Public at risk

Monday, Dec. 1, 2008 | 2:07 a.m.

In 1998, a decade before the crane collapses in New York City would kill nine people, an Occupational Safety and Health Administration advisory committee wanted to review the agency’s safety regulations governing cranes.

The regulations hadn’t been significantly updated since the agency’s creation, in 1971, although cranes, which had grown in both size and sophistication, had far surpassed the rules.

After four years of study, the committee handed OSHA officials a series of recommendations. The agency then decided to put the issue on the bureaucratic equivalent of the fast track. OSHA brought together a group of crane manufacturers, owners, operators and others who would be affected by the new standard. The group spent a year negotiating details of the new rule and in 2004 handed the agency a 119-page proposal.

Four years later, OSHA has yet to approve the rule because the process of creating regulations has become so arduous — and so political — that it has paralyzed the agency. In the best-case scenario, the crane rule will not be finalized until well into 2009.

That isn’t the way things were supposed to work.

As originally intended, rule making was to be slow enough to be deliberative so the agency wouldn’t make policy rashly. But over the years lawmakers and administration officials have added layers to the process to protect special interests, chiefly business and industry, making it more difficult to pass a regulation. The Bush administration, for example, in its deregulatory zeal has added new layers — regulations must be approved by political appointees in the Labor Department and the White House. In addition, courts over the years have added to the bureaucratic hoops the agency must jump through.

Now, any proposed regulation faces a Byzantine series of approvals that takes years to accomplish, even on the fast track. There are legal, regulatory, scientific, policy, business and feasibility reviews. The White House’s Office of Management and Budget is heavily involved.

Then, once a regulation clears that gantlet, the agency holds public hearings and accepts comments on the proposal.

OSHA officials have to sort through all of the feedback and respond and make changes. Then the agency finalizes a preamble, which is the agency’s justification for and explanation of the rule. The preamble for the proposed crane standard weighs in at 1,100 pages, nearly 10 times the length of the rule.

It is clear the agency has neither the ability nor the will to cut through the red tape. The process has become so daunting and complex that, even when faced with an emerging health issue, the agency is often stymied.

David Michaels, a Georgetown University scientist who studies public health and public policy, notes OSHA’s failure to take action over the past few years after the food additive diacetyl, best-known as the butter flavoring in microwave popcorn, was linked to a potentially fatal lung disease afflicting workers involved in manufacturing the snack. Congress was divided along partisan lines — Democrats wanting action, Republicans trying to protect business. So Michaels called his contacts at the agency and said they were flummoxed, saying he was told, “We don’t even know what to do.”

That’s a frightening thought because of the ramifications. OSHA has become an overwhelmed bureaucracy that, through years of budget cuts and political meddling, has been trained to respond to the climate in Washington, which often means keeping a low profile to escape inevitable criticism. As a result, the agency has shirked its responsibility, and put the public’s health and safety at risk.