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Under Bush, OSHA Mired in Inaction

Battle Over Asbestos Bulletin

A dispute over an OSHA bulletin on beryllium during the tenure of John L. Henshaw, above, led to the resignation of epidemiologist Peter Infante, who protested in internal e-mails.
A dispute over an OSHA bulletin on beryllium during the tenure of John L. Henshaw, above, led to the resignation of epidemiologist Peter Infante, who protested in internal e-mails. (By Gerald Martineau -- The Washington Post)
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That year, Ira Wainless, a senior industrial hygienist at OSHA, finished drafting a warning to auto mechanics that brake linings contained dangerous asbestos fibers. Health experts and lawmakers had called for such a bulletin, but attorneys for major car and brake manufacturers worried that it would be cited in lawsuits by mechanics seeking damages for asbestos-related disease.

Although Wainless's draft was approved by all of OSHA's directorates by mid-2003, Richard Fairfax, director of enforcement programs, was mindful of industry concerns. "Our recommendation is not to go forward," he said in a note to the head of the agency's science and technology office. "With the various asbestos litigation in progress and the compensation issues, the issuance of this may complicate matters."

A senior OSHA health enforcement official told Wainless's boss in an internal note that year that "we are under the understanding . . . it was NOT supposed to be going out." Wainless persisted, however, and over the next two years sent four drafts to Henshaw's office to meet what another OSHA official described in an internal e-mail as "requests for minor changes" by the agency's deputy director.

Before the bulletin's eventual publication in July 2006, which occurred after heavy pressure by Sen. Patty Murray (D-Wash.), OSHA omitted a statement that brake-lining imports commonly contained asbestos. It also modified its warning that linings were "a substantial source of exposure," referring instead to "potential exposure."

Days after publication and seven months after Henshaw's retirement from OSHA, he sent its science director an e-mail demanding that the warning be withdrawn and redone to express a "more balanced" view. Henshaw did not tell the career official that he had since been employed as a $350-an-hour courtroom witness on behalf of an asbestos-products firm and had testified for companies in two other asbestos lawsuits filed by auto mechanics.

In a subsequent deposition, Henshaw said he had contacted the agency to complain "as a private citizen." He also said a lawyer representing asbestos and auto firms -- who subsequently hired him as a consultant -- had contacted him about the OSHA bulletin's language.

Wainless's boss, David Ippolito, responded to Henshaw's complaint by proposing to suspend Wainless for 10 days without pay because the bulletin had not referenced an industry-financed study, which concluded that auto mechanics were typically exposed to asbestos levels below OSHA's workplace limits. Wainless had told his supervisors that the study had been disputed by other scientists.

Plans to revise the bulletin and act against Wainless were dropped after an account of the suspension proposal appeared in the Baltimore Sun. But the Labor Department maintains that the health bulletin "was not needed and could have confused the affected public," spokesman David James said recently.

Dissatisfaction With Leadership

In 2006, Henshaw was replaced by Edwin G. Foulke Jr., a South Carolina lawyer and former Bush fundraiser who spent years defending companies cited by OSHA for safety and health violations.

Foulke quickly acquired a reputation inside the Labor Department as a man who literally fell asleep on the job: Eyewitnesses said they saw him suddenly doze off at staff meetings, during teleconferences, in one-on-one briefings, at retreats involving senior deputies, on the dais at a conference in Europe, at an award ceremony for a corporation and during an interview with a candidate for deputy regional administrator.

His top aides said they rustled papers, wore attention-getting garb, pounded the table for emphasis or gently kicked his leg, all to keep him awake. But, if these tactics failed, sometimes they just continued talking as if he were awake. "We'll be sitting there and things will fall out of his hands; people will go on talking like nothing ever happened," said a career official, who spoke on the condition of anonymity because he was not authorized to talk to a reporter.

In an interview, Foulke denied falling asleep at work, although he said he was often tired and sometimes listened with his eyes closed. His goal, he said, was to create the best agency he could, partly by putting in place "performance metrics" not previously used at OSHA.

Foulke said his senior staff appeared "pretty enthusiastic," but he acknowledged that there were grounds for tension with others. Leadership, he said, is "taking people down a path they don't want to go, until you get them to a place where they realize this is where they need to be."

A $112-an-Hour Consultant

The agency's budget and its field staff declined during the Bush administration, even as its responsibilities -- and the total number of workers -- grew.

The gap caused some inspectors to complain that they lacked adequate gear to monitor workplace chemicals and other hazards. Efficiency became a key agency buzzword and, to help improve it, Foulke arranged for OSHA to hire Randy Kimlin, an acquaintance from South Carolina, as a $112-an-hour consultant beginning in 2006.

The work was lucrative for Kimlin, a former employee of Union Carbide -- a firm that frequently clashed with OSHA -- and a former president of a Greenville-based chemical firm. For his part-time advice over a 22-month period beginning in May 2006, OSHA paid Kimlin $513,403, a salary higher than that received by Vice President Cheney, any member of Congress and Foulke himself during that period.

Kimlin was paid an additional $97,730 in reimbursements for nearly weekly flights back to South Carolina and for a hotel room on Capitol Hill, all granted under a subcontract with Washington-based TATC Consulting that was awarded without competition.

Kimlin did not return calls to his office and home. But Brian Peters, who oversaw the contract for TATC, said Kimlin's role was to help arrange staff meetings and shift OSHA from a culture of inspections to less confrontational "compliance assistance." Others at OSHA said Kimlin played a large role in day-to-day operations and personnel decisions.

The arrangement attracted criticism inside and outside the agency because Kimlin lacked experience in regulating or meeting planning. Half a dozen officials also privately questioned two retreats that he organized at a cost of at least a half-million dollars and that resulted in a 22-word change to the agency's mission. Instead of fulfilling a longstanding pledge to "assure the safety and health of America's workers," the new mission would be to "promote" safety and health, with employers "responsible" for providing safe workplaces.

Asked why the agency did not hire Kimlin as a full-time federal employee, at a lower cost, Foulke said he left that issue to others. He was, he said, just an OSHA lawyer, not a personnel specialist. Foulke also said that "in the private sector" it is common to have staff retreats to discuss mission statements.

"This is critical," Foulke said, "to the company." He paused briefly before clarifying, "to the country." Foulke resigned Nov. 9 and the next day began work at an Atlanta law firm that represents companies accused of workplace safety violations.

Staff researchers Madonna Lebling and Julie Tate contributed to this report.

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