Chairman Blumenthal, Ranking Member Hatch and other members of the committee, thank you for the opportunity to testify today on the human costs of delays in regulatory protections.
My name is Peg Seminario. I am Director of Safety and Health for the AFL-CIO where I have worked for more than three decades on safety and health regulations and regulatory policy issues. During that time I have participated in dozens of rulemakings on important OSHA standards including rules to protect workers from asbestos, lead, hazardous chemicals and safety hazards like confined spaces. A benefit of my long tenure is that I have witnessed first-hand how these rules have made a difference, changing conditions and practices in workplaces, significantly reducing exposures, preventing injuries and illnesses and saving workers’ lives.
At the same time, over the past 3 decades, I have seen the system and process for developing and issuing worker safety rules devolve from one that worked to produce needed rules in a relatively timely manner to the current broken and dysfunctional system which is failing to protect workers and costing workers’ lives.
The Job Safety Law Has Saved Workers’ Lives, but the Toll of Workplace Injury, Illness and Death Remains Enormous and Progress is Threatened
The Occupational Safety and Health Act of 1970 was enacted more than 40 years ago with the purpose and promise of assuring “so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” Since that time, great progress has been made. The job fatal injury rate has been cut by more than 80 percent from 18 deaths per 100,000 workers to a rate of 3.5/100,000 workers according to the latest BLS statistics. Reported job injury rates have declined by 68 percent. This progress has been seen across all sectors of the economy, with the most hazardous industries, including construction, where regulatory and enforcement activities have been focused, experiencing the greatest reductions in fatality and injury rates. And while data on occupational diseases remains limited and inadequate, significant reductions in workplace exposures to hazards like asbestos, lead, benzene and bloodborne pathogens as a result of OSHA health rules, have been well documented.
Despite this progress, the toll of workplace injury, illness and death in the United States remains enormous. In 2011, the BLS reports that 4,693 workers were killed on the job and more than 3.8 million workers were injured. But research has shown that the BLS survey fails to capture many injuries due to limitations in the BLS survey and the underreporting of injuries., The real toll of job injuries is likely 2 to 3 times greater than the number reported – 7.6 million to 11.4 million a year. These data do not reflect the toll of occupational disease, which NIOSH and other health researchers estimate result in 50,000 deaths a year.
Some groups of workers, including Latino workers and immigrant workers, are at much greater risk of job fatalities and injuries because of their concentration in dangerous jobs and vulnerability to employer exploitation and retaliation. In 2011, according to BLS, there were 749 fatal injuries among Latino workers and 843 fatalities among immigrant workers, with both these groups experiencing fatality rates greater than the national average.
It is of great concern that after years of steady decline, for the past three years the job fatality rate for workers overall and for Latino workers has essentially been unchanged, as has the overall job injury rate, showing that greater efforts are needed if we are to make further progress in reducing job injuries and deaths.
The cost of job injury, illness and death is staggering. A 2012 study by Dr. J. Paul Leigh estimated the total annual cost at $250 billion a year, similar to estimates by the National Safety Council and the Liberty Mutual Safety Index when both direct and indirect costs are taken into account. This does not include the cost of pain and suffering to workers and their families. This is similar to, or greater than, the cost of other common diseases including cancer, diabetes and coronary heart disease.
Workers’ compensation, which is supposed to be the main source of payment for medical costs and wage replacement for workers who suffer job injuries and diseases, only covers a small proportion of the costs – less than 21 percent according to recent research. The vast majority of the costs are borne by workers themselves (50 percent) or society as a whole (29 percent), shifted to private health insurance, Medicare, Medicaid and Social Security Disability.
Layers and Layers of Regulatory Requirements Have Crippled the Regulatory Process.
The OSHA law requires that health and safety standards be set to protect workers against significant risk of material impairment of health or loss of functional capacity to the extent that is technologically and economically feasible. Standards are to be based on the best available evidence, and established through an open, public process that goes well beyond the requirements of the Administrative Procedure Act. In addition to calling for public comments, the OSH Act requires that, upon request, a public hearing be conducted, where under OSHA regulations all interested parties have the opportunity to present testimony and ask questions of the agency and other witnesses. This process has produced good rules that have stood the test of time. Virtually all major OSHA standards have been subject to legal challenges, with the reviewing courts upholding most rules or ordering OSHA to make them stronger. The reviews of rules conducted independently or by the agency under Section 610 of the Regulatory Flexibility Act have found that rules were achieved at lower costs than estimated by the agency or industry, often leading to innovation and increased productivity.
During the first decade of OSHA, promulgation of rules from start to finish took one to three years. Major rules were produced on asbestos, vinyl chloride, cotton dust, lead, and other hazards under both Republican and Democratic administrations. There were industry challenges and objections to most rules, but these objections were largely about how stringent the rule should be, not over the issue of whether regulation was needed at all.
But over the years, industry opposition to regulations increased. There were calls for more analyses and consideration of impacts of rules, particularly their costs, and more requirements were added to the rulemaking process through legislation, executive orders and other directives. Congress, the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the Small Business Regulatory Enforcement Fairness (SBREFA) all imposed new requirements and restrictions on agency rules. SBREFA imposed special requirements on OSHA and EPA to subject rules with significant impacts to review by a small business panel even before the rule was proposed, adding months to the regulatory process.
From the Executive Branch, there were directives for more analysis, starting with executive orders requiring inflationary impact statements and economic impact statements during the Nixon and Ford administrations. These executive directives were expanded during the Reagan administration to require more comprehensive regulatory impact analyses and centralized review, which has continued, and currently operates under the requirements of Executive Order 12866, issued by President Clinton in 1993.
EO 12866 gives the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget the responsibility to oversee regulatory planning and review for the federal government. It calls for executive branch agencies to develop detailed analyses of the costs and benefits of economically significant rules, and to the extent permitted by law, adopt a regulation only upon a reasoned determination that the benefits justify the costs. EO 12866 also provides for OIRA to review all significant draft proposed and draft final rules to ensure compliance with the requirements of the order. The review is supposed to be completed within 90 days with the possibility of one 30 day extension at the request of an agency. Advance notices of proposed rulemaking or other preliminary regulatory actions may be reviewed, but only for a period of 10 working days.
The executive order includes some modest transparency measures, requiring a log to be kept of all meetings with outside parties along with the subject matter of discussions to be disclosed. It also requires that all documents exchanged between OIRA and the agencies, including changes in draft rules, to be made publicly available after the proposed or final rule has been published in the Federal Register.
But OIRA has routinely ignored the requirements of the executive order, second guessed agencies which have the authority and expertise to develop and issue rules, attempted to impose its judgment and held rules well beyond the maximum 120 day review period. During these lengthy reviews OIRA has welcomed and held many meetings with industry groups, both on draft proposed rules, when industry groups try to stop or weaken regulations, and then again when draft final rules are reviewed, giving opponents of rules yet another chance to try to delay, weaken or block needed rules.
It is important to point out that all of the communications with OIRA take place outside of the normal rulemaking process and are not subject to the terms of the Administrative Procedure Act, which governs rulemaking procedures for federal agencies. There is no record made of discussions that take place, nor any requirement that OIRA justify, based on evidence or fact, the positions it takes on agency rules. The process is one that is one sided - totally dominated by industry groups and regulated parties who have Washington representatives with ready access to the process. It is one of the worst forms of industry capture and corporate political dominance over our government. Citizens, including workers, who need these government protections simply have no voice.
We had hoped that with the Obama administration the OIRA review process would improve, and the authority for developing and issuing rules would be returned to the agencies where it belongs. Sadly, that has not been the case. Indeed, under the Obama administration, particularly since the 2010 mid-term elections with the election of an anti-regulatory Republican majority in the House of Representatives, the OIRA review process is the worst that I have seen under any administration. The dedicated and committed leaders and staff at OSHA and MSHA have been stymied in their efforts to issue long overdue and needed worker safety and health rules.
Since 2011, virtually every worker protection rule that has been submitted for OIRA review has been delayed. The MSHA proposed rule for proximity detection systems for mobile machinery for underground mines has been held by OIRA since September 2011, a final rule on protective equipment for power transmission that is supported by labor and industry has been held since June 2012, and a draft final rule to extend minimum wage and overtime requirements to domestic workers has been held since January. The worst case is the delay in the review of OSHA’s draft proposed silica standard, which has been held by OMB since February 2011 – for 2 and one half years.
There may be numerous reasons for the delays in these rules, including industry objections and intervention by other agencies and other White House offices. But the effect is the same – few rules are being issued to protect worker safety and health. Indeed, the record of the Obama administration in issuing needed OSHA rules is worse than the dismal record under the Bush administration, with the Obama administration issuing just 2 final major rules compared to 3 final rules issued by the Bush administration.
Delays in the Regulatory Process are Shameful and Harmful and Costing Workers’ Lives
The result of all of the additional requirements for regulatory analyses and review is a regulatory process that is dysfunctional and paralyzed and results in needless and harmful delays in regulations. In my view, these additional requirements are not producing rules that are better or more effective than the process that was in place 30 to 40 years ago. The process substitutes questionable analyses for common sense, ignoring industry practice and public health recommendations that have traditionally been the basis for recommended safety and health guidelines and voluntary safety standards. It is certainly not producing rules in a timeframe that is efficient or protective for workers’ safety and health.
In 2012, GAO conducted a study of the OSHA standard setting process. That review found that for major rules issued between 1981 – 2010 the average time for developing and issuing a major safety or health rule was about 8 years. This average included rules that were mandated by Congress and issued as a result of litigation and court ordered deadlines, which took much less time.
Moreover, the GAO report only covered rules that had been completed. It does not reflect those rules which are stuck in the regulatory process, many of which are taking much longer than the eight year timeframe calculated by GAO. For example, it did not include the confined space entry rule for the construction industry that was promised by OSHA after a confined space rule to protect workers in general industry was put in place in 1993 - more than 20 years ago. This rule requires atmospheric testing and protective measures when workers are entering enclosed tanks and other confined spaces. A draft rule for confined space entry in construction underwent SBREFA review in 2003, and a proposal was issued in 2007. But the promulgation of the final confined space construction rule has been repeatedly delayed. The GAO report also did not include the OSHA silica rule, which OSHA first considered for rulemaking back in 1974. The present rulemaking on silica, discussed more fully below, began in 1997, more than 16 years ago. Today, there still is not even a proposed standard for this deadly workplace hazard.
The impact of these delays is inadequate protection for workers and leads to unnecessary deaths, injuries and illnesses. Here are three examples of how a broken system is costing workers their lives:
Cranes and Derricks
In 2002, in response to a 1999 recommendation of the Advisory Committee on Construction Safety and Health – a group comprised of labor, management and public representatives, OSHA initiated a rulemaking to update and strengthen its construction safety standard for cranes and derricks. Since there was broad agreement that a new standard was needed, OSHA proposed to develop the rule through a negotiated rulemaking process with representatives of major interested parties participating. After a year of intensive work, in July 2004, the negotiated rulemaking committee produced a recommended draft proposed standard that had unanimous support from labor, management, and public and government representatives. Despite this support, the rule was still subject to all the analytical and review requirements for significant safety and health rules. OSHA had to prepare a full economic analysis and the rule had to undergo review by a SBREFA panel to get input from small business entities before it could be proposed. The SBREFA review was completed in October 2006, after which activity on the rule came to a halt.
But then in 2008 a series of deadly crane accidents claimed a dozen lives. On March 15, 2008, a crane collapsed at a high-rise construction site in Manhattan- killing 4 people and injuring more than a dozen. Less than 2 weeks later, two workers died in a Miami crane collapse. In May, another New York City crane collapse killed 2 more workers, and in July of that year 4 workers were killed when a crane collapsed at a Houston, Texas refinery. In response to these disasters, the Bush administration finally proposed the rule in October 2008. But the final rule was not completed and issued until August 2010, more than 11 years after the recommendation of the OSHA construction advisory committee, eight years after the rulemaking was initiated and seven years after a negotiated rulemaking committee unanimously agreed upon the text of a rule.
It is inexcusable and shameful that even where there was broad agreement that the cranes and derricks standard was needed and about what the rule should require, that the regulatory system failed to protect workers. In this case, according to OSHA, during the eight year rulemaking, 176 workers died in crane accidents that would have been prevented if the crane and derricks standard had been in place.
Silica is a serious workplace health risk that causes the disabling and deadly lung disease silicosis. Its hazards have been recognized for centuries, and in 1991 it was determined to cause lung cancer. More than two million workers are exposed to silica, with bricklayers, cement masons, road workers, sandblasters, foundry workers and glass workers among the workers at greatest risk from exposure to this deadly dust.
According to the National Center for Health Statistics, over the ten year period from 2001 to 2010, an average of 143 workers died each year from silicosis. Public health experts estimate that there are 3,600 to 7,300 new cases of silicosis occurring in the United States each year.
The current OSHA silica standards for general industry and construction adopted back in 1972 are out of date and fail to protect workers. The standards set permissible exposure limits based upon the percentage of quartz that is present and allow exposures of up to 100 – 200 ug/m3. The construction standard is so out of date that the sampling equipment and technology that the standard is based on no longer even exist.
OSHA first started working on a new silica standard in 1974, nearly 40 years ago, after NIOSH recommended that permissible exposure be reduced to 50 ug/m3 to protect workers from silicosis. The current rulemaking on silica began in 1997. In 2003, the Bush administration designated the silica standard as a high priority for regulatory action and in that same year draft silica standards for general industry and construction underwent SBREFA review, which concluded in December 2003. Then progress came to a complete halt for the remainder of the Bush administration.
When the Obama administration took office in 2009, the AFL-CIO was hopeful that the OSHA silica standard and other needed rules that were also long overdue would move forward. And for two years, that was indeed the case. The required risk assessments and peer reviews for the silica rule were completed and in February 2011, the draft proposed silica standard was sent to OMB for review under Executive Order 12866.
Now two and a half years later the draft proposed rule is still being held by OMB in clear violation of the executive order which limits the time for review to no more than 120 days.
It is worth noting that the OMB review of the silica proposed rule coincided with the commencement of the 112th Congress when Republicans took control of the House of Representatives with regulatory reform and rollbacks at the top of their agenda. In response to their attacks and business opposition, the regulatory process, particularly for worker protection regulations, came to a halt. Despite objections and appeals from unions, workers, the public health community, members of Congress and others, there has been no movement. The only response from OMB and the Obama administration during the past two and one half years has been that the issue is “complicated.”
We strongly disagree. As noted earlier, silica is a well recognized health hazard to which millions of workers are exposed. It causes a disabling deadly lung disease and lung cancer. The control measures are simple – water to suppress dust, and ventilation to capture it and prevent the dust from entering the environment. Both of these control measures are widely available with many construction tools fitted with these dust controls. But except in California and New Jersey, which have mandated such silica dust controls, there is no requirement that they be used and workers continue to be exposed to this deadly dust.
This failure to regulate silica has allowed uncontrolled exposures and more unnecessary disease and death. According to OSHA’s preliminary risk assessment prepared for the 2003 SBFREA review, a new silica standard of 50 ug/m3 would prevent 60 silicosis and lung cancer deaths a year. This translates into 150 deaths that could have been prevented since the draft proposed silica standard was sent to OMB, 960 deaths since the rulemaking began in 1997, and more than 2,300 deaths since OSHA first looked to tighten silica regulations.
In recent weeks there have been some indications that the silica rule may be released by OMB soon, with OSHA Assistant Secretary David Michaels announcing that the rule would be issued this summer. We hope that is the case.
But the rule is just a proposal, and with its release the public process of comments and hearings will begin. Workers, unions and other interested parties will finally have the opportunity to present their views on this important protection. But the rule will have no effect and impact unless and until it is finalized, a process that will still take years. This will only be possible if the Obama administration decides that protecting workers from deadly silica dust is a priority and commits to completing the regulation before the end of its second term.
A combustible dust rule to prevent explosions from the accumulation of dust in factories, mills and storage facilities has been a high priority for unions for years. In 1987, OSHA issued a grain dust standard which significantly reduced grain elevator explosions. But there are no similar requirements for other dusts from food products, metals, wood and chemicals- all of which can be highly explosive. From 1995 to 2003, there were a series of massive dust explosions that killed 28 workers and injured 169. In response to these explosions, the U.S. Chemical Safety Board undertook a nationwide study of combustible dust hazards, and, in 2006, issued a study and recommended that OSHA develop and issue a combustible dust standard. The Bush administration failed to initiate rulemaking and, instead, in October 2007, launched a National Emphasis Enforcement Program. Four months later, in February 2008, there was a massive dust explosion at the Imperial Sugar Refinery in Port Wentworth, Georgia that killed 14 workers and injured 38.
Following the explosion, labor unions petitioned Secretary of Labor Elaine Chao to issue an emergency temporary standard for combustible dust, which OSHA has the authority to do under Section 6(c) of the OSH Act. In May 2008, the House of Representatives passed legislation mandating that OSHA issue a combustible dust rule.
OSHA declined to issue an emergency standard and, instead, in October 2009, issued an advance notice of proposed rulemaking requesting information and, in late 2009 and early 2010, held stakeholder meetings to get input on a possible combustible dust rule.
In the Spring of 2010, OSHA announced in its Regulatory Agenda it would initiate the required SBREFA small business review process on a combustible dust rule in April 2011. But after the 2010 mid-term elections, plans changed and the review was not initiated. In the Fall 2011 Regulatory Agenda, the combustible dust rule was relegated to the long-term agenda with the next action “undetermined.”
While the combustible dust standard has languished, the explosions deaths and injuries have continued. In January 2011, there was a deadly combustible dust explosion at the Hoegannaes Corporation, a metal powder plant in Gallitin, Tennessee, which killed two workers. One of those workers killed was Wiley Shelburne, a 42 year old electrician at the plant. On January 31, 2011, he was called to check out a malfunctioning bucket elevator that carries dust through the plant. When the machine restarted, it knocked dust into the air which was ignited by exposed wires, causing a massive explosion. Wiley Shelburne was burned over 95 percent of his body and died two days later.
Four months later, there was another explosion at the same Hoegannaes plant. This explosion killed 3 workers and injured 2 more.
In response to these explosions and continued oversight, OSHA is again moving forward on the combustible dust rule. The latest regulatory agenda, issued in July, indicates that OSHA plans to start the SBREFA review process of a draft proposed rule in November 2013. But there is still no guarantee that OMB, which also oversees the SBREFA process, will allow this to occur.
Just last week, the U.S. Chemical Safety Board designated the OSHA combustible dust standard as a most wanted safety improvement – the first such designation in that agency’s history. Hopefully this designation will help move this rule forward. But without a legislatively or court imposed timeline, it will still be many years before this rule is completed. In the meantime, workers will continue to be needlessly killed and injured in combustible dust explosions.
Pending Regulatory Reform Legislation Would Make it Virtually Impossible to Issue Needed Worker Safety Protections
Numerous bills have been introduced in the Senate and House to “reform” the regulatory process. All of these measures would bring standard setting for worker safety to a grinding halt and make it impossible for OSHA to issue needed worker safety and health protections. The Regulation from the Executive in Need of Scrutiny Act (REINS Act) – S. 14, H.R. 367, which the House is set to vote on this week, would require both houses of Congress to approve every major rule within a 70 day time period. If Congress failed to act, the rule would be null and void.
The Regulatory Accountability Act (RAA) - S. 1029, H.R. 2122- would override the Occupational Safety and Health Act, the Clean Air Act and other laws, and make costs and impacts on business, not protecting health and safety, the primary consideration in setting rules. It would also add additional requirements for regulatory analysis and risk assessment and give opponents of regulations more opportunities to object to and challenge rules. This year, the RAA includes a new provision that would impose a 2 year expiration date on all rulemakings, with the possibility of a one year extension. Standards not finalized within 2 – 3 years of the issuance of the proposed rule would be null and void, with the agency required to start the process from scratch all over again in order to proceed. The 2012 GAO review of OSHA standard setting found that the average time from proposed to final rule was 39 months for OSHA rules issued between 1981 and 2010. Very few rules were completed within 3 years of the proposal, and under the terms of the RAA would never have been completed.
Other bills which would add more analytical and review requirements, delaying the issuance of needed rules, include the Regulatory Flexibility Improvement Act (H.R. 2542), and the Independent Agency Regulatory Analysis Act (S. 1173).
What Can Be Done to Fix the Broken Regulatory Process?
It’s taken more than 30 years to create the dysfunctional regulatory system that we have today. Fixing the process will not be easy or quick. But there are some things that can and should be done to improve the process and speed up the promulgation of needed rules.
The first order of business is to do no more harm. Most of the regulatory reform proposals that have been introduced in this Congress would further delay or cripple the promulgation of needed rules. These proposals should be opposed and rejected.
Second, there must be a renewed commitment, both from the Congress and from the administration, to implement the laws that have been enacted. Protecting the safety and health of workers and the public must be a priority. Without political leadership and support for needed rules, corporate opposition coupled with the quagmire that is the regulatory process will make it impossible to complete and issue these safeguards.
Congress must hold agencies and OIRA accountable for their failure to act. This can be done through ongoing monitoring and oversight, demands for timetables and action on rules and justification when deadlines are missed. Publicly highlighting the delays in rules and holding agencies accountable can help force action. Senator Blumenthal, the letter that you and other members of Congress sent to new OMB head Sylvia Mathews Burwell on the excessive delays in rules has certainly gotten OIRA’s attention. Hearings like the one today will also help send a message that the current system and current delays in rules are unacceptable.
If oversight does not produce action, Congress should introduce and enact legislation that mandates action on specific rules. Such legislation was enacted for OSHA’s standards on bloodborne pathogens, lead in construction, and needlesticks and should be utilized again to ensure the adoption of priority rules.
Congress through the appropriate committees should also conduct a comprehensive review of the existing regulatory system, all the requirements that have been added through legislation and executive action, the costs and feasibility of meeting these requirements and whether these requirements have added any worthwhile benefit to improving regulations or have simply served to delay and thwart the issuance of rules. To my knowledge, over the many decades that requirements have been added to the regulatory process, there has never been a thorough evaluation of the usefulness of these measures and the impact of these requirements on the ability of government agencies to do their jobs. If requirements are found to be of minimal or no value for the burden they impose, they should be eliminated or reduced.
Congress should look to ways that the regulatory process can be streamlined. Where there is broad agreement on rules or rules are adopting existing practices that are well accepted and in place, requirements for regulatory analyses and review should be reduced.
Congress should provide adequate funding to the agencies to develop sound rules and to conduct the required analyses. All of the additional regulatory analysis and review requirements have been added without regard to their costs and without accompanying funding to meet these requirements. Agencies have fewer and fewer resources to meet greater responsibilities and growing obligations.
In the executive branch, OIRA must respect the authority and expertise of agencies and not attempt to substitute its judgment or policy views. Executive Order 12866 should be amended to allow agencies to proceed with rules if OMB fails to conclude its review within the required timeframe. The EO should provide for much greater transparency of the review of rules. It should not allow, and in fact should prohibit, meetings of OIRA with outside parties to prevent industry dominance and undue influence over the regulatory process. For communications between executive branch agencies, the order should mandate greater transparency and should require a public docketing by OIRA and agencies of all communications and notations of all changes made in rules during the review process.
In conclusion, the regulatory process is broken and dysfunctional. It is failing to protect workers and the public, with delays costing lives, limbs and health. It’s time for the Congress and the executive branch to fix this broken system and work for a regulatory process that serves the workers’ and the publics’ good.
Boden, L.I. and A. Ozonoff, “Capture-Recapture Estimates of Nonfatal Workplace Injuries and Illnesses,” Annals of Epidemiology, Vol. 18, No. 6 (2008).
Rosenman, K.D., Kalush, A., Reilly, M.J., Gardiner, J.C., Reeves, M. and Luo, Z., “How Much Work-Related Injury and Illness is Missed by the Current National Surveillance System?,” Journal of Occupational and Environmental Medicine, Vol. 48, No. 4, pp. 357–367, April 2006.
 Leigh, J. Paul, “Economic Burden of Occupational Injury and Illness in the United States,” The Milbank Quarterly, Vol. 89, No. 4, 2011.
Leigh, J. Paul and James P. Marcin, “Workers’ Compensation benefits and Shifting Cost for Occupational Injury and Illness,” Journal of Occupational and Environmental Medicine, Vol. 54, No. 4, pp. 445-450, April 2012.
U.S. Office of Technology Assessment, “Gauging Control Technology and Regulatory Impacts in Occupational Safety and health: An Appraisal of OSHA’s Analytical Approach”, OTE-ENV-635, Sept. 1995.