Last week, Reg•Watch blogged about an OSHA rule currently under review by the White House Office of Information and Regulatory Affairs (OIRA). The rule would require employers to pay for protective equipment for their employees.

Yesterday, Rep. George Miller (D-CA and chairman of the House Education and Labor Committee) and Rep. Lucille Roybal-Allard (D-CA and member of the appropriations committee with jurisdiction over OSHA) wrote to OIRA Administrator Susan Dudley expressing their concern with the White House's review of the rule. (Read the letter here.)

As Miller and Roybal-Allard point out, OIRA met with representatives from the U.S. Chamber of Commerce and the National Association of Manufacturers (two groups opposing the rule) without the presence of an OSHA official. Like all OIRA meetings about rulemakings, this one occurred behind closed doors. The congressmen write:

A strong comprehensive standard that codifies OSHA's longstanding policy and practice that employers pay for safety equipment is necessary to protect the health and safety of American workers. It should not be weakened through exclusive backdoor meetings between OMB and industry representatives.

Thanks to the Pump Handle blog for pointing out this story. The National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce are lobbying the White House, potentially with the aim of derailing an important worker safety rule.

The Pump Handle has some background on the rule:

More than 8 years ago, OSHA proposed a rule designed to clarify that employers are supposed to provide and pay for [personal protective equipment (PPE)] . . . Under Bush's Labor Department, a final version of the rule was in perpetual limbo until two labor unions filed suit in January 2007 to compel OSHA to issue it.

OMB's Office of Information and Regulatory Affairs (OIRA) began reviewing the rule on Sept. 10. Although OSHA and Department of Labor officials have committed to issuing the final rule in November, OIRA could continue its review of the rule into the new year under the rules of Executive Order 12866, Regulatory Planning and Review.

Meanwhile, on Oct. 23, officials from NAM and the Chamber of Commerce met with officials from OMB to discuss the rule. Because these meetings occur behind closed doors, it is unlikely the public will ever know what was discussed.

What we do know is that no official from OSHA was present. E.O. 12866 requires a representative from the appropriate agency (in this case OSHA) to attend these meetings or, if a representative cannot attend, requires the public be notified as to why no agency official was present. No explanation has been made public.

Regular readers of Reg•Watch may remember a similar story surrounding OMB's review of EPA's national ambient air quality standard for ozone. In that instance, no EPA official was present at a meeting featuring lobbyists from the Chemical Industry Institute and the Auto Alliance.

Reg•Watch hopes this is not becoming a trend with OMB reviews.

Reg•Watch Update: "Congressmen Press Dudley on Review of OSHA Rule"

Wednesday, the Occupational Safety and Health Administration held a public meeting on its plans to regulate diacetyl. Workers exposed to diacetyl, a chemical used to give microwave popcorn its buttery flavor, are at risk for a severe and sometimes fatal lung disease called bronchiolitis obliterans.

Despite mounting evidence of the dangers of diacetyl and calls for action from physicians and occupational health experts, OSHA is refusing to issue an emergency temporary standard. Instead, OSHA has chosen to pursue rulemaking through the traditional, but protracted, process.

Participants at the meeting discussed the nature of the rulemaking. Options include setting a permissible exposure limit and promulgating a broader regulation to ensure as much protection as possible.

Regulators do not have a 100 percent complete picture on the nature of diacetyl, and pinpointing a safe level of exposure may be difficult at this point. But while OSHA has tended to use uncertainty as a reason to avoid action, Peg Seminario, director of safety and health for AFL-CIO, recognizes the urgency of the issue and the need for pragmatic policy. From a BNA news service (subscription) article:

"Let's not look for an answer to every question." If a standard deals with exposure assessment, control measures, aggressive medical surveillance with a lot of education and outreach, and respiratory protection, Seminario said, "you have something to protect people immediately."

OSHA officials would not outline a timetable for the rulemaking, according to BNA.

Congress could spur action in the near future. The House has already passed legislation which would mandate OSHA issue an interim standard within 90 days. A companion bill has yet to be offered in the Senate.

Edwin Foulke, Administrator of the Occupational Safety and Health Administration, says the agency will not pursue an emergency rulemaking for diacetyl but will instead choose to let industry police itself, according to Inside OSHA (subscription). Workers exposed to diacetyl, a chemical used to give microwave popcorn its buttery flavor, are at risk for a severe and sometimes fatal lung disease called bronchiolitis obliterans.

Foulke is making a legal argument against pursuing an emergency standard. According to the Occupational Safety and Health Act, OSHA can only issue emergency standards if workers face a "grave danger" and if the "standard is necessary to protect employees from such danger." Since the popcorn industry is voluntarily phasing out use of diacetyl, Foulke argues the standard is unnecessary.

OSHA's current position on an emergency standard for diacetyl is indicative of a trend in President Bush's approach to public protection. Voluntary industry standards can serve as a welcome and effective compliment to strong federal regulations, but the Bush administration has consistently viewed them as a substitute for government involvement.

One major problem with using voluntary industry standards as a substitute for regulation is the ensuing lack of accountability. In the case of diacetyl, the popcorn manufacturing industry is approaching the issue with good intentions; but who know what the future will hold? Federal regulations allow agencies to monitor compliance and pursue corrective action in the form of fines or, in some instances, criminal prosecutions.

Congress also plays a role. If an agency is doing a poor job of enforcing regulation, Congress can hold oversight hearings, strengthen existing statutes, or use its power of appropriations to hold the agency accountable. Voluntary standards strip government of these important tools. And when government is cut out of the process, so too is the public.

In 2004, the Interior Department's Bureau of Land Management (BLM) learned of structural problems at the Crandall Canyon mine in Utah but did not share the information with mine regulators, according to the Associated Press. An August 6 collapse in the mine has left six miners trapped and presumed dead. Days later, three rescue workers died attempting to retrieve the trapped miners.

According to the AP article, "The [BLM] inspector, Stephen Falk, said that further mining by pulling out the pillars would be 'untenable.' " Unfortunately, "The BLM report was done for internal use only."

The BLM report was announced today in a hearing of the Senate Health, Education, Labor and Pension Committee. At the hearing, an official from the Mine Safety and Health Administration (an agency in the Labor Department) admitted the report could have helped inform decisions at the agency.

Critics have also raised concerns MSHA did not fulfill its responsibility to protect miners. MSHA approved a mining plan for Crandall Canyon in June 2007, just months after serious structural problems forced the operators to abandon a work area only 900 feet from where the miners are trapped.

The controversy underscores the need for better sharing and disclosure of government information — both among agencies and with the public. Sen. Ted Kennedy, chairman of the committee which held today's hearing, said, "This is like the CIA not getting information from the FBI when we're getting attacked by terrorists."

Posted by Matt Madia, 04:16:18 PM