The only novelty to OSHA’s latest standard-setting saga is the record-setting time for kicking a rule back to the courts. The final hex chrome rule was published in the Federal Register on February 28th. Public Citizen Health Research Group announced February 27th “we have no choice but to bring the agency back to court again.â€
“Bring the agency back to court†is just one of the lines from the hex chrome script you’ve heard before. Fill in the blanks with your favorite battered and bruised OSHA standard:
“Facing a court-ordered deadline, OSHA has issued its long-awaited ______________ standard,†reports the press.
“OSHA has worked hard to produce a final standard that substantially improves protection for employees exposed to ________________†announces the OSHA chief.
An advocacy group calls the ____________ rule “seriously inadequate†and declares it will file a lawsuit. “After a careful analysis, we determined that the ____________ standard is the most stringent that is feasible both technologically and economically,†assures OSHA.
“This ___________ rule will cause significant upheaval within our industry,†argues a lawyer for a trade association. “OSHA overestimated the benefits, underestimated the costs; factories will close and/or jobs will be sent to foreign soils.â€
A union spokesman claims industry “played fast and loose with the data.†He charges “political appointees beholden to business†overruled the ____________ standards-writers.
Twisted plot line
The “back story†to the hex chrome rule also reruns a tired, twisted plot line. In the distant past — 1993, the same year Groundhog Day debuted — OSHA was petitioned for an emergency temporary standard by Public Citizen and a union representing at-risk workers. Existing hex chrome standards at the time were adopted from further in the past — 1971 — to protect against nasal irritation. Since then, EPA, NIOSH, ACGIH, the International Agency for Research on Cancer all declared hex chrome compounds to cause, or potentially cause, lung cancer in exposed workers.After mulling it over, OSHA rejected the need for an updated emergency standard and declared it would commence normal rulemaking procedures. Four years later (1997), the agency was sued for unreasonable delays in issuing a final standard. A U.S. Court of Appeals saw nothing unreasonable, rejected the suit, and OSHA continued to collect and analyze data.
Five years later (2002), OSHA was sued again for continued unreasonable delays. This time, the same U.S. Court of Appeals perceived unreasonableness, and ordered the agency to issue a final rule by January, 19, 2006. OSHA came close to hitting the mark, but needed, and received, an extension to February 28th.
Tuning out
Any audience tires of reruns, predictable plot lines, and cliché-ridden scripts. Eventually they switch the channel, and that’s what has happened to OSHA.There is so little interest in the agency The Washington Post reported that during the transition from the Clinton to Bush White House in 2000-2001, the Bush team did not assign anyone to assess OSHA. The entire Labor Department was reviewed by a single long-time congressional aide.
OSHA has been tuned out by more than just the politicos. (“I don’t think they ever would have gotten around to a confirmation hearing for the new OSHA chief if it wasn’t for the Sago Mine accident, said one insider recently.)
ORC Worldwide’s EHS group issued a position paper warning of OSHA’s growing irrelevance in 2000, and sought a collaboration to get the agency on track again. It was a call into a black hole. Now ORC touts its international standards savvy and valuable EHS performance databases above its traditional liaison role with OSHA.
Professional societies such as the American Society of Safety Engineers and the American Industrial Hygiene Association still invite the head of OSHA to their meetings, but compliance issues won’t build membership. ASSE promotes workshops on leadership, human error, and world-class safety. AIHA is now heavily invested in a campaign to “quantify and communicate the value that the industrial hygiene and occupational health profession brings to business,†according to its web site.
The National Safety Council talks up the cost of off-the-job injuries, “protecting your human resources,†“Making Our World a Safer Place,†and its annual competition for business excellence in safety, health and environmental management. A recent scan of NSC’s web site home page found no mention of OSHA.
Frustrated and fatigued
EHS pros have been criticized for being “stuck on OSHA†for decades and urged to move “beyond compliance.†To be sure, it’s healthy and necessary to step out from OSHA’s long shadow and see the growing influence of international standards, the need for leadership skills, and the value EHS brings to business excellence. But after years of political miscalculations and machinations by Republicans and Democrats, both reading from the same old script, it’s hard to locate OSHA in this new landscape.The pendulum has swung too far the other way, as it often does in EHS matters. Safety is all about behaviors. No, it’s culture. No, it’s management systems. OSHA is an ogre. OSHA is invisible.
That’s bad news for working people. Through standards or other means, a long list of specific workplace risks needs serious evaluation, with solutions debated, selected and implemented. Job-related motor vehicle deaths. Exposures to beryllium and crystalline silica. Noise, lead and confined spaces in construction. Hundreds of outdated permissible exposure limits. Inadequacies in hazmat labels and data sheets. Hazards threatening today’s emergency responders unforeseen decades ago.
In a recent interview in Professional Safety, former OSHA boss John Henshaw argued the agency “needs to look for ways other than rulemaking†to accomplish its goals.
Fair enough.
Attempts have been made. ORC, AIHA, the AFL-CIO and others held private meetings several years ago trying to craft a blueprint for updating the PELs. But the plot took a familiar dead-end turn into politics, and the groups, frustrated and fatigued, gave up and moved on.
Henshaw in his interview makes the case for OSHA as a “leader around the world.†The risks just cited put tens of millions of workers in harm’s way and require courage, willpower, diplomacy and resourcefulness to solve. In a word, leadership. But who at OSHA can seize the bully pulpit with credible authority? And is anyone out there listening, anyway? OSHA has lost its audience. The hex chrome rerun reminds us why.
