By Henry Chajet

While many Americans are expressing concerns over the economy and job losses, objecting to the costs and impacts of “cap and trade” and health care taxes, President Obama is filling key positions at the Department of Labor with vocal advocates of increased regulation and enforcement. In the middle of the worst economic crisis since the Great Depression, the president’s Department of Labor appointees will be put to the test of saving and creating jobs, while striving to achieve their long held regulatory goals.

Secretary of Labor Hilda L. Solis, a former labor advocate and Congresswoman from California, quickly announced that there is “a new cop in town.” Secretary Solis and the White House followed that announcement with the appointment of Joe Main, a career United Mine Workers official, to be the Assistant Secretary of Labor for the Mine Safety and Health Administration (MSHA). Dr. David Michaels, a career academic, health regulation activist and Clinton Environmental Protection Agency appointee, was nominated to be Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA). Dr. Greg Wagner, the former head of the respiratory division of the National Institute for Occupational Safety and Health (NIOSH) in West Virginia, will reportedly be named Main’s deputy assistant secretary at MSHA. Jordan Barab, appointed Deputy Assistant Secretary of OSHA, was a key player on the Democratic Congressional staff on OSHA and MSHA legislation and regulation during his tenure on the House Education and Labor Committee staff. There is little doubt that the Democratic majority will confirm them. The philosophy and mission of President Obama’s DoL is quickly being defined by the public record of the appointees.

Michaels and Main could not be more different in their educational backgrounds and experience: one is a professor at a Washington, D.C. university who became an advocate for regulation, both inside and outside the government; the other is a career labor union safety official, educated in the real world and at the mine safety academy in Beckley, W.Va., who spent his career encouraging the adoption of increasingly stringent safety and health standards. Regardless of their personal differences, they share an unyielding commitment to strict regulation and enforcement, and a wealth of prior public statements from which their intentions can be judged.

Dr. Michaels testified in Congress that:
•    “There are huge gaps in OSHA standards and, for the chemical hazards that OSHA does regulate, the permissible exposure limits are distressingly out of date.”
•    “OSHA has abandoned the general duty clause. It is time for the agency to start using it again.”
•    “OSHA’s first priority should be to issue a Comprehensive Workplace Safety and Health Program Standard.”
•    “Congress should authorize OSHA to adopt the current Threshold Limit Values List,” without opportunity for public comment.
•    “Congress could step in using the appropriations process to require OSHA to issue the standards on beryllium and silica…along with any other standards that are partially completed.”

Joe Main testified in Congress that there is need for:
•    Increased inspections and scrutiny of work places…
•    More stringent rules to control diesel exhaust…
•    Rules to protect…from the harmful chemicals and agents…
•    Rules to overhaul the seriously flawed coal mine dust program…

Dr. Greg Wagner is well suited to assist both Main and Michaels promulgate stricter occupational health standards, having helped author the NIOSH recommendations for reducing existing standards and adding new regulatory mandates.

Jordan Barab, OSHA’s interim leader who will serve as Michaels’ deputy, was a key Congressional staff member on OSHA and MSHA issues. He was an author of recent OSHA and MSHA legislation, while working for Congressman George Miller (D-CA), Chairman of the House Education and Labor Committee. Barab is as well suited to lead the administration’s safety and health, political efforts, as Michaels and Wagner are to justify their regulatory efforts, and as Main is to reach out to organized labor for continued support.

Both Main and Michaels have well-publicized notions about the federal agencies, and the employers they will regulate, all of whom they’ve criticized either impliedly or directly for years. Both favor far more regulation and enforcement than we’ve ever seen.

The new risks are visible on the horizon. Many career MSHA and OSHA personnel have acknowledged that government resources are limited, and that the industry and the workforce must be motivated to secure employee safety, without reliance on government. However, initial messages from the new DoL seem to oppose cooperative, voluntary programs. Instead, both nominees likely will embrace another complaint expressed by labor witnesses at Congressional hearings, that voluntary programs distract from the punitive enforcement programs which should be the focus of OSHA and MSHA.

We expect to see not only health exposure standards reduced, but injury and illness recordkeeping investigated; safety program mandates created and expanded; ergonomics mandates; new reporting mandates; and $1 million penalties. What we don’t know is how DoL will take the costs of its actions on the faltering economy into account. Without such consideration, the political price of the new DoL agenda could be very high and the White House may be forced to intervene.

While both MSHA and OSHA define their roles in the Obama administration, aggressive action to protect the industry and its personnel from increased enforcement and regulatory risks should be considered. This is a good time to invest in:
•    Safety equipment and program upgrades;
•    Training on how to handle MSHA and OSHA inspections;
•    Compliance and recordkeeping audits and corrective actions;
•    Initiatives with local and regional MSHA/OSHA offices;
•    Challenges to inappropriate enforcement or penalties;
•    Increased focus on the technical impossibility of accurately measuring silica and other materials at low regulatory levels;
•    Increased focus on the need for improvement in the risk assessment process used to justify new standards;
•    Employee discipline for safety rule violations; and
•    For non-union sites, understanding the use of MSHA/OSHA in organizing drives.

Chajet is a partner with Patton Boggs LLP. He can be reached at 202-457-6511 or by E-mail at hchajet@pattonboggs.com.