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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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by Rena Steinzor, cross-posted from CPR Blog

EPA Administrator Lisa Jackson was in a tough position on coal ash.  If you are African American and low-income, you have a 30 percent greater chance of living near a big pit of this toxic brew than a white American, so Jackson correctly decided that such an important environmental justice issue should be at the forefront of the Obama Administration’s agenda. But Jackson was also taking on Big Coal, a special interest historically near and dear to swing voters in Ohio and Illinois.  Nevertheless, this sturdy “eco-warrior,” as she was recently dubbed by Rolling Stone, marched forward, right into the basement of the White House and the chilling influence of Cass Sunstein and the economists at the Office of Information and Regulatory Affairs (OIRA).
 
Jackson’s tough, but as yet secret, regulatory proposal arrived in crisp fall weather, only to be greeted by a tsunami of industry lobbyists, who visited and revisited OIRA.  By the time the spring flowers were out, Jackson was forced to take a pass on getting hard-hitting regulation on a speedy path to implementation.  After the long scuffle with OIRA, she instead announced that EPA was considering two strikingly different alternatives, thereby postponing any definitive action for at least six months and, far more likely, a year or more.  Then, to add insult to injury, she stepped in between angry activists and OIRA, trying in vain to slap lipstick on a not particularly cute pig.

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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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by Ken Ward Jr., cross-posted from CoalTattoo

U.S. Environmental Protection Agency officials just finished their phone-in press conference to announce their action regarding regulation of toxic ash from coal-fired power plants.

In its press release, EPA describes its action this way:

The U.S. Environmental Protection Agency today is proposing the first-ever national rules to ensure the safe disposal and management of coal ash from coal-fired power plants.

And it quotes EPA Administrator Lisa P. Jackson saying:

The time has come for common-sense national protections to ensure the safe disposal of coal ash. We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.

But after listening to the press conference, and as I read the 563-page document EPA just posted on its Web site,  I have a hard time understanding how this is more than the Obama administration punting on making a decision here.

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by the Spirit of Frances Perkins

During last week’s Latino Action Summit on Worker Health and Safety in Houston, Labor Secretary Solis said:

“…I am urging Congress to pass the Protecting Americas Workers Act to give vulnerable workers more security when they speak out to defend their lives.”

That was the first time I’ve heard the Labor Secretary publicly mention PAWA and those were some welcome words.  The bill, HR 2067, is quite modest in its approach to enhancing the OSH Act.  It would:

  • adjust monetary penalties for violating H&S standards to the inflation rate
  • improve whistleblower protections and procedures for workers who exercise their H&S rights
  • ensure State and local employees are given H&S protections
  • require OSHA to investigate all fatalities and serious injury incidents
  • give family-member victims of workplace fatalities the right to meet with OSHA before citations are issued, make a victim’s impact statement to the OSH Review Commission

Yet, prior to last week, Mrs. Solis had been largely silent about it.  In fact, it was just a month ago that we first heard officially the Obama Administration’s position on the bill when Dr. David Michaels, the OSHA Assistant Secretary testified in support of the legislation.  (TPH post here)

Regrettably, it seems that the death of six refinery workers in Washington State from a blast on April 2 and the explosion at Massey Energy’s Upper Big Branch mine that killed 29 coal miners has focused the Secretary’s attention on worker health and safety.   Better late than never, I suppose.

Now that Secretary Solis told the audience in Houston that she strongly supports PAWA, I hope she contacts key Members of Congress—especially in the Senate—and convinces them that the nation’s working people need these and more workplace H&S protections.  The Senators who currently endorse the bill are:

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by Kathy Snyder, cross-posted from MineSafetyWatch

MSHA last Tuesday issued a citation to the Performance Coal Co. Upper Big Branch Mine – South, alleging insufficient measures to control explosive coal dust before the fatal April 5 explosion.  The April 13 citation was based on a sample taken March 15 – three weeks before the fatal accident. The time required for lab analysis of such samples creates a lag in obtaining results.  An MSHA inspector took eight dust samples from mine surfaces on March 15, the citation stated.

“One out of eight samples taken were less than 80 per centum of combustible [sic] content,”

read the text of the citation, in a printout from MSHA’s computer system obtained by Mine Safety and Health News.

MSHA alleged that the mine violated standard 75.403.  The standard specifies that incombustible content of underground coal mine surfaces required to be rock dusted must be at least 65% in general, 80% in return air courses, and still higher – according to a formula – for each 0.1% methane present.  The samples were taken on Mechanized Mining Unit 029-0, according to the citation.  A detailed mine map provided by MSHA indicated that that 029-0 was the number of the unit engaged in developing a new area for future longwall mining.

In issuing the citation – 8 days after the blast – MSHA characterized the alleged violation as “reasonably” likely to cause up to 30 deaths. Negligence by the mine operator was characterized as “low,” however.  The April 5 accident remains under investigation, and whether the alleged violation could have actually contributed remains undetermined.

MSHA also on April 13 issued a withdrawal order to the Upper Big Branch Mine under section 104(b) for alleged failure to correct a previously cited violation within the time allowed, the agency database showed.

MSHA did not respond today to a request for specifics on the alleged uncorrected violation.

Kathy Snyder worked at MSHA for 26 years in the office of public affairs.  She retired from her career position at the agency in 2004, and is the Washington, DC correspondent for Ellen’s Smith publication  Mine Safety and Health News

by Pete Galvin

In response to the recent tragedy at the Upper Big Branch (Massey) mine in WestVirginia, the President instructed the Mine Safety and Health Administration (MSHA) to take some rulemaking actions.  Accordingly, it is a good time to take a look at how the President’s own directives and the Office of Information and Regulatory Affairs (OIRA) determinations make it much harder for MSHA to protect this Nation’s miners.

As it happens, the specific rulemaking MSHA was asked to undertake is not likely to call the President’s rulemaking oversight policies into question.  The rule that is apparently to be changed involves the procedures for determining whether a mine is eligible to be charged with a “pattern of violations.”  MSHA can basically shut down a mine’s production unless the pattern (i.e., a whole series of separate violations) is abated.  There are a variety of methods available under the Administrative Procedure Act (APA) to accomplish such a change without extensive notice and comment, provided the agency makes the required findings under the APA — and provided the mining industry decides not to challenge these findings in court. 

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by Kathy Snyder, cross-posted from MineSafetyWatch

I wasn’t able to catch President Obama’s remarks on mine safety live, but immediatley saw the summary by Ken Ward at Coal Tattoo.  Two main thrusts in the points flagged by Ken: MSHA needs a better way of identifying mines that need extra enforcement attention.  And new legislation is almost 100% certain in the next months.  Update: exceptionally strong words from the President’s actual statement:

….we do know that this tragedy was triggered by a failure at the Upper Big Branch mine — a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue.

Many experienced, intelligent and thoughtful people will be giving their best attention to reforming mine safety.  The S-Miner Act, which was proposed but not enacted after Crandall Canyon in 2007, is one likely starting point.  Not an engineer, nor an attorney — but nevertheless, having worked more than 30 years around mine safety issues, I would like to offer a few personal reflections that someone might possibly find useful.

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by Tom Bethell

Twenty-nine coal miners lost their lives in last week’s massive explosion at Massey Energy’s Upper Big Branch mine in West Virginia.

Why?

Part of the answer to that question will have to wait until the federal Mine Safety and Health Administration (MSHA) conducts its investigation of the disaster.  Only then will we know precisely where the ignition point was and why methane was allowed to build to the point where it constituted 5 to 15 percent of the mine atmosphere — the range at which the otherwise inert gas becomes lethally explosive.

But no one familiar with the coal mining industry will have to wait to answer the larger question:

Why do coal miners die?

They die because of negligence.  They die because the company they work for cares more about running coal than making mines safe.  And they die because the federal agency that is charged with protecting them fails in its mission.

About the first instance of negligence there can be no question.  The explosion was too violent and too extensive to have been caused by a pocket of methane alone.  The initial blast must have ignited coal dust — which is even more explosive than methane — and that couldn’t have happened if management had been diligent about cleaning up accumulations of loose coal, particularly along the conveyor belt carrying coal out of the mine.  But we know from MSHA’s inspection records that maintenance at Upper Big Branch never got top priority.  That went to production — regardless of how many times the mine was cited for lax safety practices.

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