@gattsuru comments on "Culture War Roundup for the week of September 18, 2023

Culture War Roundup for the week of September 18, 2023

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gattsuru 1yr ago

I'll caution that a lot of the claims among advocates and activists start at misleading for their very best, here. For example:

OSHA can regulate only after a complex process of finding “significant risk” and economic “feasibility,” and then is constrained to set standards at “the lowest feasible level.” As a result, some health standards have been costly compared to their effects. The longer process tended to make it less likely that any rulemaking could be begun and completed within the term of any OSHA director.

I'm not entirely sure where this quote's coming from -- it's not present in Mendeloff's better-known "Regulatory Reform and OSHA Policy" nor his current RAND page -- but Mendeloff has spent decades making a variants of it, that OSHA's hands are tied to extremely narrow scopes of allowed regulation. Yet looking at the caselaw makes it obvious this isn't the case: OSHA has explicitly been delegated the power to make any cost-benefit tradeoff, so long as OSHA can provide evidence from a "credible source" of significant risk and can show that the regulations are at all feasible, even if the technology to implement them does not currently exist. You can go back to Hodgson and clearly see the courts unwilling and unable to require OSHA to issue more strenuous standards because someone claimed they were possible.

The only serious restriction on OSHA regulations are that they can not be impossible to implement nor can they set thresholds on what is possible rather than what is dangerous. And it's that last bit that's driven OSHA's plodding pace post-1980. Not that OSHA must regulate to the hilt, but that its employees and administrators want to -- and because so much voluntary and other-regulatory standards already cover other exposures, are only relevant when -- regulate to the hilt, and that's the place where it's hardest to prove anything. In the benzene case, OSHA had been trying to drop the maximum allowed exposure limit by and order of magnitude with zero studies showing significant health risks in between those levels but instead a rather unclear understanding of what safety factors mean.

Mendeloff repeatedly points to the far-greater count of exposure limit changes from the American Conference of Governmental Industrial Hygienists, who to be fair are very much in favor of setting thresholds very quickly to extremely low values! But that doesn't tell us terribly much about what the correct exposure limits are, or even good policy.

Mercatus Center and CATO claim (without a source) that Quebec funds its equivalent workplace safety agency four times more per staff and gets similar results. I glanced at a few other countries: in France and Britain they both spend less than us; the UK gets much better results and France gets much worse, so make of that what you will! I just divided budgets by staff whereas the Quebec comparison is supposedly measuring “dollars spent on workplace prevention”, which I don’t know how to check for other agencies, but I could easily believe their numbers are better than ours because we waste a ton on administration or paperwork.

It's... probably worth pointing out that a little over a dozen states have separately-funded OSHA-approved State Plans doing their enforcement.

Context

Soriek gattsuru 1yr ago

Thanks for your reply, sorry for the delay, I've been pretty wrapped up

I'm not entirely sure where this quote's coming from -- it's not present in Mendeloff's better-known "Regulatory Reform and OSHA Policy" nor his current RAND page

All the quotes are from that Environmental Law Institute piece, I didn't want to keep citing it because I honestly hadn't realized we didn't have character limits anymore.

Thanks for the added legal context on where OSHA's restrictions really are/aren't. IANAL but my one quibble is that the ruling that they don't have to do cost/benefit analysis is from 1981, and since then we had Clinton's EO in 1993 that I think does require them to do that. At least, it's a thing they're clearly spending time doing, whether or not it guides their regulatory decisions the way it should.

More importantly, does any of this refute the broader argument about all the added layers of procedural and analytic requirements that all three of the people interviewed cited? This seems like a separate measure from where their authority actually ends that would add a time burden rather than a legal burden. Even the feasibility studies, whether or not their actual threshold is reasonable, presumably signify months of mandated paperwork. From OSHA's quick overview on the website:

Once OSHA has developed plans to propose, amend or revoke a standard, it publishes these intentions in the Federal Register as a "Notice of Proposed Rulemaking," or often as an earlier "Advance Notice of Proposed Rulemaking." Prior to publication of proposed and final major rules OSHA consults with OMB under procedures established by Executive Order. OSHA consults with small business on proposed rules which significantly affect them through a panel with participation by the Small Business Administration and OMB, as required by theSmall Business Regulatory Enforcement and Fairness Act (SBREFA.)

An "Advance Notice" is used, when necessary, to solicit information that can be used in drafting a proposal. The Notice of Proposed Rulemaking will include the terms of the new rule and provide a specific time (at least 30 days from the date of publication, usually 60 days or more) for the public to respond.

Interested parties who submit written arguments and pertinent evidence may request a public hearing on the proposal when none has been announced in the notice. When such a hearing is requested, OSHA will schedule one, and will publish, in advance, the time and place for it in the Federal Register.

After the close of the comment period and public hearing, if one is held, OSHA must publish in the Federal Register the full, final text of any standard amended or adopted and the date it becomes effective, along with an explanation of the standard and the reasons for implementing it. OSHA may also publish a determination that no standard or amendment needs to be issued.

It certainly sounds pretty time consuming. In 2012 the GAO also wrote a report that seems to find the same thing titled "Multiple Challenges Lengthen OSHA’s Standard Setting". The exerpt below is probably unnecessarily long but just to give a flavor of all the mud they have to wade through:

Experts and agency officials indicated that the increased number of procedural requirements affects standard-setting time frames because of the complex requirements for OSHA to demonstrate the need for standards. Experts and agency officials named a variety of statutes and executive orders that have imposed an increasing number of procedural requirements on OSHA since 1980.

The process for developing and issuing standards is complex and directed by multiple procedural requirements. According to Labor staff, agency consideration of a new standard can be the result of information OSHA receives from stakeholder petitions; occupational safety and health entities, such as the National Institute for Occupational Safety and Health (NIOSH) and the U.S. Chemical Safety and Hazard Investigation Board; OSHA’s enforcement efforts; or staff research (see fig. 3). To publicly signal OSHA’s intent to pursue development of a new safety or health standard, OSHA typically publishes a Request for Information or an Advance Notice of Proposed Rulemaking on the topic in the Federal Register. In this report, we refer to these events as “initiation.” OSHA also signals the beginning of standard-setting efforts by placing the issue on its regulatory agenda.

The process for developing OSHA standards varies, but the typical process involves multiple steps. After OSHA initiates a standard-setting effort, staff typically schedule meetings with stakeholders—employer groups, worker groups, and other interested parties—to solicit feedback and discuss issues related to the potential standard, including its potential cost to employers.

Concurrently with these meetings, OSHA staff and contractors perform technological and economic feasibility analyses using data gathered by visiting worksites in industries that will be affected by the potential standard. These analyses are necessary because the Supreme Court has held that the OSH Act requires that standards be both technologically and economically feasible. In addition, courts have held that OSHA must evaluate economic and technological feasibility on an industry-by-industry basis, which requires that the agency research all applications of the hazard being regulated, as well as the expected cost for mitigating exposure to that hazard, in every industry. For the technological feasibility analysis, staff identify the controls required by the standard and determine if each of them is technologically feasible for employers to implement. Agency officials told us this is an enormous undertaking because, for example, sometimes there are no sources of information on the applications of various chemicals or technologies. According to OSHA officials, this also requires visits to multiple worksites, and because these visits are generally conducted on a voluntary basis rather than under OSHA’s inspection authority, OSHA staff or its contractors can only visit worksites where the employer allows the visit.

Collaboration with NIOSH has, at times, helped facilitate these site visits. For example, OSHA officials told us that their staff worked closely with NIOSH staff in developing the technological feasibility analyses or risk assessments for standards on butadiene, methylene chloride, hexavalent chromium, silica, and diacetyl. When OSHA performs the economic feasibility analysis, it concludes that a standard is economically feasible if the affected industry or industries will maintain long-term profitability and competitiveness.29 To do this, staff and contractors, by analyzing information they collect when visiting worksites, must assess the extent to which employers in the affected industries can afford to implement the required controls. In addition to the site visits, OSHA staff sometimes conducts industry-wide surveys to determine baseline practices and collect other relevant information needed for the technological and economic feasibility analyses. According to OSHA officials, the process of developing a survey and having it approved by OMB takes a minimum of 1 year.

In addition to the feasibility analyses, OSHA staff generally must also conduct economic analyses. First, OSHA must assess the costs and benefits of significant standards as required by Executive Order 12866.31 Second, under the Small Business Regulatory Enforcement Fairness Act of 1996, if OSHA determines that a potential standard would have a significant economic impact on a substantial number of small entities, such as businesses, it is one of three federal agencies that must initiate a panel process that seeks and considers input from representatives of the affected small businesses. The small business panel process takes several months of work that many other federal regulatory agencies do not have to complete in order to issue regulations. Agency officials told us they want to consult with small businesses, but that the provisions laid out in the requirement make it too formal a process and are duplicative of the public hearings they hold after publishing the proposed rule. Finally, according to OMB guidelines, if a potential standard is projected to have an economic impact of more than $500 million, OSHA must initiate a peer review of the underlying scientific analyses.33

After completing the above steps, OSHA submits the preamble and text of the potential standard to OMB for review. OSHA then publishes a Notice of Proposed Rulemaking in the Federal Register to alert the public that OSHA intends to issue a new final standard and to invite interested parties to comment on the proposed standard. Although OSHA is only required under the OSH Act hold public hearings upon request, as a general practice, officials told us that OSHA holds such hearings and has issued regulations governing its hearing procedures. GAO has reported that, while regulatory agencies are generally subject to a number of rulemaking requirements, many rules do not trigger certain requirements.

Notably, an administrative law judge presides over the hearings, and stakeholders have the opportunity to submit evidence to support their views on specific provisions of the proposed standards. The administrative law judge may also permit cross-examination by stakeholders or OSHA attorneys to bolster or challenge testimony presented during the hearing. Finally, stakeholders can submit data and other written documents subsequent to the hearing that OSHA must consider when crafting the final standard.

Yadda yadda.

Very good point tbh.

gattsuru Soriek 1yr ago

Ugh, and of course he doesn't actually have citations for his claims there. Thanks for at least pointing the direction out.

IANAL but my one quibble is that the ruling that they don't have to do cost/benefit analysis is from 1981, and since then we had Clinton's EO in 1993 that I think does require them to do that.

EO 12866 isn't externally enforceable, and to the extent it 'requires' agencies to evaluate costs, that ends up being just that :

Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.

This is interesting, but it's a very far cry from Mendeloff's insistence that only the "lowest feasible level" is allowed, and indeed at its time it was supposed to be about reducing the often-steep overregulation that other agencies had invoked. (It also sets a fairly speedy timeline that agencies are supposed to meet, and if you want to have a laugh some day compare it to their actual movement rate.)

More importantly, does any of this refute the broader argument about all the added layers of procedural and analytic requirements that all three of the people interviewed cited? This seems like a separate measure from where their authority actually ends that would add a time burden rather than a legal burden.

My objection is less that Mendeloff claims that there is some increased time burden from review, and more that he claims that there's a process that only allows a very narrow band of regulation such that this time burden must be exceedingly long, outside the scope of a single OSHA director's run, and (implicitly) that it requires such resources and focus that OSHA can not do these things in parallel. And that's not really the case, in no small part because that first step falters.

((And his own piece makes clear that he's really just after harsher limits than can be demonstrated in evidence: "What changes might help? For health standards, change the law to allow lower exposure limits based on lesser evidence when the reduction is moderate." Which is just open season for OSHA to make up numbers.))

Mendeloff, in other works, often points to benzene regulations, and that's not unreasonable given that OSHA spent nearly twenty years on it. But if you look at the timeline, the overwhelming majority of this was not the regulatory overhead side, nor the OSHA-specific work of coordinating with industry to determine feasibility, but trying to gather data to support their new and stringent standard being so low. Almost all of the long lead time occurs because OSHA wants to set standards at the bleeding edge where data was not yet present.

And that might not even be wrong as a policy decision, since at least ideally clear risks would be handled by industry practices or by other regulations. But it drastically changes both the calculus of what revisions would be necessary, and what Mendeloff is asking for.

I certainly believe you that Mendeloff is exagerrating his claims, his line about the lowest feasible level just seemed minor to me compared to his + the other interviewed subjects' main argument about ever-increasing procedural requirements.

Definitely interested in the idea that the procedural requirements are less of a time burden than the data digging required by overambitious regulatory targets - though can those really be separated? It seems like a ton of the procedural load is specifically around data collection and review.

Where do you access the timeline / breakdown of how the time was used for the Benzene process? I couldn't seem to find it in the EHP writeup.

gattsuru Soriek 1yr ago · Edited 1yr ago

At least for the data collection side, my argument's that they're doing a lot of stuff that's very time-consuming and difficult specifically so they can promote very low targets and limited thresholds of economic feasibility, and they don't have to do that and still be useful as a regulatory agency. It's still a time burden to prove, even for low standards of certainty, obvious signals and straightforward risks, but it's a lot easier to go "Professor, Fire Hot" than it is to isolate a one-in-a-million risk that only a thousand people got exposed to.

I'm afraid the best approach is to look through the procedural history for court cases and the sources used to promote the final rules: Industrial Union Department v. American Petroleum Institute makes clear that OSHA had requested a study in "spring of 1976", received a preliminary result in April, 1977. While they had diddled the figures to make them match what OSHA wanted (by incorrectly assuming that the historic leukemia deaths were from <25 ppm exposures, when at least some of the exposures were probably much higher), the data was strong for exposures around 100 ppm. OSHA just didn't want to push that or even a reasonable safety factor from that because it had begun accepting a zero-threshold model for most carcinogenic materials, and because there wasn't much space below the (then-voluntary) 10 ppm threshold already present.

Getting numbers that precise with any accuracy required a lot of work and a lot of time, simply because the signal was so tiny. OSHA maintained (and afaik, has not been stopped by courts) from treating one-in-a-million risks as 'significant' for regulatory purposes, but you can look at the analysis and watch the studies walk toward the eventual threshold OSHA wanted. That wasn't really done until the mid-1980s, though, arguably the earliest with Crump 1984 but OSHA looked to depend more on Rinsky 1987.

By contrast, again pointing to IFU v API, OSHA asked a consultant to evaluate and estimate the costs of a 1 ppm threshold in October 1976, and that consultant finished the entire economic impact study by May 1977.

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