“The only thing that saves us from bureaucracy is its inefficiency. An efficient bureaucracy is the greatest threat to liberty.” — Eugene McCarthy
A client recently posed this question: “Why do you think the EPA is more willing to update its regulations than OSHA?”
Is it?
We gave a glib answer – resources – but upon further thought, there is more to it than that.
Chemical Safety – RMP vs. PSM
OSHA – the Occupational Safety and Health Administration – was the first of the two agencies to promulgate a regulation on chemical safety. The agency issued the Process Safety Management (PSM) Standard, 29 CFR 1910.119, in 1992. A response to the Bhopal tragedy in 1984 and several chemical disasters in the United States that followed, the PSM Standard was the product of a close collaboration between OSHA and the CCPS, the Center for Chemical Process Safety, which 17 companies joined together to form under the auspices of the American Institute of Chemical Engineers, just weeks after the Bhopal tragedy. The purpose of the regulation was consistent with OSHA’s mission: “To ensure that employees work in a safe and healthful environment.”
Given that OSHA’s mission is limited to employees, the EPA determined a need to promulgate its own chemical safety regulations. Commonly known as the Risk Management Planning (RMP) Rule, the EPA’s regulation, 40 CFR 68, hit the books four years later, in 1996. The EPA started with the PSM Standard, but modified it in several ways to be more consistent with the EPA’s mission of “protecting human health and the environment.”
OSHA’s PSM Standard is essentially the same now as when it was first introduced in 1992. The EPA’s RMP Rule, on the other hand, has undergone significant revision, particularly in 2017, 2019, and 2024, with each revision being a further departure from the OSHA PSM Standard.
So, our client is not wrong. The EPA, at least in recent years, has been more willing to update its regulations than OSHA.
There are probably three reasons: differences in attitude, differences in stakeholders, and as we first stated, differences in resources.
Attitude
Just two weeks after the EPA became law, William D. Ruckelshaus, the EPA’s first administrator, had this to say: “The EPA is an independent agency. It has no obligation to promote agriculture or commerce; only the critical obligation to protect and enhance the environment.”
The EPA’s attitude has historically been that facilities in the chemical process industries are either polluters or potential polluters. It has no interest in preserving the chemical process industries and would admit that achieving its mission would be simpler if there were no chemical facilities.
OSHA, on the other hand, as part of the U.S. Department of Labor, is interested in protecting workers, not in jobs. So, there is no industry that OSHA simply wants to abolish.
Stakeholders
Before a new federal regulation is issued, agencies are required by the Administrative Procedure Act (APA) of 1946 to consult with stakeholders. The APA requires that agencies provide notice to and accept comments from stakeholders, consider all comments, and then address each comment when publishing the final rule. Who an agency considers to be its stakeholders greatly influences its implementation of the APA requirements.
The EPA considers its stakeholders to be individuals from the community at large, government agencies at federal, state, and local levels, environmental advocacy groups, environmental justice groups, public advocacy groups, academics, and lastly, industry, business, and trade groups. Given the broad range of interested parties, mostly in favor of stronger environmental regulation, the EPA rarely feels that the pushback against new regulations or modifications to existing regulations is enough to counter the support expressed.
OSHA, on the other hand, considers its primary stakeholders to be employers and employees, and their representatives: safety professionals, trade associations, and labor unions. The support for and opposition to new regulations or modifications to existing regulations is usually much more balanced, meaning that APA requirements do not favor regulatory changes from OSHA.
Resources
Finally, there is the matter of resources. It takes time, energy, and funding to write regulations and then go through the process of getting those regulations approved and published.
The EPA’s enacted budget for FY2025 was $9.1 billion, with a workforce of 14,130.
OSHA, on the other hand, had a budget for FY2025 of $0.63 billion, with a workforce of 1,810 full time equivalents.
OSHA simply doesn’t have the resources that the EPA has, and so cannot move as fast as the EPA does.
It’s a Feature, Not a Bug
Every year, OSHA prepares an ambitious regulatory agenda of what it wants to accomplish in the coming year. Every year, however, it simply doesn’t have the resources to accomplish its agenda. So much so that most of us have come to see OSHA’s regulatory agenda as a wish list, not information requiring a response. It’s not that OSHA is unwilling to update its regulations; it is unable to update its regulations.
When OSHA wants to make updates, it tends to rely on changes in how it interprets its existing regulations. Letters of interpretation and OSHA directives are an approach that are less resource intensive, but are much more vulnerable to legal challenges.
We should all pay attention to OSHA’s notifications and press releases regarding changing interpretations. Nonetheless, there is not likely to be a change in how fast OSHA updates its regulations. That seems to be what Congress intends. It’s a feature, not a bug.
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