Progress (Not!) on Workplace Standards: Part II

The Department of Labor recently published its semi-annual regulatory agenda with revised (again) target dates for OSHA and MSHA rules.  The Department goes through this exercise twice a year, but it is a rare occasion when the "Timetable for Action" dates are actually met.  After just a few moments comparing this agenda to the one published in December (71 Fed Reg 73539), one sees the same historical pattern of slipping target dates for much needed worker protections, including rules to prevent workers from developing cancer, silicosis, chronic beryllium disease, asbestosis among other ailments and serious injuries.

Some of the regulatory initiatives with revised dates include:

• OSHA's rule on respirable crystalline silica.  The agency previously reported that it expected the peer review of the risk assessment to be completed in April 2007; now target date is September 2007.

During a recent congressional oversight hearing on OSHA standards, Scott Schneider, MS, CIH of the Laborers' Health and Safety Fund noted that silica's

"...cancer-causing properties have been well documented for over ten years. The measurement methods required by OSHA for measuring silica levels are, by their own admission, 'obsolete' and have not been used in voluntary standards since 1983.  The voluntary standard (ACGIH TLV) for silica exposures was cut in half again last year for the second time in the past nine years.  ...Silica has been on the OSHA regulatory calendar for almost ten years. Yet there is still no date certain for a proposed rule to be published. While we wait for OSHA to move forward, construction workers and others continue to suffer and die from debilitating lung diseases and cancer as a result of this delay."

• OSHA's rule on beryllium.  The agency previously indicated the required SBREFA* report would be completed in March 2007; now the target date is September 2007. 

More than 4 years ago, OSHA made an official "Request for Information" noting the documents and data they received "will assist the Agency in determining an appropriate course of action regarding occupational beryllium exposure."  This latest regulatory agenda indicates that OSHA is using the gathered information to develop a proposed rule.  For the sake of beryllium-exposed workers who are at risk of becoming sensitized to beryllium, and developing chronic beryllium disease and lung cancer, let's hope that OSHA uses the next four months to complete the SBREFA process and submit a proposed rule to OMB. 

While we wait for OSHA to act, I'll give Members of Congress a little task, especially those Members who boast of their support for working people.  They should immediately revoke the law requiring OSHA and EPA to convene small business advocacy review panels (Section 244 of P.L. 104-121).   These panels have further constipated the public health rulemaking process at OSHA, and the unfairness and inequity of this SBREFA process is profound.  In an equitable public participatory rulemaking process, interested parties all have the same opportunity to participate.  Small businesses (actual or alleged) should not be awarded preferred status and the chance to change an agency rule before it is officially proposed.  

• OSHA's rule on confined space on construction sites.  The agency previously indicated that a Notice of Proposed Rulemaking would be published in February 2007; now the target date is August 2007.

In 1993, OSHA issued a rule to protect some workers from the hazards associated with working in confined spaces (e.g., storage tanks, sewers, silos) but the rule did not cover construction workers.  As part of a settlement agreement with the United Steelworkers, OSHA agreed to propose a rule to protect workers employed on construction sites.  (Fourteen years later, so much for OSHA keeping its promise.)  If OSHA ever gets around to proposing this rule, the saddest statistic will be the number of construction workers killed in confined spaces in the years since OSHA made its pledge to the Steelworkers (who pushed the issue on behalf of all workers, whether union members or not.)

• MSHA's rule on asbestos.   The agency previously indicated a Final Rule would be published in March 2007; now the target date is June 2008. 

Could they possibly mean 2007, not 2008??  A delay of more than a year?  The notice provides no explanation for this change.

For those who may not know, MSHA's current permissible exposure limit for asbestos is 20 times higher than OSHA's limit (i.e., 2.0 fiber/cc compared to 0.1 fiber/cc.)   Currently, there is NO comprehensive rule to protect mine workers from exposure to asbestos, whether the asbestos exposure comes from the ore itself (e.g., tremolite asbestos seams in vermiculite deposits) or from asbestos-containing materials in building supplies (e.g., insulation around pipes) or vehicle parts (e.g., asbestos containing brakes, clutches or gaskets.) 

When MSHA proposed its rule in July 2005, it emphasized that the regulation was intentionally limited in scope, simply changing the exposure limit to be consistent with OSHA's 0.1 fiber/cc limit.  In fact, MSHA used the phrase "limited in scope" at least 11 times, fooling us into believing that they would at least make a change to the exposure level, even if they weren't able, in a prompt rulemaking manner, to improve the definition of asbestos or change the analytical techniques.  Now, nearly two years have passed, and MSHA says it will be more than a year before a final rule is issued.   As I noted in my testimony during MSHA's public hearing on this proposal,

"...the current regulatory system is inefficient and incapable of responding in a timely manner to protect workers from occupational health hazards. In some cases, whole generations of workers have been exposed to disabling and deadly hazards while employers, industry trade associations and their lawyers debate with regulators."

The Department's regulatory agenda notice, signed by Kathleen Franks, director of the Office of Regulatory Policy, says "public notice is invited on the listing."  If anyone from the Department of Labor reads The Pump Handle, please let me know if "2008" is a typographical error.  I'll gladly apologize and retract my statement.    

My head is shaking in disappointment at other changes on the Department of Labor's regulatory agenda.  For example:

• MSHA's rule on continuous person dust monitors.  The agency previously stated it would publish a "Request for Information" in January 2007; now the target date is "to be determined." 
• MSHA's rule on verification of underground coal mine operators' dust control plans and compliance sampling for respirable dust.  Action date: "to be determined."
• MSHA's rule on determination of concentration of respirable coal mine dust. Action date: "to be determined."
• MSHA's rule on respirable crystalline silica. Action date: "to be determined."

Several months ago, the CDC's Mortality and Morbidity Weekly Report (MMWR) noted that 11 new cases of advanced coal workers' pneumoconiosis were identified among coal miners working in two counties in southern Virginia.  Sadly, for coal miners and their families, this report was not startling news; respiratory disease caused by coal mine dust remains a signficant health problem, in too many U.S. coal mines dust exposures reach unhealthy levels and MSHA's current regulations are inadequate.  

In the 1990's, talented MSHA inspectors and industrial hygienists (you know who you are) worked tirelessly to overhaul the system for preventing coal miners from developing black lung and silicosis.  The proposed reforms included allowing single shift exposure sampling (instead of the former Bureau of Mines endorsed averaging samples over multiple shifts and occupations), eliminating coal operator sampling (for compliance purposes), and production-based verification of dust control plans.  The dedication and hard work of MSHA's technical staff was not sufficient to overcome the economic and political interests who opposed MSHA's comprehensive plan; the 2000 selection of G.W. Bush sealed the coffin for these black lung disease prevention reforms.

In this latest regulatory plan, a "to be determined" target date is assigned to all of these essential changes.  The continuous personal coal dust monitor, for example, would give coal miners an instantaneous readout of their exposure to respirable dust---a tool that coal miners have been demanding for years.  Such a device could be the ultimate empowerment tool for coal miners, giving them real-time information about exposure to coal dust which would allow them adjust dust controls, notify other personnel, or even refuse the unsafe work until corrections are made.  The "to be determined" date speaks volumes about this Administration's views about working people and the need for strong public health regulations.  (As if we needed another piece of evidence on this reality.)

*SBREFA is the Small Business Regulatory Enforcement Fairness Act, passed as part of the GOP's Contract with America, and signed into law in 1996 by President Clinton.

Celeste Monforton, MPH worked at the U.S. Department of Labor (at OSHA and MSHA) from 1991-2001.