April 19, 2012

Why OSHA Can't Regulate

The Government Accountability Office (GAO) released a report today detailing the challenges that the Occupational Safety and Health Administration (OSHA) faces in writing regulations to protect America’s workers from unsafe and unhealthful workplaces.  The report was released at a hearing of the Senate Health, Education, Labor and Pensions Committee, chaired by Senator Tom Harkin (D-Iowa), on “Delays in OSHA’s Standard-Setting Process and the Impact on Worker Safety.”  Both the GAO report and testimony presented at the hearing tell a depressing tale of an agency that, after 30 years of constant attacks from the business community, conservative think tanks, and reactionary members of Congress, has very nearly folded its rulemaking tent.

The GAO found that between 1981 and 2010, the time that it took for the agency to develop and promulgate occupational safety and health standards ranged from 15 months (for an easily promulgated safety standard) to 19 years, and averaged more than 7 years. 

How have we come to this pass?

OSHA got off to a very good start.  During its first ten years of existence, the agency promulgated 21 safety standards and 13 important health standards (one of which addressed 14 different carcinogens), all of which continue to afford substantial protection to workers.  By the late 1970s, however, the Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Businesses had made OSHA the poster child for their demands for “regulatory reform.” 

They found a receptive audience in the Reagan Administration.  During the Reagan years, OSHA suffered budget cuts and was headed by political appointees who were far more committed to assisting employers than in fulfilling the agency’s responsibility to write protective occupational safety and health standards.  Things improved slightly toward the end of the Reagan Administration, when a dedicated agency head, John Pendergrass, made it a priority to update dozens of ancient permissible exposure limits for hazardous substances in the workplace that had been promulgated by private standard-setting organizations and adopted wholesale by OSHA in 1971.  That effort was stopped dead in its tracks by a court of appeals holding that OSHA would have to prepare individual risk and feasibility assessments for each individual chemical.

The agency picked up the rulemaking pace only marginally during the Clinton Administration.  It completed a few rulemakings that had been initiated during the previous three administrations, but initiated only a very few of its own, and all but one of those involved safety standards. 

The process ground to a complete halt during the George W. Bush Administration, during which the agency completed a handful of safety standards and a single health standard, but only because it was subject to a court ordered deadline. 

During the first three years of the Obama Administration, OSHA has brought a couple of pre-existing safety rulemakings to completion, but has not proposed a single health standard, despite the crying need for more protection in several important industries.  The GAO report noted that among other items on OSHA’s unfinished agenda are proposed standards for exposure to deadly silica dust, carcinogenic beryllium, and dangerous walking and working surfaces.

 To be sure, OSHA has achieved some important gains when it comes to enforcing existing regulations and the general duty of employers to provide safe and healthful places of employment.  It has beefed up its severe violations enforcement program, and it has begun to levy much higher fines for serious violations.  It has also moved resources out of the Bush Administration’s Voluntary Protection Program, which was more about “voluntary” than about “protection.”  Yet it has failed to propose any significant health standards, and a major initiative to require employers to establish and implement Injury and Illness Protection Programs has yet to get off the ground.

So why is it that a supposedly rejuvenated agency under a progressive leader has made so little progress when it comes to promulgating regulations?  There are several powerful explanations, most of which were aired in the Senate hearing.

Complex Information Gathering

According to the GAO report, OSHA officials believe that in order to pass judicial muster, the agency must thoroughly demonstrate the need for a new standard by conducting extensive site visits on an industry-by-industry basis.  In the case of health standards, the agency must also collect and evaluate dozens or even hundreds of toxicological and epidemiological studies and prepare a detailed risk assessment demonstrating that the regulated substance presents a “significant risk” to workers.  And for all standards, it must undertake complex economic analyses to determine the feasibility of various engineering options.

Cumbersome Procedural Requirements

OSHA has never had the option of employing the simple “notice and comment” rulemaking model of section 553 of the Administrative Procedure Act.  In addition to taking written comments on notices of proposed rulemaking, OSHA must hold a formal hearing at which witnesses present testimony and attorneys for the agency and for the parties have an opportunity to cross-examine the witnesses.  At the end of that lengthy hearing process, the agency compiles a transcript of the proceedings, analyzes the comments, and prepares a lengthy preamble to the notice of final rulemaking that provides detailed scientific and engineering rationales for the final rule.

A Second Bite at the Apple

As if the regulated industries did not have a sufficient opportunity to influence the agency’s thinking during the formal hearing, the Small Business Regulatory Enforcement Fairness Act of 1996 requires OSHA to assemble a panel of representatives of small businesses to propose changes to the final rule before it is published in the Federal Register.  According to the GAO report, this takes at least eight months of intense effort.

Burdensome Analytical Requirements

Since the early 1970s, OSHA has been subject to a series of executive orders that require it to prepare detailed analyses of the costs and benefits of proposed standards and of the impact of those standards on small businesses.  That’s not all.  Other executive orders require agencies to analyze the "takings," "trade," "federalism," and "family" impacts of regulations as well.  All of these analyses take a lot of time and a lot of money.  And all of them are probably unnecessary in the case of OSHA, because the lengthy hearings that it affords to the public give interested parties ample opportunity to highlight these impacts to the extent that they deem them relevant.

Intrusive White House Review

The review of OSHA rules undertaken by the Office of Information and Regulatory Affairs in the Office of Management and Budget, ordered under a series of executive orders, has greatly contributed to the reduction in OSHA’s rulemaking output over the years.  At this very moment, OIRA is sitting on OSHA’s proposed rule regulating worker exposure to silica dust, the notorious particles that can clog lungs and cause a debilitating disease called silicosis.  Despite the incidence of silicosis being on the rise among workers (almost 200 die each year from the disease), the agency has never completed the rulemaking that it initiated more than 14 years ago.  While the current draft has been sitting on a desk in OIRA for the last 14 months, workers are continuing to contract silicosis. 

Judicial Review 

Unlike most informal rulemaking, the standard of judicial review applicable to OSHA standards is “substantial evidence on the record as a whole,” the standard that is ordinarily applicable to agency adjudications.  At least one court has interpreted this to be a somewhat stricter standard for judicial review than the “arbitrary and capricious” test.  In any event, it is quite clear that at least some courts of appeals have required a degree of rigor from OSHA in supporting its rulemaking initiatives that would be difficult for any agency to meet, given the limits on available scientific and engineering data needed to support technological feasibility analyses and a judicially required risk assessment requirement.

What is to be done?

If one message emerges loud and clear from the GAO report and the Senate hearing, it is that OSHA needs to devote more resources to standard-setting initiatives.  And in order to do that, OSHA needs more resources, period.  Congress should dramatically increase the agency’s budget.

Beyond that, there are a number of steps that the agency and Congress could take to put into place a new generation of rulemaking reforms.  A forthcoming CPR white paper will propose “next-generation” reforms to the standard-setting process and make a number of other suggestions for empowering workers, improving OSHA’s response to violations of existing standards, and enhancing OSHA’s administrative powers.

Stay tuned.

Thomas McGarity, CPR Member Scholar; Endowed Chair in Admin. Law, University of Texas School of Law. Bio.

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