MSHA should scrap any plan to wait for OSHA action on respirable crystalline silica

Before too long the US Department of Labor (DOL) and other federal agencies should be issuing their annual regulatory plans and semi-annual agendas. These documents serve as official public notice of agencies' regulatory (and deregulatory) priorities. The Regulatory Flexibility Act and Executive Order (EO) 12866 direct agency heads to release these documents in April (agenda) and October (plan and agenda), but the Obama Administration doesn't have a good track record meeting those deadlines.

I'm not going to predict when the next agenda and plan will be issued or, as I did in the Spring, on what will be in DOL's agenda on worker safety protections. I'll only say that I'm going to pay close attention to what the Mine Safety and Health Administration (MSHA) says about its plans to propose a rule to protect workers in the mining industry from respirable crystalline silica. It's a hazard that is associated with the progressive, fibrotic lung disease silicosis, as well as lung cancer, and autoimmune and kidney disorders. I'm going to cringe if the next regulatory agenda MSHA issues suggests that progress on its proposed silica rule is linked to OSHA's efforts to address the same hazard.

Here's my concern. The first regulatory agenda issued in May 2009 by Obama Labor Secretary Hilda Solis indicated: "MSHA will publish a proposed rule to reduce the exposure limit for respirable crystalline silica," and predicted an April 2011 publication date. That seemed to me like more than a reasonable amount of time---2 years---to prepare a proposed regulation on a well-known hazard, by an agency with loads of mining-occupation exposure data and front-line knowledge of feasible controls.

In the Department's subsequent agendas however, (Dec 2009, May 2010, Dec 2010, July 2011) I noticed a couple of things. First, MSHA said it "intends to use OSHA's work on the health effects and risk assessment, adapting it as necessary for the mining industry." That didn't trouble me, per se, I was pleased actually to read it. No point in MSHA using its resources and spending precious time to recreate documents already prepared by another agency. Furthermore, OSHA's risk assessment had been shared with experts and their peer review was completed in January 2010.

But a second issue had me worried. With each new regulatory agenda, as OSHA's estimated date for proposing a rule was pushed further into the future, so did MSHA's proposed date. MSHA initially projected proposing its rule in April 2011, later they said August 2011. Now it's nearly December and there's no sign that a rule is forthcoming.

Worse yet, OSHA submitted its draft proposed rule to the White House's Office of Information and Regulatory (OIRA) for review in February 2011. It's been stuck there now for 9 months with interest groups lobbying OIRA to insist OSHA modify the proposal before it is released publicly, or withdraw it altogether. Some powerful individuals in the White House have obviously been influenced by the rule's critics. So far, they have prevented OSHA from taking the next step to actually propose a silica rule and begin the public comment period. I fear the Administration's reticence about OSHA's silica rule is tainting MSHA's progress on its pwn proposal silica rule. I worry that some powerful individual in the Administration---- whose knowledge about this hazard and occupational health law is a only a fraction of the expertise in the Labor Department----are not too eager to see an MSHA rule on the same topic.

There is no more critical time for MSHA to propose a rule on respirable crystalline silica, especially if the Admininstration wants to make good on its promise to end black lung disease. The scientific evidence indicates that tackling dust diseases of the lungs for U.S. mine workers requires addressing both respirable coal and silica dust. MSHA proposed a rule a year ago to address miners' exposure to coal dust and the health effects caused by it, and that rulemaking continues. The major coal companies and their trade associations oppose MSHA's proposed approach. One argument (of the many) being used by the mining industry to try to derail the MSHA proposed rule on coal dust is insisting that crystalline silica is the real problem (e.g., here, here, here.) And thus, some are urging MSHA to withdraw the coal dust rule altogether (e.g., here, here, here, here, here).

MSHA should call the mining industry's bluff, embrace their argument about crystalline silica and expeditiously propose a rule to address miners' exposure to it. There's no reason for MSHA to wait in the wings for an OSHA proposal when MSHA's has a proven track record of promulgating new regulations to protect workers' lives.

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