April 2009

Following a recent report of a $7.5 million federal jury award to an Iowa man who developed lung disease, reportedly from exposure as a flavoring mixer in the 1990s, US Secretary of Labor Hilda L Solis announced "action to prevent workers' exposure to food flavorings chemical containing diacetyl. The Secretary withdrew an Advance Notice of Proposed Rulemaking (ANPRM) on diacetyl  to facilitate OSHA's "timely development of a standard to protect workers from bronchiolitis obliterans, a serious and potentially fatal lung disease associated with such an exposure."

In a press release, the Secretary stated: "I am alarmed that workers exposed to food flavorings containing diacetyl may continue to be at risk of developing a potentially fatal lung disease. Exposure to this harmful chemical already has been linked to the deaths of three workers," said Secretary Solis. "These deaths are preventable, and it is imperative that the Labor Department move quickly to address exposure to food flavorings containing diacetyl and eliminate unnecessary steps without affecting the public's ability to comment on the rulemaking process."

The DOL press release states that "Secretary Solis' interest in this issue began when she was a member of Congress and workers in her former California district developed the irreversible lung disease after being exposed to this workplace hazard. At one time, she urged OSHA to issue an emergency temporary standard to protect these workers." (emphasis added). 

Apparently seeking a faster rulemaking than would have taken place with the ANPR initiation, DOL justified the withdrawal by stating:

"Withdrawing the ANPRM facilitates the convening of a small business advocacy review panel to determine the impact a proposed rule might have on small businesses and how  those impacts can be reduced, consistent with the agency's statutory requirements. This panel process is required under the Small Business Regulatory Enforcement Fairness Act.  All materials submitted prior to the ANPR withdrawal, as well as any other information submitted directly to OSHA after the withdrawal, will be put in the public rulemaking docket "and will receive appropriate consideration as a part of the overall rulemaking record."

Comments can be submitted by mail, hand delivery or courier service to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210. Comments that do not exceed 10 pages may be faxed to the Docket Office at 202-693-1648. All submissions should reference Docket Number 2008-0046.

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The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269,  or John Austin (jaustin@pattonboggs.com) at 202-457-6167.

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