Sixteen months ago when OSHA’s Assistant Secretary Edwin Foulke testified before the House Education and Labor Committee, Chairman George Miller chastised OSHA’s  failure to aggressively address combustible dust hazards.   

“I see such an incredible lack of urgency on your part, about the role of your agency to protect workers, that it’s astounding.”

The hearing came about one month after the catastrophe at the Imperial Sugar plant in Port Wentworth, Georgia, that killed 14 and seriously injured dozens of others.   The OSHA chief asserted that his agency was still assessing whether a standard on combustible dust was necessary.   The result: no meaningful regulatory action by OSHA on combustible dust.  Is Secretary Solis’ OSHA heading down the same path:  no meaningful action for workers on combustible dust??

In May of this year, when Secretary Solis issued her first regulatory agenda, listing her agency’s rulemaking priorities, I was disappointed to see the plan for combustible dust did not involve proposing a rule.   Instead, it indicated that OSHA would publish an advanced notice about the topic while it considered whether rulemaking was necessary.  

At first, I was really irked that President Obama’s OSHA might be following the same script as Mr. G.W. Bush’s OSHA.  A brighter, cooler-headed colleague reminded me that this May 2009 regulatory agenda probably did not really reflect Secretary Solis’ priorities (nor the acting OSHA chief), given that she (and he) had only been on the job for a few weeks.   My colleague smartly suggested that I withhold judgment. 

We both noted confidently that surely OSHA has adequate information to propose a rule on combustible dust (along with a preliminary feasibility assessment and regulatory flexibility analysis.)   We could easily tick off sources of available data, including the Chemical Safety Board’s (CSB)  2006 comprehensive report and recommendations on combustible dust explosions, the CSB’s and NFPA’s experts, and OSHA’s own data from two years of special inspection program for dust hazards.   I decided to sit tight and wait for OSHA to propose a rule.   

But now, it looks like OSHA will disappoint us after all on combustible dust.  

I noticed today on the OMB website, a new item being reviewed by its Office of Information and Regulatory Affairs:  a document delivered by OSHA on Sept 25 identified as a “pre-rule” notice on combustible dust.  [See item #3 on this screenshot.]   OMB might take as little as 30 or as much as 90 days to review the document. 

Typically, these “pre-rule”  notices come in the form of  “advanced notice of proposed rulemaking” (ANPRM) or a “request for information” (RFI).  They often contain a series of questions that allegedly help OSHA decide what to include in the proposed rule.   This pre-rule step is not required by the Administrative Procedure Act or the OSH Act;  it’s a made-up step that OSHA has come to rely on over the years.  

I’m sure there are proponents of this pre-rule step, in fact, they obviously some of them reside at OSHA and the Solicitor’s Office.  They probably argue that an ANPRM will help them hear industries’ major concerns with the national consensus standards on combustible dust (e.g., NFPA 654 and NFPA 484), begin gathering economic and technial data on engineering controls and other compliance costs, and generally getting feedback on how the rule should be structured (e.g., prescriptive or systems/process based.)   

Indeed, a pre-rule notice may compel some employers and trade associations to submit info to OSHA, but not with the same gusto or completeness as their comments on actual regulatory text.   Besides, a stakeholder loses nothing if he decides not to participate in OSHA pre-rule request for info.  The real deal is when the agency proposes a rule, and some shrewd commenters may withhold their biggest objections about a rule when they can make the biggest impact—during the actual rulemaking.    I sure wouldn’t show my hand too early.

So, why would OSHA decide to do a pre-rule notice, rather than actually proposing a rule?

I listed some of the practical reasons above.  For staff writing regulations and assessing impacts, a little more info is always a welcome thing.  I sympathize with the challenge of writing these regs.  But their managers and senior officials should know better than any that there’s no such thing as perfect or even complete information.  As the OSH Act allows: “the best available evidence.”  

Historically, these pre-rule notices have been used partially to say “See!!  We’re doing something on this issue.”   It gives the Secretary and OSHA chief cover, creates new work for the staff, and buys the agency at least a few years before having to make tough decisions about a proposed rule.  

Take OSHA’s last pre-rule notice.  It addressed beryllium, was published in October 2002, and we’ve yet to see a proposed rule on this hazard.  I put together this one little snapshot of OSHA rulemaking history, and you can see that ANPRMs don’t seem to expedite the time between proposed and final rules.  In fact, where is the evidence that ANPRMs are overall a benefit to worker health and safety protections?

Now that Georgia’s Republican Senators Isakson and Chambliss are endorsing an OSHA rule on combustible dust, I wonder if they’d support legislation to give OSHA a firm due date for issuing a final rule?   Their statements last week indicate their desire for normal notice-and-comment rulemaking, and that can certainly be accomplished in 1-2 year timeframe.   I can’t forget how worker safety and public health advocates cheered last year when the House of Representatives passed a bill (247-165) that would have required OSHA to issue a final rule on combustible dust in 18 months.   Wouldn’t it be something for the good Senators from Georgia to now back-up their statements with legislation imposing a due date on OSHA to complete a rule on combustible dust?    It would be a welcome tribute to the dust-explosion victims and their families, and put some umph behind their wish to prevent future dust-explosion tragedies.

Back to OSHA and its plan to issue a pre-rule notice on combustible dust.   It’s strange.  OSHA hasn’t officially announced anything yet, but I’m disappointed to see their planned course of action on combustible dust.   Stranger still is that we only know publicly about OSHA’s plan because of the RegInfo tool that former OIRA chief, John Graham, set up for us reg policy nerds.  

I suppose I’m disappointed because I think that once a document, like a pre-rule notice or proposed rule, has matured its way through OSHA, the Solicitor’s Office, and the Secretary of Labor’s advisors, and then sent over to OMB,* chances are slim that the Administration would change course and decide to take a different path.   I hope I’m wrong. 

I guess I’m also disappointed that the new progessive brains in the Department of Labor couldn’t find a way to untangle the OSHA rulemaking morass to streamline the preparation of proposed rules.  A little ingenuity and outside-the-box risky thinking could do wonders for OSHA standard-setting.  Rather than forcing a hearty dialogue on mandatory combustible dust practices to protect workers lives, OSHA will be inviting everyone to share their thoughts.   It seems that a well-known and understood hazard like combustible dust would have been a perfect topic to tackle NOW by forcing that hearty dialogue.  Instead, I’ll be bracing for a pre-rule notice on combustible that barely counts as progress for workers’ health and safety.   I hope, really hope, I’m wrong.

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*I’m also asking myself when the White House’s Regulatory Review Executive Order will be changed so that OMB isn’t reviewing these kind of notices.

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P.S. Savannah News (9/29) Congressman Barrow wants to prod bureaucracy (OSHA) to act faster on combustible dust hazards.

Celeste Monforton, DrPH, MPH is with the Project on Scientific Knowledge and Public Policy at the George Washington University School of Public Health.  She is a volunteer with United Support and Memorial for Workplace Fatalities, founded by Tammy Miser after her brother Shawn Boone died from grave burns suffered in an aluminum dust explosion in 2003 at the Hayes Lemmerz plant in Huntington, IN.

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