The OSHA Fairness Coalition weighed in with some fightin’ words yesterday, expressing “unequivocal opposition” to a mine safety bill scheduled for mark-up in the House Education and Labor Committee.  This is the same group that opposed the “Popcorn Workers Lung Disease Prevention Act” when it successfully moved through Congress in September.  At that time, we wondered what the Messenger Courier Association of the Americas, or the Independent Electrical Contractors, or the Roofing Contractors Association had to do with butter-flavoring agents, but whatever, the Chamber of Commerce and National Association of Manufacturers are masters at putting together these anti-worker safety lobbying groups.

Their letter of “unequivocal opposition” to the Miner Health Enhancement Act (HR 2769) uses all the tired-catch phrases we’ve heard for years from those opposing more protective worker S&H standards, policies and even guidance documents.

It says the bill:

• would “completely override the normal rulemaking process” 
• is “eviscerating the protections and benefits of the rulemaking process”
• is “trampling on the rulemaking process”

As if the current process is sacrosanct. 

Isn’t it interesting that these employer groups put on a pedestal a rulemaking system that is so constipated that OSHA’s only issued one health standard in the last 10 years?  And the safety rules issued by MSHA were mandated by Congress in the wake of the 2006 coal mining disasters.

The OSHA Fairness Coalition seems to be in a tizzy about provisions in the bill that would require MSHA to adopt NIOSH’s recommended exposure limits (RELs) and permissible exposure limits (PELs) which would be enforced by mine inspectors.  The sponsors of the bill (Miller (D-CA), Rahall (D-WV), Chandler (D-KY) and others ) recognize that MSHA’s PELs date back to 1973 (ACGIH TLVs, 1973 edition) and updating them based on current health effects information would be next to impossible using the current rulemaking system.  The bill provides an option to follow the “normal” (i.e., molasses-slow) process if:

an interested party as “credible evidence that feasbility [of complying with the exposure limit] may be an issue for the industry as a whole.”

Sounds reasonable to me.

The Coalition’s letter also asserts:

• the bill would “give potentially bad science the force of law”
• and would impede “the regulated community” from challenging “faulty scientific assumptions and biases”

They also seem to be in a dither about a provision that would require MSHA to adopt OSHA’s asbestos standard (29 CFR 1910.1001).  As I’ve noted in a previous post, MSHA’s current permissible exposure limit for asbestos is 20 times higher than OSHA’s limit (i.e., 2.0 fiber/cc compared to 0.1 fiber/cc.)  MSHA has NO comprehensive rule to protect mine workers from exposure to asbestos, whether the asbestos exposure comes from the ore itself (e.g., tremolite asbestos seams in vermiculite deposits) or from asbestos-containing materials in building supplies (e.g., insulation around pipes) or vehicle parts (e.g., asbestos containing brakes, clutches or gaskets.)  

After the public health disaster in Libby, Montana came to light because of Andrew Schneider’s dogged reporting, MSHA made a commitment in November 2000 to issue a health protective rule for asbestos-exposed mine workers.  We’ve all seen before this pattern of worker S&H rules promised but never delivered.  The bill’s sponsors recognize it too.   The Coalition makes it sound like an asbestos rule would hit mine operators like a curve ball, saying the bill

“…would mandate that MSHA adopt the standard for exposure to asbestos developed by OSHA without any opportunity for those affected by this standard to comment, or contribute input to the process, or without any analysis by MSHA to determine whether this is an appropriate and feasible standard…”

Well, a rule was proposed, public hearings held, comments received and all that jazz; the years are passing by and miners can still be legally exposed to airborne levels of asbestos 20 times higher than any other U.S. workers. 

The Coalition also gets it wrong on another provision of the bill concerning MSHA’s Hazard Communication Standard. This fundamental workers’ right-to-know rule was watered down in the early part of Secretary Chao’s tenure at the Labor Department, and the bill would simply revert back to the more protective rule issued in October 2000 during the Clinton Administration.  (More on this issue here and here.) 

Finally, the Coalition suggests that the bill is somehow an assualt on the pillars of our democracy, saying it: 

• “is contrary to the fundamental principle of our government”
• “is the very antithesis to the goal of open transparency associated with good government”
• “would establish a horrible precedent”

Last time I checked my junior high civics book, we have three branches of government.  The legislative branch has the authority to make laws, which is what the bill’s sponsors are attempting with HR 2769 .  In fact, one could argue that if OSHA and MSHA are not fulfilling their duties as envisioned by Congress in the agencies’ original authorizing legislation, the Congress may feel particularly compelled to pass new mandates.

Members of the Coalition, such as the National Oilseed Processor Assoc., the American Composite Manufacturers Assoc., or even the Chamber of Commerce, may not realize that in the 1969 Federal Coal Mine Health & Safety Act, there was no holy rulemaking process to set the limit for miners’ exposure to coal mine dust.  Instead, Congress went right to the source–directing each coal mine employer to comply with the PEL.

“Effective on the operative date of this title, each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere, during each shift…at or below 3.0 mg/m3.”*

Hmmm….  Might Congress use this model to reduce all U.S. workers’ exposure to respirable silica (NIOSH REL: 0.05 mg/m3), and beryllium (NIOSH REL: 0.0005 mg/m³ ) by mandating these PELs are achieved in three years?  I’ve great faith in good old fashioned ingenuity, and believe that most employers, consulting with their workers, would figure out a feasible way to reduce exposures to at or below these limits.   Before the 1969 Coal Act was passed, mine operators said it couldn’t be done, the industry would collapse.  Well, they did and it didn’t.  

Are we bold enough to do the same for this generation’s workers?

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*Note: After three years, the exposure limit for respirable coal mine dust dropped automatically to 2.0 mg/m3.