Perplexed by OSHA's Latest Reg Agenda

Cross-posted from The Pump Handle.

Beginning in December 2006, I’ve written five blog post commenting on the content of the Department of Labor’s (DOL) regulatory agenda for worker health and safety rulemakings.  Most of my posts see links below have criticized the Labor Secretary and senior OSHA and MSHA staff for failing to offer a bold vision for progressive worker protections.  Now that the Obama & Solis team have been on board for more than a year, I’m not willing to cut them any slack for being newbies.  Regrettably, as with the Bush/Chao agendas, my posts today will question rather than complement the OSHA team (and any bigger fish up the food chain) who are responsible for this plan.

I’ll start with the good news from OSHA’s reg agenda.   In the month of July, OSHA projects it will issue two final rules, one on cranes and derricks in construction and another to revise the OSHA 300 log with a column to record musculoskeletal disorders.  The first is a rule that has been in the works for 7 years and long overdue (here, here, here, here, here, here, here.)  The second will simply reinstate a change in injury recordkeeping requirements that should have taken affect in early 2001, but was axed by OSHA officials under direction from the Bush/Chao Administration.

Now, the reg agenda items that have me perplexed.  We’ve heard the Secretary Solis and Asst. Secretary Michaels talk about green jobs, and we know that construction workers are a large part of that workforce.  But, construction workers continue to get short-shrift at OSHA when it comes to mandatory H&S protections. 

In 1993 in a settlement agreement with the United Steelworkers, OSHA said it would issue a rule to protect construction workers from confined space hazards.  OSHA has been working on this confined space rule since 2003, and in this new agenda the agency says it needs at least 2 years to review the comments.  (In Solis’ agenda published in December 2009, OSHA indicated it would be analyzing comments in March 2010; now they say October 2010.)  Worse still, OSHA is completing dropping plans to issue a rule to protect construction workers from hearing loss.  In a statement reminiscent of the Bush/Chao time, Secretary Solis says:

“OSHA is withdrawing this entry from the agenda at this time due to resource constraints and other priorities.”

It’s disappointing that the Department can’t identify the resources and doesn’t see the serious hazards associated with excessive noise exposure for construction workers as a priority.  Noise exposure is associated with cardiovascular risk, as well as hearing loss and psychosocial effects.

I’m also perplexed by the OSHA entries on beryllium and the flavoring agent diacetyl.  Both indicate that OSHA’s next steps in the rulemaking process is conducting a scientific peer review of its draft risk assessment.  Peer review of the risk assessment??   Remember, GW Bush is no longer in office and his OMB’s peer review guidelines 2004 are an unnecessary step for an OSHA health standard’s rulemaking.  Robust, interactive scientific peer review can (and already does) take place during OSHA’s public hearings on its proposed rules.   It seems to me that when OSHA considers peer review a separate step in developing a proposed rule, it adds months and months to the process.  Just looking at the reg agenda item for beryllium, OSHA indicates the peer review will take 8 months to complete.

The Obama Adminstration can further enhance transparency by rejecting the narrow, secretive academic model of peer review, and embrace the public, scientific peer review process that OSHA mastered years ago during its health standards rulemakings.

Another disappointment is OSHA relegating protections for workers exposed to combustible dust to its fourth tier priority: long-term action.  As I’ve written before, the Labor Department continues to disappoint on this well-known hazard that kills workers every year.   I find it hard to believe that OSHA doesn’t have sufficient information to propose a rule on combustible dust (along with required preliminary feasibility assessment and regulatory flexibility analysis.)   The sources available to them include the Chemical Safety Board’s (CSB)  2006 comprehensive report and recommendations on combustible dust explosions, the CSB’s and NFPA’s experts, and OSHA’s own data from its national emphasis program for dust hazards.  Instead, OSHA says it will need a full year to prepare proposed regulatory text and draft feasibility analyses.  If it meets that self-imposed deadline, it would be more than 4 years after the CSB made its recommendation to OSHA to

“Issue a standard designed to prevent combustible dust fires and explosions in general industry. Base the standard on current National Fire Protection Association (NFPA) dust explosion standards (including NFPA 654 and NFPA 484), and include at least – hazard assessment, – engineering controls, – housekeeping, – building design, – explosion protection, – operating procedures, and – worker training.”

I suggest the CSB change the status of its recommendation from 

O-ARAR: Open-Response from recipient indicates a planned action that would satisfy the objective of the recommendation when implemented

to

Open – Unacceptable Response- Recipient responds by expressing disagreement with the need outlined in the recommendation. The Board believes, however, that there is enough supporting evidence to ask the recipient to reconsider.

I’ll leave the last word about OSHA’s inaction on combustible dust to Tammy Miser of Lexington, Kentucky who lost her brother Shawn Boone in an aluminum dust explosion at the Hayes Lemmerz plant in Huntington, IN.

“This really ticks me off.  There are still workers dying out there and OSHA’s not doing anything.  I’m not happy about it.”

Tammy also reminded me that in May 2008 the House of Representatives passed a bill (HR 5522) 247 yeas, 165 nays that would have required OSHA to issue promptly a protective rule to protect workers from combustible dust hazards.  Congresswoman Hilda Solis voted “aye” on the bill.

My final reaction to OSHA’s latest reg agenda concerns the entry entitle “Injury and Illness Prevention Program,” which I’ve learned today is being referred to within the Department as R2D2 I2P2.   I know this is a priority for OSHA chief David Michaels.  He’s mentioned it in many public appearances and has recognized for years that the one-hazard-at-a-time rulemaking does not advance worker health and safety.  As I read the entry on the reg agenda, I felt like OSHA was building a strong case for ACTION:

• “OSHA has substantial data on reductions in injuries and illnesses from employers who have implemented similar effective processes.”
• “The Agency currently has voluntary Safety and Health Program Management Guidelines published in 1989.” 
• “An injury and illness prevention rule would build on these guidelines as well as lessons learned from successful approaches and best practices under OSHA’s Voluntary Protection Program Safety and Health Achievement Recognition Program and similar industry and international initiatives such as American National Standards Institute/American Industrial Hygiene Association Z10 and Occupation Health and Safety Association 18001.”
• “Twelve States have similar rules.”

Drum roll……the climax….

“As a first step, the Agency plans to hold stakeholder meetings to obtain input for an injury and illness prevention rulemaking.”

Huh?  Stakeholder meetings??? 

Yep, OSHA published a notice in today’s Federal Register announcing the stakeholder meetings will be conducted between June 3 - June 29.  The notice goes on to admit (remind us) that OSHA already developed a draft proposed rule on this topic in 1998 and even convened in October 1998 a SBREFA panel.  A report of the SBREFA panel was also prepared.  

Given the vast amount of work and resources that have already been invested by the Labor Department on this issue, why are these stakeholder meetings necessary??   I understand that some in the Labor Department might believe that such meetings will build support for an eventual rule.  That may be true, but only among those individuals and groups who are already predisposed to support pro-worker protections.  I’ve not seen any evidence to suggest that such events are influential and convincing enough to sway opponents of this kind of regulation.   I just don’t believe that even the best planned and orchestrated stakeholder meeting will cause the Chamber of Commerce, the National Association of Manufacturers or other traditional opponents of worker safety regulations to miraculouosly embrace a mandatory worksite-specific injury and illness prevention rule.   Even if the Labor Department believes it can create broad support for this proposed rule—-such as it did among workers, labor groups and the public health community for the ergonomics standard in the late 1990′s—-groups with an economic interest in the status quo will oppose it with all their might. 

My advice to the Labor Department—not saying that they want it from me—is to develop a proposed rule ASAP using the best evidence currently available.  When I say ASAP I mean in the next 3 months.  Then, gather and review carefully written comments and testimony from a public hearing, publish a final rule before the end of 2011 to leave plenty of time for THIS administration to defend the legal challenges that will be mounted against it.   That may mean that OSHA has to propose a rule that will apply to only certain industries, types of workplaces or occupations.  

What’s that saying about failing to remember the past?

I know their are committed individuals in positions of authority at OSHA and in DOL’s hierarchy, and many career staff who want the promise of the OSH Act to be realized.   It’s time for the leaders to use a different roadmap for rulemaking because the course they’re proposing is familiar—-and that’s not a good thing.

See my companion post: “Puzzled by MSHA’s latest reg agenda.”

Celeste Monforton, DrPH, MPH is an asst. research professor in the Dept of Environmental & Occupational Health at the George Washington University School of Public Health and Health Services.  She worked at OSHA (1991-1995) and MSHA (1996-2001), and has written the following post about DOL’s regulatory agenda:

• Frances Perkins is rolling in her grave, December 2006
• Progress (Not!) on workplace standards, May 2007
• OSHA’s reg agena: where have all the hazards gone?, Dec 2007
• Solis’ regulatory plan for OSHA and MSHA, May 2009
• Good news, bad news in Solis’ regulatory agenda, December 2009