A Way Forward for OSHA

By Adam M. Finkel

Two weeks ago, Congress officially asked a question that would have been unutterable during the first six years of the Bush Administration: “Have OSHA Standards Kept up with Workplace Hazards?” I was not surprised to read Assistant Secretary Ed Foulke’s testimony, in which he tried mightily to make the molehill of OSHA regulatory activity since 2001 look like a (small) mountain.  In my experience as a former OSHA executive, each of the Assistant Secretaries since at least 1997 has assigned a small army of spin-meisters to look for data, any data, that will make the agency look useful (assuming, as they always do, that any positive trend is OSHA’s doing), and to ignore anything contrary.

But I was amazed to find that one witness, attorney Baruch Fellner, actually testified that not only is OSHA keeping pace, but that it shouldn’t be trying so hard to keep up!  (His testimony is available here.)  I felt compelled to try to put this “Mission Accomplished” moment in perspective, from the vantage point of someone who tried, sometimes under more reasonable political leadership, to emphasize science-based regulation over guidance and other voluntary programs, and to emphasize occupational disease prevention as the key unfinished business on OSHA’s to-do list.

I wrote to Congresswoman Lynn Woolsey, who chairs the Subcommittee on Workforce Protections of the House Committee on Labor and Education, and detailed my concerns about Mr. Fellner’s testimony, which include his views on OSHA’s achievements and the hurdles it faces, OSHA’s hexavalent chromium standard, and the Supreme Court’s Benzene decision (read the complete letter here). I also laid out my recommendations for finding a way forward that balances approaches used in the past:

For the past 25 years, I have strongly supported the increased use of risk assessment and cost-benefit analysis in regulatory decision-making, so none of my comments on OSHA’s disappointing performance should be mistaken for antipathy to the analytic burdens OSHA must meet. I simply believe, contrary to the views espoused by several of your witnesses (notably Assistant Secretary Ed Foulke and attorney Baruch Fellner) that two fundamental conclusions are indisputable in light of the scientific, economic, and historical facts:

• That the largest preventable health and safety risks remaining to be addressed in our society occur disproportionately in U.S. workplaces (as opposed to the ambient environment, consumer products, the transportation sector, etc.), and therefore, that failing to regulate means failing to extract benefits that far exceed their costs; and

• That although it is by no means easy for OSHA to promulgate cost-effective regulations that incorporate the best available scientific information, OSHA’s appalling lack of progress is clearly due to a failure of will and/or talent—because under different leaders, OSHA’s track record of producing health-protective but fair standards, meeting all the analytic and public participation requirements, was far superior to what it is now.

I should emphasize that my concerns about OSHA’s performance began before the 2001 Inauguration, although clearly output, morale, and other indices have declined steeply since that watershed. For example, I believe that some of the most productive ways for OSHA to help create safer and healthier workplaces involve meaningful partnerships with industry, sometimes in lieu of regulation, as long as the goal is to impel needed changes in behavior. Sometimes, traditional regulation would merely allow the relatively best workplaces to “backslide,” while never reaching the worst performers; so in a national OSHA partnership with both the manufacturers and the installers of fiberglass insulation codified in 1999, the producers agreed to provide the needed resources, training, air monitoring, and PPE so that their customers could better protect their employees. I championed several such partnerships before leaving Health Standards in 2000, and tried to establish enforcement partnerships in Region VIII that required general contractors to improve health and safety performance among their subcontractors. But the very same ideas that President Bush’s first head of OSHA dismissed as apparently too “intrusive” for industry (apparently preferring instead to emphasize “alliances,” also known as “praise for continuing to do whatever you’re doing”) were met with benign neglect in the waning years of the Clinton administration, apparently for being insufficiently punitive to industry.

The way forward, I believe, lies in between these two doctrinaire positions.Indeed, the one sentence in Mr. Fellner’s testimony I agree with completely is that “the massive amount of time and resources applied to the ergonomics regulation clearly delayed and prevented the promulgation of other OSHA standards.” I supported the 2000 ergonomics regulation (although I had developed a rather different version of it before leaving my position in Health Standards), but I greatly regret having been instructed in 1998 to stop work on all the other standards under my purview, including some of the very ones (e.g., tuberculosis, chromium, Assigned Protection Factors, PEL update chemicals) that the current OSHA leadership later had the opportunity to “kill” or weaken substantially because they had never been finalized.

Mr. Foulke recently wrote a letter to the National Journal criticizing Jim Morris’s article on OSHA as the work of someone “with a political ax to grind.”  Although I left OSHA in 2004 in the wake of a successful claim of whistleblower retaliation, I have never hesitated to defend the Agency, and its regulated community, against unsubstantiated criticism from any place on the political spectrum (see, for example, a letter recently published in the International Journal of Occupational and Environmental Health). I hope the points I’ve raised in this letter to Rep. Woolsey will spark some substantive discussion in The Pump Handle, and I appreciate the opportunity to contribute to this wonderful on-line resource.

Adam M. Finkel is currently Professor of Environmental and Occupational Health at the UMDNJ (Univ. of Medicine and Dentistry of New Jersey) School of Public Health, and a lecturer at the Woodrow Wilson School of Public and International Affairs at Princeton University.  From 1995 to 2000, he was Director of Health Standards Programs at OSHA, and from 2000 to 2003 was Regional Administrator for OSHA in the six-state Rocky Mountain region.  He has degrees in biology, public policy, and environmental health sciences from Harvard University, and is a Certified Industrial Hygienist.