Regulatory bodies, like people, have distinct life cycles
…regulatory bodies, like the people who comprise them, have a marked life cycle. In youth, they are vigorous, aggressive, evangelistic, and even intolerant. Later they mellow, and in old age — after a matter of ten or fifteen years — they become, with some exceptions, either an arm of the industry they are regulating or senile.
John Kenneth Galbraith, Ph.D, “The Great Crash, 1929,” published originally in 1955
Could it be the venerable good doctor, a titan of economics, possessed the prescience to be describing the Occupational Safety and Health Administration 16 years before it began operation in 1971? And more importantly, could he have been explaining why so many occupational safety and health professionals today are disengaged from OSHA?
The profession’s disconnect from OSHA is palpable, almost raw with frustration. “Leave me the hell alone and let me do what I know how to do,” emailed a pro with almost four decades in the field. He laments the agency’s “misleading and often confusing direction” in recent years, and the lack of any significant regulatory agenda items “or public outcries to fix what may not be broken.”
“OSHA is almost 39 years old now” writes Tom Lawrence, whose safety and health career pre-dates the birth of the agency, in an email to us. “Politics in abundance and budgets in scarcity. Potential for significant change? Not likely.”
It’s time to cut the ties that have bound professionals to Washington for almost 40 years, argues Lawrence, and press ahead with innovation and resourceful not in abundance inside the beltway.
Who’s in charge here?
Or as American Industrial Hygiene Association Director of Government Affairs Aaron Trippler recently wrote in his newsletter: “Many of those who live and work here, including yours truly, also shake our head when we see Congress and the agencies attempt to do the work of governing.” Trippler went on to describe the consultant hired by OSHA who worked for 27 months, ending in mid-2008. His fee: $572,946 billed for labor and $108,434 in compensation for his commuting costs. “This was more pay than that of the assistant secretary of labor for OSHA, the Secretary of Labor, the Vice President of the U.S., or any member of Congress. Who in the heck is in charge?” asks Trippler.
That confusion, in terms of OSHA’s management, is the one issue regarding the agency labor and business camps both can agree on. But that’s as far as any consensus goes. Borrowing from Galbraith’s depiction of a federal regulator, labor will argue the agency has devolved into an arm of the industry it regulates. Numerous businesses look at OSHA’s actions or inaction and see bureaucratic senility.
An agency evolves
OSHA’s life cycle can be traced in a way that parallels Galbraith’s evolutionary stages. First, in its youthful heyday of the 1970s, the agency was vigorous and aggressive with inspections and standards-setting. After a bureaucratic start-up phase, committed health and safety experts led OSHA — Dr. Mort Corn (1975-1977) and Dr. Eula Bingham (1976 – 1980). Dr. Bingham, the most fervent regulator and activist agency head ever, was evangelical in her endeavors to protect workers. Meanwhile, a growing number of employers, employer associations, and Republican politicians found OSHA’s actions increasingly “intolerant.”
Surprisingly, the agency did not “mellow” during the 1980s Reagan years and the term of President George H.W. Bush (1988-1992). “I remember the ‘80s and early ‘90s when we saw a flurry of new standards — hazard communication, respiratory protection, lockout-tagout, process safety management — and thought that OSHA had a decent handle on driving safety improvements at the national level,” writes Jeff LaBelle, a safety and risk assessment manager, in an email to us. “Since then we’ve seen much too little and much too late.”
Ironically, the mellowing and winding-down occurred during a Democratic regime, the two terms of President Clinton (1992-2000). It was the vision of Clinton’s Vice President Al Gore that a more mature OSHA would reinvent itself as a customer-focused, problem-solving partner with industry. In this context, OSHA’s much ballyhooed ergonomics standard, rushed out the door mere days after Gore lost the 2000 election, could be considered a mid-life crisis binge.
The “much too little and much too late” phase of OSHA’s evolution, which critics peg from 1992 until the present, could be interpreted, using Galbraith’s life cycle of a regulator, as the disorientation and cognitive failures that accompany aging. But although OSHA chiefs Joe Dear, Charles Jeffress and John Henshaw during that time were attacked on many counts, senility never came up; all were in their prime when at the agency. Critics contend that as OSHA has aged, it has become more than ever an arm of the industry it regulates. Ergo, the never-ending announcements of industry alliances in recent years. And, to be sure, a fantastically rich web site with deep resources and “tools” to help businesses.
Life on the beach?
So what have we here in 2009?
Will OSHA continue to slumber in what Galbraith would ascribe as its sunset years? Overworked and under-staffed safety and health professionals in industry are not of a mind to wake the agency and confront possibly a slew of new standards. That’s not going to happen anyway, not with an army of attorneys at the disposal of the National Association of Manufacturers and the U.S. Chamber of Commerce.
What cannot be allowed to happen is for OSHA to continue to drift listlessly in its old (by Galbraith’s definition) age. Big business is global, with its workers at risk around the world and up and down supply chains, but OSHA is not an energetic global regulatory thought-leader. It must be.
And small business, which still dominates the domestic workplace landscape, cannot continue to put workers at risk, increasingly non-English speaking employees, through ignorance, lack of resources, or knowing non-compliance.
In this economy, retirees return to work and workers put off retirement. Old age ain’t what it used to be. Yes, there’s much talk of the graying of OSHA, of the coming wave of retirements. Still, hundreds if not thousands of careerists at OSHA aren’t ready to cash it in. They need strong, vibrant leadership. And here in 2009, when OSHA needs direction and vision, the safety and health profession can’t be caught “decoupling” and leaving the agency to close its eyes and stretch out on a beach chair somewhere.
Friday, May 1, 2009
Tuesday, March 31, 2009
Recommended reading for the new OSHA regime
Michael Silverstein, MD, MPH, “Getting Home Safe and Sound? OSHA at Thirty Five.” American Journal of Public Health, March, 2008. Vol. 98, No. 3.
American Public Health Association and National Council for Occupational Safety and Health, “Protecting Workers On The Job: Seven Priorities for Federal Action in 2009.” Issued in the fall, 2008.
Hamid Arabzadeh, CIH, CSP, MS, CHMM, REA, “A Professional Crisis – Is there a need to reinvent industrial hygiene?” Presentation abstract, American Industrial Hygiene Association British Columbia Yukon Local Section 2007 Annual General Meeting.
The Charlotte Observer, “White House vows to increase worker safety, enforce laws.” Friday, February 27, 2009.
Thomas Geoghegan, J.D., “Infinite Debt: How unlimited interest rates destroyed the economy.” Harper’s Magazine, April, 2009.
John Howard, M.D., J.D., “The Future of Occupational Safety and Health.” Presented at “Protection 2033: The 75th Anniversary of the International Safety Equipment Association,” November 11, 2008.
The Los Angeles Times, “Hilda Solis’ belief in unions runs deep,” January 9, 2009.
David Michaels, PhD, MPH, “It’s Not the Answers That Are Biased, It’s the Questions.” The Washington Post, Tuesday, July 15, 2008.
David Michaels, PhD, MPH, “Doubt Is Their Product.” Scientific American, June, 2005.
New York Committee for Occupational Safety and Health (NYCOSH), “After 8 Years of Bush: Can OSHA be Fixed? What must be done.” NYCOSH Safety Rep newsletter, Winter 2009.
ORC Worldwide, “Breaking the Cycle: New Approaches to Establishing National Workplace Safety and Health Policy.” Issued November 3, 2008.
Glenn Harlan Reynolds, “Obama And Regulation.” Forbes.com, January 9, 2009.
Scott P. Schneider, MS, CIH, “The Breakdown of OSHA Standards-Setting.” Testimony before the Subcommittee on Workforce Protections, Committee on Education and Labor, U.S. House of Representatives, April 24, 2007.
Peg Seminario, MS, CIH, “Is OSHA Working for Working People?” Testimony before the Senate Employment and Worker Safety Subcommittee of the Health, Education, Labor and Pensions Committee, April 26, 2007.
Cass R. Sunstein, J.D., “The Empiricist Strikes Back: Obama’s pragmatism explained.” The New Republic, Wednesday, September 10, 2008.
Cass R. Sunstein, J.D., “Is OSHA Unconstitutional?” The Virginia Law Review, 2008.
David M. Uhlmann, “The Prosecution of Worker Endangerment Cases and the Need for Stronger Criminal Provisions of the Worker Safety Laws to Protect America’s Workers.” Testimony before the U.S. Senate Committee on Health, Education, Labor and Pensions, April 29, 2008.
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American Public Health Association and National Council for Occupational Safety and Health, “Protecting Workers On The Job: Seven Priorities for Federal Action in 2009.” Issued in the fall, 2008.
Hamid Arabzadeh, CIH, CSP, MS, CHMM, REA, “A Professional Crisis – Is there a need to reinvent industrial hygiene?” Presentation abstract, American Industrial Hygiene Association British Columbia Yukon Local Section 2007 Annual General Meeting.
The Charlotte Observer, “White House vows to increase worker safety, enforce laws.” Friday, February 27, 2009.
Thomas Geoghegan, J.D., “Infinite Debt: How unlimited interest rates destroyed the economy.” Harper’s Magazine, April, 2009.
John Howard, M.D., J.D., “The Future of Occupational Safety and Health.” Presented at “Protection 2033: The 75th Anniversary of the International Safety Equipment Association,” November 11, 2008.
The Los Angeles Times, “Hilda Solis’ belief in unions runs deep,” January 9, 2009.
David Michaels, PhD, MPH, “It’s Not the Answers That Are Biased, It’s the Questions.” The Washington Post, Tuesday, July 15, 2008.
David Michaels, PhD, MPH, “Doubt Is Their Product.” Scientific American, June, 2005.
New York Committee for Occupational Safety and Health (NYCOSH), “After 8 Years of Bush: Can OSHA be Fixed? What must be done.” NYCOSH Safety Rep newsletter, Winter 2009.
ORC Worldwide, “Breaking the Cycle: New Approaches to Establishing National Workplace Safety and Health Policy.” Issued November 3, 2008.
Glenn Harlan Reynolds, “Obama And Regulation.” Forbes.com, January 9, 2009.
Scott P. Schneider, MS, CIH, “The Breakdown of OSHA Standards-Setting.” Testimony before the Subcommittee on Workforce Protections, Committee on Education and Labor, U.S. House of Representatives, April 24, 2007.
Peg Seminario, MS, CIH, “Is OSHA Working for Working People?” Testimony before the Senate Employment and Worker Safety Subcommittee of the Health, Education, Labor and Pensions Committee, April 26, 2007.
Cass R. Sunstein, J.D., “The Empiricist Strikes Back: Obama’s pragmatism explained.” The New Republic, Wednesday, September 10, 2008.
Cass R. Sunstein, J.D., “Is OSHA Unconstitutional?” The Virginia Law Review, 2008.
David M. Uhlmann, “The Prosecution of Worker Endangerment Cases and the Need for Stronger Criminal Provisions of the Worker Safety Laws to Protect America’s Workers.” Testimony before the U.S. Senate Committee on Health, Education, Labor and Pensions, April 29, 2008.
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Players in the OSHA arena
Regardless how the OSHA chief selection process plays out, the Obama regime change has ushered in a fresh group of official and unofficial policy advisors.
Out goes all the influence formerly enjoyed by the National Association of Manufacturers and the U.S. Chamber of Commerce, and to a lesser extent think tanks such as the Heritage Foundation and the Cato Institute.
In comes the AFL-CIO, the Service Employees International Union, the American Public Health Association, grassroots local and state coalitions of occupational safety and health (COSHs), labor law academics and occupational medicine professionals.
Here are individuals you will be hearing more from in the coming months and years:
Hilda Solis, 51, the secretary of labor, is a native of El Monte, California. She has a master's in public administration from the University of Southern California and an undergraduate degree from Cal Poly Pomona, and has made her career in government. At 28, she won a seat on the Rio Hondo Community College Board of Trustees against two far more established politicians. In 1992, she won a California Assembly seat. In one of her first acts, she sided with labor against the tobacco industry and the Democratic leadership by voting in 1993 for legislation that banned smoking in all workplaces.
Solis became the first Latina elected to the California State Senate in 1994. She served there for six years. In 1995, her first year in the Senate, authorities raided an El Monte building fenced by razor wire. Inside, 72 Thai workers toiled 18 hours a day in “slave-like conditions,” stitching garments that were to be sold in shopping malls, according to an article in the Los Angeles Times. Solis held high-profile hearings, called garment manufacturers to Sacramento to explain themselves and pushed for heavier enforcement of laws against sweatshops.
In 2000, Solis ran for the U.S. House of Representatives against an incumbent from her own party who had run afoul of labor by voting for the North American Free Trade Agreement. She won 62 percent of the vote in the primary. No Republican ran against her in the general election. In her years on Capitol Hill, Solis had a liberal voting record — she had a 97 percent approval rating from the AFL-CIO. Her father, Raul, was a Teamsters Union shop steward from Mexico. Her mother came from Nicaragua and worked on an assembly line for more than 20 years at a Mattel toy factory and belonged to the United Rubber Workers.
A Republican state senator from California, who battled with Solis when she headed a budget subcommittee, called her "a committed liberal in the pockets of labor," according to an article in the Los Angeles Times.
“I know that my seven siblings and I would not be where we are today without the wages and other protections my parents earned with the help of their union,” Solis wrote for the Huffington Post on March 2, 2007, after the House approved the Employee Free Choice Act.
At the time of her nomination to be labor secretary, Solis was the only member of Congress on the board of a pro-union group, American Right at Work, according to Politico.com.
"Her toughness will be underestimated, and her idealism will be discounted," Tom Hayden, a former state Senate colleague and an ally on Solis’s anti-sweatshop campaign, told the Los Angeles Times.
Hamid Arabzadeh, MS, CIH, CSP, REA, CHMM, principal of HRA Environmental Consultants, Inc., Irvine, Calif. Said by many to be extremely keen on the OSHA chief job. “He’s politically well-connected, has the support of Sen. Tom Harkin (in September, Harkin sponsored a resolution in the Senate recognizing the importance of workplace wellness as a strategy to help maximize employees' health and well being), and has attended Democratic campaign fundraisers in Los Angeles,” says one source. Other sources say he has made numerous trips to Washington to line up supporters including Sen. Barbara Boxer (D-CA), Speaker of the House Nancy Pelosi (D-CA), and members of the House of Representatives Loretta Sanchez, Laura Richardson, Brian Bilbray, Ed Royce and George Radonovich, all from California. Bilbray, Royce and Radonovich are republicans.
From 1992 to 1997, Arabzadeh was the corporate manager of industrial hygiene for the UNOCAL Corporation, with worldwide responsibilities, and later the director of the EH&S Branch at Los Angeles Unified School District. Arabzadeh holds two graduate degrees in Occupational Health Sciences and Industrial Hygiene. A native of Iran, Arabzadeh is a staunch and vocal activist for human rights in his native country.
Jordan Barab put to bed after several years of toil his blog “Confined Space” which enjoyed a cult-like following among health and safety professionals, and now occupies a senior policy advisor position on the U.S. House of Representatives Committee on Education and Labor. The move affords him influence beyond what he could achieve in the blogosphere. He could be in line for a deputy or policy director position at OSHA.
Bill Borwegen MPH, director of occupational health and safety for the Service Employees International Union, has been on the cutting edge of emerging safety and health issues such as patient handling and healthcare risks, sustainability, and health promotion.
Mark Briggs surfaced in late March as a possible OSHA chief candidate. Briggs is campus risk manager at the University of Illinois. He joined the university’s Division of Public Safety in 2000, coming to the job with experience in risk management consulting and the insurance industries. Briggs owned a safety and risk management consultancy full-time for seven years, after having worked in the insurance industry for 11 years. He is a graduate of the health sciences/safety program at Illinois State University and has earned professional designations of Associate in Risk Management and Certified Safety Professional. He is an active member of several national associations, including the University Risk Management and Insurance Association, the Risk and Insurance Management Society, and the American Society of Safety Engineers (ASSE).
In a 2003 video released by ASSE to commemorate Labor Day, the group said its members were responding to the changing face of workplace safety following 9/11. "We've entered a whole new phase," Briggs said in the video. "We are more focused now on emergency planning, trying to plan for contingencies that were not on our radar screen before."
Adam Finkel is a professor of environmental and occupational health at the University of Medicine and Dentistry of New Jersey and was a vocal OSHA regional administrator and director of health standards at the agency, often leveling charges of political incompetence at his bosses in Washington.
Eric Frumin. Fiery director of the safety and health program for UNITE-HERE, a labor union in the garment, textile, laundry, and hospitality industries. Frumin is also occupational safety and health coordinator for Change to Win, a group of seven unions and six million workers that broke away from the AFL-CIO.
Ron Hayes, called a “hellraiser” by Mother Jones magazine, is a grassroots job safety activist and trainer based in Alabama. His son suffocated to death in a grain silo in 1993. Has the ear of Kennedy’s OSHA staff specialist and has gone fishing with Republican Senator Mike Enzi of Wyoming, one of very few senators on either side of the aisle interested in OSHA issues.
Seth Harris was named by President Obama to be deputy secretary of labor, the number two spot at the Department of Labor. Harris worked for the Obama campaign and served in the Clinton administration. Harris was the Obama Transition Project’s Agency Working Group Leader for the labor, education, and transportation agencies. During the Clinton administration, he served as counselor to the secretary of labor and acting assistant secretary of labor for policy, among other policy-advising positions. Before returning to Washington this year, Harris was a professor and the director of Labor & Employment Law Programs at New York Law School.
Kitty Higgins. Kathryn O’Leary Higgins’s name was brought to our attention in late March as a potential candidate for the top OSHA slot, after Peg Seminario and Dr. John Howard dropped out of the running. Since 2006, she has been a member of the National Transportation Safety Board (NTSB). In 2008, she was described in a Culver City, Calif. online newspaper article about a Los Angeles commuter-freight train crash that killed 25 people as “sassy” and known to sometimes have “difficulty keeping her boiling Irish temper tucked beneath her collar… is very conscious of her status as an outspoken Democrat.”
Higgins has extensive experience in the Department of Labor in Democratic administrations. She served as deputy secretary of President’s Clinton’s Department of Labor (July 1997-May 1999), chief of staff to Secretary of Labor Robert Reich (January 1993-February 1995), and began her career in government in 1969 as a manpower specialist with the Employment and Training Administration, U.S. Department of Labor.
“I’ve made a dozen calls about her, and the verdict is unanimous: Few people know Washington as well, and how to maneuver in it,” Reich wrote in his 1997 memoir, “Locked in the Cabinet.” “Her annual St. Patrick’s Day party is a Washington fixture. Another Irish pol, she loves the game of politics. She’s also interested in the substance. She’s devoted most of her adult life to the cause of helping working people make something more of their lives.”
Higgins has also served in the White House (February 1995 – July 1997) as assistant to President Clinton and secretary to the Cabinet. In that capacity she worked closely with the NTSB, Department of Transportation, Federal Aviation Administration, and Coast Guard on a number of matters, including the 1996 ValuJet 597 and TWA 800 accidents, developing and implementing hazardous materials regulations, increasing inspector staffing, FAA reauthorization, and creation of the NTSB Office of Family Assistance.
In the Carter administration, Higgins was with the White House Domestic Policy Council, serving as assistant director for employment policy (May 1978 –January 1981). From January 1981 to January 1986 Higgins was senior legislative associate and minority staff director with the Senate Labor and Human Resources Committee.
Dr. John Howard, former head of NIOSH and the California OSHA state program. In a speech given November 11, 2008, Dr. Howard said research, education and assistance at OSHA is uncoordinated; OSHA’s insularity leads to a “go it alone” attitude; the accuracy of non-fatal injuries and illness recordkeeping needs to be investigated, and existing OSHA standards are not matched to the existing causes of worker injuries and illnesses. Might get his old job at NIOSH back if the top OSHA position he wants is not in the offing.
Sen. Edward Kennedy, chairman of the Senate Committee on Health, Education, Labor and Pensions, has written legislation, co-sponsored by Obama, to make modest changes to OSHA law. At some point in the next four years, legislation increasing criminal sanctions and penalties against OSHA Act violators will be reintroduced with vigor.
David Michaels, dark horse possible OSHA chief nominee, is a professor at George Washington University and was assistant secretary of energy for environment, safety, and health under Clinton. In a post he wrote for the blog “The Pump Handle,” Michael said: “(former OSHA boss) Mr. Foulke’s arguments are reminiscent of the climate change deniers who oppose government action on global warming, claiming the science is ‘not settled enough’ for OSHA to do what needs to be done. The agency’s claims about the number of new regulations published are also quite misleading.”
George Miller, 64, is chairman of the House Education and Labor Committee, which covers OSHA and has put many an OSHSA chief’s feet to the fire in hearings. He has represented the 7th District of California in the East Bay of San Francisco since 1975. Introduced in Congress early in 2009 the Worker Protection Against Combustible Dust Explosion and Fires Act (H.R. 5522). The bill, which passed in the House but not the Senate in 2008, would require OSHA to issue emergency rules to regulate combustible dust, like sugar dust, that can build up to hazardous levels and explode.
Franklin E. Mirer, PhD, CIH, Professor, Environmental and Occupational Health Sciences, Urban Public Health Program, Hunter College School of Health Sciences, New York City. Long-time United Auto Workers safety and health director. Mirer has testified numerous time in Congress, arguing passionately that OSHA needs to set mandatory standards for a host of chemicals because chronic illness from long-term exposure at work accounts for 90 percent of known work-related mortality.
Celeste Monforton, MPH, is a researcher at George Washington University’s School of Public Health and former policy analyst at OSHA (1991-1995) and at MSHA (1996-2001) as special assistant to the assistant secretary of labor. She served as senior investigator with J.Davitt McAteer for the Governor of West Virginia’s special inquiry into the January 2006 Sago Mine disaster. A thought leader in workplace safety and health, Monforton has written extensively for the blog, “The Pump Handle.”
Peg Seminario, health and safety director for the AFL-CIO. Has spent more than 30 years working on safety and health issues, and has been involved in dozens of OSHA rulemakings on safety and health standards and regulations. Seminario is not zeroing in on another stab at an ergo standard. Instead she says silica, beryllium, confined space safety in construction, cranes and derricks should be the first standards priorities. Ergonomics can be handled a number of ways, she says: enforcement under the general duty clause, recordkeeping scrutiny, perhaps integrating ergonomics into a broad safety and health program rule.
Michael Silverstein, MD, MPH, clinical professor of environmental and occupational health sciences at the University of Washington School of Public Health, and former director of policy for OSHA (1993 – 1995). Recently had a paper published in the American Journal of Public Health, “Getting Home Safe and Sound: Occupational Safety and Health Administration at 38.”
The paper suggests reframing the language of worker protection to link it with broad resonant themes of health and human rights, ensuring every employer has a comprehensive safety and health management program, and requiring every workplace to be inspected regularly using a third-party army of licensed professionals.
Emily Spieler, leader of the Obama Transition Team for OSHA. Board member, Public Health Advocacy Institute; Dean, Northeastern Law School. A central player in sifting through recommendations for the next OSHA boss.
Cass Sunstein, 54, recently appointed as President Obama’s new “regulatory czar,” making him a key player in deciding which risks to public health and the environment are regulated by the U.S. government, and how they are regulated. He is the head of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. A magna cum laude graduate of Harvard Law School, who was a law clerk to Supreme Court Justice Thurgood Marshall. An American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics. Sunstein taught at the University of Chicago Law School for 27 years, and was Felix Frankfurter Professor of Law at Harvard Law School. Author of the book “Risk & Reason, Safety, Law and the Environment.” Sunstein's most recent book is “Nudge: Improving Decisions about Health, Wealth, and Happiness” (Yale University Press, 2008), which he co-authored with economist Richard Thaler of the University of Chicago. “Nudge” discusses how public and private organizations can help people make better choices in their daily lives.
In a 2008 article for Virginia Law Review “Is OSHA Unconstitutional?” Sunstein argues that provisions on standard setting in the OSH Act of 1970 are unconstitutionally vague. He asserts that OSHA is vulnerable to a Constitutional challenge based on the nondelegation doctrine, arguing that the terms “reasonably necessary or appropriate” and “feasible” are too vague for the agency’s decision-making purposes. He wrote: “Poor old OSHA – the agency charged with responsibility for keeping workers safe from toxic chemicals and dangerous equipment on the job site – is barely breathing today, having issued just two rules in a decade on toxic chemicals.”
Sunstein writes that if OSHA were to exercise the excessive power Congress gave it, companies could argue that “after close to 40 years of existence, a federal court should conclude that Congress must go back to the drawing board, rewriting the OSHA statute from scratch.”
Dr Andrea Taylor, professor at Morgan State University in Baltimore, Former member of the U.S. Chemical Safety and Hazard Investigation Board. “This black woman has done so many things ‘first’ that we should call her our First Lady of Occupational Safety and Health,” said Ilise L Feitshans JD and ScM, author of “Designing an Effective OSHA Compliance Program, in an email to ISHN. “(Taylor) has served in UAW, had pathbreaking doctoral studies on hypertension before the term ‘health disparities’ was coined much less gained currency, and she has a wonderful command of scientific and technical issues.”
David M. Uhlmann, law professor at the University of Michigan, has been mentioned as a possible OSHA chief. Served for seven years as chief of the United States Department of Justice Environmental Crimes Section, where he was the top environmental crimes prosecutor in the United States.
Wrote an op-ed piece for The New York Times this past May stating: “Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months… Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a duty to know their responsibilities under the Occupational Safety and Health Act.” One source tells us Uhlmann is a favorite of Sen. Kennedy’s staff for a labor position in the Obama administration.
Frank White, former deputy at OSHA in charge of standards-setting and enforcement, and current senior vice president for ORC Worldwide’s Washington-based occupational safety and health consultancy.
“We are frankly weary of confrontation that perennially pervades the debates over workplace safety and health policy, that leads to political stalemate and that has alienated much of the safety and health community,” said White in an ORC White Paper issued in November, 2008 that gives specific details for a new approach to national occupational safety and health policy. ORC’s White Paper states: “…the 2008 election presents all of us in the safety and health community with a once in a generation opportunity to break the longstanding gridlock on progress in many key areas of safety and health policy.”
Lynn Woolsey. Democratic Congresswoman, 71, from California since 1993. Heads up the Workforce Protections subcommittee of the House Education and Labor Committee. Told the Las Vegas Sun in an interview November 24, 2008: “OSHA needs a complete overhaul.”
Out goes all the influence formerly enjoyed by the National Association of Manufacturers and the U.S. Chamber of Commerce, and to a lesser extent think tanks such as the Heritage Foundation and the Cato Institute.
In comes the AFL-CIO, the Service Employees International Union, the American Public Health Association, grassroots local and state coalitions of occupational safety and health (COSHs), labor law academics and occupational medicine professionals.
Here are individuals you will be hearing more from in the coming months and years:
Hilda Solis, 51, the secretary of labor, is a native of El Monte, California. She has a master's in public administration from the University of Southern California and an undergraduate degree from Cal Poly Pomona, and has made her career in government. At 28, she won a seat on the Rio Hondo Community College Board of Trustees against two far more established politicians. In 1992, she won a California Assembly seat. In one of her first acts, she sided with labor against the tobacco industry and the Democratic leadership by voting in 1993 for legislation that banned smoking in all workplaces.
Solis became the first Latina elected to the California State Senate in 1994. She served there for six years. In 1995, her first year in the Senate, authorities raided an El Monte building fenced by razor wire. Inside, 72 Thai workers toiled 18 hours a day in “slave-like conditions,” stitching garments that were to be sold in shopping malls, according to an article in the Los Angeles Times. Solis held high-profile hearings, called garment manufacturers to Sacramento to explain themselves and pushed for heavier enforcement of laws against sweatshops.
In 2000, Solis ran for the U.S. House of Representatives against an incumbent from her own party who had run afoul of labor by voting for the North American Free Trade Agreement. She won 62 percent of the vote in the primary. No Republican ran against her in the general election. In her years on Capitol Hill, Solis had a liberal voting record — she had a 97 percent approval rating from the AFL-CIO. Her father, Raul, was a Teamsters Union shop steward from Mexico. Her mother came from Nicaragua and worked on an assembly line for more than 20 years at a Mattel toy factory and belonged to the United Rubber Workers.
A Republican state senator from California, who battled with Solis when she headed a budget subcommittee, called her "a committed liberal in the pockets of labor," according to an article in the Los Angeles Times.
“I know that my seven siblings and I would not be where we are today without the wages and other protections my parents earned with the help of their union,” Solis wrote for the Huffington Post on March 2, 2007, after the House approved the Employee Free Choice Act.
At the time of her nomination to be labor secretary, Solis was the only member of Congress on the board of a pro-union group, American Right at Work, according to Politico.com.
"Her toughness will be underestimated, and her idealism will be discounted," Tom Hayden, a former state Senate colleague and an ally on Solis’s anti-sweatshop campaign, told the Los Angeles Times.
Hamid Arabzadeh, MS, CIH, CSP, REA, CHMM, principal of HRA Environmental Consultants, Inc., Irvine, Calif. Said by many to be extremely keen on the OSHA chief job. “He’s politically well-connected, has the support of Sen. Tom Harkin (in September, Harkin sponsored a resolution in the Senate recognizing the importance of workplace wellness as a strategy to help maximize employees' health and well being), and has attended Democratic campaign fundraisers in Los Angeles,” says one source. Other sources say he has made numerous trips to Washington to line up supporters including Sen. Barbara Boxer (D-CA), Speaker of the House Nancy Pelosi (D-CA), and members of the House of Representatives Loretta Sanchez, Laura Richardson, Brian Bilbray, Ed Royce and George Radonovich, all from California. Bilbray, Royce and Radonovich are republicans.
From 1992 to 1997, Arabzadeh was the corporate manager of industrial hygiene for the UNOCAL Corporation, with worldwide responsibilities, and later the director of the EH&S Branch at Los Angeles Unified School District. Arabzadeh holds two graduate degrees in Occupational Health Sciences and Industrial Hygiene. A native of Iran, Arabzadeh is a staunch and vocal activist for human rights in his native country.
Jordan Barab put to bed after several years of toil his blog “Confined Space” which enjoyed a cult-like following among health and safety professionals, and now occupies a senior policy advisor position on the U.S. House of Representatives Committee on Education and Labor. The move affords him influence beyond what he could achieve in the blogosphere. He could be in line for a deputy or policy director position at OSHA.
Bill Borwegen MPH, director of occupational health and safety for the Service Employees International Union, has been on the cutting edge of emerging safety and health issues such as patient handling and healthcare risks, sustainability, and health promotion.
Mark Briggs surfaced in late March as a possible OSHA chief candidate. Briggs is campus risk manager at the University of Illinois. He joined the university’s Division of Public Safety in 2000, coming to the job with experience in risk management consulting and the insurance industries. Briggs owned a safety and risk management consultancy full-time for seven years, after having worked in the insurance industry for 11 years. He is a graduate of the health sciences/safety program at Illinois State University and has earned professional designations of Associate in Risk Management and Certified Safety Professional. He is an active member of several national associations, including the University Risk Management and Insurance Association, the Risk and Insurance Management Society, and the American Society of Safety Engineers (ASSE).
In a 2003 video released by ASSE to commemorate Labor Day, the group said its members were responding to the changing face of workplace safety following 9/11. "We've entered a whole new phase," Briggs said in the video. "We are more focused now on emergency planning, trying to plan for contingencies that were not on our radar screen before."
Adam Finkel is a professor of environmental and occupational health at the University of Medicine and Dentistry of New Jersey and was a vocal OSHA regional administrator and director of health standards at the agency, often leveling charges of political incompetence at his bosses in Washington.
Eric Frumin. Fiery director of the safety and health program for UNITE-HERE, a labor union in the garment, textile, laundry, and hospitality industries. Frumin is also occupational safety and health coordinator for Change to Win, a group of seven unions and six million workers that broke away from the AFL-CIO.
Ron Hayes, called a “hellraiser” by Mother Jones magazine, is a grassroots job safety activist and trainer based in Alabama. His son suffocated to death in a grain silo in 1993. Has the ear of Kennedy’s OSHA staff specialist and has gone fishing with Republican Senator Mike Enzi of Wyoming, one of very few senators on either side of the aisle interested in OSHA issues.
Seth Harris was named by President Obama to be deputy secretary of labor, the number two spot at the Department of Labor. Harris worked for the Obama campaign and served in the Clinton administration. Harris was the Obama Transition Project’s Agency Working Group Leader for the labor, education, and transportation agencies. During the Clinton administration, he served as counselor to the secretary of labor and acting assistant secretary of labor for policy, among other policy-advising positions. Before returning to Washington this year, Harris was a professor and the director of Labor & Employment Law Programs at New York Law School.
Kitty Higgins. Kathryn O’Leary Higgins’s name was brought to our attention in late March as a potential candidate for the top OSHA slot, after Peg Seminario and Dr. John Howard dropped out of the running. Since 2006, she has been a member of the National Transportation Safety Board (NTSB). In 2008, she was described in a Culver City, Calif. online newspaper article about a Los Angeles commuter-freight train crash that killed 25 people as “sassy” and known to sometimes have “difficulty keeping her boiling Irish temper tucked beneath her collar… is very conscious of her status as an outspoken Democrat.”
Higgins has extensive experience in the Department of Labor in Democratic administrations. She served as deputy secretary of President’s Clinton’s Department of Labor (July 1997-May 1999), chief of staff to Secretary of Labor Robert Reich (January 1993-February 1995), and began her career in government in 1969 as a manpower specialist with the Employment and Training Administration, U.S. Department of Labor.
“I’ve made a dozen calls about her, and the verdict is unanimous: Few people know Washington as well, and how to maneuver in it,” Reich wrote in his 1997 memoir, “Locked in the Cabinet.” “Her annual St. Patrick’s Day party is a Washington fixture. Another Irish pol, she loves the game of politics. She’s also interested in the substance. She’s devoted most of her adult life to the cause of helping working people make something more of their lives.”
Higgins has also served in the White House (February 1995 – July 1997) as assistant to President Clinton and secretary to the Cabinet. In that capacity she worked closely with the NTSB, Department of Transportation, Federal Aviation Administration, and Coast Guard on a number of matters, including the 1996 ValuJet 597 and TWA 800 accidents, developing and implementing hazardous materials regulations, increasing inspector staffing, FAA reauthorization, and creation of the NTSB Office of Family Assistance.
In the Carter administration, Higgins was with the White House Domestic Policy Council, serving as assistant director for employment policy (May 1978 –January 1981). From January 1981 to January 1986 Higgins was senior legislative associate and minority staff director with the Senate Labor and Human Resources Committee.
Dr. John Howard, former head of NIOSH and the California OSHA state program. In a speech given November 11, 2008, Dr. Howard said research, education and assistance at OSHA is uncoordinated; OSHA’s insularity leads to a “go it alone” attitude; the accuracy of non-fatal injuries and illness recordkeeping needs to be investigated, and existing OSHA standards are not matched to the existing causes of worker injuries and illnesses. Might get his old job at NIOSH back if the top OSHA position he wants is not in the offing.
Sen. Edward Kennedy, chairman of the Senate Committee on Health, Education, Labor and Pensions, has written legislation, co-sponsored by Obama, to make modest changes to OSHA law. At some point in the next four years, legislation increasing criminal sanctions and penalties against OSHA Act violators will be reintroduced with vigor.
David Michaels, dark horse possible OSHA chief nominee, is a professor at George Washington University and was assistant secretary of energy for environment, safety, and health under Clinton. In a post he wrote for the blog “The Pump Handle,” Michael said: “(former OSHA boss) Mr. Foulke’s arguments are reminiscent of the climate change deniers who oppose government action on global warming, claiming the science is ‘not settled enough’ for OSHA to do what needs to be done. The agency’s claims about the number of new regulations published are also quite misleading.”
George Miller, 64, is chairman of the House Education and Labor Committee, which covers OSHA and has put many an OSHSA chief’s feet to the fire in hearings. He has represented the 7th District of California in the East Bay of San Francisco since 1975. Introduced in Congress early in 2009 the Worker Protection Against Combustible Dust Explosion and Fires Act (H.R. 5522). The bill, which passed in the House but not the Senate in 2008, would require OSHA to issue emergency rules to regulate combustible dust, like sugar dust, that can build up to hazardous levels and explode.
Franklin E. Mirer, PhD, CIH, Professor, Environmental and Occupational Health Sciences, Urban Public Health Program, Hunter College School of Health Sciences, New York City. Long-time United Auto Workers safety and health director. Mirer has testified numerous time in Congress, arguing passionately that OSHA needs to set mandatory standards for a host of chemicals because chronic illness from long-term exposure at work accounts for 90 percent of known work-related mortality.
Celeste Monforton, MPH, is a researcher at George Washington University’s School of Public Health and former policy analyst at OSHA (1991-1995) and at MSHA (1996-2001) as special assistant to the assistant secretary of labor. She served as senior investigator with J.Davitt McAteer for the Governor of West Virginia’s special inquiry into the January 2006 Sago Mine disaster. A thought leader in workplace safety and health, Monforton has written extensively for the blog, “The Pump Handle.”
Peg Seminario, health and safety director for the AFL-CIO. Has spent more than 30 years working on safety and health issues, and has been involved in dozens of OSHA rulemakings on safety and health standards and regulations. Seminario is not zeroing in on another stab at an ergo standard. Instead she says silica, beryllium, confined space safety in construction, cranes and derricks should be the first standards priorities. Ergonomics can be handled a number of ways, she says: enforcement under the general duty clause, recordkeeping scrutiny, perhaps integrating ergonomics into a broad safety and health program rule.
Michael Silverstein, MD, MPH, clinical professor of environmental and occupational health sciences at the University of Washington School of Public Health, and former director of policy for OSHA (1993 – 1995). Recently had a paper published in the American Journal of Public Health, “Getting Home Safe and Sound: Occupational Safety and Health Administration at 38.”
The paper suggests reframing the language of worker protection to link it with broad resonant themes of health and human rights, ensuring every employer has a comprehensive safety and health management program, and requiring every workplace to be inspected regularly using a third-party army of licensed professionals.
Emily Spieler, leader of the Obama Transition Team for OSHA. Board member, Public Health Advocacy Institute; Dean, Northeastern Law School. A central player in sifting through recommendations for the next OSHA boss.
Cass Sunstein, 54, recently appointed as President Obama’s new “regulatory czar,” making him a key player in deciding which risks to public health and the environment are regulated by the U.S. government, and how they are regulated. He is the head of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget. A magna cum laude graduate of Harvard Law School, who was a law clerk to Supreme Court Justice Thurgood Marshall. An American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics. Sunstein taught at the University of Chicago Law School for 27 years, and was Felix Frankfurter Professor of Law at Harvard Law School. Author of the book “Risk & Reason, Safety, Law and the Environment.” Sunstein's most recent book is “Nudge: Improving Decisions about Health, Wealth, and Happiness” (Yale University Press, 2008), which he co-authored with economist Richard Thaler of the University of Chicago. “Nudge” discusses how public and private organizations can help people make better choices in their daily lives.
In a 2008 article for Virginia Law Review “Is OSHA Unconstitutional?” Sunstein argues that provisions on standard setting in the OSH Act of 1970 are unconstitutionally vague. He asserts that OSHA is vulnerable to a Constitutional challenge based on the nondelegation doctrine, arguing that the terms “reasonably necessary or appropriate” and “feasible” are too vague for the agency’s decision-making purposes. He wrote: “Poor old OSHA – the agency charged with responsibility for keeping workers safe from toxic chemicals and dangerous equipment on the job site – is barely breathing today, having issued just two rules in a decade on toxic chemicals.”
Sunstein writes that if OSHA were to exercise the excessive power Congress gave it, companies could argue that “after close to 40 years of existence, a federal court should conclude that Congress must go back to the drawing board, rewriting the OSHA statute from scratch.”
Dr Andrea Taylor, professor at Morgan State University in Baltimore, Former member of the U.S. Chemical Safety and Hazard Investigation Board. “This black woman has done so many things ‘first’ that we should call her our First Lady of Occupational Safety and Health,” said Ilise L Feitshans JD and ScM, author of “Designing an Effective OSHA Compliance Program, in an email to ISHN. “(Taylor) has served in UAW, had pathbreaking doctoral studies on hypertension before the term ‘health disparities’ was coined much less gained currency, and she has a wonderful command of scientific and technical issues.”
David M. Uhlmann, law professor at the University of Michigan, has been mentioned as a possible OSHA chief. Served for seven years as chief of the United States Department of Justice Environmental Crimes Section, where he was the top environmental crimes prosecutor in the United States.
Wrote an op-ed piece for The New York Times this past May stating: “Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months… Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a duty to know their responsibilities under the Occupational Safety and Health Act.” One source tells us Uhlmann is a favorite of Sen. Kennedy’s staff for a labor position in the Obama administration.
Frank White, former deputy at OSHA in charge of standards-setting and enforcement, and current senior vice president for ORC Worldwide’s Washington-based occupational safety and health consultancy.
“We are frankly weary of confrontation that perennially pervades the debates over workplace safety and health policy, that leads to political stalemate and that has alienated much of the safety and health community,” said White in an ORC White Paper issued in November, 2008 that gives specific details for a new approach to national occupational safety and health policy. ORC’s White Paper states: “…the 2008 election presents all of us in the safety and health community with a once in a generation opportunity to break the longstanding gridlock on progress in many key areas of safety and health policy.”
Lynn Woolsey. Democratic Congresswoman, 71, from California since 1993. Heads up the Workforce Protections subcommittee of the House Education and Labor Committee. Told the Las Vegas Sun in an interview November 24, 2008: “OSHA needs a complete overhaul.”
The coming OSHA standards wars
Press headlines since the election have included these: “A new administration, ergo, a new chance for ergo;” “Labor’s revival could reignite fight over ergonomics.” Indeed, during the presidential campaign Obama issued a written statement that said many workers are susceptible to debilitating musculoskeletal injuries, and that OSHA “must attack this problem with all of the tools at its disposal: regulations, enforcement, training and compliance assistance.”
But Dr. John Howard reminded his audience in a speech given in November, 2008: “Development of such a standard (for ergonomics) will be a challenge since the Congressional Review Act (CRA) requires that any new MSD (musculoskeletal disorders) standard, replacing the one that was nullified by the CRA in 2001, must be substantially different.”
Some job safety activists argue that OSHA should adopt Cal/OSHA’s ergonomics standard, which applies to a job, process or operation where a repetitive motion injury (RMI) has occurred to more than one employee under these conditions:
1) Work related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e. 50 percent or more) by a repetitive job, process, or operation;
2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly or, loading;
3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and
4 Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before July 3, 1997.
Every employer subject to the standard is required to implement a program designed to minimize RMIs. The program consists of:
1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures which have caused RMIs.
2) Control of exposures that have caused RMIs. Any exposures that have caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.
3) Training. Employees shall be provided training that includes an explanation of: the employer's program; the exposures which have been associated with RMIs; the symptoms and consequences of injuries caused by repetitive motion; the importance of reporting symptoms and injuries to the employer; and methods used by the employer to minimize RMIs.
A number of job safety and health experts advocate that OSHA avoid the quagmire of ergonomics standard-setting and instead put its limited resources into a mandatory safety and health program management set of requirements. Again, Cal/OSHA offers a model with its injury and illness prevention program standard that supporters claim is flexible, performance-based, and has engendered scant compliance headaches.
Dr. Howard, in his speech last November, asked: “Should a risk-based occupational safety and health management system regulation (come first)? “Some might say yes, if for no other reason to harmonize OSHA’s own promotion of such risk safety and health management systems for their voluntary programs, with their reticence to consider placement of a risk-based management standard on its regulatory agenda for all employers.”
Some experts, including the AFL-CIO’s Peg Seminario, advocate going this route. Seminario says a national safety and health program rule should have been the first standard OSHA issued in 1971, and such a standard could encompass and address ergonomic risks. But a number of labor safety officials want this rule to mandate worker safety committees and worker training, which business groups will bitterly oppose, especially mandatory committees.
One of, if not the most important, decisions facing the new OSHA boss early on will be whether the agency is to pursue an ergonomics standard or a safety and health program rule, or ambitiously decides to tackle both.
Another key decision of the new OSHA chief will be how to address the hundred of out-of-date permissible exposure limits (PELs), if at all.
David Michaels, an epidemiologist and research professor at George Washington University, who has been mentioned as a dark horse for the top OSHA job, wrote in a 2005 article in Scientific American: “Out of the almost 3,000 chemicals produced in large quantities (more than one-million pounds annually), OSHA enforces exposure limits for fewer than 500… The vast majority… are still ‘regulated’ by voluntary standards set before 1971, which the newly created agency adopted them uncritically and unchanged. New science has had no impact on them. I conclude that successive OSHA administrators have simply recognized that establishing new standards is so time- and labor-intensive, and will inevitably call forth such orchestrated opposition from industry, that it is not worth expending the agency’s limited resources on the issue.
Outside groups of experts have grappled several times in the past 20 years on how to “fix” the PELs, with the idea of forwarding their recommendations to OSHA. But nothing has been delivered to OSHA’s doorstep, as union and business participants in these ad hoc advisory groups have not come close to backing down or compromising on their health (unions) versus costs (business) concerns.
In March, 2009, another stab at presenting ideas to revive and reinvent the process of updating exposure limits was floated by a group that includes former OSHA chief John Henshaw, current OSHA regional administrator Chuck Adkins, long-time union member Frank Mirer, ten certified industrial hygienists, the current president of the American Industrial Hygiene Association, and three past presidents.
Dr. Howard posed this question in his speech last November: “Is there a way to get statutory permission to again incorporate voluntary consensus occupational exposure limits into OSHA standards? Or should OSHA only work on those air contaminants that have the most exposure in the residual manufacturing workforce in America?”
When it comes to the thorny problem of updating PELs, one thing is sure: it’s easier to ask questions than come up with answers.
But Dr. John Howard reminded his audience in a speech given in November, 2008: “Development of such a standard (for ergonomics) will be a challenge since the Congressional Review Act (CRA) requires that any new MSD (musculoskeletal disorders) standard, replacing the one that was nullified by the CRA in 2001, must be substantially different.”
Some job safety activists argue that OSHA should adopt Cal/OSHA’s ergonomics standard, which applies to a job, process or operation where a repetitive motion injury (RMI) has occurred to more than one employee under these conditions:
1) Work related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e. 50 percent or more) by a repetitive job, process, or operation;
2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly or, loading;
3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and
4 Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before July 3, 1997.
Every employer subject to the standard is required to implement a program designed to minimize RMIs. The program consists of:
1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures which have caused RMIs.
2) Control of exposures that have caused RMIs. Any exposures that have caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.
3) Training. Employees shall be provided training that includes an explanation of: the employer's program; the exposures which have been associated with RMIs; the symptoms and consequences of injuries caused by repetitive motion; the importance of reporting symptoms and injuries to the employer; and methods used by the employer to minimize RMIs.
A number of job safety and health experts advocate that OSHA avoid the quagmire of ergonomics standard-setting and instead put its limited resources into a mandatory safety and health program management set of requirements. Again, Cal/OSHA offers a model with its injury and illness prevention program standard that supporters claim is flexible, performance-based, and has engendered scant compliance headaches.
Dr. Howard, in his speech last November, asked: “Should a risk-based occupational safety and health management system regulation (come first)? “Some might say yes, if for no other reason to harmonize OSHA’s own promotion of such risk safety and health management systems for their voluntary programs, with their reticence to consider placement of a risk-based management standard on its regulatory agenda for all employers.”
Some experts, including the AFL-CIO’s Peg Seminario, advocate going this route. Seminario says a national safety and health program rule should have been the first standard OSHA issued in 1971, and such a standard could encompass and address ergonomic risks. But a number of labor safety officials want this rule to mandate worker safety committees and worker training, which business groups will bitterly oppose, especially mandatory committees.
One of, if not the most important, decisions facing the new OSHA boss early on will be whether the agency is to pursue an ergonomics standard or a safety and health program rule, or ambitiously decides to tackle both.
Another key decision of the new OSHA chief will be how to address the hundred of out-of-date permissible exposure limits (PELs), if at all.
David Michaels, an epidemiologist and research professor at George Washington University, who has been mentioned as a dark horse for the top OSHA job, wrote in a 2005 article in Scientific American: “Out of the almost 3,000 chemicals produced in large quantities (more than one-million pounds annually), OSHA enforces exposure limits for fewer than 500… The vast majority… are still ‘regulated’ by voluntary standards set before 1971, which the newly created agency adopted them uncritically and unchanged. New science has had no impact on them. I conclude that successive OSHA administrators have simply recognized that establishing new standards is so time- and labor-intensive, and will inevitably call forth such orchestrated opposition from industry, that it is not worth expending the agency’s limited resources on the issue.
Outside groups of experts have grappled several times in the past 20 years on how to “fix” the PELs, with the idea of forwarding their recommendations to OSHA. But nothing has been delivered to OSHA’s doorstep, as union and business participants in these ad hoc advisory groups have not come close to backing down or compromising on their health (unions) versus costs (business) concerns.
In March, 2009, another stab at presenting ideas to revive and reinvent the process of updating exposure limits was floated by a group that includes former OSHA chief John Henshaw, current OSHA regional administrator Chuck Adkins, long-time union member Frank Mirer, ten certified industrial hygienists, the current president of the American Industrial Hygiene Association, and three past presidents.
Dr. Howard posed this question in his speech last November: “Is there a way to get statutory permission to again incorporate voluntary consensus occupational exposure limits into OSHA standards? Or should OSHA only work on those air contaminants that have the most exposure in the residual manufacturing workforce in America?”
When it comes to the thorny problem of updating PELs, one thing is sure: it’s easier to ask questions than come up with answers.
OSHA standards: Short-term expectations
OSHA chiefs have a history of lasting roughly three years in the job. This narrow window has always been to the detriment of standards-setting. Standards are either rushed out to beat a changing of the guard in the White House (see ergonomics), or are dragged out through multiple reviews and revisions incurred by multiple regime changes.
The year 2011 will probably see the most standards-setting activity by the next OSHA chief. OSHA’s new boss won’t officially take office most likely until this fall, and most of 2010 will go to putting together a leadership team, setting a course, and getting the lay of the agency land. By 2012, the agency will be operating under the unofficial rules of election-year conduct, which basically mean do nothing to screw up the president’s reelection.
So advance notices of proposed rulemaking could come in 2010, with actual proposals in 2011. Final rules, particularly for complex and contested issues (such as a safety and health program management standard) would hinge on President Obama’s reelection and come sometime after 2012.
Already in the pipeline:
Hearings recently were held on OSHA’s proposed update of cranes and derricks regulations. Given the catastrophes involving cranes toppling over in Manhattan in the recent past, the agency will be hard-pressed not to push ahead with a final standard here, and quickly. The same pressure, again due to negative publicity, applies to regulating occupational exposure to food flavorings containing diacetyl.
Coming soon:
A caveat: in the world of OSHA standards-setting, “soon” is a rubbery term that can be stretched over years. Standards have a notoriously lengthy gestation period at the agency. That should change to a degree with a Department of Labor regime more supportive of organized labor’s standards goals, but small business advocacy review panels, comment periods, hearings, post-hearing comment periods and the Obama administration’s emphasis on transparency in rulemaking processes all will slow down standards writing.
Also, the current economic crisis, which could drag on who knows how long, will certainly act as a brake on standards-setting and the associated compliance cost burden.
What you can expect are more announcements of intentions to regulate in specific cases. To issue an advanced notice of proposed rulemaking is a rather politically painless move. It draws media, professional, and employer attention to an issue before OSHA hunkers down for the time-consuming, devil-in-the-details work of writing a standard that is technologically and economically feasible, meets cost-benefit requirements, and then defends its proposal against all comers.
Prediction: Within the next 12 months, OSHA will make announcements concerning standards-setting actions for silica exposures, beryllium exposures, confined spaces in construction, global harmonization of MSDSs and hearing conservation in construction.
The year 2011 will probably see the most standards-setting activity by the next OSHA chief. OSHA’s new boss won’t officially take office most likely until this fall, and most of 2010 will go to putting together a leadership team, setting a course, and getting the lay of the agency land. By 2012, the agency will be operating under the unofficial rules of election-year conduct, which basically mean do nothing to screw up the president’s reelection.
So advance notices of proposed rulemaking could come in 2010, with actual proposals in 2011. Final rules, particularly for complex and contested issues (such as a safety and health program management standard) would hinge on President Obama’s reelection and come sometime after 2012.
Already in the pipeline:
Hearings recently were held on OSHA’s proposed update of cranes and derricks regulations. Given the catastrophes involving cranes toppling over in Manhattan in the recent past, the agency will be hard-pressed not to push ahead with a final standard here, and quickly. The same pressure, again due to negative publicity, applies to regulating occupational exposure to food flavorings containing diacetyl.
Coming soon:
A caveat: in the world of OSHA standards-setting, “soon” is a rubbery term that can be stretched over years. Standards have a notoriously lengthy gestation period at the agency. That should change to a degree with a Department of Labor regime more supportive of organized labor’s standards goals, but small business advocacy review panels, comment periods, hearings, post-hearing comment periods and the Obama administration’s emphasis on transparency in rulemaking processes all will slow down standards writing.
Also, the current economic crisis, which could drag on who knows how long, will certainly act as a brake on standards-setting and the associated compliance cost burden.
What you can expect are more announcements of intentions to regulate in specific cases. To issue an advanced notice of proposed rulemaking is a rather politically painless move. It draws media, professional, and employer attention to an issue before OSHA hunkers down for the time-consuming, devil-in-the-details work of writing a standard that is technologically and economically feasible, meets cost-benefit requirements, and then defends its proposal against all comers.
Prediction: Within the next 12 months, OSHA will make announcements concerning standards-setting actions for silica exposures, beryllium exposures, confined spaces in construction, global harmonization of MSDSs and hearing conservation in construction.
OSHA Enforcement: What to expect
The ramping up of OSHA enforcement is already underway. The agency has generated a publicity blitz since January, 2009 with press releases focusing on trenching violation penalty cases and combustible dust enforcement actions.
Several OSHA compliance officers who anonymously pen blogs on agency activity (“OSHA Underground” and “OSHA Aboveground”) have proclaimed enforcement is back. “No more excuses. The dynamic has changed,” wrote the OSHA Underground blogger.
One of organized labor’s top priorities for the agency is enforcement with much more bite, and in Labor Secretary Solis labor has a sympathetic ear. One source tells us Solis knows little about the technicalities of occupational safety and health, but has said OSHA should be in the enforcement business.
At her Senate confirmation hearing, Solis said publicly: “The Labor Department is charged with assuring compliance with dozens of employment laws. I believe these laws codify values that are fundamental to our society. A fair day’s work deserves a fair day’s pay. Workers should not have to sacrifice their lives or their health to keep their jobs.”
She also told Senators: “My father was a Teamsters shop steward who regularly told us about the opportunities his union association would bring to help secure our family a place in America’s middle class.”
One source tells us once a new OSHA chief is confirmed, probably late summer or early fall, enforcement will “start with a bang.” Look for an enforcement strategy focusing on hexavalent chromium exposures (in support of OSHA’s 2006 standard that lowered permissible exposure limit) and confined space hazards in construction (where the agency does not now have a standard in place).
OSHA enforcement historically has been a strategy tool to focus attention where agency standards cannot or do not tread, or are ineffective in mitigating patterns of violations. The agency came down with harsh penalties on recordkeeping in the mid-1980s after extensive under-reporting was uncovered. Look for recordkeeping enforcement to again make a strong comeback in the wake of the widespread belief that under-reporting is common. Déjà vu all over again.
Construction activity, long a prime focus of OSHA inspections, will come in for heavy enforcement action. This is due to: 1) the federal stimulus package that promises a boom in infrastructure building and rebuilding; 2) unregulated or out-of-date standards pertaining to silica, beryllium, lead, cranes and derricks, hearing conservation in construction and confined spaces in construction; and 3) the tremendous influx of immigrant workers (between 1999-2001 one out of two net new labor force participants in the U.S. was a foreign immigrant) and what Dr. John Howard describes as the rise of “precarious employment” — temporary workers, day laborers, and contingent workers with no promise of long-term stable employment. Given Labor Secretary Solis’s immigrant parents and her activism in Los Angeles fighting sweatshops, it is no stretch to envision an OSHA much more aggressive in trying to enforce protection of these vulnerable work populations often found on construction sites.
Finally, OSHA probably will increase its use of enforcement to address musculoskeletal disorders, again in the absence of a standard.
This post comes from an anonymous compliance officer on the blog “OSHA Underground: “OSHA issued a handful of ergonomic citations under Ed Foulke. He made the process lengthen to a point where our people quit even doing proposals for citations. We see the Solis era marked by a surge of training to the compliance safety and health officers (COSHs) and triple the efforts of the previous administration.”
Several OSHA compliance officers who anonymously pen blogs on agency activity (“OSHA Underground” and “OSHA Aboveground”) have proclaimed enforcement is back. “No more excuses. The dynamic has changed,” wrote the OSHA Underground blogger.
One of organized labor’s top priorities for the agency is enforcement with much more bite, and in Labor Secretary Solis labor has a sympathetic ear. One source tells us Solis knows little about the technicalities of occupational safety and health, but has said OSHA should be in the enforcement business.
At her Senate confirmation hearing, Solis said publicly: “The Labor Department is charged with assuring compliance with dozens of employment laws. I believe these laws codify values that are fundamental to our society. A fair day’s work deserves a fair day’s pay. Workers should not have to sacrifice their lives or their health to keep their jobs.”
She also told Senators: “My father was a Teamsters shop steward who regularly told us about the opportunities his union association would bring to help secure our family a place in America’s middle class.”
One source tells us once a new OSHA chief is confirmed, probably late summer or early fall, enforcement will “start with a bang.” Look for an enforcement strategy focusing on hexavalent chromium exposures (in support of OSHA’s 2006 standard that lowered permissible exposure limit) and confined space hazards in construction (where the agency does not now have a standard in place).
OSHA enforcement historically has been a strategy tool to focus attention where agency standards cannot or do not tread, or are ineffective in mitigating patterns of violations. The agency came down with harsh penalties on recordkeeping in the mid-1980s after extensive under-reporting was uncovered. Look for recordkeeping enforcement to again make a strong comeback in the wake of the widespread belief that under-reporting is common. Déjà vu all over again.
Construction activity, long a prime focus of OSHA inspections, will come in for heavy enforcement action. This is due to: 1) the federal stimulus package that promises a boom in infrastructure building and rebuilding; 2) unregulated or out-of-date standards pertaining to silica, beryllium, lead, cranes and derricks, hearing conservation in construction and confined spaces in construction; and 3) the tremendous influx of immigrant workers (between 1999-2001 one out of two net new labor force participants in the U.S. was a foreign immigrant) and what Dr. John Howard describes as the rise of “precarious employment” — temporary workers, day laborers, and contingent workers with no promise of long-term stable employment. Given Labor Secretary Solis’s immigrant parents and her activism in Los Angeles fighting sweatshops, it is no stretch to envision an OSHA much more aggressive in trying to enforce protection of these vulnerable work populations often found on construction sites.
Finally, OSHA probably will increase its use of enforcement to address musculoskeletal disorders, again in the absence of a standard.
This post comes from an anonymous compliance officer on the blog “OSHA Underground: “OSHA issued a handful of ergonomic citations under Ed Foulke. He made the process lengthen to a point where our people quit even doing proposals for citations. We see the Solis era marked by a surge of training to the compliance safety and health officers (COSHs) and triple the efforts of the previous administration.”
OSHA chief selection: Going to Plan B
With word from Washington that former lead contenders for the top OSHA slot, the AFL-CIO’s Peg Seminario and former NIOSH Director Dr. John Howard are out of the running, and industrial hygienist Hamid Abrabzadeh is facing mounting labor opposition, who else might make the OSHA short list?
An intriguing name was brought to our attention in late March by a Washington source: Kathryn O’Leary Higgins. Since 2006, Kitty Higgins has worked directly in the safety field as a member of the National Transportation Safety Board (NTSB). In 2008, she was described in a Culver City, Calif. online newspaper article about a Los Angeles commuter-freight train crash that killed 25 people as “sassy” and known to sometimes have “difficulty keeping her boiling Irish temper tucked beneath her collar… (she is) a lady very conscious of her status as an outspoken Democrat.”
Higgins has extensive experience in the Department of Labor. She served as deputy secretary of the Department of Labor (July 1997-May 1999), chief of staff to Secretary of Labor Robert Reich (January 1993-February 1995), and began her career in government in 1969 as a manpower specialist with the Employment and Training Administration, U.S. Department of Labor.
“I’ve made a dozen calls about her, and the verdict is unanimous: Few people know Washington as well, and how to maneuver in it,” Reich wrote in his 1997 memoir, “Locked in the Cabinet. “Her annual St. Patrick’s Day party is a Washington fixture. Another Irish pol, she loves the game of politics. She’s also interested in the substance. She’s devoted most of her adult life to the cause of helping working people make something more of their lives.”
Another name that surfaced recently is Mark Briggs, campus risk manager at the University of Illinois. Briggs joined the university’s Division of Public Safety in 2000, coming to the job with experience in risk management consulting and the insurance industries. Briggs owned a safety and risk management consultancy full-time for seven years, after having worked in the insurance industry for 11 years. He is a graduate of the health sciences/safety program at Illinois State University and has earned professional designations of Associate in Risk Management and Certified Safety Professional. He is an active member of several national associations, including the University Risk Management and Insurance Association, the Risk and Insurance Management Society, and the American Society of Safety Engineers (ASSE).
In a 2003 video released by ASSE to commemorate Labor Day, the group said its members were responding to the changing face of workplace safety following 9/11. "We've entered a whole new phase," Briggs said in the video. "We are more focused now on emergency planning, trying to plan for contingencies that were not on our radar screen before."
One source tells us state OSHA program administrators are being looked at by the search committee. Peter DeLucca, recently retired head of the respected Oregon OSHA program, has been one name mentioned. Several sources tell us Charles Jeffress would be interested in returning to his old job as OSHA chief now that Seminario is no longer in the picture. He could be a compromise candidate. As once source told us, “Perhaps the best you can hope for is lukewarm support from business and labor (since they will almost never agree on anything OSHA-related).”
Sources say other names that have surfaced since the November election do not appear to have much traction, such as Dr. Michael Silverstein (clinical professor of environmental and occupational health sciences at the University of Washington School of Public Health, and former director of policy for OSHA from1993 to 1995), Frank Mirer (former head of the United Auto Workers safety and health department, now professor of environmental and occupational health sciences at the Hunter School of Urban Public Health in New York City),.Jordan Barab (senior policy advsior for the U.S. House of Representatives Committee on Education and Labor), and David Michaels (professor at George Washington University and assistant secretary of energy for environment, safety, and health under President Clinton).
Remember this: seasoned OSHA-watchers in Washington say never rule out a surprise selection. Hilda Solis was not on anyone’s watch list for the Secretary of Labor job. When it comes to Washington chatter, the age-old adage still holds: “Those that know ain’t saying, and those that are saying don’t know.”
An intriguing name was brought to our attention in late March by a Washington source: Kathryn O’Leary Higgins. Since 2006, Kitty Higgins has worked directly in the safety field as a member of the National Transportation Safety Board (NTSB). In 2008, she was described in a Culver City, Calif. online newspaper article about a Los Angeles commuter-freight train crash that killed 25 people as “sassy” and known to sometimes have “difficulty keeping her boiling Irish temper tucked beneath her collar… (she is) a lady very conscious of her status as an outspoken Democrat.”
Higgins has extensive experience in the Department of Labor. She served as deputy secretary of the Department of Labor (July 1997-May 1999), chief of staff to Secretary of Labor Robert Reich (January 1993-February 1995), and began her career in government in 1969 as a manpower specialist with the Employment and Training Administration, U.S. Department of Labor.
“I’ve made a dozen calls about her, and the verdict is unanimous: Few people know Washington as well, and how to maneuver in it,” Reich wrote in his 1997 memoir, “Locked in the Cabinet. “Her annual St. Patrick’s Day party is a Washington fixture. Another Irish pol, she loves the game of politics. She’s also interested in the substance. She’s devoted most of her adult life to the cause of helping working people make something more of their lives.”
Another name that surfaced recently is Mark Briggs, campus risk manager at the University of Illinois. Briggs joined the university’s Division of Public Safety in 2000, coming to the job with experience in risk management consulting and the insurance industries. Briggs owned a safety and risk management consultancy full-time for seven years, after having worked in the insurance industry for 11 years. He is a graduate of the health sciences/safety program at Illinois State University and has earned professional designations of Associate in Risk Management and Certified Safety Professional. He is an active member of several national associations, including the University Risk Management and Insurance Association, the Risk and Insurance Management Society, and the American Society of Safety Engineers (ASSE).
In a 2003 video released by ASSE to commemorate Labor Day, the group said its members were responding to the changing face of workplace safety following 9/11. "We've entered a whole new phase," Briggs said in the video. "We are more focused now on emergency planning, trying to plan for contingencies that were not on our radar screen before."
One source tells us state OSHA program administrators are being looked at by the search committee. Peter DeLucca, recently retired head of the respected Oregon OSHA program, has been one name mentioned. Several sources tell us Charles Jeffress would be interested in returning to his old job as OSHA chief now that Seminario is no longer in the picture. He could be a compromise candidate. As once source told us, “Perhaps the best you can hope for is lukewarm support from business and labor (since they will almost never agree on anything OSHA-related).”
Sources say other names that have surfaced since the November election do not appear to have much traction, such as Dr. Michael Silverstein (clinical professor of environmental and occupational health sciences at the University of Washington School of Public Health, and former director of policy for OSHA from1993 to 1995), Frank Mirer (former head of the United Auto Workers safety and health department, now professor of environmental and occupational health sciences at the Hunter School of Urban Public Health in New York City),.Jordan Barab (senior policy advsior for the U.S. House of Representatives Committee on Education and Labor), and David Michaels (professor at George Washington University and assistant secretary of energy for environment, safety, and health under President Clinton).
Remember this: seasoned OSHA-watchers in Washington say never rule out a surprise selection. Hilda Solis was not on anyone’s watch list for the Secretary of Labor job. When it comes to Washington chatter, the age-old adage still holds: “Those that know ain’t saying, and those that are saying don’t know.”
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