safety standards

OSHA action on worker safety standards during Presidential election years

cmonforton — Tue, 28 Aug 2012 12:11:22 +0000

OSHA action on worker safety standards during Presidential election years

I'll be the first to admit I've criticized the Obama Administration's OSHA for failing to issue or even propose many new worker safety and health standards. As I wrote earlier this month, under President Obama and Secretary Solis, OSHA has only issued three new worker safety rules, two of which were safety standards affecting discrete industries and the third, a rule broadly endorsed by big business. Some colleagues and commentators attribute this mediocre record to regulatory resistance in the White House, pressure from Republicans on Capitol Hill, too few staff in the OSHA standards office, and the agency's shifting rulemaking priorities. Most recently, a popular excuse for the agency's lackluster regulatory performance is this: OSHA's regulatory activities always slow down during a Presidential election year.

I wondered if that was actually true.

The table below breaks down key rulemaking action by OSHA during the last seven Presidential election years. I reviewed the Federal Register dating back to 194, for the period January 1 through each's respective November election day. I recorded all OSHA notices announcing a proposed rule, a final rule, an advanced notice of proposed rulemaking or a request for information on a potential proposed rule. (The list of actions by year is posted here.)

Using these measures, the most productive election years for OSHA regulatory action occurred during the Reagan and George H.W. Bush Administrations. In 1984 when Reagan was running for re-election, OSHA issued final rules on ethylene oxide, rim wheels and the state-based consultation program. The agency also proposed rules on asbestos, field sanitation in agriculture, grain handling, among others. At the end of Reagan's second term, while G.H.W. Bush was running for President, OSHA finalized rules on excursion limits for asbestos, tremolite, anthophyllite and actinolite, mechanical power presses, concrete and masonry construction, among others. The agency also proposed rules on lockout/tagout, exposure limits for 375 air contaminants, concrete lift-slab construction, and generic standards for medical surveillance, and exposure monitoring.

In 1992 when G.H.W. Bush was seeking re-election, OSHA issued five final rules, including process safety management of highly hazardous chemicals (in February), occupational exposure to formaldehyde (in May), to 4,4 methylenedianeline (in August), and to cadmium (in September). In August of that year, OSHA also published an advanced notice of proposed rulemaking entitled "Ergonomic Safety and Health Management." When Clinton was seeking re-election in 1996, OSHA issued four final rules, including revisions to personal protective equipment requirements in shipyards (in May), safety standards for scaffolds used in construction (in August), and occupational exposure to 1,3 butadiene (on Election Day).

There are 70 days left until Election Day 2012. So far this year, President Obama's OSHA has issued a final rule to harmonize its Hazard Communication rule with global standards, proposed a rule on cranes and derricks during demolition and underground construction, and published a request for information on hazards related to reinforced concrete and backing up vehicles. It's not a record of action that conforms with OSHA's performance during the seven previous Presidential election years, but comparable to its record during the George W. Bush Administration.

This little exercise and this little table don't actually tell us whether OSHA rulemaking activities slow down during an election year. For that, I'd need to assemble the same information on regulatory activities in the year before an election and compare it to the figures in the table above. Maybe I'll pull together that data next month. For now, we just know that the number of final and proposed rules issued by OSHA during Presidential Election years rapidly declined after 1996.

P.S. In late June, OSHA submitted for review a final rule addressing hazards related to Electric Power Transmission and Distribution in the construction industry to the White House's Office of Information and Regulatory Affairs. I'll be happy to revise the chart above if it (or any other key regulatory activities) is published before November 6, 2012.

P.P.S. I made the correction to the table on September 12, 2012, and to the attachment provided in paragraph 3.

cmonforton Tue, 08/28/2012 - 08:11

OSHA lists 147 employers as "Severe Violators" of worker safety standards

cmonforton — Fri, 22 Jul 2011 10:00:00 +0000

OSHA lists 147 employers as "Severe Violators" of worker safety standards

What do Kraft Foods Global, Tyson Foods, Sea World and Lucas Oil Production Studio have in common? They are four of the 147 employers identified by OSHA as "severe violators" of worker health and safety standards. Earlier this month, federal OSHA posted on its website a document listing employers in 30 States who meet the agency's criteria as a

"recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law."

The OSHA document is a 4-page PDF and for your convenience, I've converted it into a spreadsheet in MS-Excel to make it easier to sort the information by State, NAICS or other variable. The four companies listed above made their way onto the list after receiving a willful violation in 2010 related to a worker death at one of their sites.

Getting the SVEP label is not easy.

First, a workplace has to be the subject of a federal or State OSHA inspection. In any given year, less than 1% of worksites will have a vist from a government safety inspector. Second, the employer has to receive citations with violations classified as "willful," "repeat," or "failure-to-abate" (W/R/FTA). The vast majority of violations, however, are classified as "serious," with only about 4% in the W/R/FTA category.

As I wrote when SVEP was announced last year, an employer wouldn't receive the "severe violator" label because of willful infractions in the past. OSHA is using the SVEP to identify recalcitrant employers for possible future inspections.

The information posted by OSHA about the program tells us:

(a) 147 employers in 2010 and early 2011 had an OSHA inspection and because of the severity of the violations found by inspectors, the company qualified for the "severe violator" label. Nearly 22% of the inspections (32 incidents) on the OSHA list were conducted because a worker was killed on the job and the employer received at least one W/R/FTA violation.

(b) Of the 147 employers on the list, just 14 of them (9.5%) have been subject to at least one additional OSHA inspection, at the same or a different one of their workplaces. For example, following the September 2010 death of Andrew Dill, 20, in Morral, Ohio at Gavilon Grain, federal OSHA conducted six more inspections at other grain elevators owned by the same company. In total, the firm was cited for 46 safety and health violations with proposed penalties totaling $465,500. Likewise, after an inspection at the Cooper Tire & Rubber plant in Findlay, Ohio, where OSHA inspectors identified several violations including two classified as willful, the agency did a follow-up inspection at the company's plant in Tupelo, MS. Safety inspectors identified 14 violations, including two willful, and proposed penalties of nearly $204,000.

(c) The States with the greatest number of employers designated as "severe violators" are Illinois (26), Texas (21), New Jersey (16), New York and Ohio with 15, Florida with eight, and Alabama, Connecticut, Pennsylvania and Wisconsin with six.

(d) Federal OSHA conducts inspections in private-sector workplaces in 29 States, while 21 States run their own OSHA programs with authority to inspect private sector workplaces. All but six of the 21 States have adopted a program comparable to federal OSHA's SVEP. According to the information posted by OSHA, only three workplaces in three of these OSHA State Plan States (Arizona, Indiana, Washington) have an employer with the SVEP designation.

(e) More than half of the 147 employers with OSHA's SVEP label operate in the construction industry. Given that OSHA conducts nearly 60% of its inspections at construction sites, it shouldn't surprise us that the SVEP list is heavy with construction companies. Twenty-three of the employers on OSHA's SVEP list are masonry contractors, 13 are involved in water and sewer line construction, and six in building poured concrete foundations. But the "severe violators" are not just in the construction industry. The OSHA list has employers involved in 78 different industries from commercial bakeries, metal stamping plants and sawmills, to Illinois meat processing plants, paper mills in New Hampshire and New York, and an Indiana boat builder.

Federal OSHA implemented the "Severe Violators Enforcement Program" (SVEP) a year ago in reponse to a March 2009 Inspector General report that was critical of the agency's Enhanced Enforcement Program (EEP). The IG said the EEP failed as a targeting program for bad-actors employers. When OSHA inspections found that an employer's H&S practices put workers' lives were at risk, the EEP failed to compel follow-up inspections at that site or others controlled by the same employer. Under SVEP, OSHA says that when an employer meets the "severe violator" criteria, the agency

"will conduct inspections at other worksites controlled by the same employer where similar hazards may be present."

Thirty-one such follow-up inspections have been conducted. To put that in perspective, federal and State OSHA programs conduct about 100,000 inspections annually.

With 147 employers now on a list of bad actors, but only 14 of them subject to-date by a follow-up inspection, it may be too early to tell whether the OSHA's SVEP is meeting its objective.

cmonforton Fri, 07/22/2011 - 06:00

No avalanche, hardly even a snow flurry, of worker safety regulations in Labor Dept's latest regulatory agenda

cmonforton — Tue, 12 Jul 2011 11:00:00 +0000

No avalanche, hardly even a snow flurry, of worker safety regulations in Labor Dept's latest regulatory agenda

If one listens to the speeches of many Republican members of Congress, especially those assigned to the House Education and Workforce Committee, you'd think the U.S. Department of Labor has unleashed an avalanche of new employment-related regulations that business must now meet. I heard one Hill staffer report on inquiries he receives from constituents who ask "how many OSHA rules were issued last month?" Imagine their surprise when they learn, OSHA barely issues one major rule per year. Whomever is telling lawmakers and business that the Labor Department's worker safety agencies are out-of-control regulators who are cranking out new regulations hasn't looked at the data. Nothing could be further from the truth. In fact, the regulatory agenda released last week by Labor Secretary Hilda Solis hardly resembles the ambitious list of action items I expected when the Obama Administration took office.

By my calculation, the Labor Department has issued only four final rules on worker safety topics during President Obama's tenure, two from OSHA and two from MSHA. The four are rules that apply to only a small subset of businesses----not sweeping rules that affect the majority of employers. OSHA issued:

*a regulation on general working conditions in shipyards requested initially in 1982 by the Shipbuilders Council of America, and

*a a modernized regulation on safety standards for cranes and derricks that dated back to a 2002 negotiated rulemaking activity.

The two MSHA rules issued only pertain to underground coal mines---a very small segment of the overall US mining industry. One rule addressed safety hazards related to high-voltage continuous mining machines, based one a proposal published in 2004. The other is a rule issued just last month concerning rock dusting in coal mines. It's a practice that helps to prevent coal dust explosions---like the disaster that killed 29 men last year at the Upper Big Branch mine----and stems from recommendations made to MSHA in 2006 by NIOSH.

In this latest regulatory plan and agenda, MSHA doesn't project issuing any new worker safety rules before December 2011; OSHA projects issuing three new rules. They are:

*a final rule to protect construction workers from the hazards of confined spaces, like storage tanks and pipe work. A rule of this sort has been in place since 1993 for workers employed in manufacturing and other industries, but no such rule is on the books for construction workers. OSHA projects this rule will be issued in November 2011, the same target date OSHA projected in its previous reg agenda.

*a final rule to enhance provisions in OSHA's existing safety standards for workers involved in electric power transmission and distribution, including new requirements for personal protective equipment. The existing rules date back to the 1970's and these revisions were proposed in 2005 during the GW Bush Administration. In the previous regulatory agenda, OSHA indicated this rulemaking would be completed in May 2011. OSHA now projects the new rule will be finalized by September 2011.

*a final rule to harmonize the labeling of and data sheets for chemical substances to be consistent with global standards. OSHA started this rulemaking in 2006 during the GW Bush Administration. In the previous regulatory agenda, OSHA indicated this rulemaking would be completed in August 2011. OSHA now projects the new rule will be finalized by September 2011.

Neither of these two latter rules have been submitted yet by the Labor Department to the White House's Office of Information and Regulatory Affairs (OIRA) for its review and approval. Because OIRA is allowed 90 days to complete its review and given its predilection for extending its reviews, (here, here) I won't hold my breath expecting these rules to be issued in September, but I hopeful they will be published by the end of the year.

These not-yet-issued rules---all of which were first proposed during the GW Bush Administration----hardly constitute an avalance of worker safety regulations. As someone who believes that there are too few meaningful rules on the books to protect workers from on-the-job injuries and illnesses, OSHA's latest regulatory agenda is disappointing. Here are just two examples:

***A year and a half ago, OSHA proposed a simple modification to a form on which a fraction of employers are required to record on-the-job injuries. The proposed revision involved adding a column on the OSHA 300 form where an employer would place a checkmark if the work-related injury was musculoskeletal in nature. The proposal languished at the White House for months, OSHA projected in its previous reg agenda that the rule would be published in February 2011, but now OSHA isn't even offering a date on which it expects to finalize it. (Previous posts here, here, here)

***After just a few months on the job, Labor Secretary Hilda Solis said in April 2009,

"...combustible dust explosions have caused many deaths and devastating injuries that could have been prevented. OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need..."

She later said:

"It's time for workers to stop dying in preventable combustible dust explosions. Workplace safety is not a slogan. It's a priority clearly embodied in our laws."

With that strong language from the Labor Secretary, you'd think OSHA would be on a fast track to propose a rule to protect workers from combustible dust hazards. In the previous regulatory agenda, OSHA indicated it would convene in April 2011 a panel of small businesses to review a draft rule----a step required of OSHA before it can propose a rule. OSHA now projects that step won't take place until December 2011. OSHA's slow motion on this issue comes despite a report issued five years ago by the Chemical Safety Board with recommendations that OSHA adopt a rule to address this catastrophic hazard, and attention by the U.S. House of Representatives, which passed a bill in 2008 that would have required OSHA to issue a rule within 18 months. More troubling, the agency's lack of urgency comes despite continued deaths, injuries and destruction in workplaces from combustible dust explosions.

Besides these specific examples that disappoint, it won't be long before regulatory action by OSHA and MSHA will likely grind to a halt as the election cycle heats up. President Obama mentioned this yesterday in his press conference about the deficit reduction talks and it holds true for other aspects of government action. It's largely the reason that worker rights and public health advocates urged the Obama transition team to lay the groundwork so the Labor Secretary and agency heads could hit the ground running to promptly put new protective rules in place. When I read this latest regulatory plan from the Labor Department, I have to wonder if they are telling us, that opportunity has now passed us by.

--------
[My previous post on DOL's semi-annual regulatory agendas are:

* Frances Perkins is rolling in her grave, December 2006
* Progress (Not!) on workplace standards, May 2007
* OSHA's reg agena: where have all the hazards gone?, Dec 2007
* Solis' regulatory plan for OSHA and MSHA, May 2009
* Good news, bad news in Solis' regulatory agenda, December 2009
*Puzzled by MSHA's latest regulatory agenda, May 2010
*Perplexed by OSHA's latest regulatory agenda, May 2010
*Labor Dept reveals plan for worker health and safety regulations, December 2010]

cmonforton Tue, 07/12/2011 - 07:00

This is great. The no action by government benefits us all.
They cannot implement or enforce what is and has been in place for decades. Why do they continue trying to pass regulations and laws when they will not be able to enforce them.
They need to focus on streamlining what is in place before adding more and not being able to enforce them.