By Celeste Monforton 

Last month, David Michaels wrote about a newly amended executive order from President Bush that gives the executive branch (through the Office of Management & Budget) more control over the work of federal agencies. This order seems designed to constrain the regulatory activities of federal agencies like EPA, FDA, and OSHA in fulfilling their Congressionally mandated duties – protecting us from hazards in our air, food, and workplaces. It places additional burdens on agencies attempting to issue new regulations or guidance, and it gives the OMB more authority over the agencies’ rulemaking. (For more details, see OMB Watch’s analysis.)

Members of Congress also seem to be concerned about this move to place more regulatory power with the executive branch. Tomorrow, the House Committee on Science & Technology will hold a hearing entitled “Amending Executive Order 12866: Good Governance or Regulatory Usurpation?”

One of major concerns that health and safety advocates have about this executive order is the scope of the activities that will become subject to the new requirements. The order applies to “significant guidance documents” as well as to regulatory action, and that category could be interpreted to apply to much of what agencies produce. In its comments (PDF) on a related OMB document called “Proposed Bulletin on Good Guidance Practices,” the group Citizens for Sensible Safeguards noted that “significant guidance documents” could include a wide range of materials, including an EPA database that provides the public with risk information on toxic chemicals, an EPA website that gives water utility companies information on removing arsenic from drinking water, and USDA’s advice to consumers about proper temperatures for cooking meat.

The US Dept of Labor’s Mine Safety and Health Administration (MSHA) frequently issues guidance documents in its efforts to protect coal, metal and non-metal mineworkers from workplace safety and health hazards.  MSHA’s “program information bulletins” (PIBs) provide guidance to mine operators and miners about newly recognized hazards or offer an interpretation of MSHA policy.  These PIBs have been issued by MSHA to mine operators for decades and are a critically important tool for MSHA to get timely information to the mining community. Here two examples from the last two months:
 
Breathable Air Under the MINER Act
On Feb 8, 2007, MSHA issued a PIB giving mine operators information on ways to provide extended amounts of breathable air (up to 96 hours) to miners trapped underground in an emergency.  The requirement to provide additional sources of breathable air for trapped miners is required by the MINER Act of 2006 (“Mine Improvement and New Emergency Response Act of 2006”.)  The legislative language was not sufficiently specific, however, so some mine operators were confused about how to comply with the law’s requirements.  MSHA’s PIB and appendix (total 9 pages) give mine operators specific guidance and diagrams on how to store safely compressed air cylinders (which can be an explosion risk in themselves in an underground mine), create secure airlocks, bury compressed air lines, among other methods to provide trapped miners with extended supplies of breathable air. 
 
Hazardous Rescue Devices
On January 19, 2007, MSHA issued a PIB to alert miners and mine operators of a potentially serious hazard involving a certain self-contained self-rescue device (emergency breathing apparatus.)  The unit contains a chlorate candle which activates the oxygen when a miner starts-up the unit in an emergency.  MSHA received information that a similar device manufactured by the same company had several instances in which the chlorate candle sparked when the device was activated.  (A spark in a coal mine is a deadly combination.) MSHA’s PIB provided information to mine operators about the serial numbers and manufacturer dates of the potentially affected units.

How long would it have taken MSHA to get these guidance documents through the new layers of requirements – and how many mineworkers would have suffered from lack of information in the meantime?