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Tales from DC: Senate HELP Hearing on OSHA Standard Setting Process

Posted in on Thu, May 31, 2012

From Adele Abrams, Esq. ASSE’s Federal Representative –

On April 19, 2012, the Senate HELP Committee (Health, Education, Labor and Pensions Committee) held a hearing entitled “Time Takes its Toll: Delays in OSHA’s Standard Setting Process and the Impact on Worker Safety,” regarding OSHA’s delay in enacting new standards, as well as updating rules in existence. This hearing specifically concerns the impact OSHA’s length standard setting process has on worker safety. Today, the Government Accountability Office released its report outlining the factors affecting OSHA’s ability to draft and enact new workplace safety standards, and this was discussed during the hearing.

Chairman Tom Harkin’s opening remarks stressed the need for additional workplace safety regulations, and swifter enactment of proposed safety standards. According to Harkin, any delay present in the OSHA rule-making process hinders the government’s ability to protect working Americans.  Harkin asserted that although OSHA has dramatically reduced the number and frequency of workplace injury and illness, thousands of American workers are nevertheless killed each year on the job, and more may be exposed to unknown hazards that may be preventable but for OSHA’s delayed and procedurally-burdened rulemaking process. OSHA rulemaking delays may also adversely impact worker productivity due to injury and illness, workplace insurance premiums, and also fail to prevent the grief suffered by American families who lose a loved one due to a workplace fatality. Harkin cited OSHA’s decades-long review of a new silica dust exposure standard, which has yet to be enacted, as an example of a potentially beneficial safety standard that is stuck in the rulemaking process.  Harkin reiterated the Democratic position that “regulations save lives,” and said OSHA’s sole reason for being is to enact and enforce workplace safety standards.

According to Harkin, OSHA’s standard setting process averages 8 years from rule proposal to enactment, which is far longer than rulemaking activities at MSHA. Specifically, it took OSHA 10 years to promulgate the new crane and derricks standard, and in the meantime several high profile crane collapses occurred throughout the country. Most importantly, OSHA has experienced a dearth of new rules, passing only the revised HAZCOM standard and the new crane and derricks standard in recent years. Harkin expressed his desire that OSHA adopt new rulemaking procedures, and for the federal government to ease procedural review requirements in order to permit OSHA to enact workplace safety standards in a more efficient manner.

Ranking minority member Michael Enzi reiterated the need for workplace safety standards, and recognized the high number of workplace fatalities and injuries still present despite OSHA’s efforts.

The first witness was Ms. Ravae Moran of the Government Accountability Office. Moran testified to the findings of the GAO’s report on the factors that contribute to OSHA’s 8 year average rulemaking time frame. The GAO studied OSHA standards enacted from 1981 through 2010, and determined that the complex procedural framework in place prevents OSHA from easily proposing and subsequently adopting new safety standards. Specifically, stakeholder involvement, judicial review and shifting presidential and legislative administrations hamstring OSHA’s ability to streamline standard setting. Moran asserted that stakeholder involvement at the small business level adds a significant amount of time to the rulemaking process, as OSHA must seek input from affected small businesses. Additionally, Moran said that OSHA’s tendency to analyze potential safety standards on an industry-specific basis similarly increases the timeframe, and delays final enactment. According to Moran, by limiting stakeholder involvement OSHA may be able to set new standards more efficiently.

Mr. Thomas Ward, a member of the International Bricklayers Union, also testified to OSHA’s delay in addressing silica exposure. Ward reiterated Harkin’s position that OSHA’s delay in adopting a new silica exposure standard may result in preventable exposure illnesses and fatalities. According to Ward, workers are continually exposed to silica dust in certain environments, and OSHA has failed to definitively address this issue despite the fact that silica exposure has been under review since 1974.

Dr. Michael Silverstein testified that, despite OSHA’s success in decreasing the number of workplace injuries and illnesses, the delays in recent standard setting has prevented OSHA from preventing even more workplace illnesses and injuries. According to Silverstein, American workers still suffer fatal injuries resulting from combustible explosions at high levels, and the effects of silicosis have not been reduced due to OSHA’s failure to enact a new silica dust exposure standard. Silverstein ended his testimony by advising that OSHA and NIOSH should work together towards drafting and proposing new safety standards and immediately accepting stakeholder input. Additionally, Silverstein stated that Congress should step in and grant OSHA greater rulemaking ability.

The next witness was Ms. Randy Rabinowitz, Director of Regulatory Policy at OMB Watch. Rabinowitz asserted that the Office of Management and Budget has hamstrung OSHA’s ability to enact safety standards in an efficient manner due to requirements imposed upon it by OMB/OIRA. Specifically, Rabinowitz asserted that the cost-benefit analysis permitted by OMB not only places an additional burden on the rulemaking process, but also attaches a dollar figure on the lives of American workers who may be injured or killed in a preventable workplace injury. According to Rabinowitz, OSHA’s tendency to conduct scientific tests and analysis that may have already be completed by a recognized organization is an example of a needless delay in OSHA’s rulemaking procedure. Rabinowitz stated that MSHA enacts safety standards in a more efficient manner due in part to MSHA’s practice of adopting advisories and scientific analysis that have been completed and certified. The final witness, David Sarvadi, Esq. testified to OSHA’s unilateral ability to fix the procedural delay problem. According to Sarvadi, OSHA should consult with any industry affected by the proposed standard. Finally, Sarvadi contended that OSHA may utilize the General Duty Clause in order to ensure that American workers are conducting business in a safe and healthful environment.

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