We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard. As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.
In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:
“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”
Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading →
Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.
Then President Trump took office with a de-regulatory agenda. But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule). And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.
This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.
Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA. Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.
The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission. Quite to the contrary, relevant enforcement data reveals enforcement creep. With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.
Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:
OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)
The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)