OSHA under Obama: The final year

One year from now, a new U.S. president will be elected. The changing of office could mean a new direction for the enforcement agency tasked with ensuring employers keep their workers safe. But before that happens, OSHA under President Barack Obama’s administration has many items left on its agenda, including rules on silica, recordkeeping and combustible dust – most likely too many for the agency to address in only 15 months.

“They probably are seeing that the time is running short,” said Celeste Monforton, professorial lecturer at the Milken Institute School of Public Health at George Washington University. “There’s just limited staff and limited resources to work on all of those important issues.”

Although a new administration could continue the agency’s current agenda, it’s not guaranteed, especially if a Republican is elected. So, with limited time and resources, what might OSHA accomplish in the remaining months of Obama’s presidency?

Silica

Everyone who spoke with Safety+Health for this article agreed that a final rule on silica likely will be issued before Obama leaves office.

“It’s clearly now the agency’s top rulemaking priority,” said Luke George, senior government relations manager at the National Safety Council. “This is a rulemaking they feel could make the greatest impact in the time they have left.”

OSHA has been publicly working on updating its silica rule for more than a decade and issued a proposed rule two years ago. The agency was scheduled to analyze comments this past summer, but at press time it had given no indication on when the final rule would be released.

Promulgating a final rule on silica would be a “heavier lift” for the agency, according to Marc Freedman, executive director of labor law policy for the Washington-based U.S. Chamber of Commerce. The rule faces strong opposition from some industry and employer groups, who have questioned the need for a lower permissible exposure limit amid a decline in fatalities related to silica under the current PEL.

Further, the proposal infamously spent two-and-a-half years under review by the White House. The final rule will go through a similar review, but Monforton hopes agency officials will intercede to move the rule along more quickly. George noted that if too much time passes before the rule is published, OSHA could face congressional policy riders that restrict the agency’s ability to promptly promulgate the standard.

Notwithstanding these challenges, the rule is expected within the next year or so, with room for debate as to whether it is released before, during or after the 2016 presidential election.

Beryllium

OSHA’s beryllium rule also has been long in the works. Labor groups petitioned the agency for an emergency standard in 1999 and 2001, and OSHA issued a Request for Information in 2002. Despite the publication of a proposed rule in August, some stakeholders believe this standard has a strong chance of being finalized before January 2017.

“You have two interested sides in agreement,” said Freedman, referring to the strong cooperation between labor and industry in the rule’s development. “If anything’s doable, that should be doable.”

As a result of this cooperation – and the relatively smaller scope of the rule – far less controversy is attached to the promulgation of a beryllium standard, Monforton said.

Recordkeeping

One area OSHA has made substantial headway on is recordkeeping. An updated rule from OSHA now requires employers to report work-related deaths in a more timely manner, as well as report more hospitalizations and all amputations.

Two other recordkeeping rules are on the books and could be issued in the next 15 months, stakeholders say. One would require many employers to regularly submit their injury and illness records, which would then be made available to the public. The other rule clarifies that recording an injury is an “ongoing obligation,” and would work around a court ruling barring OSHA from citing an employer past a six-month statute of limitations. (For more on this rule, see Washington Update: The recordkeeping workaround.)

“If you look at OSHA, for not being able to do much for six years, all the recordkeeping stuff is huge,” said Dave Heidorn, manager of government affairs and policy for the Des Plaines, IL-based American Society of Safety Engineers. “I think that’s going to be their legacy.”

George agreed that recordkeeping has been a recent focus for the agency, as improved data allows OSHA to better target and use its resources. However, the electronic recordkeeping proposal has drawn scrutiny from both labor and industry over privacy and feasibility concerns. This could create a hiccup.

“When there’s controversy from both sides, that makes it a little more difficult for the agency,” Monforton said. Given the short period of time OSHA has left to resolve some issues regarding implementation of this proposal, it may not be possible for the agency to release the rule. A final rule was expected in September but had not been received by the White House’s Office of Management and Budget for review when Safety+Health went to press, leading Freedman to believe that OSHA’s timeframe is unlikely to be met.

I2P2 and combustible dust

Two major OSHA rules unlikely to be issued during Obama’s presidency: A standard requiring employers to implement an injury and illness prevention program and a rule on combustible dust.

The agency had called a standard on I2P2 – as it is commonly known – its No. 1 priority and promoted it as a way worksites could be made safer without innumerable prescriptive rules. However, talk of a standard began to fade halfway through Obama’s presidency, and now OSHA’s focus in this area has shifted to encouraging employers to voluntarily adopt prevention programs.

“It’s so late in the administration, that’s not one that’s going to happen,” Monforton said. “The fact that they have it listed as a long-term item – they’ve acknowledged that themselves.”

Freedman is surprised by the change in priorities. Although both silica and I2P2 are major rulemakings, silica would not affect every employer the way an I2P2 standard would.

George speculated that a lack of resources landed I2P2 on the agency’s back burner. “OSHA realizes they only have the staffing to do one or two major rules at one time,” he said, suggesting that when agency staff looked at the agenda, they likely determined they could get a silica rule finalized by the end of the administration – but not I2P2.

Unlike I2P2, combustible dust is not on the agency’s long-term agenda. OSHA has been working on the rule since 2009, and many stakeholder groups – including the Chemical Safety Board – have pushed for movement on it.

OSHA said it intends to convene hearings under the Small Business Regulatory Enforcement Fairness Act on the rule in 2016. If those hearings take place, Freedman said, it’s likely the agency has a draft regulation. “That suggests they could get a proposal on the street,” he said.

Although this won’t amount to a final rule before Obama exits the White House, it could result in a proposed rule, on which stakeholders could comment. What happens after that would depend on Obama’s successor.

Monforton is doubtful that in the next year-and-a-half the agency will get to the SBREFA hearings, let alone a proposal. Even though groups such as CSB and the National Fire Protection Association have issued recommendations and consensus standards on combustible dust, OSHA views the issue as more technically complex. Again, she said, it comes back to resources – OSHA only has so many.

Walking/working surfaces

OSHA’s rule to address slip, trip and fall hazards is one of the furthest along in the rulemaking process – it has been in the works for the past 25 years. Although a final rule was expected in August, at press time it was still under OMB review. Regardless, Monforton regards the rule as one the agency could easily issue, possibly before the end of 2015.

Midnight regulations

When an administration comes to a close, the question on many people’s minds is if any last-minute rules will be issued.

These so-called “midnight” regulations are common. OSHA’s ergonomics standard was issued under the Clinton administration a week after the 2000 election, and Congress exercised its power to rescind the rule shortly after President George W. Bush took office in January 2001.

“I keep telling people, it’s all fair game until noon on Jan. 20, 2017,” when the new president is sworn in, Freedman said.

Whether OSHA issues a midnight regulation will depend on who wins the presidency and the political makeup of Congress, but neither Heidorn nor Monforton believes OSHA will go that route.

The ergo standard and its subsequent rejection “was a very harsh lesson for the Clinton administration,” Monforton said, adding that the current administration “will want to avoid making that mistake.”

She reasoned that OSHA will focus on getting new rules out as early as possible in 2016 to avoid being perceived as issuing a midnight regulation. But even if a rule’s release is delayed until after the election, Monforton believes the agency would still issue it. If the standard is revoked by Congress, she said, at least the administration can say they published it.

Non-regulatory actions

Rulemaking may not be the only action OSHA takes as Obama’s administration comes to a close – leaving at least one stakeholder concerned. “I worry about the interpretations and the guidances and the sub-regulatory actions,” Freedman said. “There’s no way to respond, no way to provide input and, in most cases, it’s almost impossible to challenge these things."

He pointed to OSHA’s ill-fated interpretation on occupational noise, which was issued in 2010 and would have required employers to engineer out noise hazards instead of using personal protective equipment. Following backlash from industry groups, the agency dropped the interpretation. But Freedman cautioned that the agency could do something similar in the closing months of Obama’s presidency.

For example, the Hazard Communication Standard or NFPA consensus standards could be referenced to cite employers for combustible dust – all without an actual combustible dust standard.

Another example: permissible exposure limits. In 2013, OSHA issued annotated PEL tables featuring recommended limits from other agencies and organizations. Will the agency use these tables to cite employers under the General Duty Clause? Freedman believes it’s possible and that it could allow OSHA to force employers to follow more stringent limits without issuing a rule.

The agency also could pursue more employer-friendly initiatives. Monforton noted OSHA’s Spanish-language outreach – many pages on the agency’s website are in Spanish – and its continuing compliance assistance efforts. ASSE members have been asking for OSHA guidance on I2P2, and the agency could issue that, Heidorn said. Likewise, an OSHA advisory group is working on a guidance document on temporary and contractor workers, and that likely will be issued soon, according to George.

Perhaps OSHA will offer no surprises as Obama’s successor starts measuring the drapes. OSHA staff under Obama has been “pretty straightforward about things,” Heidorn said. George’s take? “I think you’re going to see a continuation of what you’ve seen the last couple years.”