I’m not sure why I’m compelled to write each time the Labor Department releases its Spring and Fall agenda on worker safety regulations. The first time I did so was December 2006 and I’ve commented on all but one of the subsequent 14 agendas. But the ritual is largely disappointing.
On its regulatory agenda, OSHA will indicate its intention to make progress on a proposed or final worker safety rules. It will provide target dates to complete key tasks for each of those rules. But for the majority of the regulatory topics, by the time the next regulatory agenda rolls around six or more months later, all we see are target dates further into the future. Here’s a typical example:
OSHA’s Spring 2011 regulatory agenda signaled it would issue a final rule in June 2012 to address the deadly hazard of confined toxic environments faced by construction workers. In the subsequent agendas, the target date was July 2013, then February 2014, and now it’s August 2014.
There’s no reason for me to believe-----given OSHA’s history of providing fictional target dates---that OSHA will issue this new safety rule by August.
It’s been the same discouraging pattern with a proposal to protect healthcare workers from infectious agents. In OSHA’s Fall 2011 regulatory agenda, the agency suggested it would convene a panel of small businesses in March 2012 to review its draft proposal on the topic. In the subsequent agendas, the target date was April 2013 and then January 2014. The regulatory agenda released last month by OSHA set the target date for May 2014. May 2014 has already come and gone.
The example that baffles me the most concerns a rule to protect workers who are exposed to beryllium. The super strong and lightweight metal is a carcinogen and can cause a disabling fibrotic lung disease. Materion, the world’s largest producer and supplier of beryllium (and the only U.S. manufacturer of it), and the United Steelworkers (USW) are the two key players with interest in an OSHA regulation on beryllium. They’ve also been around long enough to know the snail’s pace of OSHA rulemaking.
Materion and the USW took it upon themselves to make OSHA’s job easier. They gave OSHA the full text of a draft regulation. For the two years prior, Materion and USW negotiated the document, and they delivered it to OSHA in February 2012. Mike Wright, the USW’s director of health, safety and environment described the proposed regulatory text as:
"a mutual search for feasible measures that would best protect workers. We worked through many disagreements, but worker health was always the goal for both parties.”
I’m sure Materion and the USW thought their two-year effort would jumpstart OSHA into a beryllium rulemaking by doing some of the agency’s work. Their contribution was not just writing the regulatory text, but working through the contentious issues that would surely have bogged down OSHA. It was the regulatory equivalent of being handed a present on a silver platter with a big red bow.
But even in this case, the fiction of OSHA’s regulatory agenda continues. First the agency said a proposed rule would be published in July 2013, then in October 2013, then in April 2014. This latest agenda sets the milestone at July 2014. I bet the USW and Materion are saying "we'll believe it when we see it."
During the G.W. Bush Administration, my blog posts about OSHA’s regulatory agenda were critical and harsh. In agenda after agenda, the target dates for most regulatory action on worker safety rules moved further and further into the future. I was quick to criticize the lack of progress. I'll be honest, I really didn’t expect anything different from that Administration.
Regrettably, little has changed. The regulatory agenda for the Obama Administration’s OSHA is the same fiction we read during the previous Administration.
Not much of a "regulatory tsunami" is it?