February 27, 2007 The Pump Handle 0Comment

By David Michaels

The handcuffs President Bush recently imposed on regulatory agencies continue to be the focus of public attention. (We’ve compiled a listing of posts on the Executive Order and its nefarious implications). Members of Congress, along with public health and environmental advocates, are now considering legislative approaches to overturning these new requirements.

Media attention is criticial for building political will to address this issue. Robert Pear’s New York Times piece (subscription-only access) drew attention to the Executive Order’s implications, and a now we’re beginning to see articles that examine the specific kinds of agency activities likely to suffer.

Yesterday, American Prospect Online published a piece by Genevieve Smith, reviewing some of ways the new policies will slow down or stop public health and environmental protections. Smith reports on the detrimental effects of the new requirement that agency guidance documents undergo OMB approval, using an example that comes right from Celeste Monforton’s Pump Handle post:

To understand the implications of these new requirements, consider recent guidance issued by the Department of Labor’s Mine Safety and Health Administration (MSHA). Last June, Congress passed a law in response to the Sago mine incident requiring underground breathable air supplies for miners. Congress was vague on the details of how mine operators should comply with the law, and earlier this month, MSHA released a nine-page memorandum providing industry with several ways that mine operators could safely provide up to 96 hours of breathable air for trapped miners. Compressed air can pose its own risks of explosion, and the mining engineers at MSHA were careful to provide technical details on how best to safely store compressed air cylinders, bury air lines, and explain other methods of providing breathable air.

Under the new executive order and OMB bulletin, MSHA’s memo could have been subjected to internal review, a public comment period, and approval by OMB’s Office of Information and Regulatory Affairs before MSHA could send the notice to mine operators. While the executive order sets clear time limits on OIRA’s review of regulations, no such provision exists for guidance documents, giving OIRA license to hold up guidance indefinitely — a loophole that is already troubling members of Congress. In the meantime, the mining industry is still required to comply with the new law, only without the technical advice of the agency.

“People at the agencies are the ones who are most able technically to write up a document and have it make sense for mine operators,” said Celeste Monforton, a senior research associate at George Washington University, who spent 11 years at OSHA and MSHA. “I’m not sure how much value is added by having a technical document like that go to OMB where there aren’t any mining engineers.”

There still is time to revoke the new requirements. The effective date for the new Executive Order (180 days after January 24) and Good Guidance Practice Guidelines (180 days after January 18) give us plenty of time to identify and publicize the consequences of these new constraints.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.

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