The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations,...
By Stephen Lee
Oct. 7 --Among the Occupational Safety and Health Administration's various directorates, the government shutdown is likely to have its biggest effect on enforcement, especially in the construction sector, former agency staffers say.
“The whole point of targeting is to make sure inspections are being done when there are the most people on the site,” Adam Finkel, who headed OSHA's health standards division from 1995 to 2000, told Bloomberg BNA Oct. 7. “So if there's a big project with problems, and OSHA can't get there, and by the time they do [the workers] are painting the building, that's a real missed opportunity.”
The enforcement division also will be unable to answer employer queries about how OSHA interprets its standards, said Celeste Monforton, who worked in OSHA's Office of Legislative Affairs during the most recent government shutdown in 1995.
Worse, a shutdown of any significant length will create a backlog of enforcement cases that staffers will have to work through once they return to work, Gabe Sierra, former OSHA chief of staff under President George W. Bush, told Bloomberg BNA Oct. 4.
As of Oct. 1, OSHA has furloughed 90 percent of its inspectors, according to a Sept. 10 memo by agency head David Michaels. Only enough staff remain now to respond to serious emergencies .
“It puts the agency in a very precarious situation,” Sierra said.
Monforton also recalled that, during her tenure, an office in the enforcement directorate that was responsible for answering inquiries from employers about how OSHA interprets its standards accumulated a huge backlog of letters during the shutdown.
“Even during regular times there would be stacks and stacks of these letters, and there was already a slim staff that was responsible for those,” Monforton said. “That was during normal times. In a typical agency, you want to get a response out in a month or so, but these were sometimes already six months old. They had a really bad backlog.”
Monforton was sent home during the 1995 shutdown. By the time it ended, she had moved to the Mine Safety and Health Administration.
The outlook is somewhat brighter for OSHA's standards directorate, sources say, largely because the directorate does not now appear to be overwhelmed with work.
That was not the case when the 1995 shutdown hit, at which time OSHA was working on new rulemakings on methylene chloride and powered industrial trucks, along with revisions to the agency's respiratory protection, confined space and grain handling standards.
“When big rulemakings are going on in the agency, there's just a lot of work to do,” said Monforton, now a lecturer at George Washington University. In 1995, “there were comments we were going through, substantive comments. And it's not unusual during OSHA rulemakings to get inundated with letters, a lot from members of Congress, so we were preparing responses to those.”
Currently, however, OSHA's highest-profile rulemaking, its silica dust rule, is still in the early phases of the comment period, which does not expire until Dec. 11. Prominent industry and labor groups typically do not file their submissions until the comment window is about to close, Monforton said.
Sierra agreed, saying, “The agency is in the posture now where they're waiting for comment. Until then, they're basically twirling their thumbs, waiting.”
Nevertheless, other regulatory work, such as preparations for the silica public hearings, scheduled to start on March 4, or the injury and illness prevention program small business review panel, have almost certainly come to a standstill due to a lack of staff, Monforton said, noting the directorate's skeleton staff during the 1995 government closure.
During that period, Finkel was the only staffer in OSHA's standards division who remained on the job.
Another risk of the shutdown is that opportunities for scientific research may be missed while OSHA or National Institute for Occupational Safety and Health staffers are sidelined. That didn't happen during the 1995 shutdown, but there's no reason it couldn't happen now, Finkel said.
“We were fortunate [during the last shutdown] that there wasn't a huge event in the science,” he said. “But if the whole scientific community is talking about things that are fresh in people's minds, or there's a meeting and you're not allowed to go to it, that can be disruptive.”
Similarly, if a physical event happens that OSHA staffers cannot visit in the field, evidence that might be important to development of standards could be lost because samples would not be collected and interviews not conducted in real time, according to Finkel.
For example, NIOSH researchers were on hand to collect the health histories and tissue samples of workers exposed to crude oil and chemical dispersants during the 2010 Deepwater Horizon oil spill. The agency also monitored those workers for respiratory, immunological and neurobehavioral effects.
“Scientific, evidentiary issues could get lost,” Finkel warned.
When the shutdown ends and OSHA employees returns to work, they can expect to have to spend some time getting back into playing shape, Monforton said.
“When you're in the midst of whatever project you're working on, you're so focused on that work,” Monforton said. “When the ideas are coming, you've probably had meetings with the people you need to talk to, whether they're internal or external, and that all comes to a halt. You can't just then pick up on day one when you come back, because you have to reschedule those meetings and make sure those people are still engaged. It's not just that you're coming back to the work on your desk. There's new work that you need to do because there was a shutdown.”
Finkel estimated that OSHA's standards work can be expected to be set back for a period roughly as long as the shutdown itself--a significant impact, but not an insurmountable one, as has been claimed by some past administrations, he said.
For example, for years after the 1995 shutdown, OSHA officials blamed the government closure when asked why the agency had been so slow to issue rules. In 1998, OSHA invoked the shutdown in a lawsuit brought by the Oil, Chemical and Atomic Workers Union and Public Citizen to compel it to issue a hexavalent chromium standard.
“There was a month or six weeks of time lost, and probably an equal amount of time lost just getting back and catching up with what had happened,” Finkel said. (The 1995 shutdown actually lasted 21 days.)
However, OSHA staffers are skilled and able professionals who should be able to recover reasonably quickly from the disruption to their work, said Sierra, who compared shutting down OSHA to putting a computer into hibernate mode, rather than turning it off.
“When everybody comes back, they're going to have to catch up,” he said. “It's almost like everybody went on vacation for two weeks. But these are professionals. They'll have one or two days of people just getting reacclimated to where the stapler is, and eventually I would anticipate relatively quickly they'll be able to get up and running.”
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OSHA's contingency plan for the government shutdown is available at http://op.bna.com/env.nsf/r?Open=rdae-9c3rt6.
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