New CPR Report Examines Regulatory Dysfunction at OSHA

Ben Somberg

Feb. 9, 2010

CPR today releases the white paper Workers at Risk: Regulatory Dysfunction at OSHA (press release).

The report examines an Occupational Safety and Health Administration where

Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a picture of regulatory dysfunction.

The new leadership of the agency has

... inherited a resource-starved agency operating under a statute that has been enfeebled by 30 years of troubling appellate court decisions and White House initiatives that substantially increase the time and effort needed to implement a proactive regulatory agenda.

The CPR scholars propose remedies including:

  • End the practice of regularly discounting penalties before they’re even proposed.
  • Publish all negotiated settlement proposals for public comment.
  • Conduct a rigorous analysis of what resources would be required to make the OSHA inspection program a credible threat for employers chronically out of compliance, restoring the efficacy of deterrence-based enforce¬ment throughout the agency.
  • Improve training to promote criminal referrals and work with state and local prosecutors to prompt criminal indictments in certain cases.
  • Use the “general duty clause” to protect workers exposed to chemicals that lack OSHA-derived Permis¬sible Exposure Levels. The “general duty clause” requires that employers have a general duty to protect workers from known hazards likely to cause death or serious harm.
  • Seek additional resources to increase rulemaking staff.
  • Reexamine the heavy risk analysis requirements OSHA imposes on itself in the wake of a Supreme Court decision several years ago.
  • Avoid negotiated rulemaking, a process where stakeholders in a prospective rule meet to negotiate a standard with guidance from OSHA. The objective is to avoid litigation, but the approach simply hasn’t worked.
  • Improve transparency with respect to the White House Office of Management and Budget’s interaction with the agency.

The paper's authors are CPR President Rena Steinzor, board members Thomas McGarity and Sidney Shapiro, and CPR Policy Analyst Matthew Shudtz.

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