July 29, 2008 The Pump Handle 0Comment

Thanks to Carol Leonnig at the Washington Post and her confidential sources, we can see the true measure of Secretary of Labor Elaine Chao’s disrespect for U.S. workers, embodied in her proposed rule on risk assessement.  I blogged first about this “secret rule” on July 8, with follow-ups (here and here), but the challenge for advocates of worker rights and public health is articulating why this issue is important:  How might it affect protections for my husband’s health, my sister’s health, my neighbor’s health.

My friend and retired Department of Labor colleague Pete Galvin, who just finished a one-year assignment working for the House Education and Labor Committee, starts us on the right path.  In an op-ed published today in the Louisville-Courier Journal, “Rule would be setbackfor miners,” Galvin explains how Secretary Chao’s ideas for risk assessment will have real adverse consequences for coal miners’ health.   

The Secretary’s spokesman and her other minions are trying to masquerade this risk assessment proposal as “good government” and “sound science,” but looking at just two provisions we see through their charade.

First, they propose adding a new mandatory step at the front-end of the rulemaking process which, by my estimates, will delay protections for workers by at least 2-3 years.  Specifically, the rule would require OSHA and MSHA to issue an Advanced Notice of Proposed Rulemaking, for all health standards, even for well-understood contaminants like coal mine dust and silica.  This extra step does nothing to advance health protections for workers (but didn’t we really know this all along– that DOL’s interest has been protecting economic and business interests, not the working class?) 

Second, the Secretary plans to reinterpret the prevention framework established by Congress when it established OSHA and MSHA. The OSH Act of 1970 and the Mine Act of 1978 specifically require the Secretary of Labor to set standards dealing with

“toxic materials or harmful physical agents” so that they protect against “material impairment of health or functional capactity…”

“even if such employee has regular exposure…for the period of his working lifetime.”

OSHA and MSHA have used this prevention-model for decades, relying on risk estimates which consider workers’ cumulative exposure to a contaminant, even up to 45 years of exposure. 

How does this play out in the real world?  Think about a coal miner who begins working at age 20 (or younger) and spends his entire career in the mines and retires at age 65.  By golly, that’s 45 years.  (How many of us thought we’d do some job for 5 or 10 years, and next thing you know, it’s 30 years later and we’re still at it?)

Under the Secretary’s proposal, health standards should be based on an AVERAGE number of years of exposure in an industry.  Tough luck if you are a worker stays in a career longer then the AVERAGE number of years.  (Sorry buddy, you’re out of the risk calculation—and good luck trying to get your work-related illness covered by workers’ comp.)

Galvin’s op-ed gives us some back story on the proposal, reminding us that the Secretary of Labor’s husband is Senate Minority Leader Mitch McConnell.

The Chao/McConnell team has been very persistent in its efforts to weaken mine health and safety.  The most recent effort was officially initiated this month by the Office of the Assistant Secretary for Policy in DOL, headed by Leon Sequeira, a former legal adviser to McConnell.  Sequiera reports directly to Chao. The office has no statutory authority for mine health or safety and no substantive or legal expertise on the subject.  Sequeira’s office does share a close working relationship with the White House office that President Bush established to review proposed agency actions.

When MSHA proposes a rule to protect miner health, the agency takes public comment for up to a year and holds hearings around the country so miners and mine operators can participate. This is generally preceded by a preliminary round of public comment and many meetings with stakeholders. But the McConnell team takes a different approach for weakening miner protections. The new initiative — which did not come from MSHA, but from the policy office — hasn’t been discussed in advance with miners nor listed on the department’s twice yearly agenda of rulemaking plans.  And reports indicate that it will apparently get only a month or so for public comment, and no hearings. Apparently, shortcuts are OK when the McConnell team says they are.

About coal workers’ pneumoconiosis, Galvin explains:

While the Chao/McConnell team is well aware that black lung has returned to exact its horrible toll on a new generation of miners…the department continues to ‘slow walk’ solutions right to the last day of the administration.  On one hand, the McConnell team opposes legislation passed by the House of Representatives that would adopt specific solutions to longstanding [respirable coal dust] problems. Their primary argument is that these matters are too complex for Congress and ought to be addressed through regulations issued by MSHA.

The McConnell team is responding to an energy-industry lobby effort that is short on facts and long on whining.  Of course, we all know that notwithstanding its excellent financial health at the moment, the mining industry in Kentucky may decline as the country and the world turn to wind power and other renewable energy sources. Nobody wants to see good jobs disappear or a tax base disappear or communities wither.

But preventing black lung and other serious diseases is not going to break the industry’s back.   …Taking care of this problem now will also save the taxpayers from the liability that companies will once again dump on the government if they go broke, and avoid uncountable pain and heartache for Kentuckians.

Again, our challenge as advocates for workers’ fundamental rights to safe and healthy workplaces and as public health practitioners is articulating why this alleged plan to “improve DOL’s risk assessment process” would actually quash OSHA’s and MSHA’s ability to issue health-protective rules. 

Identify your favorite group of workers—firefighters, welders, nurses, bus mechanics, whatever—put pen to paper, and do it NOW.

Note: A collection of documents related to DOL’s risk assessment proposal is posted on the SKAPP website www.DefendingScience.org, under “Case Studies” (here).


Celeste Monforton, MPH worked at the Department of Labor from1991-2001, including projects with Pete Galvin when earlier “risk assessment reforms” were being proposed and on MSHA iniatives to protect miners from health hazards related to diesel exhaust and noise exposure.

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