EPA and OSHA among federal agencies impacted by government shutdown

January 22nd, 2019 by Dakota Software Staff

Now over a month old, the ongoing partial government shutdown has easily surpassed the 21-day shutdown of 1995 for the title of longest ever, and presently shows no indications of ending its record-setting streak anytime soon.

Approximately 800,000 federal employees are bracing for a second missed paycheck, while the portion of TSA workers calling in sick has grown to 10 percent, causing some to speculate that escalating slowdowns at major airports could eventually be the straw that breaks the camel's back.

Meanwhile, less attention has been paid to how the shutdown is affecting the world of environmental health and safety. Yet OSHA and the EPA are among the agencies impacted, albeit to vastly varying degrees.

EPA inspections halted as 14,000 employees furloughed

While warning of the consequences of a government shutdown, politician Lisa McCormick told New Jersey Today that a 16-day shutdown in 2013 stopped 1,200 EPA site inspections and 1,400 OSHA inspections. The current shutdown has already lasted twice as long, and still has no clear end in sight.

On Dec. 28, 2018, the Environmental Protection Agency ran out of funding, which led to the vast majority of the agency's 14,000 employees being furloughed. Only 800 individuals at the EPA, including those presidentially appointed and confirmed by the Senate or charged with performing activities that are either excepted or exempted, continued working during the shutdown, according to EHS Daily Advisor.

Though the agency has not outlined which activities are exempted, the excepted activities include maintaining operations for essential sites and projects associated with the Superfund program, on-scene responses to accidents or environmental disasters, and any activities performed by law enforcement personnel to protect human life and property from imminent threats.

Yet compliance inspections have not been conducted during the period of the shutdown, nor has the agency been able to issue any policy statements or guidance documents. Some of the other critical EPA functions that have ceased to function during the shutdown include permit writing, rulemaking, data collection and analysis, and all forms of communication with the public, including announcements and hearings.

Though the EPA is operating with a skeleton crew, acting administrator Andrew Wheeler is continuing through the nomination process to become the permanent head of the agency.

Confirmation hearing for agency's new administrator continues amid shutdown

Despite the fact that the EPA continues to operate at diminished capacity, Republicans in the Senate have chosen to convene a confirmation hearing for Andrew Wheeler, President Trump's nominee for the agency's next full-time administrator.

Wheeler, a former coal industry lobbyist, has been serving as acting administrator since Scott Pruitt resigned in July. He began his career as a special assistant in the EPA's Office of Pollution Prevention and Toxics under President George H.W. Bush, and worked as a staffer on the Senate Committee on Environment and Public Works, NPR reported. Many of the concerns voiced by congressional Democrats had less to do with Wheeler's credentials, however, and more to do with the timing of his nomination.

"I don't believe that giving the Acting Administrator a speedy promotion is more urgent and important than protecting the public from contamination to our air and water and lands," said Senator Tom Carper, the ranking Democratic on the EPW Committee, according to EHS Daily Advisor. "Our priorities should be reopening our government, certainly reopening EPA and the other closed federal agencies."

EHS Daily also reported that climate change has proven a contentious topic during the hearings, as Wheeler conceded under questioning that it was "a huge issue that must be addressed globally," but also said he "would not call it the greatest crisis."

Aside from looming penalty increase, OSHA largely unaffected

OSHA has announced that in order to adjust for inflation in 2019, it civil penalties will increase by approximately 2.5 percent, setting the new maximum single-violation penalty for willful and repeat violations at $132,598.

However, the rate hike will not be implemented until the Final Rule is published in the Federal Register, which will not take place until the shutdown comes to an end. A pre-published version of the Federal Register outlines all of the new maximum penalties for 2019.

Otherwise, it's mostly business as usual for the agency, as both OSHA and the Mine Safety and Health Administration have remained fully operational throughout the shutdown. Employers should anticipate the same level of inspections, enforcement, and compliance assistance, thanks to a minibus appropriations bill signed by President Donald Trump in September 2018, which fully funds the agencies through September 2019.

While there is little optimism on either side when it comes to resolving the shutdown, one would at least hope that the government will be operational before that funding lapses as well.