Thought Leadership


After OSHA’s silica proposal, the deluge?

September 4, 2013

The ISHN BlogIt’s been such a long time since OSHA issued a major standards proposal covering millions of workers, such as its recent silica dust proposed rule, it’s fair to ask: Are the standards floodgates opening?

(I’m not counting hazcom revised/GHS, which was more or less forced on the U.S. and OSHA by globalization.)

OSHA chief Dr. David Michaels and crew have about 3 years left to prime the standards pump. After going pretty much hitless in his first term at OSHA (except for several “niche” rules), will we see the good doctor swing for the fences this time around?

Could… we… see… an… I2P2 proposal by 2016? Or might it be a “midnight reg” issued the morning of January 20, 2017, in the waning hours of the Obama administration?

Déjà vu all over again? Recall the ergo rule’s late release in the Clinton second term (and immediate torpedoing by the incoming Bushies).

Longtime OSHA-watchers in DC say there will be no deluge of standards coming out of OSHA.

What the experts predict

“I don’t think announcing this has any bearing on any of the other issues at OSHA,” says Aaron Trippler, the government affairs director for the American Industrial Hygiene Association (AIHA).

“Frankly, they will be lucky to get anything done on this one. The announcement was just that. That we have a proposal and will be putting it out shortly.  Details show that they aren’t even planning public hearings until March of next year.  There will be hundred of comments submitted and the agency will be lucky to get through them all.  I don’t expect movement on this issue to have any impact on anything else.”

Trippler says Congress, as well as others, “has been pushing the White House to move this along. What will be interesting is to see what kind of comments they receive at OSHA. Who will be opposed? Why will they be opposed? Even little concerns will turn into big concerns as we have seen with other proposals. Anyone opposing any section will learn that it is easy to slow the process down – even if they have to wait and file a lawsuit.”

Two years in prison

You have to remember, says a former OSHA official, the silica proposal didn’t come easy, winning “release” after a 2+ year "imprisonment" at OMB.

This vet of many an OSHA war suspects that issuance of the silica proposal is more toward the "one-off" end of the spectrum than toward a more broad-based loosening of the regulatory strings. 

“I don't think we can read anything into it with respect to a major regulatory initiative like I2P2 or PELs.  My guess is (and it's just that) that getting the silica proposal issued was "part of the deal" in finally getting (Labor Secretary Thomas Perez)  confirmed - it could have been total coincidence that it was issued this soon after his taking office, but there are very few "pure coincidences" in this town. 

It should be noted that members of the Washington press corps consider Perez the most liberal member of President Obama’s cabinet.

A history of aggressive action

That does give our veteran OSHA watcher pause to consider. “The fact that there is a new secretary (sheriff?!) at DOL and one with a pretty clear history of aggressive action AND agency management experience (including his stint in Maryland) does suggest that he'll have some leverage to move things through the regulatory pipeline with greater success. 

“There has certainly been a high level of publicly expressed frustration with OSHA regulatory action in the labor and public Interest communities, so it's predictable that they'll be looking for the new secretary to make up for some lost ground in the next couple years (I really think there are two years, not three, to get a few things done).  So yes, there will probably be some other regulatory actions taken during that period - I'd be reluctant to try to speculate on which ones at this point . . . oh, ok - maybe something on PSM, for example.”

It takes a lot to shake up longtime jaded OSHA observers. From another DC source we heard:

“All this is what it is. It’s been rope-a-dope politics and no one’s going to ever admit to that and now some breathing room to pay back constituencies and legitimately get some things done on the agenda. I kind of marvel at the patience of the leaders this administration picked to lead OSHA to hang in there all this time. “      

A fourth member of the OSHA watchers DC contingent also focused more on the new Labor Secretary.

“I can see how a new DOL secretary might get things moving faster.  I would hope that OSHA’s Walking Working Surfaces rule get to OMB soon. I would think the White House is still balancing regulations and the 2014 elections. Between Walking Working Surfaces and the Electric Power Generation, Transmission and Distribution rule, I don’t know if there’s more that OSHA can handle,” says Dan Glucksman, public affairs director for the International Safety Equipment Institute.

An easier way?

“It seemed to me during the confined space in construction hearings that OSHA may have over-regulated – creating four new classes of confined spaces to address the engulfment hazards of sewers. It seems there could have been an easier way. So, I don’t know if this standard ever makes it out.

“On I2P2, I think Dr. Michaels is laying the ground work for the next OSHA administrator. I don’t think the rule can be completed in the three years that are left. That being said, Dr. Michaels and the Enforcement Directorate team have been effective at requiring S&H management plans in some citations.  Could I2P2 be a midnight rule that is somehow published in the last day of the Obama presidency? I suppose, but there would likely be grounds to have it overturned. 

If a Democrat wins in 2016...

“I don’t think OSHA could actually thoughtfully consider all the comments and write a responsive final rule in the time remaining. If a Democrat wins in 2016 and Dr. Michaels stays on, he’d have another 4 years and that might give him enough time to complete the I2P2 rule. After all, Dr. Michaels seems to having a great time in this post, OSHA seems to be firing on many cylinders. If a Democrat wins in 2016 and Dr. Michaels is offered the OSHA job, I think he stays.

Editor’s note: Who does Dr. Michaels think he is – Dr. John Howard? Dr. Howard has been head of NIOSH since the Bush administration.

“It’s a possible easing up (of standards-setting),” says Glucksman.  “I think this also points to the tug of war at the White House. President Obama seems to believe in the power of government to help people.  He is also, I believe, wary of guiding an economy through a recession and does not want to be known as the one who stifled the recovery.  After all, he signed Executive Order 13653, which tells the federal apparatus to write regulations that make sense,  that do not hurt American competitive or cost jobs, but remain consistent with the government’s responsibility to protect health, safety and the environment.

Glucksman doesn’t think it will be any easier for OSHA to pump out rules in the next two or three years.

“In fact, it will be just as hard and tricky. The outcome of the 2014 elections will also have some sway. If GOP wins a majority in the Senate and holds its majority in the House, appropriation riders for OSHA are certainty!

Standards currently in play

For those of you keeping score, here are some of the standards issues on OSHA’s plate, courtesy of the Spring 2013 Regulatory Agenda:

  • Prerule -- Bloodborne Pathogens
  • Prerule-- Combustible Dust (initiate small business economic feasibility review November, 2013)
  • Prerule-- Infectious Diseases
  • Prerule-- Reinforced Concrete in Construction and Preventing Backover Injuries and Fatalities
  • Prerule-- Review/Lookback of OSHA Chemical Standards
  • Prerule-- Process Safety Management And Flammable Liquids (issue a request for information, Oct. 2013)
  • Proposed Rule-- Occupational Exposure to Crystalline Silica (proposed August, 2013)
  • Proposed Rule-- Occupational Exposure to Beryllium (proposal due Oct. 2013)
  • Proposed Rule-- Injury and Illness Prevention Program (proposal due January, 2014)
  • Proposed Rule-- Revising Record Requirements in the Mechanical Power Press (proposal was due July 2013)
  • Proposed Rule--Amendments to the Cranes and Derricks in Construction Standard
  • Final rule-- Confined Spaces in Construction (a proposal was issued in 2007; the final rule is due Dec. 2013)
  • Final rule-- Walking Working Surfaces and Personal Fall Protection Systems (a classic “lost OSHA standard”—published as a proposal in 1990. Now the final rule is set for release this fall.)
  • Final rule-- Electric Power Transmission and Distribution; Electrical Protective Equipment (proposal was issued in 2005; final rule was scheduled for July 2013.)

It’s the worst-kept secret in the professional safety and health world that OSHA’s regulatory agenda is obsolete the day it is published. Some of the timelines and back stories are simply embarrassing. It’s too bad OSHA is forced by law to undergo this self-flagellation not once but twice a year. The manpower and money is simply not there at OSHA to keep all these standards trains running anywhere near close to schedule.

If there was a fantasy league for OSHA standards, which one would you draft as having the best chance of actually becoming finalized?

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