'Erasing the Rules'- Newsday's Investigative Series on OSHA, From 2001-2004

"ERASING THE RULES": NEWSDAY'S INVESTIGATIVE SERIES ON OSHA, FROM 2001-2004 -- (Extensions of Remarks - November 20, 2004)

Mr. OWENS. 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 Furthermore, as his first Congressional act President George W. Bush repealed the mandatory standard on ergonomics.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.