Mr. Speaker, Newsday recently published an important investigative series highlighting the Occupational Safety and Health Administration's (OSHA) abysmal track record during the first term of the Bush Administration. In this series of…
Mr. Speaker, Newsday recently published an important investigative series highlighting the Occupational Safety and Health Administration's (OSHA) abysmal track record during the first term of the Bush Administration. In this series of articles entitled ``Erasing the Rules,'' Newsday reporters outline OSHA's failure over the past 4 years to issue a single ``significant'' regulation or standard protecting worker health or safety. This failure is unprecedented in the history of the Occupational Safety and Health (OSH) Act. Since the OSH Act was first enacted in 1970, every other Administration has issued regulations to protect worker safety in a manner deemed economically significant--either saving or costing society $100 million dollars, or more. Furthermore, as his first Congressional act President George W. Bush repealed the mandatory standard on ergonomics. He thereby abolished any effort to address the hundreds of thousands of repetitive motion injuries suffered by American workers every year.
Mr. Speaker, this series exposes the steps taken by OSHA over the past 4 years to turn back the clock on worker safety and health and I urge my colleagues to read it. I am therefore submitting a portion of the Newsday ``Erasing the Rules'' series on OSHA for the Record and ask that it be printed. The remainder of the series will be examined on www.Newsday.com.
[From Newsday, Oct. 21, 2004]
Erasing the Rules
(By Tom Brune)
Many agencies headed by industry veterans who are watering down
regulation
Five minutes after an operator drained a chemical runoff
pit at a paper mill in Pennington, Ala., an invisible deadly
cloud of hydrogen sulfide seeped out of the sewer, killing
two nearby workers and injuring eight others.
The cloud resulted from an unplanned chemical reaction,
created when the drained pool of spilled NaSH, a chemical
used to pulp wood, unexpectedly mixed with sulfuric acid that
had been added to the sewer to control acidity.
And it added another tragedy to the scores of reactive
chemical accidents at workplaces--resulting in toxic
releases, fires or explosions--that have killed more than 100
workers and caused hundreds of millions of dollars in damages
since 1980, according to the U.S. Chemical Safety and Hazard
Investigation Board.
The problem is so grave that in 2002, the year of the paper
mill deaths, the Chemical Safety Board recommended that
federal regulators revise a key safety regulation on chemical
process management to require companies to take steps
to.prevent a broader range of unintended chemical reactions.
But the Bush administration's director of the Occupational
Safety and Health Administration, a veteran chemical company
safety executive named John Henshaw, has so far declined to
do so.
Instead, OSHA has formed a cooperative partnership that it
calls an ``alliance'' with the chemical industry to highlight
the issue
and now urges companies to voluntarily follow a manual on
dealing with reactive chemicals that OSHA has posted on
its Web site.
``We think that's a better approach than going through a
lengthy rule-making process,'' said Henshaw, who said he
thinks it's unclear how a rule can be crafted. ``Over the
long haul, we can do it more effectively this way.''
Henshaw's decision reflects the approach of the Bush
administration, an approach it calls ``smarter regulation,''
which emphasizes fewer new rules, examination of existing
ones and the coaxing of companies to voluntarily comply with
safety standards.
Appointments from industry
And Henshaw represents an important facet of the Bush
administration: he is one of the scores of corporate or
industry officials, or their lobbyists and advocates,
appointed to political jobs, high and low, across the
executive branch.
Nearly half--47 percent--of the Bush administration's 400
top-level Senate-confirmed appointees to cabinet departments
came from corporations, law and lobbying firms, or business
consulting, a Newsday analysis found.
That gives business and industry a much greater influence
than it had in the Clinton administration--just more than a
third, or 34 percent, of President Bill Clinton's appointees
came from corporate, law and lobbying, or business
backgrounds.
But the extent of those appointments by Bush represents
more than just the expected tilt toward business by a
Republican administration.
The Bush administration has given key regulatory jobs to
executives like Henshaw, representatives of the same
companies that face regulation, Newsday found. At the
Agriculture Department, which manages the national forest
system, a former lobbyist for the timber industry is now an
undersecretary and at the Food and Drug Administration a
former tobacco and drug company lawyer is the general
counsel.
Those appointments raise the question of whether public
authority ought to be dominated by private interests, said
Harvard University ethics professor Kenneth Winston.
Yet experts agree that the appointments violate no laws and
breach no ethics guidelines, which are narrowly drawn to
address specific personal gain at the expense of the public.
Instead, the experts say, the appointments cast in sharp
relief the priorities of a presidential administration,
because personnel is policy. In rolling back a wide variety
of new or proposed rules, Bush appointees are achieving what
they view as an important goal of eliminating burdensome
regulation and freeing companies to grow.
At the same time, however, some of the changes undo, weaken
or forestall requirements to protect the environment or
improve safety and health in the market and workplace,
sparking sharp criticism from consumer and liberal advocacy
groups.
``What has been different about the Bush administration is
that the people who are on the receiving end of regulation
now have control of regulations,'' said Gary Bass, executive
director of OMB Watch, which monitors regulation and the
Office of Management and Budget.
``It's the proverbial slogan we have used,'' he said, ``You
don't want to have a fox guarding the henhouse.''
reduced regulation goal
More of Bush's business appointees tend to be from heavily
regulated industries, such as manufacturing or energy, than
Clinton's who tended to be from financial and high-tech
firms, the appointee analysis found. That, experts say, makes
Bush appointees more likely to seek reduced regulation.
Critics charge the Bush administration is gutting or
stalling needed government regulation, such as the revised
standard on reactive chemicals, as a way of helping
businesses that back Republicans more than Democrats.
Others, particularly those in organized labor, complain
that the Bush administration has virtually shut them out,
giving a one-sided tilt to companies, corporations and
businesses at the expense of working people.
The Bush administration defends its appointees, calling
them highly qualified individuals who make decisions based on
the American people's best interests while abiding by strict
legal and ethical guidelines.
Chad Kolton, an OMB spokesman, said appointees with
business backgrounds bring expertise to the job, but he
acknowledged they also bring management views. ``That doesn't
mean they are entirely against regulation,'' he said.
The Bush administration seeks to ensure that the benefits
of regulation outweigh the costs, he said.
``Our primary interest is making sure health and safety are
protected,'' Kolton said. ``We are focused on results and
look to achieve the results in the way that provides the most
flexibility and economic growth.''
Blaming what it calls ``an explosion of new federal rules
and paperwork'' over the past 20 years that has inhibited job
growth, the administration says it has cut new rules by 75
percent and is targeting 100 existing rules for streamlining.
an early signal
The first congressional act signed by Bush as president was
a repeal of a mandatory standard on ergonomics, which had
sought to address hundreds of thousands of repetitive motion
injuries a year.
Organized labor and others hailed the regulation as an
important safeguard for the more than half a million workers
injured each year, creating $9 billion in benefits at a cost
of $4.5 billion. Industry groups complained the regulation
would cost business more than $100 billion for questionable
results.
A tougher OMB under Bush in its first year kicked back 22
new major rules to the agencies for reconsideration,
effectively killing half of them, and agencies withdrew
dozens of proposals in early stages of the rule-making
process.
The administration approved 58 anti-terrorism or security
rules after the Sept. 11 attacks, but OMB reports a drop in
other new economically significant ``social regulations''--
rules issued to provide benefits like cleaner air but with a
significant cost.
The Bush administration issued 18 new major social
regulations in fiscal years 2002 and 2003 combined, according
to OMB reports. The Clinton administration approved more than
20 social regulations a year from 1996 to 2000.
Some new Bush rules have been controversial. This year, the
Republican-controlled House and Senate voted to repeal a new
Bush rule on overtime that the administration said would
extend overtime benefits to an additional 1 million workers
but that critics said would cut it for 6 million employees.
Other new Bush regulations have been aimed at changing
protections of the environment--allowing mountain-top mining,
snowmobiles in national parks and greater emissions from
power plants.
And under Bush, OSHA has so far published no new
regulations that the government classifies as ``economically
significant,'' that is costing or saving society $100 million
or more. That's a first for a presidential term in the OSHA's
24-year history. OSHA issued nine of those rules under
Clinton and 10 under Bush's father, an OMB Watch study found.
Similar to Reagan
An expert on political appointments and the federal
government said the Bush administration is more like the
administration of Ronald Reagan, who as a candidate vowed to
eliminate OSHA, than the administration of George H.W. Bush.
``Bush II has drawn more on Reagan than on Bush I,'' said
Paul Light, a New York University public service professor
and senior fellow at the Brookings Institution. ``His father
really represented a more moderate wing of the party. On the
regulatory front, Bush II represents the Reagan revolution.''
Reagan and his top officials were confrontational in their
approach to regulation, appointing people openly hostile to
the mission of the regulatory agencies as regulators--they
threatened to abolish OSHA, slashed budgets and cut
enforcement.
Bush and his top officials, however, are much less
confrontational, Light said. But they may be even more
effective. They have succeeded in penetrating rule-making and
enforcement, from the top-line review at OMB to the field
level, where even career workers get calls from the White
House, Light said.
``This is a very well-oiled administrative machine, and
it's very controlling,'' Light said, explaining that White
House political director Karl Rove and others have unusual
influence over the rest of government. ``Chiefs of staff of
each of the secretaries have a weekly telephone conference
with Karl Rove over what's happening in their departments.''
no hope of change
Jim Gannon has very little hope that OSHA will do anything
about reactive chemicals.
In 1995, Gannon was burned on his arms, legs and face when
the Napp Technologies Inc., plant exploded after the improper
mixing of chemicals, killing five, injuring dozens and
leaving a crater in downtown Lodi, N.J. Gannon has since
moved to Florida, but said he still hasn't recovered. At age
44, he said he can't work because of his injuries and said
that he's homeless.
``The whole thing was not supposed to explode,'' he said.
``So what do you do now? I don't expect nothing. Because
obviously nobody's going to do nothing.''
After Lodi, six labor unions filed a petition with OSHA
requesting an emergency revision of the 1992 Process Safety
Management standard for reactive chemical management, seeking
application of the regulation requiring a 14-element safety
program that covers 131 distinct chemicals with toxic or
reactive properties to a broader list of chemicals.
Eric Frumin, health and safety director for the Union of
Needletrades, Industrial and Textile Employees, which
represented 70 workers at the Napp plant, remains bitter
about the company and the fact that workers still face
dangers they shouldn't have to.
``These are not accidents anymore,'' he said. ``They are
predictable. We have the means technically and
organizationally to control the risk of unintended chemical
reactions.''
Deadly unintentional chemical reactions can occur when a
chemical reacts to heat or impact, a chemical or chemical
mixture begins an out-of-control reaction, or two
incompatible chemicals mix, resulting in a toxic cloud or
explosive reaction.
Companies can control these reactions by identifying their
chemicals, evaluating potential hazards, and training
managers and
staff on how to handle chemicals to avoid inadvertent
reactions. These steps are outlined in the existing safety
regulation, but only for the most hazardous chemicals.
Frumin and others say the federal regulation must be
expanded to force companies to pay attention to the potential
hazards of other chemicals, especially those companies that
do the bare minimum on safety to maximize profit.
The Chemical Manufacturers Association, a trade group that
has changed its name to the American Chemistry Council, and
the American Petroleum Institute opposed added regulation.
The two groups said expansion of the current standard would
greatly increase costs without substantial benefits. The
council now is ``test driving'' a flow chart that explains
steps for managers to follow while evaluating reactive
chemicals, said council safety specialist Dorothy Kellogg.
OSHA did not act immediately on the unions' petition. But
it finally placed the standard revision on the Clinton
administration's last regulatory agenda.
In December 2001, under the new Bush administration,
however, OSHA withdrew it, saying it had other priorities.
Bush set those priorities by replacing Labor Secretary
Alexis Hermann, a Democratic activist and advocate for women
and minorities, with Elaine Chao, a fellow at the
conservative Heritage Foundation and wife of Republican Sen.
Mitch McConnell of Kentucky.
Chao tapped Steven Law, executive director of the
Republican National Senatorial Committee, as chief of staff,
and he assembled Labor's management team. Law is now the
department's deputy secretary.
Under Chao, the number of discretionary lower-level
political appointees like special advisers and confidential
aides at Labor doubled to 90, personnel records show.
No labor appointees
The team recruited heavily from industry and conservative
think tanks. None of the Bush political appointees at Labor
come from organized labor. Three of Clinton's appointees came
directly from unions.
In her first regulatory report, Chao wrote she had set a
new course: ``In general, [the Labor Department] will try to
help employees and employers meet their needs in a
cooperative fashion, with a minimum of rulemaking.''
At OSHA, a target of lobbyists seeking relief for
businesses from regulation, the administration named Henshaw,
an executive at the chemical company Astaris Inc., as
director and steel-industry lobbyist and former Republican
House aide Gary Visscher as his deputy.
OSHA has moved forward on just one economically significant
rule--lowering permissible exposure to hexavalent chromium,
which can cause lung cancer--but only because a federal
appeals court ordered it to meet a Jan. 18, 2006 deadline.
OSHA officials said reduced rule-making has not affected
attaining results, as the workplace fatality rate hit a low
of 4 per 100,000 workers in 2002.
Records, however, show the rate has been dropping steadily
since 1994, and data released last month show the fatality
rate steady but number of deaths slightly up in 2003.
Henshaw declined to speak on the record. Visscher defended
OSHA's work.
``It is true that the regulatory agenda looked like it had
fewer items,'' said Visscher. ``That does not mean the agency
was working on fewer items.''
He said many of the proposals pared from the agenda were
low priority and not likely to go anywhere. The agenda now
reflects more realistically rules that will be completed, he
said.
Among those proposals was the revision of the regulation
compelling companies to follow the reactive chemical Process
Safety Management standard. The Chemical Safety Board has set
out to raise its priority level.
Evaluating the rules
Created by Congress in 1990 following Union Carbide's
accidental toxic chemical release that killed thousands in
Bhopal, India, the independent board is charged with
evaluating OSHA and EPA rules and investigating chemical
accidents.
After two years of research on reactive chemicals not
covered by OSHA's standard, the board found no consistent set
of data, but discovered 167 accidents that took 108 lives at
a cost of hundreds of millions of dollars. It found that
OSHA's rule had gaps, and in September 2002 the board voted
to recommend that OSHA revise the standard to fill the gaps
and to set up a database to track incidents.
OSHA did not respond right away, but accidents continued,
including seven that resulted in board investigations.
On Feb. 7, 2003, for example, a violent chemical reaction
inside a vent collection system set off an explosion and fire
at a plating chemicals manufacturing facility in Cranston,
R.I., critically injuring one and sending 18 others to the
hospital.
On Sept. 21, 2003, a worker was injured at a high-tech
biochemical products plant south of Dayton, Ohio, when a
nitric oxide leak led to an explosion of a 300-foot tall
distillation column, blowing out windows of the main office.
On April 12, 2004, a 4,000-gallon vat overheated and burst
a safety valve at a Dalton, Ga., plant, releasing a toxic
cloud that sent 180 people to the hospital and killed all
animals in a 4-square-mile area.
More than a year after the board's recommendation, in
November 2003, Henshaw wrote the board saying he declined to
follow its advice because disagreement among experts about
which chemicals to include or how to regulate them required
OSHA to seek more information from stakeholders, which
include chemical companies. In the meantime, OSHA said it
would increase outreach to employers and pursue voluntary
measures.
OSHA `unacceptable'
The Chemical Safety Board, led by its Bush-appointed chair
Carolyn Merritt, also a chemical company safety executive, in
a unanimous vote in February 2004 called OSHA's response
``unacceptable.''
Merritt said she personally was ``disappointed.'' She noted
the board is not part of the Bush administration.
While welcoming OSHA's increased attention to the issue,
Merritt said a rule is needed to require companies that do
the minimum to meet safety rules.
Board staff point out that the state of New Jersey, which
has had other disastrous chemical incidents since the Lodi
explosion, last year issued its own regulation to broaden the
list of chemicals that must be included in safety planning.
In mid-March, the board began tracking reactive chemical
accidents at plants and has logged about two dozen incidents,
including a reaction involving ammonium nitrate in August at
an aircraft plant in Ferris, Tex., that killed a worker.
Not long after the Chemical Safety Board voted to classify
OSHA's rejection of its recommendation as ``unacceptable,''
one of its members retired and the Bush administration moved
quickly to fill it.
The White House tapped OSHA's deputy director, Visscher.
Visscher is the former vice president of the American Iron
and Steel Institute, who for years worked as a Republican
staffer who sought to make OSHA more business-friendly.
Democrats blocked confirmation of all of Bush's new
executive appointments this summer, but Bush gave Visscher
one of his few recess appointments, allowing Visscher to
serve until December 2005.
Visscher said the White House asked him to take the new
position and he agreed.
The AFL-CIO objected, complaining he lacked the legally
required credentials of a background in chemistry or
regulation of chemical hazards that the other members have.
The AFL-CIO said it also was ``deeply concerned that Mr.
Visscher's appointment would politicize the Chemical Safety
Board's investigations and recommendations.''
Visscher said he has ample experience with workplace
safety, and said, ``I'm not here to politicize the board.''
Press aides for Visscher said he had won the support of Ron
Hayes, the outspoken founder of a support group for families
of workers killed on the job and former member of a federal
worker safety board. Hayes confirmed he had written a letter
of support for Visscher.
``Gary's a pretty good guy,'' Hayes said. But Hayes added
the Bush administration had placed Visscher on the Chemical
Safety Board for a reason.
``What they need is eyes and ears there,'' Hayes said.
``What Bush would like to do is rein them in.''
staffing from the right
Drawing from corporations, inside-the-beltway law and
lobbying firms, and think tanks, President George W. Bush has
assembled the most cohesive and conservative administration
in decades, according to presidential experts and a Newsday
analysis of political appointments.
While President Ronald Reagan was more traditionally
conservative, Bush has succeeded in making more consistently
conservative, and business friendly, appointments from top to
bottom, according to presidential experts.
``The Bush people have vetted every candidate for every
agency, down to the least important appointee to the least
important agency,'' said presidential appointment expert Paul
Light, a public service professor at New York University and
a senior fellow at the Brookings Institution.
``They ask the hard questions,'' Light said. ``If a
candidate does not believe in their agenda, he is not going
to be appointed.''
Michael Franc, vice president of government affairs at the
conservative Heritage Foundation, agreed. ``When you go
agency by agency, up and down the food chain, you have an
enormous amount of consistency,'' he said.
Bush tapped nearly half, 47 percent, of his top 400 Senate-
confirmed political appointees to cabinet agencies from
corporations, business consulting firms, or law and lobbying
firms, a Newsday analysis found.
That contrasts with President Bill Clinton, who turned to
people with business backgrounds to fill just a third, 34
percent, of his 405 Senate-confirmed political appointees to
cabinet agencies during his first three years in office.
But there is even a difference among the type of business
people each of the presidents brought into their
administrations, the analysis found, a difference that
experts say had an effect on the Clinton and Bush policies,
particularly on regulatory policy.
``The Clinton administration had a preference for Silicon
Valley types, and investment bankers,'' said Light. Those
firms faced little government oversight and so did not push
Clinton to ease regulation.
Bush appointed more executives from the traditional hard
industries--manufacturers, defense contractors, oil and gas
utilities, Light said.
``They do represent a set of industries that are heavily
regulated,'' he said, and they would be more interested in
reducing regulation.