Bush, OSHA Mired in Inaction
By R. Jeffrey Smith
Washington Post Staff Writer
Monday, December 29, 2008; A01
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
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
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
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
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
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
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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