OSHA's Forecast for 2007

OSHA no longer is weathering hurricanes, but 2007 could bring stormy challenges for the safety and health agency - such as handling oversight hearings from a new Democratic Congress and striking a balance between compliance assistance, enforcement and standard-setting initiatives.

by Katherine Torres

If 2005 was a stormy year for OSHA - weathering hurricanes and criticism while operating without a permanent administrator - 2006 was the calm that comes before the next storm.

After months of waiting for a permanent OSHA administrator to take the reins, the agency finally welcomed Edwin Foulke Jr., a seasoned labor attorney who already had substantial government experience heading the Occupational Safety and Health Review Commission (OSHRC) from 1990 to 1994.

Stakeholders claim that 2006 was a "transition year" for OSHA. As Foulke got acquainted with the agency's top issues as well as with its staff, the new OSHA administrator began to set the stage for his objectives for the agency in the next year and a half.

For 2007, most stakeholders say they don't anticipate big changes for OSHA. Claiming that the agency has been conducting itself in the same way ever since the Bush administration took office in 2000, labor advocates and safety professionals are biding their time until a new administration takes office in 2008. They say they are hopeful that oversight from a new Democratic Congress - the result of the Nov. 7, 2006, elections - will help OSHA shift its priorities.

Foulke explained to Occupational Hazards in December that his list of priorities includes placing emphasis on compliance assistance, as he wants to see more U.S. employers become competitive in the global marketplace.

Many stakeholders aren't surprised that Foulke is taking this route. Frank White, senior vice president of ORC Worldwide, claims that the new OSHA administrator is continuing the priorities of his predecessor, John Henshaw, who also placed a great emphasis on compliance assistance.

"This administration, [and] in particular, Secretary [of Labor Elaine] Chao, emphasized that the need to work with and assist employers to a greater extent and that is what they chose to do," White says.

OSHA 'Irrelevant' to Worker Safety

Labor advocates such as Joel Shufro, executive director of the New York Committee for Occupational Safety and Health (NYCOSH), agree that the strong focus on compliance assistance has been on the agenda ever since the Bush administration has come on board. But Shufro claims such strategies have made the agency "become increasingly irrelevant to workers' everyday lives."

One area in which Shufro says he believes the agency has lost its focus is enforcement, which he says is due to lack of funding and staffing reductions. Although recent figures from OSHA indicate that the agency in FY 2005 conducted 38,714 inspections, a 7.6 percent increase from the previous year, Shufro claims it's not enough.

"OSHA could do a lot more, but a lot of that has to do with the agency not being given sufficient funding from the administration," he states.

Pointing to OSHA as an agency that has become "consultative" as opposed to one that caters to enforcement, Shufro claims that such strategies give employers more power, and not vice versa. He says he also would like the agency to promote programs that train workers about their rights and to know the hazards of their particular jobs. But he claims if employers aren't heavily reprimanded for negligence toward workplace safety, he doesn't see such changes happening.

"I would like to see employers who violate the law be given high criminal penalties," Shufro says. "Every time a worker gets killed or becomes hurt due to employer negligence, that should be treated as a crime."

Prioritize Standard-Setting

Longtime OSHA critic Peg Seminario, AFL-CIO's safety and health director, says she is on the same wavelength as Shufro. "For the past couple of years, the agency has been passive and quiet," she says. "They [OSHA] focus too extensively on their voluntary partnership and alliances programs, but they have failed to take bold initiatives on safety and health."

In addition to enforcement, Seminario claims that the agency also has been lax with standard-setting initiatives - even those proposed standards that have been on the OSHA priority list for some time. Reviving the Clinton administration's ergonomics standard, she says, has been on OSHA's plate since 2001. Likewise, beryllium and payment for personal protective equipment have been on the agency's agenda for years.

Pointing out that the agency has said "on numerous occasions" that silica, beryllium and payment for PPE are priorities, Seminario adds: "So now they need to act on it."

Nanotechnology, PELS, At Forefront

Other critics are more sympathetic to OSHA and to Foulke, but they also agree that the agency needs to do more when it comes to standard-setting.

Michael Thompson, president-elect for the American Society of Safety Engineers (ASSE), agrees that the process of updating standards has come to a "stalemate" for the last couple of years.

"State-of-the-art scientific and data research that is ongoing indicate that certain standards need to be urgently updated," says Thompson.

One area he feels OSHA should be paying close attention to in the coming year is nanotechnology. Although nanotechnology - the engineering of matter at the molecular scale - has become increasingly prevalent in consumer products ranging from automobile parts to clothing to cosmetics, and its products are estimated to be valued at as much as $2.6 trillion by 2014, little is known about potential risks in many areas of nanotechnology - including the effects of workplace exposure to nanoparticles.

"I would like OSHA to put some time into looking at how nanotechnology will impact workers and what protective measures need to be put in place for that cutting-edge technology," Thompson states. "This should take part in the regulatory agenda."

Another area Thompson claims OSHA should emphasize is the updating of permissible exposure limits for threshold limit values (TLVs), which are recommendations or guidelines prepared by the Cincinnati-based American Conference of Governmental Industrial Hygienists (ACGIH). The TLVs are used to assist industrial hygienists in making decisions regarding safe levels of exposure to various substances found in the workplace. Supporters of the current TLV list believe OSHA should be authorized by Congress to incorporate the most-current TLVs into its standards, as some of the TLVs included in OSHA standards are 20 or more years old and are not as protective as they should be. (Editor's note: A recent bill was introduced by U.S. Rep. Charles Norwood, R-Ga., that would eradicate the use of nonconsensus standards such as TLVs.)

Thompson insists there is a lot of sound scientific data that has been produced since the initial TLVs were adopted and that the agency should put its energy toward exploring how implementing such data could be beneficial for workers.

"We need negotiated rulemaking to help us achieve exposure limits," he says. "I think that through Ed Foulke, we can get ahead with that, and it needs to be in a cooperative fashion with other stakeholders."

Thompson suggests that through Foulke, the agency has a "great" opportunity to create a new agenda that is focused on helping employers do the right thing and enforce safety and health standards on employers, especially those that don't get the message. He says he likes Foulke's focus on partnership and alliance initiatives and says that OSHA's Voluntary Protection Program is one of the best ongoing programs the agency offers. Thompson has seen firsthand the benefits of VPP for worker safety and health in OSHA's Region VI (Arkansas, Louisiana, New Mexico, Oklahoma and Texas).

Overall, Thompson says he feels that with Foulke touring the country and listening to various stakeholders, the OSHA administrator has cemented a good understanding of what he needs to accomplish in the coming year.

"By listening to people, [Foulke] is looking for people's points of view and thinking how the agency can best utilize their resources to make a difference," says Thompson. "A lot of stakeholders out there need to be heard and from there, Foulke needs to direct agency resources in a way that will make the most impact in 2007."

Oversight Hearings on the Horizon

Others, such as Patrick Tyson, OSHA's former chief administrator during the Reagan administration, isn't so optimistic that Foulke will be able to do everything he aims to do for 2007 and beyond. In his interview with Occupational Hazards, Foulke stated that he expects to have three to four rules issued before the end of his term in 2008, an objective Tyson fears isn't too realistic.

"I think 2007 is going to be a reactive year," he states. "I think Foulke is going to have trouble setting standards on the agenda, even if he would like to."

Oversight hearings held by the new Congress will keep Foulke pretty busy for much of 2007, Tyson expects. As the Democratic Party became the majority party in November, all stakeholders anticipate that Congress now will keep a close eye on OSHA and its activities, specifically on the effectiveness of many of the agency's compliance assistance programs. "This will probably limit some of Ed's options," Tyson says.

Because Tyson says he realizes that OSHA will have a busy 2007, he suggests Foulke pick his targets carefully and work on the issues he realistically can complete, as he will be spending a lot of time on Capitol Hill.

"If Foulke aims to get standards out as soon as possible as he says he does, he needs to be selective in picking standards he can realistically be able to get out such as silica and PPE," Tyson asserts. "Both of these have been aging on the agenda for some time now."

White agrees that OSHA will have its plate full in the coming year, but comments that the Democratic oversight will be both useful and a distraction for the agency.

"It can take a lot of time to just get ready for oversight hearings and hence take away your ability to develop momentum," he explains. "If OSHA is up there every month testifying for some hearing, I don't think that is particularly valuable."

But if Congress hits on one to two safety and health key issues, then it will be extremely valuable in helping OSHA shifting its priorities, according to White. He anticipates that standard-setting will be one of the issues Congress will be exploring in the year ahead.

GHS Becoming a High Priority

Many companies either have adopted global health and safety standards or are examining the issue, and ORC's White thinks OSHA should do more monitoring of global occupational and safety issues as it would be "extremely valuable to representatives from business, labor and the safety and health profession," he notes.

"An expanded effort by OSHA to monitor these global developments on a regular basis and to report their status through the OSHA Web site would require only a very modest investment of resources," states White. "The agency should also expand the Web site's International Page to update stakeholders on significant global developments."

White applauds OSHA for making efforts to incorporate GHS into the hazard communication rule, the comments for which are under review by the agency.

"To OSHA's credit, they understand GHS is important to American businesses," White says. "I am pleased they have selected GHS as one of their priorities on their agenda."

Retirements on the Horizon

Congressional oversight and the standard-setting debate aside, 2007 also will be a year in which many senior-level OSHA officials will be retiring, causing a dramatic change for the agency, according to Tyson.

John Miles, OSHA's former director for Region VI, retired last year and Tyson anticipates there will be many more. Tyson asserts that OSHA hasn't done a good job grooming current staff members for these vacancies.

"Most of OSHA's key senior-level officials have been there for 20 years," Tyson states. "There has been so little room at the top, there hasn't been much of a career path, so the agency never trained others to take those positions."

All in all, most stakeholders say they don't anticipate big changes for the agency in 2007, or at least until the next presidential election.

While each stakeholder has a different list of priorities they wish the agency would tackle, they all agree that with adequate resources and an equal focus on enforcement, standard-setting and compliance assistance, OSHA would be much more effective and would be able to make a much larger impact on workplace safety and health.

"If OSHA had the resources, I am almost positive that the agency would be willing and able to address all the issues equally," Tyson states. "But for now, the challenge for OSHA continues to be how to do more with less."

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