Special interest groups and White House stalling worker safety rule

During his first week in office, President Obama promised an Administration defined by

“unprecedented level of openness…to ensure the public trust and establish a system of transparency, public participation, and collaboration.”

But that’s not been the case when it comes to a draft worker safety rule developed by federal OSHA. Almost all the participation has been among special interest groups–not the ordinary workers who have the most at stake—and not in a public process that builds trust and is participatory.

The proposed regulation would affect workers exposed to respirable crystalline silica (e.g., stonecutting, sandblasting, tuckpointing, brickmaking, foundries, and road, tunnel and bridge crews) who are at increased risk of developing the lung disease silicosis, cancer, autoimmune and other disorders. Instead of allowing the public dialogue to commence on a proposed rule, the White House has been “reviewing” OSHA draft proposed silica rule since February 14. I wonder how much reviewing is actually going on. White House staff have hosted at least seven meetings with special interest groups, most of whom are opposed to the worker safety rule.

When President Obama extolled the virtues of public engagement to enhance Government effectiveness, I didn’t think he meant closed-door meetings with special interest who want to influence a draft rule before it is even proposed. The parade of lobbyists began when a group organized by the American Chemistry Council’s Crystalline Silica Panel met with staff from the White House’s Office of Information and Regulatory Affairs (OIRA) on March 31 hoping to convince the OIRA staff that an OSHA rule on silica is not needed. Participants at the meeting included representatives from the Industrial Minerals Association-North America, Unimin Corporation, the American Foundry Society, and the Refractories Institute. The way this game is played in Washington, once OIRA opens the door to one group, others start marching in, often to reinforce the anti-regulation message.

On April 7, it was a meeting with Whiteacre Greer Co., Redland Brick Inc., the Brick Industry Association, and the Glenn Consulting Group;

On April 19, a meeting with Associated Builders & Contractors, Associated General Contractors of America, the American Road & Transportation Builders Association, Independent Electrical Contractors, Mechanical Contractors Assn. of America, Mason Contractors Assoc. of America, the National Association of Home Builders, the National Roofing Contractors Association, and the American Subcontractors Association;

On June 8, a meeting with Martin Marietta, Vulcan Materials Co., National Stone Sand & Gravel Assoc., and Maryland Materials Inc.;

and

On June 14, a meeting with the National Concrete Masonry Association, National Redi-mix Concrete Association, Portland Cement Association and the Precast/Prestressed Concrete Institute.

Logically, organizations that are supportive of the OSHA rule tried to counter the messages of opposition by requesting their own meetings. The American Thoracic Society—physicians who specialize in treating lung disease—-met with OIRA staff on May 4. The next day, representatives of the AFL-CIO, Change to Win, the Laborer’s Health and Safety Fund, the Center for Construction Research & Training, the United Auto Workers, and the United Steelworkers had their own meeting with OIRA staff.

Despite all the rhetoric about making government more efficient and effective, the Obama Administration is as guilty as its predecessor for allowing these extra-curricular discussions to continue. As I’ve written in the past, the Administrative Procedure Act guides the process that OSHA and many other federal agencies use to develop proposed and final rules. It is meant to be a process that applies to everyone equally; not one that gives special access to the politically-connected, economically privileged, or favored groups. Agencies like OSHA, develops a proposed rule and the public is given an opportunity–an equal opporunity—to provide comments. The comment period is open to everyone. This should be the one and only avenue for those who endorse or oppose a proposed rule to provide their perspective, expertise, or opinion to an Administration. There’s no reason that OIRA couldn’t respond in this way to requests for meetings on draft proposed rules:

“we appreciate your interest in this issue and we hope you will comment on the agency’s proposed regulatory text and alternatives when they are published.”

I agreed with the President’s statement that

“knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”

But, I expected such dialogue, discussion and debate on regulatory alternatives for worker safety improvements to occur through the Administrative Procedure Act process. Afterall, those are the mechanisms in which ordinary citizens are expected to participate.

The White House’s stalled review of the draft OSHA rule is disconcerting to key Members of Congress. Senators Tom Harkin (D-IA) and Patty Murray (D-WA) and Representatives George Miller (D-CA) and Lynn Woolsey (D-CA) sent a letter to the Office of Management and Budget’s Jacob Lew saying the delay “of a long overdue safety standard threatens to leave two million workers at risk” of disease.

Comments

  1. #1 Richard A. Sands, PI
    July 6, 2011

    Repeating the following quote from above: “The way this game is played in Washington, once OIRA opens the door to one group, others start marching in, often to reinforce the anti-regulation message.” (Just follow the money…, including stakeholder’s interest, third party interests, benefactors and any beneficiary’s financial or personal gain to understand why this game, the same game, is indeed played everywhere and without exception!)

  2. #2 safemba
    July 6, 2011

    Mediocrity is the best government can perform. Your expectations of government are way to high. It will be another year before we see the Silica standard. How long have they been working on this? A decade. I am sure somebody at OSHA has made a career out of this. Waste of tax dollars like most of government.

  3. #3 Anonymous
    July 8, 2011

    If OSHA would simply enforce the existing PEL of 100 mg/m^3 workers would be protected. There is no science that has shown that exposure to levels at 100 mg/m^3 has linked silicosis to lung cancer; more troubling are the absorbent cases of misdiagnosed silicosis that occur throughout the United States each year. I agree with you Dr. Monforton that the Obama administration and OSHA have not been as transparent ‘as promised’ and no-one has any idea what this proposed regulation will look like. The fact of the matter is that currently employers are not following the PEL of 100, and if OSHA would simply start enforcing their own regulation; it would be easy to see there is no need for additional burdensome regulatory requirements or even a reduction of the PEL. I wonder if the White House finally realizes that OSHA can and should be enforcing their current PEL without imposing a multi-billion dollar a year regulation that will reduce the current PEL and require employers to follow a litany of ancillary provisions that the proposal will likely entail.

  4. #4 Anonymous 2
    July 8, 2011

    I would like to add onto Richard’s post, I agree 100% this is how the game is played everywhere, without exceptions and without boundaries.

    I like to pull real world interpretations of terms from http://www.urbandictionary.com here is what the top response is for
    POLITICS-The fastest way to piss off anybody and make enemies.

  5. #5 Celeste Monforton
    July 8, 2011

    Anonymous,
    One of the best papers demonstrating an association between the current exposure limit and a whole host of adverse health effects was published in 2005 in the American Journal of Industrial Medicine. The excess risk of disease included cancer and end-stage renal disease.
    The second problem with your suggestion that “if only OSHA enforced the existing PEL” is that Congress has never given adequate funds to enforce the law. Less than 1% of workplaces in a given year ever see a State or Federal inspector.

  6. #6 Anonymous
    July 8, 2011

    Dr. Monforton,

    I will have to look into the 2005 research article you referenced.

    If OSHA were to promulgate an even more protective/restrictive rule, will that not mean that there will simply be a larger number of employers and jobsites that are not in compliance?

    As you are very well aware, MSHA visits each regulated site twice a year and conducts sampling at least annually; and OSHA simply does not have that capacity, and it is not an easy fix to pass this burden on to employers.

    Small businesses that would have to comply with OSHA’s proposed silica rule would be at a competitive disadvantage to comply with the regulation.

  7. #7 Celeste Monforton
    July 8, 2011

    Correct, the MSHA and OSHA models are quite different. I think of employers’ responsiblity to comply with OSHA regulations in this way: There are all kinds of laws the individuals and households are expected to follow (e.g., speed limits on highways, and water restrictions (in my drought stricken part of the country.) There is not a cop on every road, or a local sheriff making we don’t water our lawns or otherwise waste water. Likewise, there are OSHA regs designed to protect workers from serious harm, and employers are expected to follow them. Yes, if the rules change, there will potentially be more employers “out of compliance” but the expectation is they would take steps to comply with the law—-just like they did when the exposure limit for asbestos was reduced from 5 fibers/cc to 2 fibers/cc to 0.2 to 0.1 fibers/cc. Yes, I’m sure at the beginning there were companies that broke the law and didn’t comply with the OSHA standard and were possibly at a “competitive advantage.” The bad (illegal) behavior of some should not be a reason not to improve the law to protect workers’ health. Catching the violators through a variety of enforcement stategies—including competitor and worker complaints, and referrals from other agencies—is one way to work toward making the playing field fair for companies that follow the law.

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