Regulatory Delay: Why It Took OSHA 25 Years to Promulgate a Construction Safety Rule

by Sidney Shapiro

May 28, 2015

OSHA has finally promulgated a Confined Spaces in Construction rule.  The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule.   Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. Proponents say these hurdles are necessary to ensure the accuracy and reasonableness of regulations, but they also deny workers and others of regulatory protection for years and years — a quarter century in this case.  In short, perfection has become the enemy of the good, a pattern that has real consequences for the workers who depend on OSHA to issue rules in a timely way.

A history of tying up rules to protect construction workers in confined spaces has plagued the agency for decades.  For example, in March 1980, OSHA issued an ANPR that posed 31 questions concerning the multiple hazards for construction workers that can occur in confined spaces. One concerned workers who die or are injured in excavation or trenching construction.  In June 1989, OSHA separately issued a Notice of Proposed Rulemaking (NPR) for a general industry confined spaces rule, which was adopted as final in January 1993.  After the United Steel Workers of America sued to challenge the general OSHA rule, the agency agreed in a settlement to adopt a construction-specific confined spaces rule. In May 1994, the Advisory Committee for Construction Safety and Health (ACCSH) reported to OSHA that its proposed construction-specific rule did not adequately address the many complexities of regulating confined spaces in the construction industry.  After receiving a revised proposed rule drafted by the committee in 1996, OSHA in 1998 held three stakeholder meetings across the country to obtain public input.  It issued Notice of Proposed Rulemaking (NPR) in November 2007, although the final rule did not come out until just this month.

A number of factors contributed to the 25-year delay. First, any rule had to address the complex nature of the construction industry as the ACCSH reported.  Second, OSHA did promulgate a general confined spaces rule, although hindsight has made it clear that the rule was not adequate to protect construction workers.  This does not exonerate the regulatory hurdles, however.  First, OSHA has suffered significant budget cuts since 1980, leaving only a handful of people at the agency who can work on pending rules. (The cuts were not driven merely by austerity; conservative hostility toward OSHA, unions and regulatory agencies was the real impetus.) This appears to explain why it took the agency eight years to revise its final rule in light of rulemaking comments.  Second, because the courts have engaged in skeptical and demanding judicial review, agencies must be extra careful in justifying a rule. OSHA’s efforts to be sure that a rule would not fail  to answer all potential legal objections, added years of delay to the rule’s issuance. Finally OSHA must submit the rule to presidential oversight, which can add months, and sometimes years, to the process.

OSHA indicates that each year six workers are killed and 812 are injured in construction work in confined spaces.  Unless some way is found to speed up the rulemaking process, workers will continue to be killed and injured during the many years it often takes OSHA to promulgate other protective rules.  We have to stop making perfection the enemy of the good.  Lives depend on it.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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