Under Bush, OSHA Mired in Inaction

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The Washington Post

Under Bush, OSHA Mired in Inaction

by
R. Jeffrey Smith

A dispute over an OSHA bulletin on beryllium during the tenure of John L. Henshaw, above, led to the resignation of epidemiologist Peter Infante, who protested in internal e-mails. (By Gerald Martineau -- The Washington Post)

In early 2001, an epidemiologist at the Occupational Safety and Health Administration
sought to publish a special bulletin warning dental technicians that
they could be exposed to dangerous beryllium alloys while grinding
fillings. Health studies showed that even a single day's exposure at
the agency's permitted level could lead to incurable lung disease.

After
the bulletin was drafted, political appointees at the agency gave a
copy to a lobbying firm hired by the country's principal beryllium
manufacturer, according to internal OSHA documents. The epidemiologist,
Peter Infante, incorporated what he considered reasonable changes
requested by the company and won approval from key directorates, but he
bristled when the private firm complained again.

"In my 24 years
at the Agency, I have never experienced such indecision and delay,"
Infante wrote in an e-mail to the agency's director of standards in
March 2002. Eventually, top OSHA officials decided, over what Infante
described in an e-mail to his boss as opposition from "the entire OSHA
staff working on beryllium issues," to publish the bulletin with a
footnote challenging a key recommendation the firm opposed.

Current
and former career officials at OSHA say that such sagas were a
recurrent feature during the Bush administration, as political
appointees ordered the withdrawal of dozens of workplace health
regulations, slow-rolled others, and altered the reach of its warnings
and rules in response to industry pressure.

The result is a
legacy of unregulation common to several health-protection agencies
under Bush: From 2001 to the end of 2007, OSHA officials issued 86
percent fewer rules or regulations termed economically significant by
the Office of Management and Budget than their counterparts did during a similar period in President Bill Clinton's tenure, according to White House lists.

White
House officials have dismissed such tallies, emphasizing in recent
regulatory overviews that their "objective is quality, not quantity,"
and that heavy restrictions on corporations harm economic performance.
During Bush's presidency, they said in a September report, average
annual regulatory costs were kept 24 percent lower than during the
previous two decades. OSHA says it has issued many rules of lesser
consequence that nonetheless clarified industry responsibilities.

But this record has been controversial among occupational health experts and career OSHA staff.

"The legacy of the Bush administration has been one of dismal inaction," said Robert Harrison, a professor at the University of California at San Francisco and chairman of the occupational health section of the American Public Health Association.
It has been "like turning a ketchup bottle upside down, banging the
bottom of the container, and nothing comes out. You shake and shake and
nothing comes out," Harrison said.

More than two dozen current
and former senior career officials further said in interviews that the
agency's strategic choices were frequently made without input from its
experienced hands. Political appointees "shut us out," a longtime
senior career official said.

Among the regulations proposed by
OSHA's staff but scuttled by political appointees was one meant to
protect health workers from tuberculosis. Although OSHA concluded in
1997 that the regulation could avert as many as 32,700 infections and
190 deaths annually and save $115 million, it was blocked by opposition
from large hospitals.

In the summer, the agency decided against
moving further toward the regulation of crystalline silica, the tiny
fibrous material in cement and stone dust that causes lung disease or
cancer. OSHA promised a scientific peer review of the health risks by
early 2005 and then by early 2007, but it never acted. Regulating
silica exposures would have prevented an estimated 41 silicosis deaths
and 20 to 40 lung cancers annually, according to OSHA.

In the
spring, political appointees quietly scrapped work on another
long-pending regulation of hazardous exposure to ionizing radiation in
mailrooms, food warehouses, and hospitals and airports. It cited
"resource constraints and other priorities" -- the same reason
officials gave for withdrawing more than a dozen regulatory proposals
in 2001.

Former OSHA director Edwin G. Foulke Jr. and other Bush
appointees dispute the criticisms and say the agency carefully directed
its scarce resources at the most dangerous workplaces, notably levying
heavy fines after major workplace disasters. Foulke also expressed
pride that a drop in reported workplace injuries that began in 1974
continued unabated under Bush and said that "we've done, I think, a
really good job of moving things along" in rulemakings that proved to
be more complex and time-consuming than he had anticipated.

Labor
advocates, academic scholars and some OSHA officials have said that the
decline in reported injuries is partly the result of a 14 percent drop
in U.S. production and manufacturing jobs since 2001 and a 2002 change
in the government's record-keeping rules.

'It Was Window Dressing'

The
agency's first director under Bush, John L. Henshaw, startled career
officials by telling them in an early meeting that employers were
OSHA's real customers, not the nation's workers. "Everybody was pretty
amazed," one of those present recalled. "Our purpose is to ensure
employee safety and health. . . . He just looked at things differently."

Within two years, Henshaw, an industrial hygienist who had worked for Monsanto
and another chemical firm, withdrew 26 draft regulations on OSHA's
public calendar, including rules meant to limit workplace exposure to
air contaminants, highly hazardous chemicals, and shipyard and
scaffolding hazards.

In many cases, the agency cited "resource
constraints" as the reason. But Charles Gordon, a Labor Department
lawyer who worked on OSHA regulations in the solicitor's office from
1975 until January, said that "all the work had been done" on many of
the rules, including laborious, peer-reviewed risk assessments and
economic analyses.

Henshaw, acting in concert with legislation
passed by the Republican majority in Congress, quickly withdrew a
proposed regulation -- drawn up during the Clinton administration --
meant to curtail ergonomic problems, which OSHA studies have said cause
60 percent of workplace injuries. He promised, instead, to issue
nonmandatory guidelines and to cite violations under a general OSHA
statute promoting safety.

But Richard Soltan, who retired from
OSHA in 2006 after seven years as the Philadelphia regional
administrator and 11 years as a deputy administrator, called Henshaw's
promise "a sham." "I don't think we prosecuted two cases," Soltan said.
"It was window dressing."

"I took the agency where I could take
it," Henshaw said in an interview. "I had a fairly good control on the
enforcement side, and we tried to do everything we could to enhance the
enforcement," partly by partnering with the Environmental Protection Agency and the Justice Department to pressure or punish willful, chronic violators.

But
Henshaw said that "there wasn't a whole lot of political will for more
rules and burdens on industry," either in the Bush administration or
among congressional Republicans. Instead, there was "some interest in
improving existing rules on the books," he said. "We focused on
improving what we had."

Under Bush, the agency was reluctant even
to issue health warnings that fall short of regulations, if doing so
might make it easier for workers to collect damages for diseases. In
the draft beryllium bulletin, for example, the key dispute concerned
OSHA's endorsement of a blood test that detected sensitization to
beryllium, a precursor to disease -- and to lawsuits.

In the end,
OSHA added a footnote casting doubt on the test's validity, a decision
that Lee S. Newman, a beryllium expert at the University of Colorado,
called "profoundly disappointing" and part of a larger effort by Brush
Wellman, the beryllium manufacturer invited to comment, "to try to
mitigate" the test's use.

Patrick Carpenter, a spokesman for
Brush Wellman, said that the draft "contained factual errors" and
expressed satisfaction at the outcome. Infante, the epidemiologist,
said the episode was "the last straw" that provoked him to resign in
2002.

Battle Over Asbestos Bulletin

That year, Ira
Wainless, a senior industrial hygienist at OSHA, finished drafting a
warning to auto mechanics that brake linings contained dangerous
asbestos fibers. Health experts and lawmakers had called for such a
bulletin, but attorneys for major car and brake manufacturers worried
that it would be cited in lawsuits by mechanics seeking damages for
asbestos-related disease.

Although Wainless's draft was approved
by all of OSHA's directorates by mid-2003, Richard Fairfax, director of
enforcement programs, was mindful of industry concerns. "Our
recommendation is not to go forward," he said in a note to the head of
the agency's science and technology office. "With the various asbestos
litigation in progress and the compensation issues, the issuance of
this may complicate matters."

A senior OSHA health enforcement
official told Wainless's boss in an internal note that year that "we
are under the understanding . . . it was NOT supposed to be going out."
Wainless persisted, however, and over the next two years sent four
drafts to Henshaw's office to meet what another OSHA official described
in an internal e-mail as "requests for minor changes" by the agency's
deputy director.

Before the bulletin's eventual publication in July 2006, which occurred after heavy pressure by Sen. Patty Murray
(D-Wash.), OSHA omitted a statement that brake-lining imports commonly
contained asbestos. It also modified its warning that linings were "a
substantial source of exposure," referring instead to "potential
exposure."

Days after publication and seven months after
Henshaw's retirement from OSHA, he sent its science director an e-mail
demanding that the warning be withdrawn and redone to express a "more
balanced" view. Henshaw did not tell the career official that he had
since been employed as a $350-an-hour courtroom witness on behalf of an
asbestos-products firm and had testified for companies in two other
asbestos lawsuits filed by auto mechanics.

In a subsequent
deposition, Henshaw said he had contacted the agency to complain "as a
private citizen." He also said a lawyer representing asbestos and auto
firms -- who subsequently hired him as a consultant -- had contacted
him about the OSHA bulletin's language.

Wainless's boss, David
Ippolito, responded to Henshaw's complaint by proposing to suspend
Wainless for 10 days without pay because the bulletin had not
referenced an industry-financed study, which concluded that auto
mechanics were typically exposed to asbestos levels below OSHA's
workplace limits. Wainless had told his supervisors that the study had
been disputed by other scientists.

Plans to revise the bulletin and act against Wainless were dropped after an account of the suspension proposal appeared in the Baltimore Sun.
But the Labor Department maintains that the health bulletin "was not
needed and could have confused the affected public," spokesman David James said recently.

Dissatisfaction With Leadership

In
2006, Henshaw was replaced by Edwin G. Foulke Jr., a South Carolina
lawyer and former Bush fundraiser who spent years defending companies
cited by OSHA for safety and health violations.

Foulke quickly
acquired a reputation inside the Labor Department as a man who
literally fell asleep on the job: Eyewitnesses said they saw him
suddenly doze off at staff meetings, during teleconferences, in
one-on-one briefings, at retreats involving senior deputies, on the
dais at a conference in Europe, at an award ceremony for a corporation
and during an interview with a candidate for deputy regional
administrator.

His top aides said they rustled papers, wore
attention-getting garb, pounded the table for emphasis or gently kicked
his leg, all to keep him awake. But, if these tactics failed, sometimes
they just continued talking as if he were awake. "We'll be sitting
there and things will fall out of his hands; people will go on talking
like nothing ever happened," said a career official, who spoke on the
condition of anonymity because he was not authorized to talk to a
reporter.

In an interview, Foulke denied falling asleep at work,
although he said he was often tired and sometimes listened with his
eyes closed. His goal, he said, was to create the best agency he could,
partly by putting in place "performance metrics" not previously used at
OSHA.

Foulke said his senior staff appeared "pretty
enthusiastic," but he acknowledged that there were grounds for tension
with others. Leadership, he said, is "taking people down a path they
don't want to go, until you get them to a place where they realize this
is where they need to be."

A $112-an-Hour Consultant

The
agency's budget and its field staff declined during the Bush
administration, even as its responsibilities -- and the total number of
workers -- grew.

The gap caused some inspectors to complain that
they lacked adequate gear to monitor workplace chemicals and other
hazards. Efficiency became a key agency buzzword and, to help improve
it, Foulke arranged for OSHA to hire Randy Kimlin, an acquaintance from
South Carolina, as a $112-an-hour consultant beginning in 2006.

The
work was lucrative for Kimlin, a former employee of Union Carbide -- a
firm that frequently clashed with OSHA -- and a former president of a
Greenville-based chemical firm. For his part-time advice over a
22-month period beginning in May 2006, OSHA paid Kimlin $513,403, a
salary higher than that received by Vice President Cheney, any member of Congress and Foulke himself during that period.

Kimlin
was paid an additional $97,730 in reimbursements for nearly weekly
flights back to South Carolina and for a hotel room on Capitol Hill, all granted under a subcontract with Washington-based TATC Consulting that was awarded without competition.

Kimlin
did not return calls to his office and home. But Brian Peters, who
oversaw the contract for TATC, said Kimlin's role was to help arrange
staff meetings and shift OSHA from a culture of inspections to less
confrontational "compliance assistance." Others at OSHA said Kimlin
played a large role in day-to-day operations and personnel decisions.

The
arrangement attracted criticism inside and outside the agency because
Kimlin lacked experience in regulating or meeting planning. Half a
dozen officials also privately questioned two retreats that he
organized at a cost of at least a half-million dollars and that
resulted in a 22-word change to the agency's mission. Instead of
fulfilling a longstanding pledge to "assure the safety and health of
America's workers," the new mission would be to "promote" safety and
health, with employers "responsible" for providing safe workplaces.

Asked
why the agency did not hire Kimlin as a full-time federal employee, at
a lower cost, Foulke said he left that issue to others. He was, he
said, just an OSHA lawyer, not a personnel specialist. Foulke also said
that "in the private sector" it is common to have staff retreats to
discuss mission statements.

"This is critical," Foulke said, "to
the company." He paused briefly before clarifying, "to the country."
Foulke resigned Nov. 9 and the next day began work at an Atlanta law
firm that represents companies accused of workplace safety violations.

Staff researchers Madonna Lebling and Julie Tate contributed to this report.

 

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