OSHA's Reg Agenda: Where have all the hazards gone?

Secretary of Labor Elaine Chao published her semi-annual regulatory agenda yesterday in the Federal Register.  Earlier this month, I'd made predictions about the agenda, but after perusing the document, I'm glad I didn't put any money down on my guesses. Rather than updating the status of safety and health standards that are in the works, many hazard topics are just gone---no longer listed on OSHA's or MSHA's agenda.

The Secretary's last regulatory agenda (April 2007) listed 38 workplace health and safety hazards for possible regulatory action, 16 for MSHA and 22 for OSHA.**  The newly published regulatory agenda lists only 9 items, noting that the hazards outlined are those that the Department of Labor:

"expects to have under active consideration for promulgation, proposal or review during the coming 1-year period."

The White House's overall introduction to its Regulatory Plan notes:

"...the Bush Administration's objective is quality, not quantity.  Those rules that are adopted promise to be more effective, less intrusive, and more cost-effective in achieving national objectives while demonstrating greater durability in the face of political and legal attack."

The agenda highlights regulations with particular "themes," including:

• "Regulations that are particularly good examples of the Administration's "smart" regulations agenda to streamline regulations and reporting requirements."
• "Regulations that are of particular concern to small businesses."  (See 72 Fed Reg page 69746)

Tough luck if you're a worker employed by a small business and exposed to some dangerous hazard.  This agenda is all about streamlining rules and reporting requirements, not about protecting workers from well-documented and long-standing hazards.  Why isn't anybody interested in streamlining the process for compensating workers who are injured or made ill because workplace safety protections aren't in place?

Hazards included on OSHA's previous agenda (April 2007) that have disappeared from this latest version are:

• Hearing conservation for construction workers (who were not included in OSHA's 1983 noice-control rule and to-date have never been covered by a comprehensive hearing protection program)
• Emergency response and preparedness
• Ionizing radiation
• Power presses
• Working conditions in shipyards
• Hazard communication and global harmonization
• Vertical tandem lifts used in longshoring

Topics included on MSHA's April 2007 agenda that have disappeared in this latest version are:

• Fire extinguishers in underground coal mines
• High-voltage continuous mining machines in underground coal mines
• Respirable coal mine dust and verification of operators' dust control plans
• Single-shift sampling for miners' exposure to coal mine dust
• Respirable crystalline silica

The slimmed down list of OSHA regulatory priorities includes: 

• Diacetyl.  OSHA indicates that it will initiate the required SBREFA process* in January 2008.  (In order to begin the SBREFA process, OSHA will have to prepare the draft regulatory text and economic analysis of the rule.)  
• Silica.  OSHA indicates that the peer review of its health effects and risk assessment chapters of the proposed rule will be completed in January 2008, but recall that OSHA's April 2007 reg agenda said this task would be completed in September 2007.
• Beryllium.  OSHA indicates that the SBREFA report will be compelted in January 2008, but according to the Small Business Administration, the small business panels have not yet convened.
• Electric power transmission and generation in post-construction settings.  OSHA has bumped the date for a final rule from January 2008 to April 2008.  Every month of delay translates into four preventable worker deaths.

The health and safety topics considered a priority by MSHA and listed on its regulatory agenda:

• Asbestos (MSHA's exposure limit is 20 times higher than OSHA's; MSHA proposed a rule in November 2005, but has not yet finalized it; it says a final rule will be published in January 2008.)
• Sealing of abandoned areas of underground coal mines (required by 2006 MINER Act); MSHA indicates it will publish a final rule in Feburary 2008.
• Mine rescue teams (required by the 2006 MINER Act); MSHA says it will publish a final rule this month.
• Continuous personal coal-dust monitor.   MSHA indicates it will publish a "request for information" (RFI) (not a proposed rule, but an RFI)  in January 2008.  What happened to the MSHA Asst. Secretary Stickler who said black lung disease

"can devastate a miner's quality of life, create a heavy burden on the victim and his or her family, and lead to premature death...we know that black lung disease is preventable."

Occupational health experts know that coal miners need a comprehensive approach to prevent coal workers' pneumoconiosis, including single-shift sampling, verification of dust control plans, more protective exposure limits for coal dust and silica, and continuous dust monitoring.  This is what was proposed by the Clinton Administration in July 2000.  Now, we've had seven years of backsliding while more cases of black lung disease continue to be diagnosed.

If MSHA's and OSHA's scaled-back regulatory agendas truly mean that these specific hazards will be addressed as described, then I'll be the first to congradulate them.  Just imagine...by February 29, 2008, we could have:

• a final rule to protect mine workers from asbestos
• draft regulatory text and economic analysis for a rule to protect workers from diacetyl
• peer-reviewed risk assessment on workers' exposure to respirable crystalline silica, and
• more protective rule on sealing of abandoned areas of underground coal mines.

Indeed, that would be a very good beginning to 2008 for workers' safety and health.  I wonder if the scaled-back agenda will allow it to happen? We'll have to wait and see.

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Note:

*SBREFA: Small Business Regulatory Enforcement Fairness Act.  This law allows the representatives of small businesses (i.e., 500 or fewer employees) to review a proposed OSHA standard (or EPA standard) before any other member of the public and to suggest changes to the rule or to the preliminary economic analysis.  The comments, recommendations and resulting changes to the pre-proposed rule are documented in the so-called SBREFA report.

**This issue of the Regulatory Plan and Agenda is laid out in the Federal Register in a fashion that perplexed me.  It might just be the cold medicine I'm taking, but the OSHA and MSHA entries seem to be in three different places.  I'd advise anyone wanting to use my 38, 16 and 22 numbers to double check these figures.