Safety and Health Law in the Obama Administration
Producers should prepare to deal with the labor advocates’ dream team.
by Henry Chajet
While Republicans and moderate Democratic Congressional members are expressing concerns over the economy and job losses as well as objecting to the costs and impacts of “cap and trade” carbon taxes and health care taxes, President Obama is filling key positions at the Department of Labor with vocal advocates of increased regulation and enforcement. In the middle of the worst economic crisis since the Great Depression, with unemployment approaching 10 percent nationally and exceeding 20 percent in segments of industrial America, the President’s Department of Labor appointees will be put to the test of saving and creating jobs, while striving to achieve their long-held regulatory goals.
Secretary of Labor Hilda L. Solis, a former labor advocate and Congresswoman from California, quickly announced that there is “a new cop in town.” Secretary Solis and the White House followed the announcement with the appointment of Joe Main, a career United Mine Workers official, to be the Assistant Secretary of Labor for the Mine Safety and Health Administration (MSHA). Dr. David Michaels, a career academic, health regulation activist, and Clinton Environmental Protection Agency appointee, was nominated to be Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA). Dr. Greg Wagner, the former head of the respiratory division of the National Institute for Occupational Safety and Health (NIOSH) in West Virginia, will reportedly be named Main’s deputy assistant secretary at MSHA. Jordan Barab, appointed Deputy Assistant Secretary of OSHA, and interim OSHA Chief pending the confirmation of Michaels, was a key player on the Democratic Congressional staff who worked both on OSHA and MSHA legislation and regulation during his tenure on the House Education and Labor Committee staff. While Main and Michaels require Senate confirmation, there is little doubt that the Democratic majority will confirm them. Little public opposition is anticipated, given the political reality. While there certainly will be other members of the “Dream Team” at the DOL, the philosophy and mission of President Obama’s DOL is quickly being defined by public record of the appointees.
The MSHA and OSHA assistant secretary nominees could not be more different in their educational backgrounds and experience: one is a professor at a prestigious Washington, D.C. university who became a scientific advocate for regulation, both inside and outside the government; the other is a career labor union safety official, educated in the real world and at the mine safety academy in Beckley, W.Va., who spent his career encouraging the adoption of more stringent safety and health standards than currently are on the books. Regardless of their personal differences, they share a common, unyielding commitment to strict regulation and enforcement, which is evident in a wealth of prior public statements.
Dr. Michaels testified in Congress that:
- “There are huge gaps in OSHA standards and, for the chemical hazards that OSHA does regulate, the permissible exposure limits are distressingly out of date.”
- “OSHA has abandoned the general duty clause. It is time for the agency to start using it again.”
- “OSHA’s first priority should be to issue a Comprehensive Workplace Safety and Health Program Standard.”
- “Congress should authorize OSHA to adopt the current Threshold Limit Values List.” (This comment was made after defending the American Conference of Governmental Industrial Hygienists authors against charges of secret rulemaking.)
- “Without reopening the OSH Act, Congress could step in using the appropriations process, for example, to require OSHA to issue the standards on beryllium and silica…along with any other standards that are partially completed.”
Joe Main testified in Congress that there is need for the following changes:
- Increased inspections and scrutiny of the work places;
- Improved health and safety standards to protect miners;
- Rules to control the unhealthy diesel exhaust;
- Rules to protect…from the harmful chemicals and agents; and
- Rules to overhaul the seriously flawed coal mine dust program.
Dr. Greg Wagner is well suited to assist both Main and Michaels in authoring and promulgating stricter occupational health standards dealing with substances such as coal and silica, having helped author the NIOSH recommendations for reducing the existing standards and adding new protective mandates.
Jordan Barab, OSHA’s interim leader who will serve as Michaels’ deputy, was a key Congressional staff member during OSHA and MSHA Congressional hearings and investigations. He was an author of recent OSHA and MSHA legislation, while working for Rep. George Miller (D-Calif.), the chairman of the House Education and Labor Committee and a close confidant of House Speaker Nancy Pelosi. Barab is as well suited to lead the Administration’s safety and health congressional and political efforts as Michaels and Wagner are to justify their regulatory scientific efforts, and as Main is to reach out to the nation’s union leadership for continued support.
If confirmed, both Main and Michaels come to their jobs with well-publicized notions about the federal agencies, their personnel, and the employers they will regulate, all of whom they’ve criticized either impliedly or directly for years. Both favor far more regulation and enforcement than we’ve ever seen in the history of MSHA and OSHA.
Following the massive increases in MSHA civil penalty enforcement that have already taken place over the last two years, the next round of OSHA and MSHA enforcement increases likely will be in criminal prosecutions and OSHA penalties, common demands in Congressional testimony throughout the last decade, and leading provisions of pending legislation.
While the new risks are not yet defined clearly, they are visible on the horizon. Many career MSHA and OSHA personnel have acknowledged that government resources are limited and that the industry and the workforce must be motivated to secure employee safety, without reliance on government. However, initial messages from the new DOL seem to oppose cooperative, voluntary programs with industry. Instead, both nominees likely will embrace another complaint expressed by labor witnesses at Congressional hearings that voluntary programs are not effective and distract from the punitive enforcement programs, which should be the focus of OSHA and MSHA.
I expect to see not only silica, coal dust, and other health exposure standards reduced and mandates expanded, but injury and illness recordkeeping investigated (to respond to reporting “cheating” allegations and suspicions); safety program mandates created and expanded; ergonomics mandates created through the general duty clause and reporting mandates; and for million dollar penalties to become routine. One question for the new DOL is how it will consider and take into account the costs of its actions on the faltering economy? Without such consideration, the political price of the new DOL agenda could be very high and the White House may be forced to intervene.
While both MSHA and OSHA define their roles in the Obama Administration, aggressive action to protect the industry and its personnel from increased enforcement and regulatory risks should be considered. This is a good time to invest in the following:
- Safety equipment and program upgrades;
- Training on how to handle MSHA and OSHA inspections;
- Training on management rights;
- Compliance and recordkeeping audits and corrective actions;
- Government relations and trade associations;
- Initiatives with local and regional MSHA/OSHA offices;
- Challenges to inappropriate enforcement and penalties;
- An increased focus on the technical impossibility of accurately measuring silica and other exposure limits at low regulatory levels;
- An increased focus on the need for improvement in the risk assessment process used to justify new standards;
- Employee discipline for safety rule violations; and
- For non-union sites, understanding the use of MSHA/OSHA in organizing drives.
Before the regulatory machine ramps up, wise operators will reinforce their own efforts to improve worker safety, ensure regulatory compliance, and seek assistance in these areas.
Henry Chajet is a partner at Patton Boggs LLP. He counsels and represents clients in occupational safety and health matters, focusing on crisis management, standard setting, liability prevention, regulatory and congressional proceedings, and design and review of product stewardship programs. Chajet may be reached via phone at 202-457-6511 or via e-mail at email@example.com.