A mixed bag in Labor Department’s latest agenda for new worker safety rules

I took a little time this week to review the regulatory agenda of worker health and safety initiatives which was issued by the Labor Department. The November 21 document contains a mixed bag of unaddressed workplace hazards and slipped deadlines, as well as a few new topics for possible regulatory action. The fault for some of the slipped deadlines falls right on the doorstep of the White House’s Office of Information and Regulatory Affairs (OIRA).

The Mine Safety and Health Administration (MSHA), for example, has been working on a rule that would require machines used in coal mines to cut coal to be equipped with proximity detection devices. The technology is commercially available and would prevent mine workers from being fatally crushed or permanently maimed when struck by this unforgiving equipment. Curiously, the Labor Department’s introductory statement for this new regulatory agenda highlights this new rule as one of Secretary Tom Perez’s priorities. But I’ve got to wonder how much his priorities matter to OIRA staff. MSHA’s draft final rule has been stuck in the “review” process at OIRA for nearly a year. MSHA submitted it to OIRA on January 8, 2014.

Every year, at least one coal miner dies because proximity detection devices are not required on continuous mining machines (let alone on any other mining machines.) In February 2014, Arthur D. Gelentser III, 24, was fatally pinned by one of these machines. After the fact, SunCoke Energy’s Dominion Coal Co. installed proximity detection devices on two continuous mining machines at the coal mine where Gelentser was killed.

One topic that is getting very stale on MSHA’s regulatory agenda is action on respirable crystalline silica. Despite promises early on in the Obama Administration that MSHA would propose a silica regulation, it has yet to happen. This latest regulatory agenda indicates MSHA will publish one in October 2015. I’ll keep my fingers crossed, but I don’t dare hold my breath.

MSHA added two new topics to its regulatory agenda and indicates it plans to request information from the public about them. They both address topics for which MSHA already has regulations in place, but the evidence suggests the current rules are not adequate: protections from diesel exhaust, a known human carcinogen; and improvements in procedures for conducting hazard identification at metal and non-metal mines. MSHA indicates it will issue the requests for information in April and June 2015, respectively, on these two topics.

OSHA is projecting that it will issue three major H&S standards in 2015. One of them, a rule to protect construction workers who risk being asphyxiated in confined spaces, has been languishing at the agency for much too long.  In 1993, OSHA issued a regulation to protect many workers from confined space hazards, but construction workers were excluded from the rule. The agency promised in a settlement agreement with the United Steelworkers that it would issue a confined space rule specific for construction workers. The GW Bush Administration’s OSHA got around to proposing the regulation and the comment period closed in October 2008. Obama’s OSHA said it expected to issue a final rule in November 2011, but here we are, three years later, and construction workers are still waiting. In this latest regulatory agenda, OSHA indicates the final rule will be issued in March 2015. The final rule was sent to OIRA for review on November 14, 2014. I’ll be eager to see if OIRA can complete its review in the mandated 90 day time period. Bets anyone?

OSHA is also indicating that it will issue a final rule in August 2015 to require certain employers to submit electronically their injury and illness records to OSHA.  This is a new requirement that OSHA proposed in November 2013, and re-opened for 60 days of additional public comment in August 2014. If the new rule is finalized, employers with more than 250 employees who are already required by OSHA to keep injury and illness records (not all employers are required to do so) will be expected to submit those records electronically to OSHA on a quarterly basis.  Employers with 20 or more employees who are already required to keep injury and illness records will be expected to submit those records annually to OSHA in an electronic format.

In OSHA’s previous regulatory agenda issued in January of this year, the agency suggested its interest in gathering information from the public on ways to address the hazards—especially fall hazards—faced by communication tower workers.  These are the individuals who deserve our thanks for the hair-raising job of working at heights so we can get smart phone reception pretty much anywhere we want it. OSHA indicated initially it would publish a request for information (RFI) in June 2014. This regulatory agenda says such a notice would be published in November.  Oops! November has come and gone, and the RFI was not published.

The rest of the line-up of proposed new worker health and safety regulations is here.

One item in the November 21 document has me scratching my head.  It says:

“OSHA’s regulatory program also includes initiatives involving Injury and Illness Prevention Programs…[and] Preventing Backover Injuries and Fatalities.”

The funny thing is, these two topics have been relegated on the Labor Department’s regulatory plan to “long-term actions.” I’m not sure to whom the Labor Department or OSHA is trying to throw a bone, but they’re not fooling anybody by suggesting these topics are seriously part of the agency’s regulatory program. OSHA has enough trouble trying to finish the few, new worker safety regulations for which its staff is actively working. I see little point in highlighting a regulatory topic that has fallen far off the table.

The final two years of the Obama Administration are fast approaching. I, for one, am keeping my fingers crossed that Secretary Perez has allies in the White House who will see that MSHA’s and OSHA’s pending final rules are completed in 2015. By January 2016, the Presidential election season will be in full force and that never bodes well for new worker safety regulations.