[Congressional Record Volume 150, Number 135 (Saturday, November 20, 2004)]
[Extensions of Remarks]
[Pages E2129-E2132]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  ``ERASING THE RULES'': NEWSDAY'S INVESTIGATIVE SERIES ON OSHA, FROM 
                               2001-2004

                                 ______
                                 

                          HON. MAJOR R. OWENS

                              of new york

                    in the house of representatives

                      Saturday, 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George W. Bush repealed the mandatory standard on ergonomics.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

[[Page E2130]]

     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

[[Page E2131]]

     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.

[[Page E2132]]

       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.

                          ____________________