Good News, Bad News in Solis' Regulatory Agenda

The below item is written by Celeste Monforton and cross-posted from The Pump Handle.

The first regulatory agenda under OIRA chief Cass Sunstein was published Monday in the Federal Register (link to its 237 pages.)  The document includes a narrative of Labor Secretary Solis’ vision for worker health and safety, mentioning these specific hazards: crystalline silica, beryllium, coal dust, airborne infectious agents, diacetyl, cranes and dams for mine waste.   The document purports to “demonstrate a renewed commitment to worker health,” yet the meat of the agenda tells a different story for particular long-recognized occupational health hazards.

Take, for example, MSHA’s entry on respirable coal mine dust, a pervasive hazard associated with reduced lung function, chronic bronchitis, emphysema, progressive massive fibrosis, and more.  Despite an announcement last week by Labor Secretary Solis and MSHA Asst. Secretary Joe Main saying they want to “end new cases of black lung among the nation’s coal miners,” they aren’t planning to PROPOSE any regulatory changes for 10 months. That’s a ”renewed commitment to worker health”?   Hardly.

Since 1995, public health science tells us that reducing miners’ risk of coal dust-related lung disease and impairment will REQUIRE a substantially lower respirable coal mine dust limit.  Period.   Why then will it take MSHA 10 months to merely propose such a change?  

Furthermore, we know that miners’ exposure to respirable silica is another risk factor for the lung disease experienced by miners, but MSHA’s  not planning to PROPOSE anything on that front until April 2011.  This long-term action seems particularly inconsistent with the Secretary’s stated vision because OSHA indicate it plans to propose a rule on respirable crystalline silica 9 months earlier (in July 2010.)  Surely, if OSHA can complete its feasibility analyses for skads of different industries and work practices involving potential silica exposure by mid-2010, shouldn’t MSHA be able to complete its more narrow-industry analyses long before that?    

Let’s look at OSHA’s entry on beryllium, a light-weight metal that causes lung cancer, chronic beryllium disease, and immune-mediated sensitization.  OSHA notes it will begin a peer review of its health risk assessment in March 2010.  I wish someone would remind OSHA that there is nothing in the OSH Act or other statutes governing its health standards rulemaking process that requires peer review of a risk assessment.  The agency should get back to arguing that the give-and-take exchanges incorporated  into its public hearings on proposed rules are more robust than the typical peer review panel.  If OSHA has a risk assessment document prepared to support a proposed rule on beryllium, it should seek external review through the notice and comment, and public hearing process, not add unnecessary steps.   Let’s remember that the permissible exposure limits ultimately established in OSHA’s health standards are nearly always driven by the feasibility determinations, making the statistical precision of the risk assessment document less important.

Looking at OSHA’s entry on diacetyl, I see the same pattern: initiating a peer review of its health effects risk assessment in October 2010.  As in the case of beryllium, not only is this step unnecessary, but hardly is what Senator Sherrod Brown had in mind when he wrote to Secretary Solis last month urging her to expedite rulemaking on diacetyl.

Particularly disappointing is OSHA’s timeline for addressing hazards in the construction industry.   Improvements to the cranes and derricks standard have been in the works since 2002, with a rule proposed last October.  OSHA’s agenda indicates that a final rule shouldn’t be expected until July 2010.   Surely, the Administration can make a decision on the couple of sticking points on the rule (e.g. pre-emption, certification) to ensure the rule is issued sooner rather than later.  OSHA fails to give us any meaningful next steps on a rule to protect construction workers from confined space hazards and exposures causing hearing loss.  With the Obama Administration’s emphasis on job creation—good jobs, safe jobs—are we missing an opportunity here to imbed new health and safety protections for construction workers? 

Despite these disappointments, OSHA deserves to be recognized for announcing its plan to propose in January 2010 a change to its injury and illness reporting regulations.   Specifically, for the purpose of recording them on a worksite injury log, OSHA will be proposing a definition of a musculoskeletal disorder (MSD) and revising the form to better track MSDs.  As many will recall, acting OSHA chief Davis Layne proposed the rule in July 2001 to remove the MSD column, and by October 2001 it was a done deal.  I urge the OSHA and SOL staff to work with equal diligence to ensure the MSD column on the log is restored. 

I also give credit to OSHA for planning to gather information on airborne infectious agents which will help the agency determine whether a health standard is needed.  Workers in healthcare settings, laboratories and other sites are exposed to a variety of respiratory hazards, including TB, and H1N1.  Our healthcare system relies on the skilled personnel diagnosing, treating and caring for patients, and these workers deserve protection from the hazards to which they are exposed at work.

One last question:  Can we expect Secretary Solis’ Spring 2010 regulatory agenda in April 2010, as required by the Regulatory Flexibility Act, or will it be tardy given that this Fall (October) 2009 agenda was about six weeks late?