Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.
Back from vacation and checking in with people to see what’s going on at the agency charged with assuring the safety and health of American workers. And the answer is not much…and a lot.
The Mysteriously Missing Assistant Secretary: The Senate Health, Education, Labor and Pensions committee yesterday approved the nominations of a Deputy Secretary (Patrick Pizzella), the head of Wage & Hour (Cheryl Stanton), and the head of MSHA (David Zatezalo), all on identical party line votes (all the R’s voted for the nominees, and all of the Dems voted against.) Now the full Senate will need vote on their confirmation, and all are expected to be confirmed. Until that happens, Secretary of Labor Acosta remains the only confirmed Trump appointee in the entire Department of Labor.
But what about OSHA? Now, only nine months after Inauguration Day, rumors have again surfaced from various sources that a nomination to head OSHA is imminent and that the nominee will be FedEx attorney Scott Mugno. But this is the third or fourth time I’ve heard rumors that a nomination is about to happen, with nothing to show for it. As former President George W. Bush famously said, “Fool me once, shame on you. Fool me again….Won’t get fooled again.” Or something like that.
Meanwhile, Back in the OSHA Front Office: Deputy Assistant Secretary (and acting Assistant Secretary) Loren Sweat is operating alone. And by alone, I mean alone. Several sources have confirmed that Acting (career) Deputy Assistant Secretary Tom Galassi and Kim Locey (who was sort of doing my old job) have been sent back to the third floor to resume their old positions (Galassi as head of Enforcement, and Locey as head of Administrative Programs.) And replacing them are …. no one. That’s right, there is literally no one in OSHA’s front office to manage the 2,300 person agency except Ms. Sweatt.
Now maybe she’s found the secret sauce, but when I was there we had an Assistant Secretary, a political deputy (me) who managed the headquarters staff, did the political stuff (Congress, interagency, etc.) and other policy and administrative duties as assigned, a career Deputy who managed field operations, a Chief of Staff, and for most of the time a policy director (as well as various substantive support people depending on the issues and level of work at the time.).And we were all there at least ten hours a day and often more.
Maybe it’s easier if you’re not actually trying to do anything except stay out of trouble. But with the huge amount of policy, political, administrative, budget, personnel and other issues that OSHA management has to deal with every day, even staying out of trouble is difficult without any staff. So we’ll see how that works out for her.
Repopulation: The good news is that several sources far and wide have confirmed that OSHA has been given permission to hire CSHOs (inspectors) after a months-long hiring freeze. This is good news because if the agency really wants to enforce the law, it needs people to enforce it. Rumor has it that inspection numbers were down in FY 2017, but we won’t really know that for a while. Still outstanding is the whether lifting the hiring freeze applies to anyone except CSHOs — field managers (Area Directors and Assistant Area Directors) or Compliance Assistance Specialists who help educate employers and workers, and handle cooperative programs like the Voluntary Protection Program. Of course, the agency is operating on an unknown budget for this year. So far, they’re operating on a Continuing Resolution (CR). The House has voted to cut OSHA’s budget significantly, especially enforcement, while the Senate basically holds the budget flat. Those in the know are betting on a CR (or flat budget) for the entire year. But even a flat budget means less money once Congressionally mandated pay raises and fixed costs are factored in.
Protections: The U.S. Court of Appeals for the District of Columbia Circuit heard arguments on the silica standard a couple of weeks ago. The Department of Labor defended the standard and all observers say that the arguments in favor of the standard went quite well. The highlight (or lowlight) came when industry lawyer William Wehrum (also nominated to head EPA’s Office of Air and Radiation) defended the old, unsafe exposure limit claiming that “People are designed to be in dusty environments and physiological mechanisms are sufficient to address low levels.” That was rather shocking news to scientists and workers suffering from silica-related disease — and apparently to the judges. OSHA, by the way, currently plans to start fully enforcing the standard starting October 23. For the past month, the agency had allowed employers to violate the standard as long as they were operating “in good faith.” As of next week, not even good faith will save employers who aren’t protecting workers. Unless OSHA postpones full enforcement again.
Meanwhile, those of you who look forward to OSHA regulatory hearings will be disappointed that OSHA will not hold a hearing on the agency’s proposal to weaken beryllium protections for construction and maritime workers. OSHA only holds regulatory hearings when someone requests one, and the only party to request a hearing, the United Steelworkers, have withdrawn their request. According to Inside OSHA, Wayne Ranick, USW’s communications director, said that “We withdrew because we didn’t think it was necessary. We still have the same concerns but decided the record was fine as it was established.” And, of course, the faster OSHA produces a revised standard, the faster the unions can challenge it in court. Oh well, judging from how much this administration likes regulatory protections, I’m sure there will be another OSHA hearing on a new standard very very soon. Right.
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