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Bush Forces a Shift In Regulatory Thrust

Graham said OSHA has set into motion an ethic of "smart regulation" that the White House has tried to instill across the government: creating new rules only after rigorous scientific and economic analysis proves they are warranted. Under Henshaw, he said, OSHA has shown "an intensely practical, down-to-earth approach to worker health and safety, not inclined toward grandiose, unrealistic ventures."

The 3M Gambit

In several instances where Bush's OSHA has moved a rule forward, it has done so in a way that has benefited a specific business interest.

Assistant Secretary of Labor John L. Henshaw said "writing another standard" is not the answer to occupational safety. (Gerald Martineau -- The Washington Post)

Comparing Presidential Action on Regulations
Taking the Reins of Power
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Nuts and Bolts of Rulemaking -- an Analysis (The Washington Post, Aug 15, 2004)
Administration Lags on Beryllium Standard (The Washington Post, Aug 15, 2004)

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One case concerns the updating of a 25-year-old standard intended to ensure that workers do not inhale hazardous substances. The update said that employers -- from factory owners to firehouses -- must assess hazards, select appropriate safety masks, train workers to use them and periodically check to see whether they fit.

After the Clinton administration finished the standard in 1998, however, a critical question lingered: What safety rating should the agency assign to the different types of masks? Those ratings, which would tell how effective a given mask was at removing contaminants from the air, would cover everything in the category -- elaborate respirators as well as inexpensive paper masks sold at any hardware store.

The stakes were huge for workers and the companies that make the masks: Some type of respiratory protection is used in more than 600,000 workplaces, one in every 10 nationwide, a recent federal survey found. And no corporation had a larger stake in the decision than 3M Co., which pioneered disposable dust masks in the early 1970s and is their largest manufacturer.

3M and other companies said the disposable version deserved the same rating as the more sophisticated respirators, a decision that would increase sales of the disposable masks and provide a buffer against a growing volume of lawsuits over their effectiveness.

Last winter, OSHA held a hearing on this question. An expert witness hired by the government testified that the disposable masks were as effective as the more elaborate ones, as long as they were checked periodically to ensure they fit properly.

The witness, Warren R. Myers, mentioned in explaining his qualifications that he was an associate dean at West Virginia University's college of engineering and mineral resources and that he had worked for a dozen years testing respirators at a branch of the federal Centers for Control and Prevention. He did not mention that he had worked previously as a consultant to 3M.

Another witness took a different view. Richard W. Metzler, who works for the National Institute for Occupational Safety and Health in Pittsburgh, testified that researchers have not evaluated most of the disposable mask models sold today. "There has been a lack of science," Metzler, who directs NIOSH's National Personal Protective Technology Laboratory, said in an interview.

Opposition to 3M's position also came from an industrial scientist named James S. Johnson at the Lawrence Livermore National Laboratory in California. He is the chairman of an American National Standards Institutes (ANSI) committee. His views were particularly important. By law, OSHA is supposed to coordinate its standards with ANSI committees. Johnson testified that the committee had concluded that the dust masks deserved a lower rating -- half that of the more elaborate respirators.

Faced with such mixed testimony, 3M took action.

This February, Tyson, the Atlanta lawyer and former OSHA official, filed a motion on behalf of the company with the Labor Department's administrative law judge. The motion asked the agency to disregard the ANSI committee's conclusions on the grounds that they were in draft form and "currently under appeal."

The reason they were under appeal: 3M and two of the company's allies had challenged ANSI's conclusions just a month earlier.

The company "was screaming bloody murder," said Mark Nicas of the University of California at Berkeley, who had been given three contracts by OSHA during the 1990s to advise the government on respiratory issues. "It just doesn't want to upset the market share."

In April, the administrative law judge rejected Tyson's motion, saying that OSHA was free to make its own judgments about the conflicting testimony. Still, when OSHA publicly proposed its rating scale in June, it called for all masks, including disposable ones, to get the same ranking, just as 3M wanted.

The 3M gambit had apparently worked: The OSHA official who spoke on the condition of anonymity said the agency could not take Johnson's testimony or the ANSI committee's conclusions into account because it is allowed to consider only final recommendations.

The agency did not want to wait for the outcome of the ANSI appeal -- even though 3M was using it to hold up the process -- because, the official said, that dispute may take "forever."

"We can't be hamstrung that way," the official said.

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