Senator Calls Out White House for Logjam in Workplace Safety Rulemaking

Mike Elk

A 2010 candlelight vigil for those killed in an explosion at the Upper Big Branch coal mine in West Virginia. (Flickr)

As work­place safe­ty and health advo­cates fig­ure out how to fix work­place safe­ty reg­u­la­tions in the wake of the West, Texas explo­sion, they agree that one focus should be speed­ing the pas­sage of new rules. Though the noto­ri­ous­ly slow rule­mak­ing process wasn’t a fac­tor in the West, Texas explo­sion, it has been the cause of numer­ous oth­er work­place fatal­i­ties, and could delay efforts to pre­vent anoth­er tragedy like West.

For instance, four years before a trag­ic explo­sion in West Virginia’s Upper Big Branch mine as a result of coal dust build-up, the U.S. Chem­i­cal Safe­ty Board issued a report rec­om­mend­ing that the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) write a rule to pre­vent the accu­mu­la­tion of com­bustible dust. But it was not until 2009 that OSHA began the process of gath­er­ing infor­ma­tion to write a rule. Then in 2010, OSHA down­grad­ed the rule to a long term action,” delay­ing the draft rule’s required approval by a Small Busi­ness Advo­ca­cy Review Pan­el (SBARP). On April 5, 2010, the coal dust at Upper Big Branch sparked, and the result­ing explo­sion killed 29 miners.

Yet the com­bustible-dust rule is still await­ing SBARP pre-approval. 

Kei­th Wright­son, work­er safe­ty and health advo­cate for the watch­dog group Pub­lic Cit­i­zen, says, Based on pre­vi­ous expe­ri­ence with OSHA, it is like­ly that it will take 8 to 12 years to issue a final rule for com­bustible dust.”

Anoth­er hitch in the rule­mak­ing pipeline is the White House Office of Man­age­ment and Bud­get (OMB), which, along with the Small Busi­ness Admin­is­tra­tion (SBA) and OSHA, is charged with approv­ing draft rules with­in SBARP. A new­ly released report by the AFL-CIO titled Death on the Job: The Toll of Neglect” accus­es the the OMB of block­ing need­ed pro­tec­tions.” The report notes, As a result [of OMB delays], at the end of its first term, the Oba­ma admin­is­tra­tion had issued few­er major OSHA rules than were issued by the Bush administration.”

Work­place safe­ty advo­cates say things aren’t sup­posed to work like this. Fed­er­al statutes dic­tate that the OMB can only review pro­posed rules for 90 days unless grant­ed a 30-day exten­sion by the OMB Direc­tor. The OMB has held up the sil­i­ca rule, which would lim­it work­ers’ expo­sure to the can­cer-caus­ing dust, for two years. Accord­ing to Cen­ters for Dis­ease Con­trol and Pre­ven­tion (CDC), 1.7 mil­lion work­ers are exposed to sil­i­ca dust on the job, pri­mar­i­ly in the con­struc­tion and min­ing industries.

The rule is cur­rent­ly being reviewed by the Office of Infor­ma­tion and Reg­u­la­to­ry Affairs (OIRA), the sub­sec­tion of OMB charged with cost-ben­e­fit analy­sis of high-impact reg­u­la­tions, but OMB has not giv­en a rea­son for the delay. Some work­place safe­ty experts, such as Pub­lic Citizen’s reg­u­la­to­ry pol­i­cy advo­cate Amit Narang, sus­pect that OIRA is hold­ing up the rule out of fear of anger­ing business.

The White House did not return request for com­ment for this story.

But U.S. Sen­a­tor Richard Blu­men­thal (D‑Conn.), chair of the Sen­ate Judi­cia­ry Sub­com­mit­tee on Over­sight, Fed­er­al Rights and Agency Action, is demand­ing answers from the OMB. 

Cost-ben­e­fit analy­sis can play an impor­tant role in pol­i­cy­mak­ing,” Blu­men­thal wrote in a let­ter on May 7, 2013 to OMB Direc­tor Sylvia Math­ews Bur­well. How­ev­er, when pro­pos­als get seri­ous­ly delayed at OIRA it under­mines the cred­i­bil­i­ty and legit­i­ma­cy of the Office as an inde­pen­dent arbiter.” Blu­men­thal notes that of OIRA’s 153 open reviews, more than half have gone over the 90-day limit.

I’m writ­ing OMB to remind the agency that there are human costs to delay,” Blu­men­thal said in a state­ment about his letter.

Work­place safe­ty advo­cates agree, say­ing that with over 1.7 mil­lion work­ers exposed to sil­i­ca dust, it’s imper­a­tive that the rule be issued right away. The AFL-CIO’s Occu­pa­tion­al Safe­ty and Health Direc­tor Peg Semanirio cal­cu­lates that for every year the sil­i­ca rule is delayed, 60 work­ers will die as a result of sil­i­ca exposure.

Giv­en the health and safe­ty impli­ca­tions of these agency actions, the length of delay in OIRA’s review is unac­cept­able,” wrote Blu­men­thal. Undue delay in the rule­mak­ing process pos­es costs on the pub­lic, cre­ates uncer­tain­ty in the indus­try, and reflects poor­ly on OIRA’s role in the reg­u­la­to­ry process by giv­ing the impres­sion that life-sav­ing pub­lic pol­i­cy is being bot­tled up for polit­i­cal rea­sons or due to pres­sure from spe­cial interest.”

Work­place safe­ty advo­cates applaud­ed Blu­men­thal for tak­ing the White House to task on the regulation’s delay.

Peo­ple are fed up that reg­u­la­tions can just dis­ap­pear at OIRA, with­out any kind of account­abil­i­ty. It’s just not how it’s sup­posed to work. Thou­sands of work­ers are sick­ened every year the sil­i­ca rule is delayed, and that’s unac­cept­able,” says Narang of Pub­lic Cit­i­zen. It’s ter­rif­ic to see mem­bers of Con­gress hold the administration’s feet to the fire, because the pres­i­dent has made a lot of pledges on pro­tect­ing the pub­lic and being trans­par­ent that just haven’t been fulfilled.”

Mike Elk wrote for In These Times and its labor blog, Work­ing In These Times, from 2010 to 2014. He is cur­rent­ly a labor reporter at Politico.
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