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EDITORIAL COMMENTS: Regulatory attention deficit disorder

September 1, 2007
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Unless you’ve been hibernating in a cave for the past 15 years or so, it comes as no revelation that OSHA has largely shuttered down the standards-setting mill that hummed along in the 1970s and ’80s.

Look no further than how the agency describes itself these days: “Since 2001, OSHA has implemented a balanced approach consisting of aggressive enforcement, cooperative programs, outreach, education and compliance assistance.”

Do you see anything about “standards-setting” in there?

Memory loss?
“OSHA Leaves Worker Safety Largely in Hands of Industry,” ran a front-page headline in The New York Times this past April. Dozens of existing and proposed regs have been killed or delayed, the Times noted. OSHA has issued the fewest significant standards in its history since George W. Bush became president in 2000, according to the report.

“The people at OSHA have no interest in running a regulatory agency,” Dr. David Michaels, an occupational health expert at George Washington University told the Times. “If they ever knew how to issue regulations, they’ve forgotten.”

That the rulemaking assembly line has slowed to a crawl is not completely a matter of lack of political will or regulatory attention deficit disorder. OSHA officials will point out that in fiscal year 2007, three final rules were issued and four were proposed. The new electrical standard, for instance, became effective this past August.

Part of the slowdown is due to the torturous path rulemaking must follow. OSHA announced an advanced notice of proposed rulemaking (ANPRM) that would assign new protection factors for respirators back in May 1982 — 25 years ago.

Hurry up and wait
Here’s how the assembly line clattered and rattled along the way: ANPRM Comment Period End (9/82). Notice of Proposed Rulemaking (NPRM) issued (11/94). Final Rule — covering respiratory protection program requirements but leaving out the thorny issue of protection factors — issued (4/98). NPRM for protection factors issued (6/03). NPRM Comment Period End (9/03). NPRM Comment Period Extended (10/03). Public Hearing (1/04). Final Rule: Revocation of Respiratory Protection M TB (12/03). Public Hearing (1/04). Post-Hearing Comment and Brief Period Extended (3/04). Post-Hearing Comment Period End (4/04). Post-Hearing Briefs End (05/04). Final Action (8/06).

After all that, the final outcome was entirely predictable. “OSHA’s long-awaited new assigned protection factors… were lambasted by organized labor sources and praised by industry sources,” one news account reported.

If OSHA ever unveils a new standard to a round of applause by industry and labor, the standards-writer should be nominated for the Nobel Peace Prize. You’re more likely to hear, “Gentlemen, start your engines” when a standard is issued. A race to the courthouse is standard operating procedure — witnessed most recently with the new hexavalent chromium rule. The final hex chrome rule appeared in the Federal Register on February 28, 2006. The day before, February 27, Public Citizen Health Research Group got the jump to the judge, announcing, “We have no choice but to bring the agency back to court again.”

Lost mojo
Just about everyone in the EHS world has come to accept that OSHA has lost its mojo, its captivating influence. Voluntary Protection Program sites are good models, and www.osha.gov with all its training tools and resources would generate a ton of revenue if it ever accepted advertising. But it’s a national embarrassment and disgrace that this most advanced country of ours can’t update standards with references going back to the 1960s in some cases.

On June 4, 2007, OSHA announced an ANPRM on mechanical power press safety. “This standard has been around as long as OSHA. It’s time for a complete update,” said OSHA boss Edwin Foulke. The existing standard is based primarily on the 1971 edition of an American National Standards Institute (ANSI) industry consensus standard.

Whatever happened to…?
Go through OSHA’s sparse regulatory agenda and you find the same language again and again — “current standards do not reflect…”

• Two million workers are exposed to crystalline silica dust, yet the permissible exposure limit (PEL) is based on a recommendation by the American Conference of Governmental Industrial Hygienists set in 1971. The current PEL for silica exposures in construction and maritime is based on ACGIH’s 1962 Threshold Limit Value.

• Current OSHA standards for emergency response and preparedness “do not reflect all the major developments… already accepted by the emergency response community,” stated the 2006 agenda.

• In 1990, OSHA proposed a rule addressing slip, trip and fall hazards. “OSHA has determined that the rule proposed in 1990 is out-of-date and does not reflect current industry practice or technology,” stated the ’06 agenda.

Revising hundreds of permissible exposure limits dating back 30 years or more — the top political priority as industrial hygienists see it for 2007-2008, according to a survey of American Industrial Hygiene Association (AIHA) members — doesn’t even appear on the agenda.

• This past July, OSHA pleaded a lack of standards-setting resources as the reason for proposing to drop references to ANSI standards as determinants of what qualifies as acceptable safety eyewear and head gear in the “pay for PPE” rule. “The incorporated ANSI standards are all over a decade old and in some instances are two decades old,” said the agency. “Despite its best efforts, OSHA cannot propose and finalize its standards as frequently as the consensus standards development organizations. OSHA simply does not have enough resources…”

Political priorities
In its fiscal 2007 budget, the agency spends more on technical support ($21.4 million) than safety and health standards ($16.5 million); nearly twice as much on safety and health statistics ($31.8 million); and more than four times as much on compliance assistance ($72.5 million).

For fiscal 2008, Foulke said proposed resources for the Voluntary Protection Program would increase by more than $4.6 million. Spending on standards activity would receive a $400,000 bump.

Expanding VPP (to a goal of 1,589 participating sites in fiscal 2008) and signing industry alliances (there were 69 national alliances and 316 regional and area office alliances in fiscal 2005) are obviously easier to accomplish than dealing with the legal hurdles, economic feasibility calculations, and hardcore partisanship that come with writing standards. And to be sure, you can’t simply throw more money at the standards office and expect Nobel Peace Prizes.

By the same token, OSHA can’t use a lack of resources as the main spin for throwing in the towel and doing nothing about pressing risks, other than issue bulletins, or completely drop references to consensus standards that will leave EHS pros scratching their heads over what’s acceptable.

We’re not talking about introducing sweeping, costly new standards on ergonomics, injury prevention programs or exposure monitoring practices. First must come the will, the political freedom, then the brainstorming, resources, and innovation to have existing OSHA standards reflect current best practices. It’s not easy by any stretch. EHS experts have tried and failed, in public arenas and backrooms. But responsible leadership must attend to this glaring problem that will not go away. Anything less is a dangerous case of regulatory ADD.

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