Speaking on behalf of workers and safety conscious employers across the United States, the LHSFNA attacked the standard-setting shortcomings of OSHA in testimony last week before the House Education and Labor Committee, Subcommittee on Workplace Protections.

Calling OSHA’s standard-setting process “broken,” the LHSFNA’s Occupational Safety and Health Division Director Scott Schneider urged Congress to set time limits to speed the agency’s consideration and adoption of standards (see Schneider’s testimony on youtube).

Also testifying was OSHA Director Edwin Foulke, who offered a rosy assessment of the agency’s performance under the Bush Administration.  He cited data that shows all-time lows in occupational injury, illness and fatality rates.

“His testimony was misleading,” says Schneider, discussing his and others’ remarks in a follow-up interview.  “His data is inherently flawed because some of the most common and most significant health concerns in construction” – Schneider highlighted silicosis and hearing loss in his testimony – “are chronic conditions, often missed by doctors and almost never recorded in OSHA logs.”

Schneider stresses the point that standard-setting is one fundamental part of the agency’s traditional, three-pronged approach to workplace safety.  “In his testimony, Foulke stressed the other two legs of OSHA’s mission: enforcement and education.  Certainly, through its Voluntary Protection Program (VPP), the agency has stepped up its collaboration with companies with the best safety records, but its enforcement often doesn’t get to the worst jobsites.  In standard-setting, there’s been little progress at all.”

The House hearing was held last week in conjunction with a similar hearing on the Senate side.  The twin hearings, scheduled the week before Workers’ Memorial Day, were designed to build the legislative record so that workplace safety legislation introduced by Senator Ted Kennedy (D – MA) and Representative Lynn Woolsey (D – CA) can be enacted later in this Congressional session.

To correct OSHA’s “broken” process, Schneider stressed the importance of Congressional prodding to ensure results.  “After Congress imposed deadlines, we got an OSHA standard for lead and another for hazardous waste within six months.  In addition, there was a court-set deadline for the new hexavalent chromium standard.  Without deadlines, we get regular re-statements of OSHA’s intention to establish standards, but we do not get any new standards.”

Schneider believes Congress should make OSHA determine if a new standard is required within four months of receiving a petition.  That decision should be publicly justified and challengeable.  If OSHA decides that a standard is warranted, it should then be required to produce one within three years.  “Setting deadlines is the only thing that has worked in the past,” he says.

Schneider also urged Congress to consider adoption of a Standards Board similar to the one used in California to accelerate the standard-setting process.  Composed of representatives of key stakeholders, the Board develops a proposal from which everyone can work toward a consensus resolution. 

He also asked Congress to push OSHA to renew use of its dormant Emergency Temporary Standards (ETS) authority.  Such use might have prevented the wave of serious lung injuries incurred over the last decade by workers exposed to diacetyl, a flavoring agent, at popcorn plants across the country.  One of these workers, Eric Peoples, also testified at the House hearing, saying he now faces a double-lung transplant. 

Peoples began work at a popcorn plant in Missouri in 1997, but was soon ill with bronchiolitis obliterans, an often-fatal lung disease.  Doctors in the area quickly realized that other current and former workers at the plant had similar symptoms.  NIOSH visited the plant and issued a bulletin in 2001, saying “a work-related cause of lung disease” had occurred there.  NIOSH is not empowered to develop standards or to issue safety and health citations.  The agency followed up with an alert recommending safeguards to more than 4,000 businesses. 

OSHA, however, took a different tact.  It sent an inspector who concluded that the plant was in compliance with existing rules and closed the case.  Sixteen months later, sick workers filed a complaint with OSHA, but after another inspection, the agency said it could not do anything because no safety standard exists to establish a level beyond which exposure to diacetyl is unacceptable.  Meanwhile, the lawsuits have been piling up.  Peoples, himself, recently won a $20 million claim against the flavoring’s manufacturer.

“This is exactly the kind of situation where OSHA should step in and issue an ETS,” says Schneider.  “No one knows the extent of exposure to diacetyl that is safe, but everyone knows it should be minimized.  OSHA should have stepped in and required the plants to reduce exposures through ventilation or closed processes and required workers to wear respirators on a temporary basis until a safe, permanent solution could be devised.”

Under the Bush Administration, OSHA has killed dozens of safety regulations and delayed adoption of many others.  Construction standards, in particular, have suffered (see OSHA Rulemaking Grinding to a Halt).  With Congress now in the hands of the Democrats, it may decide to press OSHA for a more active standard-setting agenda.  The opposite kind of legislative intervention – by Republican majorities in the 1990s – is credited with derailing OSHA’s standards agenda.

“The current system is broken and blocked,” says Schneider.  “Workers should not have to wait decades for needed protections.  I hope Congress will take up this issue and craft a workable solution.” 

[Steve Clark]