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We are approaching day 160 of the Obama Administration, yet the Solicitor of Labor is not yet in place, neither are the Assistant Secretaries for most other DOL agencies, including Employment Training Administration, MSHA, OSHA, VETS and Women’s Bureau. Attorney Patricia M. Smith was nominated by President Obama on March 19 to serve as the Solicitor, and her confirmation hearing on May 7 seemed quite tame. I’d not imagined that I’d be writing this blog post 8 weeks after that Senate proceeding, with her nomination stuck in Committee. The slow pace of the Solicitor of Labor’s nomination got me thinking about how this Administration’s appointment process for DOL officials compares to G.W. Bush’s first term. Here are a few facts to ponder:
- G.W. Bush’s Labor Secretary, Elaine Chao, was confirmed on January 29, 2001; Labor Secretary Hilda Solis was confirmed on February 24, 2009.
- G.W. Bush’s OSHA chief, John Henshaw, was nominated on June 12, 2001 and confirmed by the Senate on August 3. A nominee to head OSHA has not yet been announced, but Jordan Barab was selected by Secretary Solis to serve as acting OSHA chief.
- G.W. Bush’s MSHA chief, David Lauriski, was nominated on April 3, 2001 and confirmed on May 9, 2001. A nominee to head MSHA has not yet been announced.
I’ve often suspected that some federal agencies apply very broad definitions to the exemptions provided under the Freedom of Information Act (FOIA). Now, thanks to one diligent journalist I can judge for myself whether the Mine Safety and Health Administration (MSHA) is an offender.
Ellen Smith of Mine Safety and Health News requested records from MSHA and the Solicitor’s Office (SOL) about its legal determination that the haulage road on which coal-truck drive Chad Cook, 25, died, was under MSHA jurisdication. MSHA had made a gross error in 2005-2006 when it concluded that the road was private property. (In November 2007, the senior officials reversed themselves, but it was too late to get justice for Chad Cook.) Smith made her FOIA request for the legal determination in August 2008, and MSHA responded 7 months later. They provided a four-page memo written by SOL, but redacted certain portions under FOIA Exemption 4. This exemption is allowed to protect
“trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”
Friday (6/19) was the final day for participants from OSHA’s public hearing on its proposed cranes and derricks rule to submit comments to the agency; by my count, seven organizations responded. The Edison Electric Institute offered the lengthiest document (94 pages), and it was peppered with provocative language, such as
“…these and many other vexing questions arise from OSHA’s convulated proposed regulatory scheme.”
the rule “…would de-stabilize settled principles [and] would be highly ill-advised….could stimulate more litigation…and [create] an avalanche of state and local laws.”
What is EEI’s objection?
A group of 47 H&S inspectors, supervisors and managers from California OSHA (Cal/OSHA) sent a pointed letter to the three-person OSH Appeals Board demanding they “cease and desist” their destructive practices. This Appeals Board is equivalent to the OSH and MSH Review Commissions; it exists because California is one of the 23 States that operates its own OSHA program.
The CalOSHA employees wrote, we:
”strongly protest Board policies and practices that have significantly undermined our ability to do our job of protecting the lives, health and safety of California’s workers.”
It’s amazing to me (and refreshing) in these dire economic times, with Governor Schwarzenegger slashing the state budget, that these state employees are willing to act collectively and speak up. Their outrage stems from a practices that started four years ago by the OSHAB to reduce a backlog of 4,000 cases.
The 1,050 State public health experts who make up the Council of State and Territorial Epidemiologists (CSTE) is urging the States and CDC to adopt a new case definition for adults of elevated blood-lead levels (BLL) and to require laboratories to report ALL blood lead test results to NIOSH’s Adult Blood Lead and Epidemiology (ABLES) Program. CSTE recommends the definition of an “elevated BLL” change from 25 ug/dl and greater, to 10 ug/dl and greater.
The CSTE’s policy statement is grounded on the growing body of evidence linking “low” levels of lead in adults with decreased kidney function, cardiovascular disease and cognitive impairment. A mini-monograph published in 2007 in Environmental Health Perspectives provides some of the most recent evidence cited by CSTE to support its recommendation. The group identified a number of occupations for which workers are at particular risk of lead poisoning such as construction involving paint removal; demolition and maintenance of outdoor metal structures (e.g., bridges, water towers); and battery manufacturing and recycling. (I’ve written previously about mine workers with lead poisoning.)
The Charleston Gazette’s Ken Ward Jr. reports that one of West Virginia’s oldest and largest law firms, Jackson Kelly PLLC, is being sued for hiding evidence of coal miners’ black lung disease. Ward writes:
“Earlier this year, an investigative panel of the state’s Lawyer Disciplinary Board filed misconduct charges against Douglas A. Smoot. Smoot hid a key portion of coal miner Elmer Daugherty’s medical examination report during a 2001 case, a board investigative panel alleged. A hearing on those allegations is scheduled to start June 18. And two lawsuits filed last month in Raleigh Circuit Court accuse Jackson Kelly of a widespread pattern of trying to cheat miners out of black lung benefits.”
If these allegations are true—cheating injured coal miners from due compensation—that’s some low-down dirty work for their coal industry clients.
Updated below (6/13/09)
The Associated Press and other news sources are reporting on an explosion today at a meat processing facility in Garner, NC. Four workers are missing, at least 41 are injured, including several with very severe burns. One worker reports:
“I was picking up a piece of meat off the line and I felt it, the percussion [force of explosion] in my chest. One of the guys I was working with got blown back, he flew backwards.”
Of the many disturbing and damaging policies instituted during the G.W. Bush Administration, high on my list is abuse of FOIA. It started with the post 9/11-Ashcroft memo, which was institutionalized into downstream agencies, and reconfigured and rejustified over Mr. Bush’s remaining 7 years. In the public interests, one journalist sought to find out how the Labor Department’s FOIA practices were “evolving” under G.W. Bush’s non-disclosure philosophy.
In March 2005, Mine Safety and Health News (MSHN) received an anonymous tip, urging the editor, Ellen Smith, to request records from a training session held for DOL FOIA officers on March 1-2, 2005. The tipster suggested that she’d likely be very interested in what had been communicated to DOL staff and that she should specifically ask for a copy of the videotape made of the two-day session. (Presumably, the officials who organized the FOIA training session decided to videotape the event for the benefit of employees who were not able to attend.)
By Ellen Smith
The nation may have a new President with grand ideas about the Freedom of Information Act, but let’s be clear: at MSHA, nothing regarding FOIA has changed.
The same people are still in charge of FOIA, offering ridiculous redactions and refusing to divulge information which, previous to 2002, was openly shared with the public. The latest redaction battle comes from Tony Oppegard, a miners’ rights advocate. (See Oppegard’s response to MSHA’s FOIA denial.) Oppegard has filed 135 cases on behalf of miners, but in his latest case, MSHA is denying Oppegard information that had been routinely handed-over. MSHA’s denial is based on FOIA’s “law enforcement exemption.” However, this information has been made public since the founding of the 1977 Mine Act itself.
A few days ago, I expressed my annoyance with OSHA about its SBREFA meeting on the draft proposed rule on diacetyl, the lung-damaging, butter-tasting food additive. OSHA had announced earlier in the year that this pre-proposal dialogue with small employer would be “open to the public.” I anxiously awaited public notification about the open meeting, only to find out on Wednesday afternoon it had already taken place. I asked myself: Did OSHA make an announcement about the date, time and place of the meeting and I just failed to see it?
I contacted OSHA’s Office of Communications, left a message with Richard DeAngelis (media specialist), and asked the manner and content of OSHA’s notice to the public for this open meeting. Mr. DeAngelis returned my call later that day, leaving a voice mail that directed me to: Read the rest of this entry »
