A new report from the Government Accountability Office shows the Occupational Safety and Health Administration has many hurdles to clear develop and issue safety and health standards.
The report finds that the rulemaking process is slow to issue safety regulations that could costs the lives of workers.
"Questions have been raised concerning whether the agency's approach to developing standards is overly cautious, resulting in too few standards being issued," Revae Moran, GAO director of education, work force and income security, told Congress. "Others counter that the process is intentionally deliberative to balance protections provided for workers with the compliance burden imposed on employers."
The report was delivered to the Senate Committee on Health, Education, Labor and Pension April 19. Sen. Tom Harkin, D-Iowa, chairman of the committee, said that red tape has "crippled" the effectiveness of OSHA.
"Even when the evidence is undeniable that our workers are dying from workplace hazards, OSHA still takes an eternity to issue a new safety rule. While reasonable safety rules are delayed to provide never-ending opportunities for stakeholder input, workers' lives and livelihood are at risk. It is simply unconscionable that workers must suffer while an OSHA rule is mired in bureaucracy."
According to the GAO report, it takes as long as 15 years to create a new safety rule with an average of eight years for each rule since 1981. Only 11 significant rules have been published by OSHA since 2000.
"It is simply unacceptable that it takes as long as 19 years for OSHA to issue needed protections," said Rep. Lyn Woolsey, D-Calif. "The price is paid with lives lost and injuries suffered that could otherwise have been prevented.""
The agency has been trying to develop a silica standard since 1997, a beryllium standard since 2000 and a standard on walking and working surfaces since 2003.
OSHA takes about 50 percent longer than the Environmental Protection Agency, twice as long as the Department of Transportation and five times longer than the SEC to publish a final rule.
"Experts and agency officials cited several factors that contribute to the lengthy time frames for developing and issuing standards, including increased procedural requirements, shifting priorities, and a rigorous standard of judicial review," Moran said in his report. "We also found that, in addition to using the typical standard-setting process, OSHA can address urgent hazards by issuing emergency temporary standards, although the agency has not used this authority since 1983 because of the difficulty it has faced in compiling the evidence necessary to meet the statutory requirements."
The report found the agency spent more time on enforcement actions and education activities. The report examines potential knowledge to be gleaned from agencies such as the Mine Safety and Health Administration or the EPA, but found little to model OSHA rules on.
"For example, EPA officials pointed to certain requirements of the Clean Air Act to set and regularly review standards for specified air pollutants that have facilitated the agency's standard-setting efforts," the report states. "In contrast, the OSH Act does not require OSHA to periodically review its standards.
"Also, MSHA officials noted that their standard-setting process benefits from both the in-house knowledge of its inspectors, who inspect every mine at least twice yearly, and a dedicated mine safety research group within the National Institute for Occupational Safety and Health (NIOSH), a federal research agency that makes recommendations on occupational safety and health."
Experts interviewed for the reports also pointed to an increased standards for court challenges, gaps in available scientific data and a culture of trepidation that developed as a result of adverse court decisions.
The report also found OSHA failed to issue emergency rules under its given authority for nearly 30 years.
"OSHA officials noted that the emergency temporary standard authority remains available, but the legal requirements to issue such a standard — demonstrating that workers are exposed to grave danger and establishing that an emergency temporary standard is necessary to protect workers from that grave danger — are difficult to meet," the report states.
Taking note from MSHA, the report suggests statutory deadlines for rulemaking. MSHA officials, however, warned that setting such standards can be to the detriment of other issues which can be set aside as a result of a rush to meet legislatively defined deadlines.
"The process for developing new and updated safety and health standards for occupational hazards is a lengthy one and can result in periods when there are insufficient protections for workers," Moran said in his presentation to the committee. "Nevertheless, any streamlining of the current process must guarantee sufficient stakeholder input to ensure that the quality of standards does not suffer."
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