Worker safety rule stuck in White House black hole, disease risk persists

More than 425 days----that's 14 months----have passed since the Labor Department's Occupational Safety and Health Administration (OSHA) sent to the White House's Office of Information and Regulatory Affairs (OIRA) a draft proposed regulation designed to protect workers who are exposed to respirable crystalline silica. The hazard is one of the oldest known causes of work-related lung disease, yet OSHA does not have a comprehensive, protective standard on the books to address it. In the last few decades, epidemiological studies have also found a strong association between silica exposure and lung cancer, kidney disease and autoimmune system disorders.

When Obama Labor Secretary Hilda Solis took office in January 2009, and identified soon after her agencies' regulatory priorities, a proposal to prevent silica-related disease was high on her list. Mind you, she didn't promise to put a rule in place, she merely committed to publishing a proposal about which interested parties could provide their comments and offer their expertise.

The staff at OSHA did their part by preparing and updating all the required risk, feasibility, small business impacts and other analyses. The draft proposal was sent to OIRA on February 14, 2011 to comply with Executive Order (EO) 12866 on regulatory review. This 1993 EO gives the Office of Management and Budget's OIRA the authority to review agencies' major rulemaking initiatives to ensure they are

"consistent with applicable law, the President's priorities...and do not conflict with the policies or actions of another agency."

OIRA is supposed to complete its review within 90 days. When they don't, proposals like this OSHA one on respirable crystalline silica or EPA's reporting requirement on nanoscale material and others, disappear into this White House black hole.

I, for one, expected an anti-regulatory black hole in the previous Administration's White House. Afterall GW Bush's election platform promised measures to halt and eliminate costly, burdensome and unnecessary regulations. But candidate Obama said nothing of that sort.

I voted for change. I voted for a White House that puts more value on workers' lives and health, than the sticks-and-stones thrown by well-funded trade associations and their business allies. Not only did I not get change, we have an Administration that says one thing about how it values public participation and engagement, but does the opposite. OIRA's 14-month and counting review of OSHA's proposed rule in essence prevents the agency from publishing it and allowing the public comment period to begin. President Obama proclaimed:

"Government should be participatory. Public engagement enhances the Government's effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information."

Too bad he didn't really mean it. Too bad that more than a year has passed without OSHA having an opportunity to hear formally from workers, managers, equipment suppliers, physicians, industrial hygienists, and other experts about ways to control and eliminate exposure to respirable crystalline silica, and the feasibility of those measures.

Earlier this year, more than 300 scientists and worker safety advocates sent a letter to President Obama calling for a release of the OSHA proposal to allow the public comment to begin on it. Last year, a federal advisory committee wrote to HHS Secretary Sebelius and Labor Secretary Solis saying it was "deeply distressed" about the Administration's failure to propose a silica rule. That call for action came several months after Senators Harkin (D-IA) and Murray (D-WA), and Reps. Miller (D-CA) and Woolsey (D-CA) sent their own letter of concern to then OMB Director Jacob Lew (now the President's Chief of Staff.) They asked for OMB's timeline for completing its review of "this critical worker safety protection." I suspect that congressional request for a timeline----a request now nine months old----also went into the White House's regulatory black hole.

Next week, Senators Harkin and Murray, and the rest of the Senate Committee on Health, Education, Labor, and Pensions have a hearing scheduled entitled "Time Takes Its Toll: Delays in OSHA's Standard-Setting Process and the Impact on Worker Safety." I'm sure there will be plenty of discussion on the slow pace of OSHA rulemaking, with examples illustrating how few new regulations to protect workers' lives and limbs have been issued in the last 20 years. Some are likely to suggest that the number and complexity of the analyses required of OSHA are the primary reasons for the inexcusable delays. I'm not convinced that is the problem at all.

The obstacle more often than not have been in the Administrations themselves, including this one, that don't have the political will to put workers' health and safety first. This White House talks about lot about the middle class and working people, but talk is cheap. And no one there is held accountable for the harm to workers' health because of their failure to act.