As I noted in “Perplexed by OSHA’s reg agenda,” I’ve made a habit of commenting on the content of the Dept of Labor’s semi-annual regulatory agenda  [see links below].  I’ll be the first to admit that our system for protecting workers from well-known hazards with new regulations is onerous and anything but nimble.  It needs an overhaul.   The obstacles, roadblacks and challenges plague OSHA, but these administrative and burden-of-proof hurdles DO NOT apply to MSHA.   Here are just two examples of what I mean:

  1. MSHA merely has to demonstrate that its decision is not arbitrary and capricious; a much lower burden of proof than the “substantial evidence” test required of OSHA.  [see a recent US Court of Appeals ruling on MSHA's diesel particulate matter health standard explaining the "arbitrary and capricious" bar.]
  2. MSHA, unlike OSHA, is at every one of the worksites under its authority several times a year and can assemble all kinds of data to determine feasibility of controls.  MSHA has access to more data than it would ever need to demonstrate exposure, risk and feasibility.

These two factors alone set the stage for MSHA to propose and finalize standards to protect our nation’s mine workers over several months, not years.

Two of the new items appearing on MSHA’s agenda seem to be in response to what the public and lawmakers have learned since the April 5 Massey coal mine disaster in Mountcoal, WV.  The agency says it plans to issue a proposal to amend its pattern of violation (POV) regulation which dates back to July 1990.   The current POV regulation and the 2007 policy operationalizing has been scrutinized for failing to find and fix mine operators who disregard workers’ health and safety.  MSHA also says that it plans to issue a proposal to revise its process for proposing monetary penalties “to  facilitate the resolution of enforcement issues.” 

What’s puzzling to me is why MSHA needs 9 months to write these proposed rules?  These regulations are not imposing new regulations on employers, simply changing the way that MSHA administers its own enforcement program.  These are not the type of rules that require extensive economic or technological feasibility assessments.  I’m scratching my head trying to figure out why MSHA chief Main decided not to put these changes on the fast track.

I remain puzzled (as I was in December 2009) by MSHA’s slow plan for addressing miners’ exposure to crystalline silica.  It’s relegated to its fourth tier priority: long-term action, with plans to issue a proposed rule in April 2011.  About this proposed action on silica, MSHA says it:

“…exemplifies the agency’s commitment to protecting the most vulnerable populations…”

Am I missing something?  How does a paper promise to propose a rule a year from now exemplify MSHA’s commitment to protecting mine workers from silicosis, lung cancer, and renal and autoimmune diseases? 

MSHA says its plan is “to use OSHA’s work on the health effects and risk assessment” to prepare its proposed rule. 

OK.  OSHA’s peer review of its risk assessment was completed in January.   I really don’t understand why MSHA needs more time than OSHA to propose a rule on crystalline silica.  MSHA’s job regulating a particular hazard should take a fraction of OSHA’s effort.  

Speaking of OSHA and MSHA, does anyone else believe that the Labor Secretary is missing a huge opportunity to improve workers’ right-to-know by failing to direct both agencies to work together on global harmonization of classification and labeling of chemical hazards?  I realize this has been an OSHA project since 2006, but there’s no time like the present to ensure consistency under both agency’s HazCom rules.   Since OSHA’s latest reg agenda gives us no hint about when a final rule will be issue it seems like MSHA could nose right into the process and replicate OSHA’s proposed rule.

I am pleased to see that MSHA chief Joe Main still plans to issue a proposal(s) in September this year to protect coal miners from black lung disease.  The agenda suggests the proposal will integrate several issues, including lowering the coal dust exposure limit, verification of operators’ dust control plans, single-shift sampling, and devices to continuously monitor respirable dust concentrations.   Some of these ideas were proposed in July 2000 by MSHA during the Clinton Administration, but Mr. Main (at the time he was the UMWA’s H&S director) called that plan “fatally flawed.”  

Regrettably, his opinion prevailed.   He told MSHA to go back to the drawing board and write a rule that miners could understand.  I’ll be eager to read Mr. Main’s proposal this September to see how his team integrates these admittedly complex issues.

Finally, a commment about DOL’s new philosophy “Plan, Prevent, Protect” and programs designed to counter the “catch me if you can” attitude of some employers.  I’ve read about it on DOL’s website and in reports from the Department’s rollout of its reg agenda at the Center for American Progress.  One question: if this is Secretary Solis’ strategy for addressing the wide range of H&S hazards faced by the nation’s workers, why is MSHA’s next step 6 months from now, and not a proposed rule, but merely a request for information??

As I noted in my companion post yesterday on OSHA’s regulatory agenda, I know there are committed individuals in positions of authority at MSHA and in DOL’s hierarchy, and many career staff who want the promise of the Mine Act to be realized.   It’s time for these leaders to use a different roadmap for rulemaking because the course they’re proposing is timid and time is running out.  

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:

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