Setting the 2009 Agenda

Eleventh-hour rules could ease the pressure, but Congress will demand more next year from OSHA in return for its $486 million in funding.

We can scarcely blame the alarming federal deficit on OSHA and MSHA funding, but then again, their funding has increased steadily in recent years. Congress and the Bush administration both are responsible for this. There was no urgency this year to finish work on the U.S. Labor Department's FY2009 budget, which covers operations and expenses from Oct. 1, 2008, to Sept. 30, 2009. Stopgap and omnibus appropriations bills also are standard procedure for the federal government these days.

The bad news is that OSHA now spends almost $500 million per year for performance that falls short in the eyes of most safety professionals, according to surveys, blog postings, magazine articles, congressional testimony, and my own contacts in the industry. The good news: Each year's appropriation bill has revived the Susan Harwood training grants, the increases for OSHA usually cover inflation, and Congress is trying to force the agency to speed up standards and toughen enforcement. One of those is just being published: a 1,110-page cranes and derricks standard that will affect about 96,000 cranes in use in this country and probably will make crane operation certification a nationwide norm.

Congress' tougher approach has worked pretty well with MSHA, although some commenters, such as bloggers at The Pump Handle and other partisans, think MSHA's sharply higher fines and speedier production of standards aren't nearly enough.

Together, the two agencies probably will receive about $850 million for fiscal year 2009, based on amounts approved by House and Senate appropriations committees. While these totals may change when Congress finally approves the appropriations, $504,620,000 has been recommended for OSHA and $346,895,000 for MSHA. Their FY2008 appropriations were $486,001,000 (OSHA) and $331,847,000 (MSHA).

Work Fast, Contractors' Group Says
The question now is when their appropriations, which are included in the much larger Labor, HHS, and Education funding bill, will be finalized and signed into law. Congress elected not to work out the details, choosing instead to pass a continuing resolution that held the Labor Department and its units to their FY2008 funding levels until March 6, 2009. While President Bush chided Congress on Sept. 30 for failing to push the separate appropriations bills through, Aaron Trippler, government affairs director for AIHA, suggested this delay is a good thing because the 111th Congress could be more generous to OSHA, MSHA, and NIOSH once it begins work in January 2009. 

Interest groups also wanted the appropriations to be finished on time, but only one of the 13 bills made it. The Associated General Contractors of America had asked the House and Senate on Sept. 9 to finalize the 2009 appropriations quickly. "The construction industry is suffering a drop in employment, especially in highway and transportation construction, which has seen employment drop more than five percent in the past year," Stephen E. Sandherr, the group's CEO, said. "We have also seen significant volatility in diesel/energy prices over the last five years -- for instance, number 2 diesel fuel is up 341 percent." AGC, which represents some 33,000 firms, explained why the 2009 appropriations were third among its six top priorities: "Construction is a global market subject to price spikes and capital availability. The federal government spends about $100 billion on construction services each year. Making decisions on the full FY 2009 program will help contractors and the federal government work together to ensure federal funds are spent wisely. Using additional appropriations as an economic stimulus to improve federal, state, and local facilities will provide jobs and add a lasting infrastructure base from which to grow our economy for decades to come."

"In the few legislative days that remain, we urge Congress to address these construction industry priorities," Sandherr said.

No More Excuses?
Testifying recently before increasingly aggressive congressional committees, OSHA's Edwin Foulke Jr. has used his agency's inspection numbers and BLS fatality and injury data to answer charges that its rulemaking is broken. MSHA has been under less pressure because the MINER Act forced its hand.

Enforcement and fatality/injury data are distressingly old. You can judge for yourself whether the agencies have done enough with their resources by viewing their enforcement stats pages: MSHAOSHA.  Margaret "Peg" Seminario, director of the AFL-CIO's Department of Occupational Safety and Health, said she's hopeful Congress pushes harder in 2009 and OSHA jumps as commanded.

"Clearly, there are areas that need to be looked at, without question. In trying to look ahead to where the hazards are and to see where the potential growth of the economy is--and the potential for increased fatalities--we would hope that this is something OSHA would be looking at," she said. "But, unfortunately, they have tended to be quite reactive. I guess we're lucky if they're reactive because, in recent years, they haven't even done that."

This article originally appeared in the October 2008 issue of Occupational Health & Safety.

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