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Audit: OSHA Too Slow on Rule Making

Monday, April 23, 2012

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For those who view the Occupational Safety and Health Administration as a slash-and-burn regulatory monster, the General Accountability Office begs to differ.

The “vast majority” of OSHA regulations have not even been updated since the day they were issued, and the agency’s typical rule takes nearly eight years to develop, GAO says in Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting, a new audit that assails the safety agency as much too slow to act.

Lengthy Process

Between 1981 and 2010, it took OSHA from 15 months to just over 19 years to develop and issue safety and health standards, due to “increased procedural requirements, shifting priorities and a rigorous standard of judicial review,” GAO said in the report released Thursday (April 19).

 OSHA took nearly 20 years to develop a scaffolding standard, GAO noted. Such a lengthy rule-making process can leave workers unprotected, the agency said.
OSHA took nearly 20 years to develop a scaffolding standard, GAO noted. Such a lengthy rule-making process can leave workers unprotected, the agency said.

OSHA’s rule-making process averaged well over seven years, GAO found.

That includes rules critical to the coatings industry, GAO found. Safety standards for respiratory protection took more than 15 years to promulgate; standards for fall protection and confined spaces, more than 17 years. Scaffolding regulations took nearly 20 years.

OSHA has even shied away from temporary standards. Although the agency has the authority to address urgent hazards by issuing temporary standards, it has not done so since 1983, “because of the difficulty it has faced in compiling the evidence necessary to meet the statutory requirements,” according to GAO.

‘Insufficient Protections’

“The process for developing new and updated safety and health standards for occupational hazards is a lengthy one and can result in periods when there are insufficient protections for workers,” the report said.

The report notes several factors that bog down OSHA’s rule-making:

• Unlike the Clean Air Act, for example, which requires the Environmental Protection Agency to regularly review standards, the Occupational Safety and Health Act does not require OSHA to periodically review its standards.

• Unlike the Mine Safety and Health Administration (MSHA), which leverages the in-house expertise of a dedicated mine safety group at the National Institute of Occupational Safety and Health (NIOSH), OSHA still relies on time-consuming site visits for information and does not coordinate with NIOSH—a gap that the report urges OSHA to correct.

After analyzing 58 significant health and safety standards issued by OSHA between 1981 and 2010, the GAO found that the average rule-making process lasted seven years and nine months. Other standards have been in the works for years without any apparent progress, GAO noted.

For example, GAO said, OSHA has been working on a silica exposure standard since 1997; a beryllium exposure standard since 2000; and a walking and working surfaces standard since 2003.

More Steps, Higher Standards

OSHA officials told GAO they have been hamstrung by an increasing number of procedural requirements involved in rule-making since 1980. For example, they said, OSHA must evaluate the technological and economic feasibility of a proposed rule using data gathered by time-consuming individual visits to multiple work sites on an industry-by-industry basis.

OSHA is also one of just three federal agencies that can be required to institute a “panel process” to weigh a proposed rule’s impact on small business—a step that takes about eight months, the agency said.

 The U.S. Chemical Safety Board urged OSHA to improve its standard on confined spaces after five painters were killed in a penstock fire in 2007.

 US Chemical Safety Board

The U.S. Chemical Safety Board urged OSHA to improve its standard on confined spaces after five painters were killed in a penstock fire in 2007. OSHA has taken no action. The original standard took more than 17 years to develop.

Shifting priorities also regularly derail standards in process, OSHA told GAO auditors. For example, a sudden push to develop an ergonomics rule in the 1990s meant abandoning other rules that had been deemed priorities.

The ergonomics rule was developed in just one year, but the process consumed nearly 50 full-time staff, half of the staff economists, and seven or eight attorneys, OSHA said. Congress then invalidated the rule after four months.

In addition, GAO said, the standard of judicial review to which OSHA rules are subjected “requires more robust research and analysis” than that applied to rules by other agencies. While other agencies are prohibited merely from issuing rules that are “arbitrary and capricious,” OSHA rules must be backed by “substantial evidence in the record considered as a whole”—a far higher standard.

‘Large Volume of Detailed Research’

“OSHA staff must conduct a large volume of detailed research in order to understand all industrial processes involved in the hazard being regulated, and to ensure that a given hazard control would be feasible for each process,” GAO reported.

Two other challenges ensnare the agency, GAO found:

• “Substantial data challenges”: In additional to a general death of scientific information, court decisions have required “rigorous support for the need for and feasibility of standards.”

• Response to adverse court decisions: Because OSHA is frequently sued, it has developed an “institutional culture” that devotes many of its resources to shaping rules that will withstand future legal challenges.

For example, GAO said, the U.S. Supreme Court threw out an OSHA benzene rule because “the agency failed to make a determination that benzene posed a ‘significant risk’ of material health impairment under workplace conditions permitted by the current standard.”

Recommendations

GAO made a series of recommendations. It urged that OSHA:

• Improve coordination with other agencies;

• Expand use of voluntary consensus standards;

• Impose statutory deadlines in the rule-making process;

• Ease the standard of judicial review to bring it into line with other agencies' rules;

• Allow alternatives that promote feasibility (for example, using surveys instead of site visits to collect data); and

• Adopt a priority-setting process.

OSHA had no immediate comment on the audit.

OSHA H&S Standards Finalized, 1981-2010

   

Tagged categories: Certifications and standards; Confined space; EPA; Fall protection; Health and safety; OSHA; Regulations; Respiratory Protection Standard; Scaffolding

Comment from Anna Jolly, (4/30/2012, 4:49 PM)

Having been in the safety business since 1977, I know this to be true. However, I did not know about the court's standard of review. Unfortunately for workers we have standards on the book that are so out of date to be negligent. It is too bad.


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