Regulators don't listen to us

Original Reporting | By James Lardner |
A massive 2008 coal ash spill in Tennessee was the catalyst for an Environmental Protection Agency effort to require improved storage practices.

February 16, 2011 — “We’re listening” signs had been posted on all four walls of the hearing room where the House committee on Oversight and Government Reform began a long-promised probe of runaway regulation last week. The message was clear: Chairman Darrell Issa and his fellow-Republicans would be listening to the real-world concerns of “job creators” — businesses, as they used to be known — because the Obama administration and its rule-makers had not been doing so.

As the hearing unfolded, however, a surprising number of the cases introduced as evidence of official inattention to business also lent themselves to the opposite interpretation ­— as evidence of businesses being listened to quite a lot, even, in some instances, to a degree sufficient to cause consternation in the world of public interest advocates.

Issa had sent letters of inquiry to roughly 150 corporations and trade associations. Many had written back with tales of what Jay Timmons, president of the National Association of Manufacturers, called “unworkable and excessive regulations” developed “with little regard for their impact on job creation and the economy.” But a great many of the examples cited by Timmons and seven more Republican-called witnesses turned out to involve preliminary proposals for regulations that had not actually been put into effect.

As Issa himself observed, more than half of the statements gathered by his committee had mentioned what he described as the “possibly unattainable” pollution standards for industrial boilers proposed by the Environmental Protection Agency in early 2010. The boiler rules had been developed under a court-ordered deadline; as a result, according to the EPA, important facts were not gathered until after the draft rules went out for comment.

“When the data [were] finally supplied, the agency rewrote the whole thing,” David Doniger of the Natural Resources Defense Council said in a post-hearing interview. (EPA confirmed in an email response to Remapping Debate that “the standards will be significantly different than what we proposed in April 2010.”) Doniger added that, in the view of many environmentalists, the agency had overreacted. It was “a perfect example of the EPA being responsive, maybe too much so,” Doniger said.


OSHA and noise

Another oft-cited case involved a reinterpretation of OSHA’s policy on workplace noise. Three witnesses (and several committee members) objected to the idea of employers being required to address some noise problems at the source, even if inexpensive earplugs or head protectors would be enough to protect workers against hearing loss.

Many businesses and trade associations had written back to the Committee with tales of what Jay Timmons, president of the National Association of Manufacturers, called “unworkable and excessive regulations” developed “with little regard for their impact on job creation and the economy.”

As a general rule, that is already considered the preferable course, Deputy Assistant Secretary of Labor Jordan Barab said in a phone interview, when Remapping Debate raised the question. For several reasons, including the fact that earplugs are uncomfortable when worn for prolonged periods (and therefore are often not worn), OSHA rules have always called for an engineering approach rather than a personal-protection approach to noise levels of 100 decibels or higher, he said. The new policy would have extended that principle to noise in the 90 to 100 decibel range.

The potential impact on employers, Barab added, has been much exaggerated. Businesses have been saying that “we will drive them to the verge of bankruptcy before we will show any mercy. What we would really do,” Barab said, “is what we already do with cases over 100 decibels: first we cite [the workplace], and then we ask them to give us a plan within six months.”

Coming up with the right noise remedy is a collaborative process in which OSHA and the affected company exchange ideas and brainstorm together. Answers can turn out to be surprisingly inexpensive, Barab said, sometimes costing less than $100. “It might be a different kind of saw blade or a plywood enclosure or muffler for a machine — or even noise-absorbing curtains,” he said.

In any event, the new policy was just a proposal, “not a decision that we suddenly imposed on the business community. We put it out, and asked for comment.” But because of what Barab described as a “furor all out of proportion,” OSHA had decided to withdraw the proposal in favor of “more consultation and education.” (Jay Timmons, speaking for the National Association of Manufacturers, praised that decision, viewing it as part of a broader Obama administration outreach to the business community. Like some of the other witnesses, though, Timmons was taking a wait-and-see attitude. “The fact that the proposal was promulgated in the first place gives us pause,” he said.)

Businesses have been saying that “we will drive them to the verge of bankruptcy before we will show any mercy,” says OSHA’s second-in-command, Jordan Barab. Noise remedies, though, can turn out to be surprisingly inexpensive, he adds, sometimes costing less than $100.

In the hierarchy of business discontent with federal regulatory agencies, EPA appears to hold the top spot nowadays, largely due to its plans to use the authority of the Clean Air Act to regulate greenhouse gas emissions, first from large, coal-fired power plants, and eventually from other stationary sources.

To judge by the frequency of mentions in last Thursday’s testimony, though, OSHA is not far behind; yesterday, the agency became the subject of its own House probe — a hearing on “OSHA’s Regulatory Agenda and Its Impact on Job Creation,” held by the Education and Workforce Committee.

OSHA’s rule-making process has been slow in the past, however, and not much faster recently. Over the past two years, the agency has issued just two new regulations; one, involving chromium, will affect a comparative handful of electronics plants; the other, involving crane-and-derrick safety, was issued with strong support from construction companies as well as equipment manufacturers. Heavy consultation with industry runs in OSHA’s blood, according to Celeste Monforton, a former agency official who is currently a lecturer at the George Washington University School of Public Health. “From my experience with a number of different regulatory agencies, OSHA does much more outreach than others,” Monforton said.

Some employers have objected to a recent pattern of more frequent inspections and higher penalties. One member of Issa’s committee, Frank Guinta (R-NH),  expressed concern that OSHA had become a “gotcha agency.” Barab dismissed that idea. It was true that OSHA had “amped up the enforcement program,” he said. But with just 2,200 federal and state safety inspectors covering a universe of nine million U.S. workplaces, stiff penalties are a necessary way “to leverage our resources. We take the deterrent value of penalties very seriously,” he said, adding that the agency also remains committed to an array of voluntary and cooperative safety programs.

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