Trump Administration Continues to Attack Worker Protections

The New York Times takes another look at Obama administration worker protections that are being “revisited” in the early months of the Trump administration. Most of these stories — the Administration’s attempt to roll back the Beryllium rule’s coverage of construction and maritime industries, the delay in enforcement of the silica standard and proposed elimination of the Chemical Safety Board and the Susan Harwood Training Grant Program — are very familiar to Confined Space readers.

But I want to highlight or further explain a few parts of the article.

Lobbyist Influence

First, we have former industry lobbyists who are now inside the administration doing favors for their former employers:

During the early months of the Trump administration, a former lobbyist for an industry group that has opposed the beryllium, silica and record-keeping rules served on the transition team at the Department of Labor, which oversees OSHA. That official, Geoffrey Burr, who has since moved to the Department of Transportation as chief of staff, had been a lobbyist for the Associated Builders and Contractors, which represents nonunion construction companies.

“The President and his administration care very much about worker safety, but believe the Obama administration’s approach was counterproductive”

But never fear, the White House cares about workers, “very much,” according to a White House spokesperson: “The President and his administration care very much about worker safety, but believe the Obama administration’s approach was counterproductive, and we think we can do better.” He added that decisions to repeal and reduce specific OSHA regulations had not been made.

Eleventh Hour Regulations?

A little clarification of this issue:

Some workplace experts and advocates say the Obama administration’s decision to wait until the eleventh hour to finalize some major rules made them vulnerable.

“Because they did it so late in the game, they left the rules open to change,” said Dr. Lee S. Newman, a pulmonary expert at University of Colorado in Denver, who helped uncover worker deaths caused by beryllium.

Experts like Dr. Newman also fear that a widespread regulatory rollback is beginning, and possible changes to the beryllium rule are particularly frustrating to them because it had taken so long to get the new standards in place.

It’s true that there were several OSHA standards and regulations issued at “the eleventh hour,” but that, unfortunately, is how the regulatory process works. Obama’s agencies have been falsely criticized for issuing “midnight regulations,” giving the impression that we threw a bunch of half baked stuff onto the scoreboard right before we were forced to vacate our offices. Actually, however, the “eleventh hour” protections were an understandable outcome of the length of time it takes OSHA to issue standards.  The GAO recently conducted a study that found that it took OSHA an average of 7 years to issue a standard.  And that’s a rather conservative estimate. OSHA started rulemaking on the silica standard, for example, in 1997. It was issued last year.  And work began on the beryllium standard, which was issued last December, in 1998. But scientists had been citing strong  evidence that OSHA should tighten these standards since the 1970’s.

Given the length of time it takes to issue a standard — a period often lasting longer than an 8-year administration — it’s no wonder that some standards reach their normal conclusion toward the end of an administration.  But unless we’re going to implement the OSHA version of the Garland Rule (e.g. that a President isn’t allowed to do anything during the last year of his or her administration), there’s nothing shifty or unethical about late standards or regulations; it’s just where the finish line ends up in the normal course of events.

Beryllium Coverage of Construction and Maritime Workers

Regarding the administrations proposed rollback of the Beryllium standard’s coverage of the maritime and construction industry, the article states that “Maritime and construction companies were not included in the original proposed rule in 2015, but the agency soon expanded the standard to include them because of data showing the potential dangers of coal slag, a gritty, glass-like material containing trace levels of beryllium that is used to sandblast ships, tanks and other structures…”

The bigger voice of business that is reversing hard-won victories for safety advocates means that workers are losing their protections. And that means that more will get sick, more will get injured and more will die.

This may give some people the impression that OSHA somehow sneaked coverage of the construction and maritime industry in at the end without warning anyone. This argument has been used by the industry and Secretary Acosta to argue that the standard needs to be revisited because the construction and maritime industry’s had no “notice” that OSHA was considering covering them. A failure to give “notice” to an affected industry would indeed be a bad thing and illegal. It would also be an “alternative fact” in this case. OSHA did, in fact, provide notice to the construction and maritime industries. As we have discussed before, coverage of shipyards and maritime were not in the regulatory text of the 2015 proposed rule, but there are numerous places in the proposal’s preamble where coverage of shipyard and construction workers was presented as an alternative, and comments were requested.  The maritime industry weighed in (and was generally supportive), while the construction industry apparently chose not to participate in the hearings or comment period, or perhaps they failed to notice the notice.

In fact, as the article points out, the main objections to coverage of construction and maritime come from the sellers of coal slag, which  is used for abrasive blasting in the construction and maritime industries, and contains beryllium.  The maritime industry has testified that it is moving away from hazardous coal slag to using safer alternatives like glass and garnet. That may make sense if your primary goal is to protect workers, but not if your goal is to sell more coal slag. And the coal slag voices are clearly being heard in the White House and Congress.

Since President Trump’s inauguration, they have become far more aggressive, spending at least $60,000 to lobby OSHA through an industry group called the Abrasive Blasting Manufacturers Alliance, public records show, and enlisting two former congressmen to fight for them. The group’s listed address in Camp Hill, Pa., is also the headquarters of the country’s largest vendor of coal slag, Harsco Corporation, a publicly traded company.

The title of the article, “Under Trump, Worker Protections, Are Viewed With New Skepticism” is somewhat of an understatement. The subtitle actually says it best: “There’s a relaxation in the approach to occupational safety and business is getting a bigger voice, while hard-won victories for safety advocates are being reversed.”

The problem is that this is not a debating society.  The bigger voice of business that is reversing hard-won victories for safety advocates means that workers are losing their protections. And that means that more will get sick, more will get injured and more will die. That is the price this country will pay for “new skepticism.”

Alex Acosta Beryllium Deconstructing the Administrative State Department of Labor OSHA Regulations and Standards Regulatory Process Silica Trump

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