The Republican Congress may not be fulfilling it responsibility to provide oversight over a Republican-controlled OSHA, but the Government Accountability Office is still on the job. The GAO is Congress’s “watchdog” and investigates how the federal government spends taxpayer dollars.
Over the past couple of years, the GAO has investigated OSHA’s activities around protecting healthcare workers from workplace violence and protecting workers from incidents involving ammonium nitrate. The agency made a number of recommendations to DOL and recently sent a letter to Secretary of Labor Alex Acosta, requesting a status report on seven high priority DOL recommendations, including those addressing workplace violence and ammonium nitrate.
For workplace violence, the GAO recommended that OSHA:
Provide inspectors additional information on developing citations: Because there is no OSHA workplace violence standard, OSHA inspectors must use the General Duty Clause to issue citations. General Duty Clause cases can be lengthy and burdensome because OSHA has to satisfy four requirements: 1) that a hazards exists 2) that it’s a serious hazard 3) that its a recognized hazard (either recognized by the employer or by the industry), and that there is a feasible means of abatement.
Despite the fact that OSHA had updated its guidance and increased enforcement activity, GAO found that “OSHA regional office staff said developing support to address the criteria for these citations is challenging and staff from 5 of OSHA’s 10 regions said additional information, such as specific examples of issues that have been cited, is needed. Without such additional information, inspectors may continue to experience difficulties in addressing the challenges they reported facing.”
In response to the GAO recommendation, OSHA conducted its first week-long in-depth training session for OSHA enforcement staff in 2016. OSHA also issued an updated workplace violence compliance directive to provide information and guidance for inspectors about how to build a General Duty Clause citation.
Follow up on hazard alert letters: OSHA issues Hazard Alert Letters when the criteria for a General Duty Clause citation are not met. However, employers are not required to take corrective action in response to them, and OSHA does not require inspectors to follow up to see if employers have taken corrective actions. As a result, OSHA does not know whether identified hazards have been addressed and hazards may persist.
In response to the GAO recommendation, OSHA develop a policy to follow up on HALs within a year after they are issued.
Assess the results of its efforts to determine whether additional action, such as development of a standard, may be needed. In response to this recommendation, OSHA began rulemaking by putting workplace violence on the regulatory agenda, conducting a stakeholder meeting and launching a request for information (RFI). In addition, OSHA’s Assistant Secretary David Michaels stated that OSHA had officially accepted the union petitions and would move forward with a standard to protect health care and social service workers.
Although the submission deadline for the RFI was April 6, 2017, the agency has issued no report on the findings of the RFI, nor has the agency announced the next step in the regulatory process. The next step would be the SBREFA (Small Business Regulatory Enforcement Fairness Act) panel which looks at the impact of a standard on small business.
OSHA’s actions on the first two recommendations satisfied the GAO, but on June 27, 2017 Comptroller General Gene L. Dodaro sent a letter to Secretary of Labor Acosta telling him that “DOL should complete its study on OSHA’s workplace violence enforcement cases in health care, and analyze the results from its Request for Information to determine whether regulatory action is needed.”
On the evening of 2013, a massive ammonium nitrate explosion obliterated West Fertilizer, killing 15 people and destroying a good part of the city of West, Texas. IN 2014, the GAO looked into what actions OSHA, the Environmental Protection Agency and the Department of Homeland Security needed to take to protect workers and the community against such events in the future. GAO recommendation that “federal agencies improve data sharing, OSHA and EPA consider revising their related regulations to cover ammonium nitrate, and OSHA conduct outreach to the fertilizer industry and target high risk facilities for inspection.”
As part of the President’s Executive Order 13650 “Improving Chemical Facility Safety and Security,” issued on August 1, 2013, the three agency took a number of actions, including sharing of data and other information. The GAO had noted that because AN is not covered under OSHA’s Process Safety Management (PSM) standard, facilities that store AN were not part of OSHA’s chemical plant enforcement emphasis programs. OSHA committed to evaluate options for targeting high risk fertilizer facilities for programmed inspections, and to consider improved standards for the storage of ammonium nitrate as part of OSHA’s revision of the PSM standard.
OSHA delayed setting up emphasis programs targeting AN facilities pending issuance of a new compliance directive and resolution of OSHA’s efforts to revise the retail exemption under the PSM standard that had exempted small fertilizer facilities like West from coverage under PSM. The change in the retail exemption resulted in fierce opposition from the agricultural retail industry, as well as a lawsuit that OSHA lost shortly before the change of administration.
In the June 27 letter to Acosta, the GAO requests that DOL “take steps to enforce its existing ammonium nitrate storage requirements to help prevent chemical incidents.” The clear response from OSHA should be to issue launch an number of Regional Emphasis Programs targeting fertilizer facilities in areas where ammonium nitrate is commonly used. Several of these emphasis programs were being developed at the change of administration, but none have been launched over the past six months.
Wither OSHA Standards?
An additional question that arises out of the GAO’s follow-up is the fate of OSHA’s regulatory activity around workplace violence for healthcare and social service workers, and the future of OSHA’s revision of the Process Safety Management standard which could cover ammonium nitrate. Both remain on the regulatory agenda but it’s unclear what their future is. The next step for workplace violence is the SBREFA panel. Under normal circumstances, OSHA should be ready to launch SBREFA soon, but given this administration’s hostility toward regulatory protections for workers (including the Executive Order requiring two worker protections to be removed for every one added), it’s unclear when — or if — that will happen. OSHA’s standards budget has been cut by 10% from FY 2016, and some of the staff’s effort seems to be going into rolling back existing worker protections, such as beryllium and recordkeeping, instead of improving protections for workers.
The next major step for the Process Safety Management update would a proposal, but given the size and complexity of the PSM standard, combined with the above mentioned Trump administration hostility to improving protections for workers, progress on that standard is also questionable.