First of three articles
Tuberculosis had sneaked up again, reappearing with alarming frequency across the United States. The government began writing rules to protect 5 million people whose jobs put them in special danger. Hospitals and homeless shelters, prisons and drug treatment centers -- all would be required to test their employees for TB, hand out breathing masks and quarantine those with the disease. These steps, the Occupational Safety and Health Administration predicted, could prevent 25,000 infections a year and 135 deaths.
By the time President Bush moved into the White House, the tuberculosis rules, first envisioned in 1993, were nearly complete. But the new administration did nothing on the issue for the next three years.
Then, on the last day of 2003, in an action so obscure it was not mentioned in any major newspaper in the country, the administration canceled the rules. Voluntary measures, federal officials said, were effective enough to make regulation unnecessary.
The demise of the decade-old plan of defense against tuberculosis reflects the way OSHA has altered its regulatory mission to embrace a more business-friendly posture. In the past 31/2 years, OSHA, the branch of the Labor Department in charge of workers' well-being, has eliminated nearly five times as many pending standards as it has completed. It has not started any major new health or safety rules, setting Bush apart from the previous three presidents, including Ronald Reagan.
The changes within OSHA since George W. Bush took office illustrate the way that this administration has used the regulatory process to redirect the course of government.
To examine this process, The Washington Post explored the Bush administration's approach to regulation from three perspectives. This article about OSHA traces the impact on one regulatory agency. Tomorrow's story will look at a lobbyist's 32-line, last-minute addition to a bill that created a tool for attacking the science used to support new regulations. Tuesday's article will document a one-word change in a regulation that allowed coal companies to accelerate efforts to strip away the tops of thousands of Appalachian mountains.
The Post also analyzed a database from the Office of Management and Budget containing the 38,000 regulatory actions considered by agencies over the past two decades.
The analysis, combined with the more detailed look at specific regulatory decisions, shows how an administration can employ this subtle aspect of presidential power to implement far-reaching policy changes. Most of the decisions are made without the public attention that accompanies congressional debate. Under Bush, these decisions have spanned logging in national forests, patients' rights in government health insurance programs, tests for tainted packaged meats, Indian land transactions and grants to religious charities.
All presidents have written or eliminated regulations to further their agendas. What is distinctive about Bush is that he quickly imposed a culture intended to put his anti-regulatory stamp on government.
Unlike his two predecessors, Bush has canceled more of the unfinished regulatory work he inherited than he has completed, according to The Post's analysis. He has also begun fewer new rules than either President Bill Clinton or President George H.W. Bush during the same period of their presidencies. Since the younger Bush took office, federal agencies have begun roughly one-quarter fewer rules than Clinton and 13 percent fewer than Bush's father during comparable periods.
President Bush's closest advisers and sharpest critics agree that the shift in regulatory climate since he took office in January 2001 has been profound. But they disagree over whether that shift represents a harmful turn away from federal protections to benefit business or a useful streamlining of costly government rules.
Sally Katzen, who oversaw all federal regulation for five years under Clinton as deputy budget director for information and regulatory affairs, said new regulations were, in those days, embraced as a means to improve the quality of water, of air -- in short, of people's lives. "Bush, or at least the people around him, are skeptical, if not hostile to that notion," she said.
John D. Graham, who holds the same job in the Bush White House, said regulations are "a form of unfunded mandate that the federal government imposes on the private sector or on state or local governments." A president, he said, should not be judged solely by the number of regulations he starts or cancels.
This White House, Graham said, has initiated regulations when the benefits clearly outweigh the costs -- for example, a decision last year that eventually will require labeling of trans fatty acids in food. "We've just been much more selective about expensive new regulatory requirements than previous administrations have been," he said.
Rules Placed in Jeopardy
At OSHA, the administration's regulatory philosophy has translated into a smaller staff to develop new standards, less reliance on the views of organized labor and an enlarged role for businesses.
As Bush set out in 2001 to recast the government along more conservative lines, workplace standards seemed an unlikely focus. During his transition period, the new president did not assign anyone to assess OSHA; the transition "team" for the entire Labor Department consisted of one longtime congressional aide.
A relatively small part of the department for three decades, OSHA has the large mission of sifting through research on potential hazards to workers and deciding when the government should step in. It writes federal standards, conducts inspections to determine whether employers follow them and metes out punishment when they do not.
Bush offered the job of running OSHA to a career-long industrial hygienist from St. Louis who was a virtual stranger to Washington.
John L. Henshaw had worked for two decades at Monsanto Co., a giant manufacturer of agricultural chemicals. Most recently, he had been the director of environment, safety and health at Astaris LLC, another chemical company.
Even though he had come from industry, Henshaw was viewed by the administration's critics as a more palatable choice than they had expected. "He's a competent, well-regarded safety and health professional," Peg Seminario, the longtime occupational safety and health director of the AFL-CIO, the umbrella labor organization, said at the time. "Well qualified for this important responsibility," Sen. Edward M. Kennedy (D-Mass.), then chairman of the labor panel, said when Henshaw was approved unanimously by the committee on Aug. 3, 2001, and immediately confirmed without debate.
During his first days in Washington, Henshaw made it clear that he would carry out a directive from Labor Secretary Elaine L. Chao instructing the entire department to comb through the regulatory work Clinton's aides had left unfinished and find items to eliminate. Chao explained the order in a letter in 2001 to John J. Sweeney, the AFL-CIO president. The list of incomplete work left over from the Clinton days, she wrote, "had swollen to unmanageable size, containing many items that had been moribund for years, making it an inaccurate and effectively useless document."
Chao's order was in keeping with the new White House philosophy.
The day Bush was sworn in, his chief of staff, Andrew H. Card Jr., issued a memo that, in an unprecedented move, put a two-month freeze on final rules across the government that had not yet gone into effect. The new administration wanted time to decide whether to change or reverse them.
A few months later, Graham, the White House's top regulatory official, was alerting agencies that they would face closer scrutiny from the OMB when they proposed new rules. The day after he was confirmed by the Senate, he sent the first of 14 letters to agencies saying they had failed to prove the need for regulations they had proposed. That was more than had been sent during Clinton's eight years.
The most dramatic symbol of the new regulatory climate arose from a joint action by Bush and Congress.
Two months after he took office, a Republican Congress, making first use of a recent power to review regulations, repealed the biggest worker-safety standard of the Clinton years. The standard was a set of rules that created broad safeguards against ergonomic injuries. Without Bush's signature, the repeal could not have taken effect.
The death of the ergonomics standard, Democrats and Republicans now agree, exposed a weakness of Clinton's regulatory strategy at OSHA in his last few years -- putting so much emphasis on that standard that others were left unfinished.
The agency had concentrated nearly all its energy and political capital on the effort to protect workers against musculo-skeletal injuries, such as repetitive-stress injuries and carpal tunnel syndrome. The rules would have required employers to redesign workplaces if they were hazardous and compensate people who became disabled. The Clinton administration believed the standard, covering more than 6 million work sites at an estimated cost of $4.5 billion for employers, was the biggest step the government could take to protect the greatest number of employees.
As a result, OSHA left other major proposals, including the tuberculosis rules, unfinished -- and thus easier to cancel. Those dangling rules, combined with the sudden end of the ergonomics standard, emboldened Bush's corporate allies to fight new rules from OSHA -- and the expense they could entail.
"In the past, the business community worked to develop regulations that were acceptable," said Patrick R. Tyson, an Atlanta lawyer representing corporations in occupational safety matters who held senior positions at OSHA in the 1970s and '80s. "But now the game has changed, and the business community feels like they can kill any regulation they want."
Building Alliances Minus Unions
The new administration began by trying to cut staff and money at OSHA. In his first year in office, Bush wanted to eliminate nearly 100 of the agency's 2,400 jobs. His budget also would have reduced funding for the standards-setting part of the agency by $1.2 million, or 8 percent. Lawmakers restored the money and the positions.
The next year, the administration succeeded in eliminating 10 jobs out of 95 in the standards area, when Henshaw merged divisions dealing with health and safety. The merger, Henshaw said, eliminated duplicative jobs in middle management. But it angered some current and former OSHA employees, who said it cost the agency some of its expertise.
"I finally couldn't take it anymore," said Peter Infante, who retired after 24 years at OSHA as the senior epidemiologist who helped to develop health standards. He had planned to stay long enough to finish years of work on rules to protect workers from beryllium, a metal that can cause cancer if inhaled in minute amounts. Instead, he left in May 2002, saying that the only U.S. company that mines and processes beryllium ore had gained too much influence inside the agency.
Henshaw said in an interview that the bottom line for OSHA is not how many rules it produces but how many people get hurt, sick or killed at work under its watch. He said trends are improving. Henshaw said he is proud that the agency has increased federal inspections of workplaces.
The overall number of inspections has increased under Bush, but the typical inspection takes less time, and fewer are in response to accidents or complaints. OSHA officials say they are more trusting now of industries with good safety records, while putting greater emphasis on those -- such as construction -- where workers are most prone to injury. Union leaders said that inflates an appearance of vigilance, because OSHA counts each subcontractor at a construction site as a separate inspection.
With its current staff, Henshaw said, OSHA can visit about 2 percent of the nation's workplaces each year. Given those limits, he said, it has made sense to strengthen the agency's relationships with businesses, encouraging voluntary compliance.
To do so, OSHA has created a new kind of voluntary program, intended to foster "trusting, cooperative relationships" between the government and groups of industries and professional societies, according to an agency fact sheet. These new alliances, as they are known, depart from a central tradition throughout the agency's history: They are allowed to exclude labor unions. Of the 57 national alliances OSHA has formed, with groups ranging from air conditioning contractors to shipyard owners, just one -- intended to promote safe work habits in road construction zones -- includes a union representative.
Agency officials say that more than 500 other, older voluntary projects run by OSHA still involve unions. As for the new alliances, one OSHA administrator, speaking on the condition of anonymity, said that some employers might be too uncomfortable to participate if unions were there.
In November 2002, OSHA announced an alliance with 13 airlines and the National Safety Council to find better ways to prevent workers who handle baggage from being injured. The OSHA alliance excluded airline unions, which had asked to take part.
"It is simply illogical and insulting," Sonny Hall, president of the AFL-CIO's transportation trades department, said at the time, "when the powers that be in this administration's OSHA sat down to form a private-sector group to reduce injuries to airline workers that they chose to exclude, of all people, airline workers."
Fewer and Narrower Rules
At the same time, Henshaw was carrying out Chao's orders. Echoing his superiors at the Labor Department and in the White House, Henshaw said the Clinton administration had left too much unfinished regulatory work at the agency. OSHA, Henshaw repeatedly said, needed to convert its agenda from a "wish list" to a "to-do list."
The data analyzed by The Post show that Clinton left behind 44 incomplete rules at OSHA, just four more than when Bush's father had moved out of the White House eight years earlier. "I don't recall things being added just because somebody asked for them," said Katzen, who had been the top official for regulations in the Clinton White House.
Henshaw's housecleaning produced dramatic effects. By the end of Bush's first year in office, OSHA had eliminated 18 of the 44 rules. By the end of 2003, six more, including the tuberculosis protections, were gone.
"Every one of the items on there had some merit. Nobody is disputing that," Henshaw said of the proposals he removed. "But there is only so much you can do."
Many of the cases involved complex arguments pitting the interests of workers against those of their employers.
In August 2001, the same month Henshaw was confirmed, the agency stopped efforts to regulate chemicals used in making semiconductors and suspected of causing miscarriages in workers. The agency's written explanation at the time consisted of one sentence: "OSHA is withdrawing this entry from the agenda at this time due to resource constraints and other priorities."
A month after the semiconductor decision, OSHA eliminated a proposal, dating to the Reagan administration, that would have updated lists of the amounts of industrial chemicals to which workers could be exposed. The new administration said it made more sense to regulate each substance one at a time, a slower process.
That December, the agency killed a proposal on indoor air quality intended to prevent restaurant and other workers from exposure to tobacco smoke or other pollutants. State and local standards, OSHA said, had solved the problem.
Some of the canceled rules will make it more difficult for Bush's critics to pursue regulations in the future. After Congress and Bush killed the ergonomics rules, OSHA eliminated a proposal to compel employers to break out ergonomic injuries when they report on worker injuries in general.
Henshaw said at the time that such records would not help to reduce such injuries. Seminario of the AFL-CIO said that, without such records, advocates of ergonomic protections have less ability to document that federal safeguards are needed.
With his focus largely on coaching employers to follow existing rules, Henshaw said, "writing another standard is not going to help with that." Still, he said, the agency has continued to write new rules when they are needed.
At OSHA, The Post's analysis found, the rules the agency has proposed are narrower than most of those it has eliminated. Thirteen of the 24 proposals it has canceled since Bush took office fall into a category the government classifies as "economically significant," meaning they would cost or save the economy at least $100 million. None of the 16 standards OSHA has proposed during that time falls in that group.
Graham said it does not make sense for OSHA to overreach. From his days as a Harvard professor, Graham said, he knew of research suggesting that neither the health nor safety standards created over OSHA's history had a clear track record of being effective. Besides, he said, OSHA's procedures have always made it uncommonly sluggish in churning out big rules.
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.
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.
Does Provide Mean Pay For?
As OSHA has recalibrated worker protections, one word can make a big difference. This summer, OSHA has thrown open the question of what "provide" means.
That question is heir to a dispute that began in 1994, when the agency issued rules on safety equipment in dangerous jobs. The rules say an employer must determine what kind of equipment a worker needs -- hard hats, protective gloves and clothing, safety goggles -- and provide it to the employee.
The regulation, however, does not specify who pays for the equipment -- or whether the employer can, as industry has argued, deduct the cost from the worker's wages. A year later, OSHA said that "provide" means "pay for." Industry groups appealed that definition. Eventually, OSHA's review commission decided employers could not be made to pay without a new rule.
In 1998, a federal study found that workers in low-paying jobs more often were being charged for their safety equipment. The practice was most prevalent in the construction trades, where just slightly more than half of employers were picking up the full expense of hard hats and welding goggles.
The following year, OSHA proposed a rule to make clear that "provide" meant "pay for."
That rule was one of many that were not quite final when Bush took office. Last year, after two years of OSHA inaction, a coalition of nine unions petitioned Chao demanding that the rule be issued within two months.
That did not happen. Instead, Henshaw announced in July that OSHA wanted to rethink part of the issue -- particularly for equipment that employees can take from job to job -- and asked for new outside comments. And that was how a rule headed for approval under Clinton became open to further delay and uncertainty.
Agency officials speaking on the condition of anonymity said that, in the end, the government might keep the proposed rule -- or it might decide that employers do not need to pay for certain kinds of safety equipment. Or for any at all.
Critics Conquer TB Standard
Asking for more outside opinions was the same step OSHA officials had taken before they canceled the tuberculosis protections the day before New Year's.
The evidence on the TB standard is mixed.
Government record-keeping is so sketchy it is impossible to tell how many workers are being infected with TB on the job. The two main unions that have lobbied for the protections since the beginning, the American Federation of State, County and Municipal Employees and the American Federation of Teachers, were unable to provide a single example of someone who could talk on the record about having caught TB.
Given the murkiness, the outside opinions that prevailed came from the American Hospital Association and other groups that had long resented the idea of OSHA enforcing safety practices. Opponents said government no longer needs the requirement for tuberculosis tests, patient quarantines and the other protections in the standard.
The disease had waned in most states in the decade since OSHA began developing the TB standard, the critics argued. Besides, they said, the Centers for Disease Control already provided voluntary guidelines for protecting workers.
There was some support for this position in an evaluation of the proposed standard by a respected advisory group, the Institute of Medicine, which had been ordered to conduct the study at the behest of congressional Republicans while Clinton was in office.
But when the study came out the month Bush took office, it concluded that the standard still was worthwhile, even if it might not need to cover as many workers.
In the end, OSHA cited the study in its rationale for eliminating the TB standard.
Unions and public health officials were furious. TB rates continue to increase in many states, they said. Even where the rates have gone down, they said, workers in health clinics or hospitals still run into the disease.
Nicas has conducted research on whether hospitals around San Francisco adhere to the CDC guidelines. Even though the hospitals were doing a better job, he found, all had lapses sometimes. A federal regulation, he said, still is needed.
"The health care industry [does not] like being regulated by OSHA," Nicas said. "But then, that puts them in league with every other industry."
Immediately after winning its long battle to eliminate the TB standard, the nation's hospitals and their allies began a new campaign. They sought to block a rule requiring yearly checks to make sure that the breathing masks of their workers fit correctly.