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John M. Peters, MD, DSc, MPH, the Hastings Professor of Preventive Medicine at the USC Keck School of Medicine passed away at age 75 on May 6 from pancreatic cancer.  The School’s dean, Carmen A. Puliafito, said

“one of the legends of environmental and occupational health.  His work took him from the freeways of Los Angeles to the tire factories of Akron to the granite mines of Vermont.  The focus of his research was to investigate and quantify environmental risks and then contribute to strategies to mitigate that risk in the workplace and in everyday life.”

My dear friend and former deputy asst. secretary at MSHA, Andrea Hricko, MPH, first met John Peters in the early 1970s.  She was working for Ralph Nader, and John Peters was a professor at Harvard.   He was serving on a panel for OSHA making an inquiry about vinyl chloride and BF Goodrich – and she testified before him.  She told me

“He was already on his way to becoming a legend in occupational health, with his studies of granite shed workers and workers exposed to toluene diisocyanate (TDI).  

After leaving MSHA in 1997, Andrea  was recruited by John Peters to USC.  She said:

“John Peters was a brilliant, witty, and gentle man whose main professional goal in life was ‘doing the best science possible,’ something he did with the greatest integrity.  John has left an amazing legacy, hiring and mentoring  a dozen new faculty members at USC who now work on air pollution and other environmental health issues, and who all already miss him terribly.”

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I can’t keep up with Ken Ward Jr.’s coverage of the trouble brewing,  battle, strong difference of opinion between Secretary Hilda Solis/MSHA Asst. Secretary Joe Main and the United Mine Workers (UMWA), family members of deceased coal miners and journalists about the Department of Labor’s decision to have closed-door interviews of witnesses as part of the Massey Upper Big Branch disaster investigation.

Lest you think the press and blogs are the only way to take the pulse of the public, think again.  Mr. Dennis O’Dell, the current UMWA H&S director, is sharing his disgust about MSHA’s decision on the social media site Facebook.  His commentary begins:

May 2 (3:07 pm):  “The UMWA has been asked by miners at Upper Big Branch to be their Representatives during the investigation.  There are those out there who want to ice us out of the interviews. What happened to transparency?  If there is nothing to hide then why keep us out. What about a Public Hearing?”

May 6 (8:27 am): “Ok so here is the deal..the UMWA,Upper Big Branch family members, the media, the WV Coal Board, and even Massey has asked for open public hearings on the UBB investigation. What does MSHA do…”

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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.

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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 compliment 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.

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Last week Labor Secretary Solis released in the Federal Register on April 26, 2010, her Spring 2010 regulatory agenda for the Department, including her rulemaking priorities for MSHA and OSHA.  As required by the Regulatory Flexibility Act it was published on time in April, in contrast to her Fall 2009 agenda which was six weeks late. 

This document is described by the Secretary as a:

“…listing of all the regulations it expects to have under active consideration for promulgation, proposal, or review during the coming 1-year period.  The focus of all departmental regulatory activity will be on the development of effective rules that advance the Department’s goals and that are understandable and usable to the employers and employees in all affected workplaces.”

As my mentor Dr. Eula Bingham used to say to her staff (during her tenure as OSHA chief the Carter Administration): the only rulemaking activies that truly count for worker health and safety are publishing proposed and final rules.   Efforts that distract, divert, or delay the regulation writers’ duties should be avoided.  Currently, OSHA has about 100 full-time (FTEs)  individuals assigned to its H&S standards office, and MSHA has about 17 FTEs.

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A month after the March 1989 Exxon Valdez disaster, a small team of public health experts prepared a report identifying the potential health hazards and making strong recommendations for protective action for the cleanup workers.   The team included Eula Bingham, PhD (former OSHA chief), Matt Gillen (now at NIOSH), Mark Catlin (now at SIEU), Don Elisburg, and Jane Seegal.  The team had been assembled at the invitation of the Alaska Commissioner of Labor after concerns were expressed

“about whether the cleanup workers’ health and safety have been adequately protected.  Among other things, workers have been observed with oil-soaked clothing and with oil on their faces and hands.”

The report describes the physical, chemical and work organization hazards encountered by the 4,000 cleanup workers, from toxins in the oil and dispersing agents, long work hours in remote areas, to slippery surfaces and dangerous animals.  Many of the same hazards will be faced by emergency response and cleanup workers in the Gulf Coast tackling the BP Deepwater Horizon disaster.

The team’s 1989 report continued:

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William “Bob” Griffith, 54 died at Massey Energy’s Upper Big Branch mine on April 5.   His tribute page says he

“came from a family of miners, went into the mines as a young man with his father and worked there like his brothers.  …When he wasn’t working, Griffith and his wife were fixing up their 1967 Camaro.”

His wife Melanie Griffith has now asked MSHA asst. secretary Joe Main twice (once on April 20 and April 23) for his agency to hold a public hearing as part of the disaster investigation.  In her request yesterday, she pleads for a response, noting:

“time is of the essence”

Her letter continues:

“It is our understanding that MSHA will begin witness interviews on Tuesday.  Family members deserve and demand full transparency and a voice as they go through what is undoubtedly the most difficult time of their lives.  Please respond to this most urgent request.”

I’m confident that Mr. Main and the Labor Secretary’s top staff will make a prompt decision on Mrs. Melanie Griffith’s request, or contact her (and the other Massey families) early next week to fill them in on their decision-making process.

Mr. Jim DeMarce, Director of the Labor Department’s Division of Coal Mine Workers’ Compensation, passed away suddenly on April 12.  He served coal miners and their families for 25 years, helping them wade through the federal black lung benefits program.  He was also known more recently for his efforts during the Clinton Administration to improve the regulations for processing that seem forever stacked against workers in favor of coal mine operators. 

Steve Sanders of the Appalachian Citizen’s Law Center said this about Jim DeMarce:

I was acquainted with Jim for about 10 years through my work on black lung benefits claims.  He regularly attended the annual meeting of the Black Lung Clinics and Respiratory Disease Clinics.   Each year Jim would give a presentation on the federal black lung program with statistical information, such as the approvals and length of time for adjudications. 

Jim was very concerned about disabled miners and widows and wanted to see the black lung benefits program serve the disabled miners and widows in the ways it was intended.  He worked on the 2000 amendments to the regulations, trying to create a more level playing field for claimants, who up to that time were being completely overwhelmed by the superior resources of the insurance companies fighting against them. 

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I noticed on RegInfo.gov that OSHA submitted the draft of its final rule on crane safety to OMB’s Office of Information and Regulatory Affairs (OIRA) on Friday, April 9 for review.  This is an OSHA rule that has been in the works since 2003 (see here, here, here, here, here, here.)  Historically, OIRA staff expect to have 90 days to review major rules like this one. 

Labor Secretary Hilda Solis’ Fall 2009 regulatory agenda indicated her plan to have this final cranes and derricks safety rule published by July 2010.   In a June 2009 post, “What’s next for OSHA’s crane rule,” I describe what I thought were the key decision points for OSHA to address, including: what is an appropriate phase-in period for operator certification?  what should be the minimum standards for certification? how to distinguish between training and certification? and should OSHA adopt the ‘federalism’ language recommended by NYC?  I challenged the Administration to get the rule finished by the end of 2009.  That didn’t happen, but thankfully, it’s moving now.

There are many families around the country who have lost loved ones from crane-related hazards and employers’ disregard for workers’ safety.  Steven Lillicrap, 21, of Maryland Heights, MO, was killed that way. 

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In August of 1990, I drove from my hometown in the Detroit suburbs to interview for a job at OSHA headquarters (HQ) in Washington, DC.   I had never worked for a federal agency, let alone an important one like OSHA.  I was eager to show my prospective boss that I was interested in worker health and safety.  (Even though my Republican father considered OSHA a four-letter word.)  

To prepare for my interview with Ms. Ruth Knight and Mr. Frank Frodyma, I searched all the federal depository libraries in southeastern Michigan for any collections of GAO reports on OSHA.  In those pre-Internet days, these reports were hard to find.  I was only able to locate one (in the Wayne State University Labor Studies program collection); it was a report assessing the accuracy of employer injury and illness records. (HRD-89-23, December 30, 1988.)  

At some opportune time during my interview with Ms. Ruth Knight, I mentioned that I had read the GAO report about employer records of injuries.  She seemed impressed and proceeded to tell me that it was her exact office that was responsible for coordinating with GAO on their studies.  Ms. Knight also mentioned that GAO had been engaged recently in a special effort that involved a survey of OSHA’s inspectors.  (She called them CSHO’s (compliance safety and health officers.)  It was the first time I heard that term; it didn’t appear in the 1988 GAO report I’d read.)  She told me that if I was hired (not a sure thing because there was a huge budget battle going on that year,) I would probably have an opportunity to sit in, with more seasoned staff in the office, on an opening or closing meeting with GAO.  (Wow! I thought to myself.)   The weeks passed, the months passed, and finally I heard from OSHA’s human resources office that I was selected for the job.  Start date: mid-January 1991.  Bye-bye Mayor Coleman Young.  Hello Mayor Marion Barry.

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