OSHA's Lack of Standard Setting under Fire

This year's Workers Memorial Day, April 28, included criticism of the Occupational Safety and Health Administration (OSHA) — the federal regulatory body charged with ensuring worker and workplace safety. On Capitol Hill and in the media, critics chided OSHA for not fulfilling its mission and falling behind in promulgating new standards to protect the American workforce.

America has observed Workers Memorial Day on April 28 every year since 1989. The day is intended to recognize workers injured or killed on the job and raise awareness of workplace safety. In the week leading to this year's Workers Memorial Day, both chambers of Congress held hearings investigating the record of OSHA.

On April 26, the Senate Health Education and Labor Committee subcommittee on Employment and Workplace Safety held a hearing called "Is OSHA Working for Working People?" AFL-CIO Director of Safety and Health Margaret Seminario criticized OSHA for not creating a progressive standard-setting agenda and instead relying on voluntary industry compliance. "Under the Bush Administration, voluntary efforts and partnerships with employers have been favored over mandatory standards and industry-wide enforcement initiatives," Seminario said in testimony.

During the Bush administration, OSHA has adopted a policy whereby the agency responds to and cooperates with industry in efforts to improve workplace safety. Seminario continued, "With this approach, OSHA has abandoned its leadership role in safety and health, choosing to work with individual employers, rather than taking bold action to bring about broad and meaningful change in working conditions on an industry-wide and national level."

On April 24, the House Education and Labor Committee subcommittee on Workforce Protections held its own oversight hearing. The House hearing maintained a similar tenor. Subcommittee Chairwoman Lynn Woolsey (D-CA) derided OSHA under the Bush administration, saying, "The Administration has the worst record of standard setting of any administration in the history of the law."

OSHA head Edwin G. Foulke Jr. testified at the House hearing and defended his agency. He touted OSHA's enforcement record, saying the agency has "proposed more than three-quarters of a billion dollars in penalties for safety and health violations and made 56 criminal referrals to the Department of Justice, which represents more than 25 percent of all criminal referrals in the history of the Agency."

However, the focus of the hearing continued to be on standard setting. Woolsey claimed a rule protecting workers from hexavalent chromium — a carcinogen found in a variety of industrial products, particularly coatings — to be the only significant standard set during this administration. As Woolsey pointed out, OSHA promulgated that rule in response to a court order.

Franklin Mirer, an expert and occupational health professor from Hunter College, blamed OSHA management for the lack of standard setting. Mirer's testimony repeatedly states OSHA has the resources it needs but is not utilizing them, in one instance stating, "OSHA has staff and other resources to set standards, but that staff has not been permitted to operate."

OSHA's standard setting resources have been consistent for the last several fiscal years. The OSHA program responsible for setting standards was appropriated approximately $17 million in FY 2006 and 2007. For the same years, the program has employed 83 people. However, OSHA promulgated only four standards during FY 2006 and expects to promulgate three in FY 2007. Only one of these, the hexavalent chromium standard, is considered "significant," a term that means the regulation has an annual impact of $100 million or more and is subjected to review by the Office of Management and Budget. FY 2008 resource requests are similar.

Congress is pursuing legislative solutions to the problems at OSHA. Sen. Edward Kennedy (D-MA) and Woolsey have introduced, in their respective chambers, The Protecting America's Workers Act (S. 1244, H.R. 2049), a bill resurrected from two prior Congresses. The legislation proposes, among other provisions, severe penalties for employers in violation of safety laws, employer-paid protective equipment for workers, and increased protections for whistleblowers.

Off of Capitol Hill, OSHA received its most conspicuous criticism in a front page New York Times article published April 25. The article focused on exposure to diacetyl, a food-flavoring agent commonly found in microwave popcorn, which can cause severe lung disease if not properly ventilated. The article chronicled years of neglect by OSHA to promulgate a safety standard for workers who handle diacetyl.

The article frames the issue of diacetyl as reflective of "OSHA's practices under the Bush administration, which vowed to limit new rules and roll back what it considered cumbersome regulations that imposed unnecessary costs on businesses and consumers."

The article quotes David Michaels, occupational health expert and director of George Washington University's Project on Scientific Knowledge and Public Policy, as saying, "The people at OSHA have no interest in running a regulatory agency."

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