"Art Deco Winnemucca Volunteer Fire Department, Winnemucca, Nevada" by Ken Lund licensed under CC BY-SA 2.0

The New OSHA Rule You Must Pay to Learn

The Occupational Safety and Health Administration (OSHA) has proposed a new rule that would impose steep compliance costs on local volunteer fire departments around the country and make them pay substantial fees just to learn what the regulations require. The Occupational Safety and Health Act (OSH Act) created a federal agency with an extremely vague mandate to establish nationwide workplace safety standards with almost no congressional guidance. Yet OSHA’s most recent proposal, the Emergency Response Standard (ERS) manages to extend this already broad power even further with sweeping workplace standards that even reach volunteer organizations.

If adopted, the ERS would impose federal safety standards for emergency response services, including local, volunteer fire departments, that purport to preempt and displace existing state-enforced safety regulations.  Many of the affected volunteer fire departments lack adequate funding (relying as they do upon voluntary support) and cannot afford to overhaul their standards to comply with new federal rules, which larger departments in metropolitan areas can more easily manage.

Unconstitutional Regulation

CIR filed a comment with OSHA explaining that the ERS likely violates both federal law and several different provisions of the Constitution.  To start, the OSH Act provides such broad discretion to OSHA as to amount to an unconstitutional delegation of legislative authority. Moreover, the sweeping reach of the ERS, a nationwide overhaul of safety regulations for such a wide swath of emergency responders, vastly exceeds the limited guidance Congress did provide.

Worse yet, even fire departments that do not object to complying with the rule will have to pay substantial fees just to learn what it actually requires. Rather than clearly articulating the new safety standards on a freely accessible website, OSHA has incorporated by reference more than 20 consensus standards published by different private organizations. Just to download, print, or copy these standards, organizations must pay steep fees. But to synthesize them will require hiring expert consultants.

This approach violates federal law–the Freedom of Information Act component of the Administrative Procedure Act, which requires that an agency make all substantive rules of general applicability available to the public. It also violates the Due Process Clause of the Constitution, which guarantees citizens the right to fair notice about governing law.

The text of the OSH Act poses another problem; it does not apply to volunteer organizations at all.  The terms of the law are expressly restricted to employees, i.e. people who are paid to work.  Yet due to complex state regulations that treat some volunteers as employees for the purpose of certain state benefit programs, the ERS is unlawfully sweeping in volunteer organizations.

This case is a vital reminder of the importance of establishing firm limits on federal power to the defense of individual rights.