Regulatory Delay: Why It Took OSHA 25 Years to Promulgate a Construction Safety Rule
OSHA has finally promulgated a Confined Spaces in Construction rule. The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule. Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. Proponents say these hurdles are necessary to ensure the accuracy and reasonableness of regulations, but they also deny workers and others of regulatory protection for years and years — a quarter century in this case. In short, perfection has become the enemy of the good, a pattern that has real consequences for the workers who depend on OSHA to issue rules in a timely way.
A history of tying up rules to protect construction workers in confined spaces has plagued the agency for decades. For example, in March 1980, OSHA issued an ANPR that posed 31 questions concerning the multiple hazards for construction workers that can occur in confined spaces. One concerned workers who die or are injured in excavation or trenching construction. In June 1989, OSHA separately issued a Notice of Proposed Rulemaking (NPR) for a general industry confined spaces rule, which was adopted as …
The Bureau of Labor Statistics (BLS) has reported that the occupational fatality rate of 3.3 deaths per 100,000 workers for 2013 was the lowest reported rate since the BLS started using its current tracking methodology in 2006. That’s good news, but we’ve got a very long way to go still. The simple truth is that workers are not as safe as they could and should be. Although the fatality rate is down, there were still 4,585 occupational fatalities in 2013.
The principal method for making workers safer is regulation and enforcement by the Occupational Health & Safety Administration. While about 40 percent of the deaths resulted from motor vehicle-related accidents, which is outside of OSHA’s regulatory authority, OSHA has tried to address the job risks within its jurisdiction by targeting the most dangerous industries and imposing the maximum penalties in appropriate …
Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day. The sad state of the environment on that day was all too apparent. The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before. The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America’s cities – palpable air – had reached epidemic proportions. Rachael Carson’s book, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people.
In today’s gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment.
Political scientists teach us that the history of the United States indicates that conservative and corporate interests …
Today, the House of Representatives voted to pass the Regulatory Accountability Act of 2015, which would amend the Administrative Procedure Act (APA) to add over 74 new procedural requirements to the rule-making process, including more than 29 new “documentation” requirements. The goal of administrative procedure is to ensure that the government’s adoption of regulation is accountable and fair, but not at the expense of hamstringing the ability of agencies to fulfill the public interest. The House obviously has no such concern. Agencies already take four to eight years to promulgate any type of complex and controversial regulation, and the new requirements would add another two to three years or more to the process. House Republicans voted today to delay clean air, clean water, safer workplaces, and less toxic products for their constituents. In addition, they have given Wall Street a green light to re-engage in behavior …
The House of Representatives has passed legislation (H.R. 1422) that prohibits academic scientists on EPA’s Scientific Advisory committee from participating in “activities that directly or indirectly involve review of evaluation of their own work,” but allows scientists who work for industry to serve on the Board as long as they reveal their respective conflicts of interest. To understand the House’s real motives, it is necessary to appreciate how industry seeks to use scientific uncertainty as an excuse not to act on environmental problems. Senator Inhofe’s claim that global climate change is a hoax is a well-known example of this tactic. Less visible is a decades long public relations, litigation, and advocacy campaign by corporate interests to manufacturer doubt about the science that supports environmental regulation.
A common feature of environmental legislation is legislative authorization to act on the basis of anticipated harm, making …
The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals. State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to hold accountable any people or corporations responsible for the chemical by seeking reasonable compensation for their injuries. It’s often difficult to win these cases, and even victory won’t undo the pain and fear that comes with suffering from cancer or other illnesses that can result from harmful exposures to toxic chemicals, but the process does hold out the possibility that victims can obtain some measure of justice for the harm they have endured.
Recently, industrial chemical manufacturers and users have supported a new and subtle method for undermining legal responsibility …
Suddenly politics in this country appears to have taken a turn toward democracy and away from markets.
As we develop in a book just published by Oxford University Press, discussing economic inequality. Regulation of Wall Street proceeds apace after the investment banks and mortgage lenders sank the American economy with their recklessness as they now write multi-billion dollar checks for their malfeasance. If indeed the tide has turned, the country is emerging from a cycle deemphasizing government that dates back to the election of Ronald Reagan.
It is too early to know for sure whether the country will once again embrace government as leader and partner in order to address pressing problems that markets have caused or are unable to address. Certainly the poisoning of drinking water in Charleston, West Virginia, the latest highly visible crisis attributable to the failure to engage in effective regulation, should help …
This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee’s confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate. Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, is quoted as saying about the court, "They have, by far, the lowest caseload per judge. They take the summers off." Other than this political rhetoric, there is nothing to back up this claim. The Republican’s true objection is that, after the President fills the vacancies, the court will have more judges that will have been appointed by presidents who were Democrats …
In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.
Congress is now considering competing bills to fix one part of this framework—the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals. The two bills—the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA)—both fall short of what is needed to fix TSCA, albeit to a widely varying degree—while weakening the civil justice systems and state regulation even …
As indicated by the 20th anniversary of Executive Order 12866, which guides the workings of the Office of Information and Regulatory Affairs (OIRA) at OMB, OIRA has become a fixture of the regulatory landscape. OIRA review of proposed rules is problematic, as other blogs in this series have indicated. In the Obama administration, however, this is an additional problem. Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration. This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations. When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made.
There is an old saying that in government “where you stand depends on where you sit.” That is, your view …
