September 26, 2011 Celeste Monforton, DrPH, MPH 1Comment

Funny how a bill touted by Members of Congress as one that will “cut red tape” will actually add a dozen new steps before a rule to protect people’s health or safety is put in place. Last week, several Republican and Democratic Senators and Representatives did just that when they introduced the “Regulatory Accountability Act” (S.1606, H.R. 3010). As Daniel Rosenberg at NRDC’s blog explains these lawmakers pitch their bill as moderate and reasonable, but that’s far from the truth.

“The legislation proposes a sweeping rewrite of the Administrative Procedure Act, which has been the cornerstone of agency rulemaking for more than 60 years. ..[T]he bill makes it virtually impossible to protect the environment, the food we eat, the water we drink, the air we breathe, or protect our children from exposure to toxic chemicals. If enacted, the bill would shift power from agencies whose mission is to protect the public to powerful corporations whose interest is the bottom line, not public health and safety.”

Members of Congress who are on the anti-regulatory bandwagon are quick to spout off about the cost of federal regulations. Rarely, and I mean rarely do they mention the corresponding benefits to individuals and society at-large. They insist that these rules are “job-killers” but provide no evidence to substantiate their claims.

Last year the Labor Department issued two significant worker safety rules: one to improve crane safety (by OSHA), the other to prevent dusts explosions in underground coal mines (by the Mine Safety and Health Administration (MSHA)). I’d challenge the congressional sponsors of this bill to explain how these two regulations hinder the economy. Coal miners are losing their jobs because their workplace didn’t blow up?? Construction workers are losing their jobs because the crane didn’t come crashing to the ground??

Members of Congress who support this bill say they want to “cut red tape” created by federal regulations. To me, that just means giving business more freedom to pollute, poison, injure and rip-off the public, and not be held accountable. And the real irony of this bill is all the NEW requirements it will impose on agencies that are charged with protecting the public’s health and safety. I count at least two dozen new steps that agencies like EPA, OSHA and MSHA will have to follow. This red tape will do exactly what the bill’s sponsors intend—-obstruct these agencies’ ability to advance new health and safety protections for workers, children, susceptible groups, and communities.

The bill’s sponsors don’t stop, however, with proposed regulatory action. They also want to hinder these public health agencies from issuing policy statements, guidance documents, or technical information. Every year, for example, MSHA provides mine operators with dozens of information bulletins to alert these employers to hazards, remind them of regulatory requirements, and provide tips to enhance worker safety. Following the drowning death of a worker at a coal loading facility on the Ohio River, MSHA issued a bulletin reminding mine operators of the applicable safety regulations, including fall protection and lifejackets. The bulletin also contained common sense precautions (which are not MSHA regulations,) such as to use adequate lighting when working after dark and set up a communication system when persons work alone. Who would oppose this kind of worthwhile information?

The sponsors of this bill, that’s who.

Under the proposed Regulatory Accountability Act, MSHA’s one page information bulletin would have had to be reviewed and approved by the Office of Management and Budget—-by individuals who are not safety experts—-before it is shared with mine operators and miners. Talk about red tape! Not only that, MSHA would have had to prepare a cost-benefit analysis on the provisions of the guidance document AND on any alternative guidance that the agency decided not to include in it. Do these Members of Congress really think we need to quantify the costs and benefits of a suggestion to use adequate lighting when working at night??

But their anti-regulatory nonsense doesn’t stop there. These cost-benefit analysis are supposed to include calculations of direct costs, indirect costs, cumulative costs, impact on jobs, impact on economic growth, impact on innovation, and impact on economic competitiveness. Do we really need economists to quantify the effect on our nation’s economic competitiveness when workers are required to wear a life jacket when working near water?

Just last week, OSHA released a document to help construction contractors prevent injuries from nail guns. These piercing injuries to hands, legs, feet and even heads are responsible for 37,000 emergency room visits every year in the U.S. I wrote previously that most sales personnel know little about the equipment’s safety features and why certain devices are inherently safer than others. SInce an ounce of prevention is worth a pound of cure (B. Franklin), OSHA and CDC’s NIOSH teamed-up to prepare the 20-page “Nail Gun Safety” booklet which includes a number of practical steps to prevent nail puncture injuries.

In a prominent spot on page 2 of the document, the agency explains:

“This guidance document is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards [and other regulatory requirements]. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

But like the MSHA information bulletin mentioned above, if the Regulatory Accountability Act were in place, a helpful, safety-focused document like this would not be made available to the public until OSHA prepared a cost-benefit analysis on the recommendations contained in it (and even those the agency considered but didn’t include.) How ludicrous.

But it gets worse. There are provisions in this damaging legislation that attempt to supercede the existing statutes of the federal public health agencies. The OSH Act of 1970 and the Mine Act of 1978 have specific mandates for the adoption of health standards, including that the rules be based on the “the best available evidence” and “to the extent feasible.” There is a 40 year history of judicial decisions interpreting these laws, as well as those administered by the Environmental Protection Agency, including numerous decisions of the U.S. Supreme Court. In one fell swoop, this bill would supercede those precedents.

I hope the Obama Administration releases very soon a strong statement in opposition to this bill. I heard the President say on September 8:

“But what we can’t do – what I won’t do – is let this economic crisis be used as an excuse to wipe out the basic protections that Americans have counted on for decades. I reject the idea that we need to ask people to choose between their jobs and their safety. I reject the argument that says for the economy to grow, we have to roll back protections that ban hidden fees by credit card companies, or rules that keep our kids from being exposed to mercury, or laws that prevent the health insurance industry from shortchanging patients. I reject the idea that we have to strip away collective bargaining rights to compete in a global economy. We shouldn’t be in a race to the bottom, where we try to offer the cheapest labor and the worst pollution standards.”

There is nothing in this bill consistent with that message, and I want to hear him say that loud and clear.

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