.
This week the House Financial Services Committee may vote on an amendment offered by Rep. Melissa Bean (D-Ill,) that would similarly preempt more stringent state regulation once the new agency is up and running.
Full textYesterday, the Food and Drug Administration implemented a 2007 food safety statute by promulgating a rule requiring food manufacturers to report instances of foodborne diseases to an electronic database that the agency has just established (the Reportable Food Registry). This long-awaited database will help epidemiologists at the Centers for Disease Control, state health agencies and academia identify "clusters" of illnesses that should contribute to a better assessment of the extent and magnitude of the foodborne disease problem in this country.
More important, the new database may assist epidemiologists in pinpointing the food items that have caused particular outbreaks much more quickly. This is critical to the government's ability to take action to prevent the spread of foodborne diseases before they become full-fledged catastrophes like the recent spinach and peanut butter outbreaks.
In a food distribution system in which ground beef from a single cow can wind up in hamburgers in several states and a single hamburger can be composed of meat from dozens of cows, we need all the information we can get on the nature and extent of the disease outbreaks that occur all too frequently these days. The new system that FDA has just created has the potential to contribute greatly to the available information.
The proof, however, will be in the pudding when the system is fully up and running. It will be awfully easy for a company that receives a complaint from an angry customer who got sick from eating one of its products to conclude that the disease must have had some other cause or was otherwise "idiopathic" and ignore it. The key question as FDA begins to implement the regulations will be the how well the thresholds that the regulations establish for reporting instances of disease work. And, of course, another critical issue will be the seriousness with which the agency goes about enforcing the new regulation. It is much harder to police violations of an affirmative reporting requirement than it is to enforce a prohibition.
FDA is off to a good start. Now it needs to follow through.
For more on the compliance issue, see also Food Poison Journal.
Full textOn Wednesday, Representative Henry Waxman introduced a comprehensive "Food Safety Enhancement Act" (116-page discussion draft) to repair part of a federal food safety protection regime that has been badly broken for several decades. Waxman was joined by Representatives Diana DeGette, John Dingell, Frank Pallone, Bart Stupak, and Betty Sutton; the House Energy and Commerce Committee will hold a hearing on the issue on Wednesday, June 3.
A key problem with the current system is that it employs regulatory tools developed during the early twentieth century to address the risks posed by a radically different twenty-first century food production and delivery system.
The existing regime is built upon the assumption that state and local governments can adequately address the risks of a largely local food supply with occasional assistance from a federal Food and Drug Administration that focuses primarily on animal feeds, food additives and a modest quantity of (mostly exotic) imported food. But we now live in a world in which much of our fresh produce travels long distances (often from other countries) and the processed foods that we consume can come from huge production complexes or tiny "Mom and Pop" facilities located almost anywhere.
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