News Extra: OSHA director says US standards process is “broken”

01 October 2014

In an interview with NBC News, Occupational Safety and Health Administration (OSHA) director David Michaels said: “When it comes to health hazards, we have a standards process that is broken.” Political opposition to new standards in Congress, where many Republicans oppose them as potential constraints on business, have combined with legal and procedural challenges to make OSHA’s efforts to bring rules up to date a Herculean task.

“The way our health and safety standards process was written 44 years ago, and then as a result of subsequent court decisions, we have a regulatory process that requires tremendous amounts of study, and that’s especially true for OSHA standards,” Michaels said.

“The law imagined that we’d have updated limits on [legal levels of worker exposure] to chemicals, but to get to that point, to meet the requirement of the courts, is very onerous and resource intensive. It takes many years to pass a new standard. The result is that many workers in U.S. workplaces are not adequately protected.”

During President Barack Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic regulatory agenda updates, including regulations for combustible dust, crystalline silica, beryllium and an injury and illness prevention program (I2P2). However all of these proposed rules, have missed important deadlines or were set aside in the last two years, despite some having been described as “highest priority” by Michaels.

Supporters of a standard for combustible dust have been particularly critical of OSHA’s perceived inaction.

The US Chemical Safety Board (CSB) completed a study of combustible dust hazards in late 2006, which identified 281 combustible dust incidents between 1980 and 2005 that killed 119 US workers and injured another 718. Based on these findings, the CSB recommended the agency pursue a rulemaking on this issue.

OSHA has previously addressed aspects of this risk. For example, on July 31, 2005, OSHA published the Safety and Health Information Bulletin, "Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosions."

Additionally, OSHA implemented a Combustible Dust National Emphasis Program (NEP) March 11, 2008 and issued several other guidance documents. However, the agency still did not have a comprehensive standard that addresses combustible dust hazards. It published an advanced notice of proposed rulemaking October 21, 2009.

In 2010, two stakeholder meetings were held to gather input on the rule, an expert forum was convened in 2011 and small business feasibility assessments, required of all economically significant standards, were set to begin in April, 2014.

The next step would have been for OSHA to publish a formal proposed standard for combustible dust, which it planned to introduce in 2014.

But the agency has now downgraded its rulemaking status for combustible dust from the proposed rule stage to the pre-rule stage, while pushing back the deadline for a small business panel review from April to December.

Optimists hope this is because OSHA is waiting for the National Fire Protection Association to finish updating its consensus industry standard on combustible dust before moving forward with the rulemaking, but other industry observers are running out of patience.
In an August op-ed article in the New York Times, CSB chairman Rafael Moure-Eraso gave voice to his frustration.

“From 2008 to 2012, our board documented 50 combustible dust accidents that led to 29 fatalities and 161 injuries.

“Dust explosions are readily preventable with engineering controls, ventilation, training and other measures. The voluntary, industry-supported national fire codes have urged these measures for decades, and they now must be codified and enforced through federal regulations.

“Despite the fact that a dust standard was one of the Obama administration’s earliest regulatory initiatives, there has been little progress because of a daunting rule-making process.”

Moure-Eraso said that after 1980, a series of laws, executive orders and judicial barriers had virtually paralysed the government’s ability to issue new safety standards. He quoted a nonpartisan congressional study which concluded the process can take nearly 20 years from start to finish.

“Given those conditions, is it any wonder that a recent RAND Corporation report found that American workers are three times more likely than their British counterparts to die on the job,” he said.

“I believe that OSHA’s leadership wants to move forward with a combustible dust standard just as much as we do. Industry and government in this country need to work together to control this danger. The deaths of workers as a result of known and preventable hazards are unacceptable.”