OIRA

Obama’s regulatory czar and (sort of) transparency

cmonforton — Thu, 17 Mar 2016 13:15:04 +0000

Obama’s regulatory czar and (sort of) transparency

A funny thing happened this week when President Obama’s regulatory czar, Howard Shelanski, was called to testify before Congress. The subject of the hearing: transparency at Shelanski’s Office of Information and Regulatory Affairs (OIRA). On the eve of the hearing, OIRA tried to fool us by pretending to be transparent.

For the last several months, I’ve been routinely checking OIRA’s website for notations about meetings the staff has held with individuals or organizations which have an interest in particular pending OSHA regulations. I knew meetings with particular groups had taken place, but OIRA had not disclosed the meeting on its website.

How’d I know about these meetings? First, I participated in two of them. One took place in December 2015 and the other in February 2016. No record of these meetings appeared on the OIRA website. Second, a reliable source confirmed that both the US Chamber of Commerce and the National Association of Manufacturers (NAM) had met with OIRA in early November 2015. My source told me the trade associations met with OIRA to discuss a new OSHA regulation to improve employer reporting of work-related injuries and illnesses. That is the same draft regulation about which colleagues and I met with OIRA in December 2015.

At least once per week since December I’ve been checking the OIRA site to look for the disclosure of these meetings. I even telephoned OIRA once and sent emails twice to ask why the meetings were not listed on the office’s website. No one responded to my inquiries. I also contacted the General Services Administration (GSA) which hosts the OIRA website. I spoke to a very nice member of the staff to ask if GSA had a backlog which would explain the missing information from the OIRA website. “No,” I was told, “GSA operate the website, but OIRA is responsible for posting its own content.” [paraphrased]

My weekly check of the OIRA website continued. The last time I called up the site was Friday, March 11, 2016. Still, none of these meetings were disclosed nor any others that might have taken place.

At Tuesday’s hearing before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, Obama’s regulatory czar said this about transparency:

"Pursuant to EO 12866, OIRA meets with any party interested in providing input on a regulation under review. The entities with which OIRA typically meets include state and local governments, businesses, trade associations, unions, and advocates from environmental, health, and safety organizations. OIRA posts a searchable log of all such meetings on its website. That log now includes both meetings that have already taken place and also upcoming meetings." [0:15:50]

Hearing his testimony, I toggled to a new tab on my browser. I called up RegInfo.gov and used the search for "EO 12866 Meetings."

Well, well, what do you know. OIRA’s November 2015 meetings with the US Chamber of Commerce and NAM are now posted (here, here.) Several other meetings are listed, including the one I participated in December 17, 2015 (here), as well as a meeting with the American Insurance Association on November 9 (here), with the AFL-CIO on December 21 (here), with ORCHSE Strategies on January 11 (here) and with the American Road and Transportation Builders Association on February 2 (here.)

A win for transparency? Sort of.

I also participated in a meeting with OIRA on February 23. Colleagues and I held the meeting to urge OIRA's prompt review of OSHA’s final rule on silica. That meeting is not posted on the OIRA website. How many other meetings with stakeholders has OIRA failed to disclose?

Shelanski was in the hot seat during the hearing on Tuesday. Much of it focused on his failure to respond to a subpoena from the committee. None of the lawmakers asked about my pet peeve: OIRA's failure to disclose these meetings. It baffles me that something so simple is such a challenge for Mr. Shelanski's office.

cmonforton Thu, 03/17/2016 - 09:15

Tags

government

Legal

Occupational Health & Safety

OIRA

Midnight regulations, Shmidnight shmegulations

lborkowski — Wed, 17 Feb 2016 18:51:19 +0000

Midnight regulations, Shmidnight shmegulations

Cross-posted from CPRBlog

by James Goodwin

In case you didn’t get the memo: President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.” According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor—presumably from a different party—to undo. The legend further holds that because the rules are “rushed,” they are somehow of inferior quality.

Over the last few days, several antiregulatory commentators have issued dire warnings about midnight regulations(see here and here), and even the House Science Committee went to the trouble of holding a hearing on the subject just the other day.

Scared yet? Well, you shouldn’t be.

While “midnight regulations” might make for a good political talking point, there simply is no reason to believe that a rule released at the end of an administration is worse than those that are released at any other point. In fact, the administration could have been working on such rules for as long as seven years, which, according to the logic of the midnight regulation alarmists, would suggest that the quality of the rules is even better. After all, if the underlying assumption is that longer rulemakings make for better rules, then many of these last rules could very well be the best of the administration.

Still, the assumption about the supposed relationship between lengthy rulemakings and rule quality is false. The fact is every rule moves through the regulatory pipeline at its own rate, and the timing of its eventual emergence from the end of the pipeline has to do with a lot of complex and countervailing factors that are unrelated to meeting some arbitrary deadline before the end of an administration.

More to the point, agency administrators face strong incentives not to release a rule before it is truly ready. If they do, then there is a high likelihood that the rule will be successfully challenged on judicial review. All of the resources that the agency expended will have been wasted if the rule is struck down.

But all of this talk about alleged concerns regarding rule quality is actually beside the point. Just take a close look at the arguments that the midnight regulation alarmists raise. You’ll see that their real concern is about ensuring that individual rules are subjected to extensive cost-benefit analysis (purportedly to maximize the rule’s net benefits) and lengthy review by the White House Office of Information and Regulatory Affairs (OIRA). Anti-regulatory advocates assume—and they hope others will, too—that cost-benefit analysis and OIRA review leads to “better” rules, but that is not the case in reality. Instead, these institutions lead inexorably to less protective rules and needless delay. While such results may match the policy preferences of corporate interests and their ideological allies, they are highly inconsistent with public’s interest in seeing that agencies carry out their statutory mission in a timely and effective manner.

In short, the debate over midnight regulations appears to be less about improving regulatory quality, and more about ensuring that certain fundamentally antiregulatory components of the rulemaking process—namely, cost-benefit analysis and OIRA review—are afforded every opportunity to achieve the antiregulatory ends that some would desire.

Similarly, it’s hard to ignore the convenient politics of the midnight regulations myth. Republicans have made it abundantly clear that they will oppose everything that the Obama Administration attempts to accomplish during its time in office. In the midnight regulations myth, they find a new excuse to categorically reject every regulation the Obama Administration seeks to finalize during its eighth and final year in office. It allows them to deny the very legitimacy of every regulatory action the President takes this year with the effect of truncating his eight-year administration to just seven years.

Elections have consequences, though. (Republicans are fond of repeating this statement, but only when they happen to win.) One of those consequences is that, under the U.S. Constitution, President Obama gets eight years—not seven—to pursue the agenda he was elected to pursue—including through the establishment of regulations. As long as those regulations are supported by the administrative record and relevant statutory authority, they are no less legitimate simply because they are finalized in the eighth year as opposed to any of the first seven.

The unfortunate part, though, is that the Obama Administration has itself bought into the midnight regulation myth. In December, OIRA Administrator Howard Shelanski sent out a memo to all agency heads, instructing them, in effect, to avoid midnight regulations.

In some ways, Administrator Shelanski’s motivations for issuing this memo are understandable. First, the instruction to agencies to avoid issuing final regulations at the very end of the term is clearly aimed at insulating these rules from being blocked by a Congressional Review Act resolution of disapproval after the Obama’s term has completed. (In the event that the Republican Party can grab control of both the White House and both chambers of Congress in the next election, the Congressional Review Act would afford the opportunity to reject some of the last rules that the Obama Administration has issued.) While real, that threat is likely overblown. After sweeping into the White House, the George W. Bush Administration, working with Republican majorities in both chambers of Congress, only used the Congressional Review Act on one rule—the Occupational Safety and Health Administration’s (OSHA) ergonomics rule. There were several other controversial rules that could have been rejected using these same procedures, but it appears that this was not a high priority for Party leadership at the time. If this scenario repeats itself in the next election, it seems just as unlikely that Republicans will expend a lot of resources rejecting rules they disfavor.

Second, as the head of OIRA and the President’s lead supervisor of agency cost-benefit analyses, it makes sense that Administrator Shelanski would want to protect his prerogatives to conduct centralized review of agency rules and fiddle around with agency cost-benefit analyses. In other words, the memo seems to be more about validating his position than it is about ensuring the quality of agency rules. After all, as noted above, OIRA review and cost-benefit analysis rarely accomplishes anything beyond delays and weaker protections.

In the end, Administrator Shelanski’s memo is just the latest instance of the Obama Administration’s ongoing series of self-defeating blunders on regulatory policy. It gives the midnight regulation myth unwarranted credence by adopting and reinforcing the myth’s supposed logic. Far worse than that, though, the memo buys into the negative frame of regulation that conservatives and special interests have been pushing for several decades now. Buried within the midnight regulation myth is the implication that regulation is at best a necessary evil that must be minimized if it is to be tolerated at all.

A far better approach would have been for Administrator Shelanski to issue a memo that adopted a positive vision of regulation—one that closely aligns with the positive role of government that Candidate Obama championed and that President Obama has nodded toward intermittently ever since. For example, the memo should have started by acknowledging all of the good that has been accomplished through the Obama Administration’s aggressive use of regulatory authority to address unacceptable harms to people and the environment. The memo then should have urged the agency heads to use their eighth and final year as an opportunity to redouble their efforts and build upon the successes they have already achieved. It should have closed by assuring them that the Administration would provide all of the support at its disposal to ensure that any important rules still in the pipeline will be done right and on time.

This alternative memo from Shelanski would not only reinforce the positive vision of the regulatory system; it would also affirm the successes of the Obama Administration. That kind of a memo would have offered a much better road forward by comparison; I am now left wondering why it was left untraveled.

lborkowski Wed, 02/17/2016 - 13:51

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OSHA's beryllium rule: a victim of White House's "regulatory reform" nonsense

cmonforton — Tue, 24 Nov 2015 16:19:19 +0000

OSHA's beryllium rule: a victim of White House's "regulatory reform" nonsense

Earlier this month, a few dozen individuals and organizations submitted comments to OSHA on its proposed rule to protect beryllium-exposed workers. The lightweight and super strong metal is associated with lung cancer and causes chronic beryllium disease. I've spent some time browsing through many of the submissions and there was one that especially caught my attention. It came from the business consulting group ORCHSE Strategies, LLC. What had me looking twice at the firm's comments was not their views on this provision or that provision. It was something else. ORCHSE Strategies called out OSHA for going overboard in asking stakeholders to comment on dozens of regulatory alternatives. ORCHSE Strategies wrote:

“Too many alternatives are presented, creating multiple options that require an excessive amount of time to address... OSHA should return to its previous approach of making a recommendation for a standard’s parameters based on its best assessment of the risk and necessary protective measures, then describe its rationale in the preamble.”

I agree. Thanks to ORCHSE Strategies for saying it.

OSHA's proposed beryllium rule described more than two dozen different options about which it wanted public comment. Here are just a few from the list:

Alternative 8: Ancillary provisions apply only when exposure above permissible exposure limit (PEL)/short-term exposure limit (STEL)
Alternative 9: semi-annual monitoring when exposure between action level (AL) and PEL
Alternative 10: semi-annual monitoring when exposure above AL/STEL
Alternative 16: No beryllium lymphocyte proliferation test (BeLPT) in medical surveillance
Alternative 17: BeLPT as part of annual exam
Alternative 21a: Medical surveillance (at PEL 0.2 micrograms per cubic meter of air)
Alternative 21b: Medical surveillance (at PEL 2.0 micrograms per cubic meter of air) rather than biannually

But OSHA didn't just ask for comments on these alternatives. The agency took the time to estimate the costs for many of them, and for the costs of different combinations of the alternatives.

My head was spinning reading the litany of options. I wondered about the necessity of it all. It seemed like overkill. But maybe it's why it took OSHA 2.5 years to develop the proposal. The agency received a draft rule in February 2012 which had been negotiated by the key industry and labor stakeholders, yet it still took OSHA until September 2014 to submit its proposed rule to the White House for review.

Here's what ORCHSE Strategies says about the dozens of regulatory alternatives offered by OSHA in its proposed beryllium rule:

They “…add an infeasible layer of complexity to the commenting process."

And get this: Some of the alternatives are ones that OSHA acknowledges are:

“… not ones OSHA could legally adopt because the absence of a more protective requirement for engineering controls would not be consistent with section 6(b)(5) of the OSH Act…”

Huh? What’s the point of asking for comments on a regulatory option that the agency knows it won’t adopt?

OSHA explained:

“…this additional analysis is provided strictly for informational purposes.”

Informational purposes? This is the agency that sighs about not having sufficient resources for rulemaking activities. It asked for comments just for the heck of it? This is the agency that moans about all the steps in its rulemaking process, yet it created more work for itself?

ORCHSE Strategies had it right when they wrote:

"….In the future, we recommend that OSHA put forth fewer regulatory alternatives for commenters to evaluate and instead provide its most reasonable recommendations for what a standard should include, with detailed explanations.”

I can't help but wonder who is really behind this “regulatory alternative” overkill? The mandate for proposing “regulatory alternatives” is not in the OSH Act or any other law governing the agency. It comes from President Obama and imposed by his Office of Information and Regulatory Affairs (OIRA). In Obama's 2011 Executive Order called "Improving Regulation and Regulatory Review," (which built on an EO issued by President Clinton in 1993,) Obama directs agencies to:

"Identify and assess available alternatives to direct regulation..."

and,

"Identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public."

Then in 2012, Obama issued another Executive Order on regulations, this one called "Identifying and Reducing Regulatory Burdens." To me, it was another sign of the President's skepticism that his own appointees, including those at OSHA, will make wise regulatory decisions. Perhaps its part of the reason there were oh so many "regulatory alternatives" in OSHA's proposed beryllium rule---even ones the agency admitted it wouldn't adopt. And maybe why OIRA took 10 months to review OSHA's beryllium proposal.

I'm going to keep my fingers crossed that OSHA will complete its work and issue a final beryllium rule before the end of the Obama Administration. If it fails to do so, workers who are exposed to beryllium will lose out----not because of Republicans or others in the anti-regulatory camp----but because of the Obama Administration's own "regulatory reform" nonsense.

cmonforton Tue, 11/24/2015 - 11:19

Tags

government

Occupational Health & Safety

Obama Administration takes next step to protect beryllium exposed workers

cmonforton — Thu, 06 Aug 2015 15:37:53 +0000

Obama Administration takes next step to protect beryllium exposed workers

OSHA announced today that it is proposing a health standard to protect workers who are exposed to beryllium. Exposure to the lightweight but super strong metal causes a debilitating illness called chronic beryllium disease (CBD) and lung cancer.

The proposed rule is coming about, in part, because of an effort by those who will be most affected by an OSHA beryllium regulation: the nation’s primary beryllium manufacturer, Materion, and the United Steelworkers (USW). They engaged in two years of negotiations to agree on key provisions of a regulation. In February 2012, they submitted their proposal to OSHA. The agency developed its own proposed rule, but says it gave consideration to the industry-labor agreement.

OSHA’s proposal will be published in the Federal Register on August 7, and I will be reviewing it over the coming weeks. I’m particularly interested in reading the medical surveillance and medical removal protections. What tests will be offered to detect ill effects from beryllium exposure? What special economic and/or medical protections will be offered to workers who develop sensitization to beryllium or develop CBD?

Quickly browsing through the proposed rule, I see that OSHA offers “more than two dozen regulatory alternatives.” One regulatory alternative, for example, is having the beryllium rule apply to employers in the construction and maritime industry. Currently, OSHA is proposing that it only apply in manufacturing and other general industries. Another of OSHA’s regulatory alternatives is instituting a permissible exposure limit (PEL) of 0.1 micrograms per cubic meter of air (8-hour time-weighted average). Currently, OSHA is proposing a 0.2 microgram PEL. It will be interesting to see how the Obama Administration’s decision to throw dozens of options in the mix will affect the USW and Materion’s ability to hold to their negotiated agreement. (I hope they can stick together.) Other provisions of the proposal have elements comparable to other OSHA health standards, including medical surveillance, training and a preference for engineering controls.

This OSHA proposal is a long time in the making:

OSHA initially proposed a beryllium standard in 1975, but the rulemaking was squelched by the Department of Defense and fierce lobbying by Brush Wellman (Materion’s precedesor.)
In 1999, the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) (now part of the USW) petitioned OSHA for a standard. In 2001, Public Citizen and PACE sent another rulemaking petition to OSHA.
In 2002, OSHA published a “Request for Information” to solicit data, input, and ideas to help OSHA develop a beryllium standard.
In 2007, OSHA convened a group of small business representatives to provide feedback on a draft proposed rule.
In 2010, OSHA’s risk assessment on occupational exposure to beryllium was subject to external peer review.
In February 2012, OSHA received from USW and Materion their negotiated proposal.
In September 2014, OSHA submitted its draft proposed rule to the White House's Office of Information and Regulatory Affairs. That office took 10 months to review it.

OSHA’s proposed rule on beryllium will appear in the Federal Register tomorrow. My fingers are crossed that the USW-Materion partnership will remain strong and push the Obama Administration to complete this rulemaking by next summer.

cmonforton Thu, 08/06/2015 - 11:37

Tags

cancer

labor rights

Occupational Health & Safety

Acute Beryllium Disease can happen at levels much lower than this proposed level... beryllium toxicity will continue until the exposure limit is set to ZERO !

Long road for a new worker safety regulation, wait may finally be over

cmonforton — Wed, 15 Apr 2015 18:00:43 +0000

Long road for a new worker safety regulation, wait may finally be over

(Updated below (5/1/2015))

There’s a lot of griping in Washington DC about businesses being burdened by too many federal regulations. The gripers and their friends on Capitol Hill have introduced legislation with snappy names, such as the SCRUB Act (Searching for and Cutting Regulations that are Unnecessarily Burdensome), the REINS Act (Regulations from the Executive in Need of Scrutiny) and the ALERT Act (All Economic Regulations are Transparent). But there's no doubt these laws are designed to put the skids on the rulemaking process. For some agencies, including OSHA, they’ve already been riding the regulatory brake for the last couple of decades. There hasn't been a gusher of new regulations. OSHA regulations, in particular, take far too long to be developed and put in place.

Thankfully, one OSHA regulation that’s been in the pipeline for decades---yes, decades---may finally be issued. The White House’s Office of Information and Regulatory Affairs (OIRA) completed its review on April 3 of a final OSHA regulation to protect construction workers from confined space hazards. Vessels, tanks, vents and other small spaces can be deadly hazards for workers because they can be oxygen-deficient, explosive, or configured in such a way that a worker could get trapped. It really has taken decades to get us to this point. Here's some of the long history:

It was 1975 when OSHA first indicated the need for a regulation to address confined space hazards for workers in all industries, including construction. In a 1975 advanced notice of proposed rulemaking (ANPRM), OSHA noted it had:

“received several petitions and other recommendations concerning the need for a revision of the existing standards for work in confined spaces, such as tanks, boilers, sewer vaults, manholes, pressure vessels, trenches, and other confined compartments, or for a standard for work in these environments applicable to all industries.”

In March 1980 in a follow-up ANPRM, the agency said:

“Based on information available to the Agency, OSHA believes that the hazards of work in confined spaces are also significant in the construction industry. Therefore, OSHA is developing a proposal to revise its existing standards in order to effectively cover hazards connected with these activities in construction.”

During May 1980, the agency held public hearings in Houston, Denver and Washington DC to receive input on the need for the standard and how it could be designed to meet workers' and employers' needs. Then came the Reagan Administration. Work at OSHA on a confined space regulation went dormant.

The proposal was resurrected during the George H.W. Bush Administration. In June 1989---14 years after OSHA's first ANPRM on the topic and nine years after those public hearings, the agency formally proposed a rule to address confined space hazards for workers. Among other data, the agency reported that between 1985 and 1990 there were at least 63 fatalities and nearly 6,000 lost-work day incidents related to confined space environments.

OSHA's proposed rule did not, however, apply to the construction industry. OSHA asserted:

"...confined space standards for agriculture, construction, and shipyard work should be addressed separately so that the Agency can focus on aspects of permit space safety that are specifically appropriate for these areas." (4470)

That decision was controversial and not well received by some. One (unnamed) commenter said:

"I find it a grave error not to include construction in the proposed rulemaking. As your statistics succinctly point out, between 1974 and 1977, 276 confined space accidents claimed 234 lives and injured an additional 193 individuals. ...Based upon these figures, why would you want to exclude construction?"

Three and one-half years later, in January 1993, OSHA's final rule on confined space for general industry workers was issued. It happened just days before the Clinton Administration was poised to take office. Both industry and labor groups challenged the OSHA rule. Some argued it went too far, others argued it didn't go far enough. By September 1994, all the objections had been addressed through settlement agreements.

In OSHA's settlement agreement with the United Steelworkers Union, the agency made a big promise:

OSHA agreed to issue a confined space standard that would apply to workers in the construction industry.

The agreement did not, however, give OSHA a deadline for completing the task.

Here's what has transpired in the 21 years since to fulfill that promise:

In February 1994, OSHA asked its Advisory Committee for Construction Safety and Health (ACCSH) to provide feedback on a draft proposed standard addressing the hazards of confined spaces for construction workers. ACCSH formed a working group which ultimately develop a draft proposed standard. In late 1996, ACCSH recommended that OSHA use their draft standard as the agency's proposed rule.
OSHA determined that the ACCSH document was not wholly appropriate as a proposed rule, in particular for small construction firms.
OSHA held public hearings in October 2000 to receive feedback from the construction industry on draft provisions of the proposed rule.
In late 2003, OSHA convened a panel of small business representatives (as required by the Small Business Regulatory Enforcement Fairness Act (SBREFA)) to receive formal comments on its draft proposed rule.
Between 2004 and 2007, OSHA's semi-annual regulatory agendas indicated that a proposed rule on this topic was forthcoming. In the fall of 2004, the agency said the public could expect it in March 2005. In Spring 2005, the agency said the public could expect it in December 2005, etc., etc.
OSHA submitted the proposed rule to the White House's OIRA in July 2007. OIRA completed its review and returned the proposal to OSHA in October 2007. The proposal was published by OSHA in November 2007.
OSHA held public hearings on the proposal and the comment period closed in October 2008.
In 2010, the Obama Administration indicated that work on the final rule was nearly complete. OSHA's Fall 2010 regulatory agenda indicated the final rule would likely be published by November 2011. Between late 2010 and late 2014, the agency suggested the final rule was forthcoming. In the fall of 2011, the agency said the public could expect it in June 2012. In the spring of 2013, the agency said the public could expect it in December 2013, etc., etc.
In November 2014, OSHA submitted its draft final rule to OIRA for review. OIRA completed its review after about 120 days and returned the final rule to OSHA on April 3, 2015.

OSHA is likely putting finishing touches on the final rule and preparing to release it in the weeks ahead. Once it is issued, I won't be surprised if I hear complaints about it from certain lawmakers and those who oppose federal regulations. They may claim it's an example of Obama's avalanche of regulations, but it's much more an example of something else: without a binding deadline, it can take OSHA decades to issue a new worker safety regulation.

---

(Update (5/1/2015): OSHA announced today the publication of its final rule to protect construction workers from confined space hazards. The agency estimates the rule will prevent 6 fatalities and 812 serious injuries per year. The estimated annual economic benefit of the rule is $94 million and its estimated annual cost to employers is about $60 million.

cmonforton Wed, 04/15/2015 - 14:00

Tags

government

occupational fatalities

Occupational Health & Safety

In 2010 I wrote a paper titled "Ethical Issues in Confined Spaces," in which I identified a construction project where I was in charge of the safety and health of contractors working the project and had to deal with confined spaces. Here is the abstract of that paper:
"Abstract
In March of 2008, the author became the EHS Manager for a large construction project. Due to a number of constraints, the project has a subfloor area, or “Level Zero,” which is very large, and has multiple lines, equipment placements, and other obstructions in it. Workers need to work in Level Zero, but there are no provisions for movement there. This paper will explore the ethical implications of EHS in an environment which started out as a construction site, and will end up as a manufacturing plant. The construction code, CFR1926.21-23, has one set of requirements for construction workers who enter these spaces, and the general industry code, CFR1910.146 has quite another. When the two types of workforces meet, and when even the permit-required confined spaces code does not protect workers, then there are ethical issues to deal with. This paper explores these issues and the shortcomings of both the construction code and general industry when addressing confined spaces hazards."
https://www.onepetro.org/conference-paper/ASSE-10-790
Luckily, I live in Oregon, and Oregon OSHA decided to issue these rules on their own prior to the Federal OSHA rules. "(14) Effective dates. For work covered under Division 3, Construction, these rules are effective as of March 1, 2015."

Without this rule, which as noted is literally decades in the making, two different workforces are treated differently in the same exact space, which is ethically intolerable under the American Board of Industrial Hygiene (ABIH). Here as a statement from their Code of Ethics: "Follow appropriate health and safety procedures, in the course of performing professional duties, to protect clients, employers, employees and the public from conditions where injury and damage are reasonably foreseeable."
http://www.abih.org/sites/default/files/downloads/ABIHCodeofEthics.pdf

The Board of Certified Safety Professionals has a similar statement in its Code of Ethics: "HOLD paramount the safety and health of people, the protection of the environment and protection of property in the performance of professional duties and exercise their obligation to advise employers, clients, employees, the public, and appropriate
authorities of danger and unacceptable risks to
people, the environment, or property.

Unfortunately, for decades, the permit-required confined spaces rules have not protected all employees, and have presented these unacceptable risks to construction workers.
John C. Ratliff, CSP, CIH, MSPH

Congress squeezes Obama’s reg czar about lack of transparency

cmonforton — Wed, 04 Mar 2015 19:47:08 +0000

Congress squeezes Obama’s reg czar about lack of transparency

It’s a rare thing on Capitol Hill when a member of the Administration is on the hot seat from both sides of the aisle. But that’s what happened on Tuesday when President Obama’s regulatory czar, Howard Shelanski, JD, PhD, testified at a joint hearing of two subcommittees of the House Committee on Oversight & Government Reform.

The Republican Chairman Mark Meadows (R-NC) and Ranking Member Gerry Connolly (D-VA) and other subcommittee members, peppered him with questions about OIRA’s lack of transparency in numerous arenas. Their motivations were different, but they were equally tough in their questioning. Republicans don’t think OIRA is doing enough to reign in regulatory agencies, while Democrats want OIRA to complement, not impede, agencies’ work.

I could relate to Chairman Meadows when he pressed Shelanski about releasing documents related to OIRA’s review of an agency regulation. That’s a topic that is close to my heart as I’ve filed numerous FOIA requests---during both Democratic and Republican Administrations---to obtain such records.

Meadows read from Executive Order 12866 (EO) which directs OIRA’s activities.

“OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this Section.”

I’ve referred to that exact language when I’ve filed my FOIA requests. I did so, for example, when the Labor Department proposed a regulation for workers aged 15 years or younger to be prohibited from doing some of the most dangerous tasks on farms. OIRA’s review lasted more than 9 months and child safety advocates suspected that Tom Vilsack’s USDA, on behalf of the agriculture industry, was trying to stop the rule. We wanted to see the emails and other correspondence written during that time by OIRA, USDA, Small Business Administration and other agencies about the proposal. We wanted to know which agencies were trying to quash a regulation design to protect young workers' lives?

I agree with Meadows that the language "shall make available to the public all documents exchanged…” is pretty darn clear.

Shelanski responded to Meadows, saying:

“That executive order has been interpreted across all Administrations --Republic and Democrat---to embody the deliberative process exception of staff level communications and we do not disclose those to the public. It is to protect the integrity of process.”

Obama's guy was not budging on this one.

Ranking Member Connolly and Cong. Matt Cartwright (D-PA) were well prepped for the hearing. It was clear to me that they’d read some of the work by the Center for Progressive Reform (CPR) on OIRA’s improper influence over decision-making by our public protection agencies (e.g., Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment.) At one point in the hearing, Shelanski bristled when a Democrat referred to a CPR report. He responded with a scowl:

“I’m familiar with the Center’s criticism.”

Connolly raised concerns about OIRA’s bad track record on completing reviews within 90 days as prescribed in the EO. The congressman noted that the OIRA website allows the public to see how long a proposed or final regulation has been with OIRA for review, but

“there's no explanation for why the delay. Why not? And are you working on that?"

Shelanski responded:

“...one of the things that happens very early in the review process is that the rule goes out for inter-agency comment. And we unfortunately do not have the authority to compel that commentary on as fast a timeline as we would often like, and when you've got a lot of agencies commenting on a particular rule, it can take some time to get that feedback. Moreover, once we incorporate that feedback and re-transmit it back to the rulemaking agency, we have no control over how long that agency takes to bring the rule back to us.

So, to be perfectly frank, long periods of time can go by when the rule, in fact, is not at OIRA. it is under review, but it has been passed back for further work, consideration and analysis by the agency.”

The section I highlighted is something I’d not heard previously. When I want to track the status of OIRA’s review of an agency regulation, I go to this page at RegInfo.gov. It shows which rules are being reviewed by OIRA and when they were submitted for review. It says “submissions under review.”

Is Mr. Shelanski saying that there may be regulatory actions on that list that are no longer under review because they’ve been retransmitted back to the agency? If that’s the case, why doesn’t the Administration just indicate that on the website?

Congressman Connolly seemed satisfied with Shelanski’s explanation of how the review process works. He said:

“That's a perfectly rational explanation. So post it. …Saying 'agency X is still reviewing it' …you put a little pressure on them to maybe accelerate their review because they are now under scrutiny.”

"When I was chairman of my county, I started a multi-year transportation plan for spot improvements. I put up [on a website] every project we were going to fund, I put up how much it was going to cost, I put up when we were proposing to have it done, and if there was a delay, we posted why, to make myself accountable. And you know what? You'd be amazed at how quickly the bureaucracy moves when there is that public accountability."

During the hearing, two OIRA staffers were sitting behind Shelanski and diligently taking notes. I hope they put a big star next to Cong. Connolly's recommendation. If an agency rule has been "passed back for further work, consideration and analysis by the agency," the RegInfo.gov website should indicate that. It could say:

"Returned to agency for further analysis. To be resubmitted again for review."

Likewise, if the ball is in OIRA's court, that's what should be reflected for the public on the website. It is "under review."

As someone who has complained here about OIRA's failure to meet its publication deadlines for the Administration's semi-annual regulatory agenda, I chuckled when Chairman Meadows' staff displayed a graphic. It show the publication dates for the last five regulatory agendas. Here's what it showed:

Fall 2012 agenda: published the Friday before Christmas
Spring 2013 agenda: published the day before July 4th
Fall 2013 agenda: published the day before Thanksgiving
Spring 2014 agenda: published Friday of Memorial Day weekend
Fall 2014: published the Friday before Thanksgiving

Meadows said:

"If you truly want transparency, why are you rolling this out at a time when people wouldn't really be focusing on it? That's what we call the Friday afternoon data dump, but it is really what you are doing with the unified agenda. Why would you do that?"

Shelanski: "With all respect sir, the agenda remains posted."

Meadows: "I understand, but when it comes out, it is newsworthy."

I liked the chart with the holiday time releases, but Meadows failed to mention something else. The agendas are supposed to be published in April and October. None of them met that deadline.

James Goodwin with the Center for Progressive Reform offers some of his own views about Tuesday's hearing. He observed the much-needed attention by Cong. Connolly and Cong. Cartwright on what James calls

"the absurdity of OIRA's 'open door' meeting policy."

I couldn't agree more with James that the hearing was worthwhile, but only scratched the surface of the problems with OIRA---problems that have real consequences for people's lives and health.

cmonforton Wed, 03/04/2015 - 14:47

Tags

government

OIRA

regulation

Center for Progressive Reform

Howard Shelanski

transparency

regulation

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

cmonforton — Fri, 05 Dec 2014 13:46:06 +0000

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.

cmonforton Fri, 12/05/2014 - 08:46

Disappointing summer for progress by OSHA on new worker safety regulations

cmonforton — Fri, 29 Aug 2014 13:29:23 +0000

Disappointing summer for progress by OSHA on new worker safety regulations

Just before Memorial Day---the kickoff of the summer season---the Obama Administration released its agenda for upcoming regulatory action. In the worker safety world of OSHA, “regulatory action” rarely means a new regulation. Rather, it refers to a step along the long, drawn-out process to (maybe) a new rule to protect workers from occupational injuries, illnesses or deaths.

The items identified by the Labor Department suggested that OSHA planned a productive summer of 2014. Here’s what OSHA outlined for its summer tasks.

In May 2014:

Convene a meeting of small business representatives to review a draft proposed regulation to better protect workers employed in healthcare, correctional facilities, homeless shelters and other settings from infectious diseases.

Accomplished? NO

In June 2014:

Publish a request for information from stakeholders to address the hazards faced by those who work on communication towers, in particular the risk of working at heights.

Accomplished? NO

In July 2014:

Publish a proposed rule to protect workers who are exposed to beryllium, which can cause lung cancer and chronic beryllium disease. More than two years ago, in February 2012, the world’s largest producer and supplier of beryllium AND the United Steelworkers handed OSHA the regulatory text of a proposed rule on beryllium. It was a document that the two key stakeholders had thoughtfully negotiated. They expected their effort would expedite OSHA's work on a rule.

Accomplished? NO

In August 2014:

Publish a final rule to address confined space hazards for construction workers. In 1993, OSHA issued a confined space standard but it did not cover construction workers. The agency proposed a regulation in 2007 that would apply to the construction industry and the public comment stage of the rulemaking concluded in October 2008.

Accomplished? NO

Convene a meeting of small business representatives to review a draft proposed regulation to address the hazard of workers being struck when construction vehicles and other equipment are operating in reverse (backing up.) OSHA notes that in 2011, 75 workers were fatally injured in backing incidents.

Accomplished? NO

Publish a proposed regulation that would clarify employers’ obligation under an existing regulation to make and maintain accurate records of work-related injuries and illnesses.

Accomplished? NO

Publish a request for information from stakeholders to better protect shipyard workers from fall hazards and make existing regulations consistent with industry consensus standards.

Accomplished? NO

It's hard for me to believe that OSHA was unable to accomplish a single one of these seven tasks. I have to wonder whether something else is going on. For all I know, the agency has completed its work on some of them and tied them up with a nice red bow, but higher ups in the Obama Administration have put the brakes on them. It wouldn't be the first time the Administration has shown its aversion to new OSHA regulations. In 2010, OSHA proposed a change to the form on which just a fraction of employers are required to record work-related injuries and illnesses. The only modification was that employers would have been required to place a check mark—-a check mark—in a column on the form to distinguish musculoskeletal disorders from other injuries, such as burns or amputations. After completing the public comment period and extra stakeholder meetings, OSHA submitted the final rule for review to the White House's Office of Information and Regulatory Affairs (OIRA). It sat there for six months and then the Administration ~~forced OSHA to ditch~~ withdraw the rule. Then there was OSHA's proposed rule on silica which was "under review" at OIRA for 2 1/2 years.

Whatever is going on---whether performance problems at OSHA or anti-regulatory obstruction higher up in the Obama Administration---OSHA set expectations of what it would accomplish over the summer months. Now Labor Day is upon us and it was a disappointing summer for progress by OSHA on new worker safety regulations.

cmonforton Fri, 08/29/2014 - 09:29

Tags

cell tower safety

government

healthcare

Occupational Health & Safety

Final USDA poultry rule: Line speeds stay the same, but no word from OSHA; food safety advocates call it a step backwards

kkrisberg — Fri, 01 Aug 2014 15:52:20 +0000

Final USDA poultry rule: Line speeds stay the same, but no word from OSHA; food safety advocates call it a step backwards

For 17 years, Salvadora Roman deboned chickens on the processing line at Wayne Farms in Decatur, Alabama. In particular, she deboned the left side of the chicken — a task she was expected to perform on three chickens each minute during her eight-hour shift. Because of the repetitive movement and speed of the processing line, Roman developed a chronic and painful hand injury that affects her ability to do even the most basic household chores. About three years ago, she was fired from the plant for taking time off work to visit a doctor for the injury she sustained on the line.

“My hand started to become swollen and the more that I worked, the more swollen it got,” Roman told me through a translator with the Southern Poverty Law Center (SPLC). “It was stressful to see the chickens pass…I would work faster, but my hand would swell.”

So when Roman heard that the U.S. Department of Agriculture was considering a proposal to increase the maximum allowed line speed from 140 birds per minute to 175 per minute, she decided to speak out. Last week, she traveled to Washington, D.C., with advocates from SPLC to tell her story during a meeting with representatives from USDA and the White House Office of Information and Regulatory Affairs. At the meeting, SPLC advocates urged officials to reject the line speed proposal and distributed a copy of their petition calling on OSHA to regulate production line work speeds within the poultry and meatpacking industries.

“It isn’t a just thing to do,” Roman said of the proposed increase. “The lines are fast as it is.”

Yesterday, USDA officially rejected the proposed increase, keeping max speeds at 140 chickens per minute. However, worker safety advocates aren’t ready to celebrate. Basically, they say, USDA decided not to make an already bad situation any worse, which does little to prevent future injuries or support workers who are already hurt.

“We’re certainly happy that the line speed is not going to increase, but I think we’re still concerned that worker safety is not being adequately addressed,” said Michelle Lapointe, SPLC staff attorney. “We had asked OSHA to institute rulemaking on worker safety related to line speed and they haven’t done so…the line speed even at rates that they are moving now are too fast and are causing injury to workers.”

The line speed increase was part of a larger proposed rule that USDA refers to as “Modernization of Poultry Slaughter Inspection,” which includes big changes to food safety oversight as well (more on that below). Yesterday, USDA Secretary Tom Vilsack held a news conference announcing the final rule, which goes into effect immediately. Vilsack said the agency responded to worker safety concerns by refusing to increase maximum line speeds and putting in place additional requirements, such as a new 1-800 number that food safety inspectors can use to report workplace hazards directly to OSHA.

Tony Corbo, senior lobbyist for the food campaign at Food & Water Watch, said that while USDA may have rejected the line speed increase, the final rule essentially does nothing for workers.

“It’s meaningless,” Corbo told me. “There won’t be any enforceable regulations to deal with worker safety, and injuries will still occur. …Where are the accompanying regulations to make sure injuries don’t occur in the first place?”

Plus, Corbo said, the 20 plants that were participating in piloting the new rule are exempt and can continue to run their line speeds at more than 140 birds per minute. Corbo was equally doubtful that training food inspectors to spot workplace hazards would do much good. With the rule decreasing the number of federal food safety inspectors on the processing line, how will the remaining inspectors find the time to monitor worker safety, he asked.

In “Unsafe At These Speeds: Alabama’s Poultry Industry and its Disposable Workers,” SPLC and the Alabama Appleseed Center for Law & Justice found that nearly three-quarters of the more than 300 current and former poultry workers interviewed reported suffering a significant work-related injury and illness. Common injuries and illnesses include debilitating hand pain, gnarled fingers, chemical burns, respiratory problems and carpal tunnel syndrome. The majority of workers surveyed attributed their injuries to the speed of the processing line. OSHA reported an injury rate of 5.9 percent for workers in poultry processing plants in 2010 — a rate that was more than 50 percent higher than the national injury rate for all workers. While USDA said the final modernization rule will improve worker safety, it’ll likely do little to change a workplace culture that places little value on worker well-being. According to the report:

Workers speaking freely outside of work describe what one called a climate of fear within these plants. It’s a world where employees are fired for work-related injuries or even for seeking medical treatment from someone other than the company nurse or doctor. In this report, they describe being discouraged from reporting work-related injuries, enduring constant pain and even choosing to urinate on themselves rather than invite the wrath of a supervisor by leaving the processing line for a restroom break. …

OSHA, which regulates the health and safety of workers in this country, has no set of mandatory guidelines tailored to protect poultry processing workers. Workers cannot bring a lawsuit to prevent hazardous working conditions or even to respond to an employer’s retaliation if they complain of safety hazards or other abusive working conditions. Many live in rural areas and have no other way to make a living, which means they must accept the abuse or face economic ruin.

Lapointe told me that while the poultry plants have doctors or nurses on site, she’s heard reports from many workers who say they’re just sent back out to the line with some pain relievers or an ice pack. Roman said she once spoke up about her hand injury and a supervisor’s assistant took her to the plant nurse, who put some lotion on her hand, gave her an ice pack and sent her back to the line. Roman and her co-workers were also subject to a strict attendance system, in which workers earn points for each missed work day — even a day missed due to medical reasons — and once they reach a certain number of points, they’re fired. That’s what happened to Roman, who’s paying for her own medical expenses in relation to the hand injury.

Lapointe said SPLC will continue to pressure the administration to enact better workplace protections for poultry workers. Last year, SPLC submitted a petition to OSHA urging the agency to adopt regulations to protect poultry workers, but there’s been no response.

“Americans eat a lot of chicken,” Lapointe told me. “As we become more conscious as a society about where our produce comes from and sustainability in terms of the environment, I would suggest that we also need to talk about the workers who bring it to our tables. It’s really time for us as a society to think about the workers who are being injured and whose health is suffering so that we can eat 50 pounds of chicken per person per year.”

Food safety: ‘We’re heading backwards’

The finalized poultry modernization rule also authorizes a new food safety inspection system — and it’s one that’s being roundly criticized by food safety advocates.

The new inspection system, which USDA emphasized is optional but which advocates predict most poultry plants will adopt, reduces the number of federal food safety inspectors on the processing line and hands over much of the visual inspection responsibility to the plant. The rule will also require all plants (this is not optional) to engage in more microbiological testing in addition to the testing that USDA’s Food Safety Inspection Service conducts. Plants will get to choose which pathogen to test for — campylobacter or salmonella.

According to USDA, reducing the number of inspectors on the processing line will free them up for other safety duties, such as ensuring sanitation standards are met and verifying compliance with various food safety rules. During yesterday’s USDA media call, Secretary Vilsack said the new rule is an “opportunity to bring the inspection system for poultry into the 21^st century.” He also said the rule could lead to 5,000 fewer food-borne illnesses every year. Corbo at Food & Water Watch vehemently disagrees.

Corbo said the new system leaves the one USDA inspector left on the slaughter line to inspect 2.33 birds every second. Under the traditional system, each inspector could only inspect 35 birds per minute, which would have required four inspectors on a line that was running at 140 birds per minute.

“Instead of having a full complement of inspectors on the slaughter lines, you’re going to have one inspector at the end of the line,” Corbo told me. “It’s essentially taking us back to when we had no inspectors at all. We’re heading backwards here. Instead of having more inspectors and giving USDA authority to actually prevent food-borne illness, it essentially turns everything over to the companies.”

Corbo noted that salmonella and campylobacter are not officially considered adulterants and so even if a carcass tests positive for the pathogens, USDA can’t legally prevent it from going to market. In June, Reps. Rosa DeLauro, D-Conn., and Louise Slaughter, D-N.Y., introduced legislation that would designate as adulterants certain types of campylobacter and salmonella that are antibiotic-resistant. Food & Water Watch had previously received documents via a Freedom of Information Act request on the thoroughness of inspectors employed by poultry plants, finding that regulations were not being enforced.

Corbo said Food & Water Watch is exploring all options to stop the rule, including possible litigation.

For more information on the new poultry rule, visit USDA, SPLC or Food & Water Watch.

(Special thanks to Eva Cardenas at Southern Poverty Law Center for serving as a translator during the interview with Salvadora Roman.)

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.

kkrisberg Fri, 08/01/2014 - 11:52

We won a significant victory by preventing an increase in the poultry line speeds. Let's hope that switching food safety inspection to line employees does not result in outbreaks of food poisoning.

OSHA seems to be still reeling from the repeal of the ergonomics standard in 2001. It should have been revisited back in 2009.

As far as "Workers cannot bring a lawsuit to prevent hazardous working conditions or even to respond to an employer’s retaliation if they complain of safety hazards or other abusive working conditions." Workers can, and should, file OSHA complaints for hazardous work conditions; that's not a lawsuit, but their right under the OSH Act. Not allowing workers to take a bathroom break when needed is considered a health hazard under the OSHA General Duty Clause. Also, under section 11c of the OSH Act, workers are supposed to be able to file a whistleblower complaint with OSHA for retaliation; please check with OSHA on this. Other "abusive working conditions" if it includes abuse by supervisors, may be covered by the Equal Employment Opportunity Commission.

Obama's regulatory czar, Yoda and black lung disease

cmonforton — Tue, 22 Apr 2014 09:22:20 +0000

Obama's regulatory czar, Yoda and black lung disease

[Updated: 3 hours after I posted it. See below]

Black lung----now referred to by experts as coal mine dust lung disease (CMDLD)--- was back in the news last week courtesy of the Pulitzer Prize. The Center for Public Integrity’s Chris Hamby received the prestigious recognition for his reporting on the steep hurdles faced by coal miners who seek black lung disability compensation. Hamby's piece focused on the back end of the problem. On the front end is preventing CMDLD in the first place. Coal miners wouldn’t have to maneuver the legal obstacle course for disability benefits if CMDLD became a thing of the past in the U.S.

The Labor Department’s Mine Safety and Health Administration (MSHA) proposed a new regulation in October 2010 designed to set the course for doing just that: eliminating CMDLD. The disease is 100 percent preventable if coal mine operators implement and maintain effective dust controls. MSHA took public comment on the proposal for seven months. Last August, MSHA submitted its final regulation to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. There it sits.

Just a couple of months earlier, Howard Shelanski, JD, PhD was confirmed by the Senate to be the OIRA director. OIRA is responsible for reviewing proposed and final regulations, such as MSHA’s regulation to prevent CMDLD. The OIRA reviews, as prescribed in Executive Order 12866, are supposed to take no more than 90 days (with no more than a 45 day extension.) MSHA’s rule to address respirable coal dust has been stuck in OIRA, under Dr. Shelanski’s watch, for eight months (240 days.)

Habitual delay in regulatory reviews by OIRA is not a new problem. Shelanski was probed about it during his confirmation hearing. Senator Carl Levin (D-MI) noted:

“We have now a situation where delays of agencies’ [rules] are chronic. They [delays] fundamentally undermine the agencies’ ability to effectively execute the responsibilities that those agencies have. Under the Executive Order which is in effect, EO 12866, OIRA has 90 days to review a draft of a proposed or final rule, there’s one 30 day extension that’s available. As of May 14, 87 rules have been under review for more than 90 days, 51 have been under review for more than a year.”

Nominee Shelanski responded by insisting that timeliness of the reviews was one of his top three priorities. Specifically, he said his goal was

“to ensure that regulatory review at OIRA occurs in as timely a manner as possible."

Levin prodded, by asking Shelanski his plan to meet those deadlines. The nominee responded:

“I absolutely share the concern you just raised about timeliness. …I recognized that EO 12866 establishes the initial 90 day review process, and it would be one of my highest priorities, should I be confirmed as Administrator, to try to improve the timeliness."

Looking back, when Dr. Shelanski told Senator Levin he would “try to improve the timeliness," I wish the Senator would have channeled Yoda and said:

"Do or do not…there is no try."

How much longer will the Obama Administration take to issue a regulation to prevent miners from developing CMDLD?

[Update 4/22/14 (3 hours after I posted the above): Labor Secretary Tom Perez, MSHA chief Joe Main, and NIOSH director John Howard will be announcing the release of new regulations designed to protect miners from developing coal mine dust lung disease. I'm eager to read the final rule, and will report on The Pump Handle what the new requirements will be for coal mine operators.]

cmonforton Tue, 04/22/2014 - 05:22

Tags

Occupational Health & Safety

CMDLD is a terrible name.