OSHA: What’s On Your Regulatory Agenda?

The Office of Management and Budget released its Spring (very, very late Spring) Regulatory Agenda yesterday.  The Regulatory Agenda is what it sounds like: a plan and timeline for each agency’s regulations, what the next steps are and when they are expected. The Regulatory Agenda is released every Spring and Fall.

You can check out the main actions across the Federal government in this Washington Post article, but we’re going to focus here on OSHA. This is the Trump administration’s first Regulatory Agenda, so it’s useful to look at how this Administration’s deregulatory ideology is affecting the agency whose primary mission is to set and enforce standards and regulations that protect workers.

What’s Out?

Comparing today’s Agenda with the last one issued by the Obama Administration last December, there are several significant future worker protections that appear to be missing in action.

Combustible Dust: The most notable standard to be dropped from the Agenda is an long planned OSHA standard intended to prevent Combustible Dust explosions.  The combustible dust standard was one of the first new initiatives placed on the Obama administration’s regulatory agenda in 2009, following a catastrophic 2008 sugar dust explosion at Imperial Sugar in Port Wentworth, Georgia that killed 14 workers and seriously injured 36 others.  The Chemical Safety Board had previously issued a comprehensive report on combustible dust hazards, calling on OSHA to issue a standard, and the House of Representatives passed a bill in 2008 that would have required OSHA to issue a standard.  The Senate never acted. Because of the complexity and cost of controlling these explosions, the Obama administration made little progress on this standard over eight years.

There are several significant future worker protections that appear to be missing in action.

Backover Protection: The Bureau of Labor Statistics reports that in 2013, 67 workers, mostly in construction, were killed when vehicles backed over them. While most construction vehicles have backup alarms, the general chaos, heat, dust and moving parts of a construction site often make it difficult for workers to pay attention to multiple vehicle movements. This standard would have looked into requiring back-up cameras, spotters and other measures to protect construction workers. According to former Laborers Safety and Health Director Scott Schneider, “these deaths are completely preventable. Cheap backing technology is readily available and required now on all vehicles less than 10,000 pounds.  Adding it to dump trucks is a no brainer.  Even requiring spotters when backing would save lives immediately.”

Styrene:  Hundreds of thousands of employees are potentially exposed to styrene, an industrial chemical used to manufacture a wide variety of plastic, rubber and other products.  The current OSHA Permissible Exposure Limit  (PEL) of 100 parts per million (PPM) was issued 45 years ago. The chemical has since been shown to cause cancer, but the OSHA standard is still two to five times higher than the limits issued by CAL-OSHA, NIOSH, ACGIH, and the European Union. Chalk this up to a win by the styrene manufacturers and users who aren’t particularly concerned about giving their workers cancer.

1-Bromopropane: 1-BP (also known as n-propyl bromide), an organic solvent used within adhesive formulations, metal surface cleaning operations, and as a solvent in the dry cleaning, has been shown to be a potent neurotoxin and probably causes cancer. Like styrene, the OSHA standard for 1-BP is out of date and does not protect workers.  The New York Times ran a particularly chilling article about the effects of 1-BP in 2013.

Revocation of Obsolete PELS:  Most of the 500 or so chemical standards regulated by OSHA were created in 1971 when OSHA was created and Congress allowed the agency to add industry standards to the law. Those standards were based on science from the 1960s and 1950s (or before) and many have become seriously out of date as new science has developed over the last 45 years. The OSHA standard for n-hexane (a solvent that causes severe nerve damage), for example, is 500 PPM, while NIOSH, ACGIH, CalOSHA are all at 50 PPM. Even where there is overwhelming evidence that the old standards are inadequate to protect workers, OSHA is unable to use the General Duty Clause to enforce safer exposure levels while these antiquated standards remain on the books. Removing these outdated standards from the rulebooks was not only good government, but would have allowed OSHA to force employers to reduce worker exposures to safer levels. For an administration focused on removing out-of-date regulations from the books, this action may appear to be hypocritical, but clearly chemical manufacturers who don’t care about protecting workers have prevailed.

Noise in Construction: Construction workers work around a lot of noisy equipment and a significant percentage of have suffered from hearing loss over the duration of their careers.  OSHA has a hearing conservation standard for general industry workers, but nothing equivalent for construction workers, despite the fact that new quieter equipment is available, and more effective hearing protection has been developed over recent years. According to Schneider, “Hearing loss affects  more construction workers than any other health hazard OSHA has regulated.  They have had second class protection for over 30 years.”

Beryllium Protections for Construction and Maritime Workers: Last month, OSHA issued a proposal to weaken beryllium protections for construction and shipyard workers.  OSHA would keep the new permissible exposure limit that also applies to general industry workers, but remove all of the “ancillary provisions” like training, exposure monitoring and medical surveillance.

Electronic Recordkeeping: This regulation, issued by OSHA last year, requires covered employers to send summaries of injuries and illnesses to OSHA this year, and more detailed information on injuries next year. It also protects workers from retaliation for reporting injuries and illnesses. OSHA announced last month that it would delay the reporting requirements from July until December, and indicated that it was seriously considering changing other parts of the regulation, possibly the injury retaliation section, or the requirement to send more detailed information to OSHA.

What’s Still In?

Still on the Regulatory Agenda are important standards that would protect workers from chemical disasters (Process Safety Management), workplace violence in health care and social services,  infectious diseases and falls from cell towers.

Of course, the whole subject of “What’s In?” may be academic. Given the Trump Administration’s Executive Order requiring two standards to be removed for every one added, it’s unlikely OSHA will be adding any significant new protections for workers if two protections have to be removed in the process. Shall we protect cell tower workers from falls while taking away fall protection for construction workers? Or maybe we can protect health care workers from workplace violence, but take away their protections against hepatitis B and HIV.

“Clearly, what this administration is saying is that no further work will be done on health standards.” — Dr. David Michaels

The whole “one-in, two-out” Executive Order only makes sense as a means to keep workers from being protected — a strategy that is only slightly more subtle than simply taking things off the Regulatory Agenda. Of course, as we saw yesterday, they seem to be doing both.

What Are They Afraid Of?

One of the more painful things about taking backover protection, styrene, 1-BP, and PELS Revocation off of the Regulatory Agenda is that they hadn’t even gotten to the first step — a Request for Information (RFI). An RFI doesn’t commit the OSHA to doing anything; it just gathers evidence and information from interested parties about whether it makes sense for the agency to move forward to the next step of the regulatory process. Clearly, being as those items were removed from the agenda (and nothing new was added), “what this administration is saying is that no further work will be done on health standards,” according to former OSHA head Dr. David Michaels. According to Trump’s OSHA, everything is just fine as it is and employers will voluntarily protect workers on their own.

Trump Administration’s Regulatory Philosophy: “They lie!”

OMB Director Mick Mulvaney, one of the more dishonest members of the the Trump Administration, wasn’t satisfied at yesterday’s  press conference just peddling the usual industry line about regulations killing jobs and hurting the economy. He went further, without any evidence, accusing the Obama administration (and his own career staff) of dishonesty:

Mulvaney told reporters Thursday. “Our philosophy has been that the previous administration fudged the numbers — that they either overstated the benefits to people or understated the costs — and we are going to look at it in a much more pragmatic perspective.”

Really? That’s a regulatory “philosophy?” That the Obama administration lied?

I think about their regulatory theories every time I drive through an intersection and wonder if that truck I’m passing would have stopped before hitting me if it hadn’t been for the red light — a very old regulation that slows commerce and restricts individual freedom.