Industry tempers expectations for Trump deregulation efforts at OSHA
Editor's Note: This article was originally published at InsideOSHAOnline.com on Jan. 25, 2018.
Despite high hopes that the administration would follow through on President Trump's promises to cut so many regulations “it will make your head spin,” industry attorneys are now tempering their expectations on the extent of any deregulatory efforts at the Occupational Safety and Health Administration, saying the impact may be minimal.
“If we were all expecting big changes at OSHA, this might not be the case,” said Eric Conn, an industry attorney at the firm Conn Maciel Carey, which represents employers, during a Jan. 16 webinar. “While this could be reflective of the career officials currently running OSHA, it also indicates OSHA won't shift from enforcement regardless of what administration is running the White House.”
That stands in contrast to claims from Conn and other attorneys last year, when they were hopeful about administration plans to cut OSHA's budget, roll back its rules and ease enforcement.
“Since the campaign the administration has focused on decreasing regulation and keeping government out of the workplace,” Dan Deacon, an attorney with Conn Maciel Carey, told a March 28 webinar.
He and Conn told the webinar that administration officials' recent statements and court filings suggested they were planning to significantly scale back OSHA rules and authority once a Labor Department nominee is confirmed, and political leadership is appointed to run OSHA.
While Trump revoked two worker safety measures -- OSHA's Volks rule that clarified employers' continuing obligations to report worker safety and a policy requiring federal agencies to consider contractors' worker safety records -- under the Congressional Review Act, other deregulatory efforts have slowed.
In addition, the administration's nominee to lead OSHA -- Scott Mugno -- has yet to win Senate confirmation.
Moreover, both the Government Accountability Office (GAO) and the National Academy of Sciences (NAS) have recently issued reports urging OSHA to strengthen key regulations.
The NAS report, for example, recommended that the administration strengthen the Obama-era record-keeping and reporting rule that Trump officials have said they hope to scale back. The GAO report suggested strengthening worker safety oversight at food processing facilities, undercutting industry efforts to roll back Obama-era measures.
Several sources say efforts to roll back OSHA rules may be hampered by the language of the OSH Act, which “creates obstacles” for the Trump deregulatory agenda and sets a “very fertile ground for legal challenges.”
“OSHA's ability to modify or rescind a rule is packaged with their ability to promulgate a rule under the OSH Act,” Micah Smith of Conn Maciel explained on the webinar, thus any revocation of a rule must be justified by an argument that it does not fulfill the purpose “to assure so far as possible every working man and woman in the nation safe and healthful working conditions.”
“No one wants to be the person to take the guard rail off the ledge a worker falls off. If you start to remove worker protections you can expect worker injuries to go up,” Smith added.
Former Obama OSHA Deputy Chief Jordan Barab also explained that it could take nearly as much time to revoke a regulation as it would to promulgate one, a process that can span the entirety of administrations.
“It takes an enormous amount of time to issue a regulation and it is the same process for revoking a regulation. The time and resources factor makes it unlikely they will rollback any major rules,” Barab told Inside OSHA on Jan. 16.
“OSHA goes through thousands of pages of analysis to determine that their rule meets the requirement of the Act,” he added.
The issue recently played out in a December ruling by the U.S. Court of Appeals for the District of Columbia Circuit in North America's Building Trades Unions (NABTU), v. OSHA, where the court unanimously upheld the Obama OSHA's March 2016 final rule updating limits for exposure to silica.
The ruling rejected industry claims that the agency lacked sufficient evidence for issuing the rule as well as their arguments that the agency erred in denying studies suggesting there is a threshold level of exposure below which health effects do not occur.
“In the case of silica even the court held that OSHA met all those requirements,” Barab said.
However, Smith of Conn Maciel also noted that Mugno -- the OSHA nominee -- has a history of working in safety programs and has “far less appetite to take huge steps to tear down the system that exists” compared to other Trump administration officials.
“I suspect that we will see much less deregulatory action at OSHA than were seeing at other agencies,” Smith said. “You're going to have a leader at OSHA who has spent years promoting worker safety. He never argued that OSHA was doing things beyond their authority; it's not this huge motivation like we're seeing with Scott Pruitt at EPA,” who vocally advocated against EPA rules during his career, said Smith.
“DOL is going to follow the law, Mugno is very much a law and order guy.”-- Rebecca Rainey (firstname.lastname@example.org)