http://www

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/28/AR2008122802124.html

washingtonpost.com

Under 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 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.