The American workplace has changed dramatically over the last two decades, and so have the inherent hazards for workers. New, bigger, more powerful equipment has come online. New chemicals and other toxic substances have come into routine use. New production and construction methods have been introduced.
Created in 1971, the Occupational Safety and Health Administration, OSHA, is charged with protecting workers in the workplace, empowered to adopt regulations on a range of worker-safety topics, and to enforce those regulations to the point of pursuing criminal violations of the law. In its early years, OSHA aggressively attacked the myriad safety problems in American workplaces, to great effect – fewer injuries and fewer deaths. But the war on regulation launched during the Reagan years began a steady decline in OSHA’s ambition and effectiveness, and progress preventing workplace injuries has stopped.
Today, OSHA casts an exceedingly small shadow on the American workplace. It has been starved of the resources it needs to keep up with regulatory challenges and burdened with analytical requirements by adverse court decisions and congressional action. The result is that new safety standards can take a decade or more to implement, and enforcement of existing standards is sporadic at best.
This week, the Center for Progressive Reform released “Workers at Risk: Regulatory Dysfunction at OSHA,” by CPR Member Scholars Thomas McGarity, Rena Steinzor, and Sidney Shapiro, along with me. The white paper explores the reasons for OSHA’s systemic failures, and offers a series of recommendations for regulatory reform of OSHA – administrative actions the agency could implement in the absence of congressional action. They include:
• End the practice of regularly discounting penalties before they’re even proposed.
• Publish all negotiated settlement proposals for public comment.
• Conduct a rigorous analysis of what resources would be required to make the OSHA inspection program a credible threat for employers chronically out of compliance, restoring the efficacy of deterrence-based enforcement throughout the agency.
• Improve training to promote criminal referrals and work with state and local prosecutors to prompt criminal indictments in certain cases.
• Use the “general duty clause” to protect workers exposed to chemicals that lack OSHA-derived Permissible Exposure Levels. The “general duty clause” requires that employers have a general duty to protect workers from known hazards likely to cause death or serious harm.
• Seek additional resources to increase rulemaking staff.
• Reexamine the heavy risk analysis requirements OSHA imposes on itself in the wake of a Supreme Court decision several years ago.
• Avoid negotiated rulemaking, a process where stakeholders in a prospective rule meet to negotiate a standard with guidance from OSHA. The objective is to avoid litigation, but the approach simply hasn’t worked.
• Improve transparency with respect to the White House Office of Management and Budget’s interaction with the agency.
These kinds of actions would be a good start toward helping set OSHA on the path toward protecting American workers from harm on the job.
*This post originally appeared in CPR Blog on February 9, 2009. Reprinted with permission from the author.
About the Author: Matthew Shudtz, J.D., is a Policy Analyst working with CPR’s Clean Science and Corporate Accountability issue groups. He joined CPR in 2006 after graduating law school with a certificate in environmental law. As a staff attorney in the Environmental Law Clinic, he worked on litigation with the Environmental Integrity Project that led to a consent decree in which the Mirant Corporation agreed to comply with newer, more stringent opacity and particulate matter standards for its Chalk Point generating station, one of the largest power plants in Maryland. Mr. Shudtz’s prior experience in the public interest field also includes work for the Natural Resources Defense Council, where he was a legal intern. While at NRDC, he provided research and drafting support in FIFRA and CAA litigation, and CWA regulatory affairs. He also worked as a legal/legislative intern at the Chesapeake Bay Foundation during the 2005 Session of the Maryland General Assembly. He received his J.D. from the University of Maryland and a B.S. from Columbia University.
