By Rena Steinzor, President, Center for Progressive Reform, Professor of Law, University of Maryland School of Law
On the list of federal agencies decimated by the Bush administration, the Occupational Safety and Health Administration (OSHA) deserves to be placed right near the top. Here is an agency that for decades has struggled with a tiny budget to get the job done, only to be taken over for eight years by a group of industry representatives dedicated to lowering the cost of doing business. What's left for the Obama administration -- and David Michaels, the head of OSHA -- has been what I'd technically define as a "mess."
It's in that context that a group of Member Scholars of the Center for Progressive Reform released Workers at Risk: Regulatory Dysfunction at OSHA. We wanted to examine what has gone so wrong at the agency, and explore what the Obama administration can do within existing law to get the agency on track. (Legislative changes to the OSH Act would be useful as well, but that's for another day's discussion).
In its very early years, OSHA acted with great vigor, establishing important standards for occupational health and safety that have prevented hundreds of thousands of injuries and illnesses. But the agency has not aged gracefully. In the late 1970s, the ratio of federal inspectors to federally protected workers was about 1 to 30,000. Today, an OSHA inspector covers more than 60,000 workers, and federal and state officials cannot be expected to inspect even a small fraction of U.S. worksites in any given year.
The agency's rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In the last decade, in fact, OSHA has dropped more standards from its regulatory agenda than it has finalized.
The construction crane safety rule is a perfect example of the broken process: it's taken the agency about a decade and a half and we still don't have a final regulation. By OSHA's estimates, 89 people are killed and 263 are injured each year in construction crane incidents. The existing safety standards haven't changed since 1971, even though there have been major technological changes since then. By the mid-1990s, industry itself began petitioning OSHA for stronger and more comprehensive regulations, and in 2004 a committee of industry, labor, and government representatives reached agreement on a draft proposed rule. But it was only a few weeks ago that OSHA sent a draft final rule to OMB for review.
OSHA's enforcement program, too, struggles to get the job done, levying paltry fines and settling for smaller amounts. The agency's enforcement structure limits most fines to just $7,000 per violation and caps criminal penalties on the most egregious violations - willful noncompliance that leads to a worker's death - at $250,000 and six months in prison ($500,000 for a corporation). To make matters worse, OSHA routinely fails to come close to statutory maximums, discounting its fines to the point that they do not recover the benefit to the company that scoffed at the law.
The agency clearly needs more resources, and we are talking a couple of hundred million here, not billions. But even if this money is not forthcoming, it badly needs to toughen enforcement. It can start by ending the practice of discounting penalties before they're even proposed. And if it's going to settle with a violator, it should publish the negotiated settlement and make it available for public comment -- including the employees and victims of accidents and their family members. The agency needs to conduct a rigorous analysis of what resources would be required to make the inspection program a credible threat for employers chronically out of compliance, and restore the efficacy of deterrence-based enforcement throughout the agency. The agency should be open to rethinking the proper balance between "compliance assistance" and traditional enforcement through inspections.
OSHA inspectors should expand their use of the general duty clause, which gives the agency the power to cite employers for violations when a worker is exposed to a recognized hazard that has caused or is likely to cause death or serious physical harm, and there is a feasible means of abating the hazard. to better protect workers from health hazards. OSHA has fallen far behind on the job of setting permissible exposure levels for hundreds of dangerous workplace chemicals. Yet other standard-setting institutions have identified these chemicals as significant hazards. Where an outside group has established an occupational health standard that is well-recognized and feasible, OSHA should use it as the basis for a general duty clause citation.
David Michaels is the best administrator OSHA has ever had, and he has arrived at among its worst moments. If anyone can revitalize the agency, he can; it's no easy job, but it must be done.