government OSHA, and making OSHA a more effective organization, more capable of leveraging its resources, of building partnerships, and of improving health and safety conditions. This means strengthening our enforcement, our standards setting, increasing opportunities for partnerships and compliance assistance. And, generally, demonstrating value in terms of lower injury and illness rates, lower worker compensation costs, and better protection of working men and women. You don't have to be in Washington long before you hear labor and business proposed over the past two years by level fairly severe complaints about how the agency operates. Sometimes the some members of Congress. For the future, Dear intends to contin- views are the same, sometimes they are ue moving quietly to improve the agen- in opposition, but it was clear to me, and cy's effectiveness. In a recent interview I think to everybody else, that OSHA had with C&HN Washington Bureau Head its share of critics and that as a conseDaitidJ. Hanson, Dear indicated there is quence the status quo was not somemore to be done in the area of removing thing likely to be maintainable. old regulations and targeting the industries and companies with the worst You have already eliminated many paghealth and safety records. Whether he es of standards that were on the wiUget the chance to do this is up to Pres- books. What were they and why did you ident Clinton and whoever becomes the doit? next secretary of labor, now that Reich President Clinton ordered all the regulahas resigned. For his part, Dear says he tory agencies to conduct a page-by-page would like to stay as OSHA's leader for review of their regulations. We did that for some 3,000 pages of OSHA regulaanother term. tions and from that we found more than What were your goals for OSHA when 1,000 pages of obsolete, duplicative, or unnecessary regulations. We have elimiyou arrived in Washington? My goals included the revitalization of nated about 90% of those pages to date. OSHA, now called the reinvention of That includes several hundred pages of
JOSEPH DEAR: REINVENTING OSHA Much maligned agency focusing enforcement efforts, building partnerships with industry, labor
W
l hen Joseph A. Dear took the reins at the Occupational Safety & Health Administration in November 1993, he said he would redirect the agency's efforts to protect the most workers. At that time, Dear had been in Washington, DC, since March, senting as a consultant to Ixibor Secretary Robert B. Reich, and OSHA had been without a congressionally confirmed chief since January 1992. Dear, 45, is only the second Democrat to head OSHA since the agency was created in 1970, and is the second longest senting OSHA chief in the agency's history. Perhaps not coincidentally, his only predecessor appointed by a Democrat— Eula Bingham, who served under Jimmy Carter—had a longer stint. If things go as he wants, Dear will scxm overtake her record for length ofservice. Dear inherited an agency that had been simply marking time and was being criticized from all sides for inactivity. His first priority was to use the expertise he had gained from a successful tenure as director of Washington States Department of Ixibor & Industries to revitalize the moribund OSHA. Aided and abetted by President Clinton's mandate to Vice President AI Gore to reinvent government, Dear believes his progress so far has been good. At least the agency still exists. When the Republican majority took over Congress in January 1995, OSHA was the agency they loved to hate. Nitpicking paperwork regulations and excessive fines that did little to imfrrove worker safety were frequent complaints from business that politicians heard. But Dear has used his reinvention initiatives to keep Congress at bay. He has combined regulations, eliminated a number of duplicative and obsolete standards, and has tried to make the agency more responsive. He contends that his work so far has shielded OSHA from some of the harsh reforms 24 DECEMBER 9, 1996 C&EN
duplicate standards between construction and general industry and 2^5 pages of obsolete regulations relating to cancercausing substances. More pages will be eliminated next year when the final respirator standard is adopted. The respirator update is long overdue. It is something that both industry and labor told us in 1993 to get bus}' and update, so we are just about finished with that. Would you describe your struggles with the past Congress and explain why you seem to have prevailed in the end?
The 104th Congress proposed deep cuts in OSHA's budget and wholesale revisions in the Occupational Safety & Health Act. It would have rendered OSHA enforcement and standard-setting essentially useless. None of the budget cut proposals were actually enacted, although there was protracted uncertainty, and none of the OSHA reform proposals got very far in the legislative process. Again, I think that is because the reinvention program began to take hold and people began to see that we had a superior alternative to the status quo and/or realized the proposals would have damaged OSHA badly.
clause. The idea that somehow OSHA is going to produce a standard for every hazard is completely unrealistic. And the notion that employers are only responsible for the things that the government specifically delineates in a standard is a very narrow view of an appropriate reWhat adverse impacts would the con- sponse by employers. gressional reform proposals have had? Those congressional bills also would Cataloging all of the bad ideas in the bills have taken standard-setting and turned would take a long time, but I'll start with it into a procedural labyrinth that had a the "general duty clause." It is a provi- beginning and no end. It would have sion that says employers have legal obli- eliminated the ability of OSHA to issue gations to provide a workplace free of citations on a first inspection visit in virrecognized hazards. It's a very common- tually even case. Given our current staffsense approach, a recognition at the time ing levels, that's an invitation for emthe act was adopted and subsequently ployers to do nothing until the second that there will not be a standard for ev- time OSHA comes around, which could en hazard and that employers need to be decades later. They also were prorecognize a general dun to provide a posing to limit OSHA enforcement tools healthy and safe workplace. Some of the by eliminating egregious penalties, most important OSHA enforcement ac- which is our highest category' penalty. tions were taken using the general duty That would have taken some of the disasclause, including the citation following ters from the chemical industry where the Phillips Petroleum explosion in Pasa- million-dollar fines were proposed and dena, Texas, in 1989. turned them into $10,000 fines. It would One result of general dun clause en- have made the responsibility of employforcement was a request by industry to ers a joke. clarify what its requirements are through And I think that is one reason the proa new standard. And industry assisted posals didn't get that far. They were exOSHA in the development of what be- treme, the\ were far away from what came the process safety management people wanted in terms of government standard. protection, and the} didn't really deal Similarly with ergonomics, a number with the underlying substantive opportuof general duty clause cases were nities for OSHA to improve. brought to protect workers from musculoskeletal disorders, something that Can you cite some specific improvewould have been impossible without the ments OSHA has made in its enforce-
ment and citation procedures over the past few years to counter the complaints that are still coming from companies?
I think any enforcement agency is going to generate complaints. I don't think the measure of OSHAs success is complaintfree work. I'm an optimist and I set high standards, but I think that is beyond our reach. The idea of enforcement is to impose serious consequences for serious violations. That means we need to target our enforcement resources better and we need to leverage our enforcement resources so the}7 have an impact beyond the original case. We do that by increasing the number of significant penalty cases. It went from 6()-something in 1994, to 125 in 1995, to 173 in 1996. We also must look at what we cite. In 1990, OSHA fined employers more than 5,000 times for not having a poster displayed informing workers of their rights. The average penalty was $400. This irked a lot of people since it's hard to connect the absence of a poster with a serious threat of bodily harm. It is important for workers to know what their rights are, but perhaps we can accomplish that by giving employers the poster. So by 1996, there were fewer than 10 poster citations. It was similar with minor recordkeeping problems. We've eliminated the citations for those. At the same time, in the construction industry, the most frequently cited serious violation changed DECEMBER 9, 1996 C&EN
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government from hazard communication—right-toknow—to fall protection invoking scaffolds. We are moving the enforcement program toward the worst workplaces and aiming at the hazards that are likely to cause the most serious injury and illnesses. What difference is there between the new OSHA and the old OSHA?
Oie first is that we survived an onslaught that sought to decimate OSHA's budget and to gut its enforcement and standardsetting authority. I think we were able to do that because the reinvention of OSHA presented an alternative that was superior to the status quo and vastly superior to the proposals that would have gutted OSHA. What does that agency look like? It's an agency that has increased its enforcement of significant cases. It's an agency that has produced, or is producing, new standards through negotiated and facilitated means, and an agency that has created new partnerships with industry and labor around the country. Significant for the chemical industry, we have made a substantial expansion of the voluntary protection program, which is an effort to recognize excellent performance in health and safety by companies. The chemical industry is the best represented among the voluntary performance program in terms of the number of sites that participate. I think there is a relationship between the programmatic approach that the voluntary protection program embodies and the Responsible
nication standard and make recommendations for improvement. We had a subcommittee composed of small business, large business, chemical industry, labor The chemical industry has very low unions, and experts in the field. They 7 rates of injury, but it has had some made some vers sensible suggestions, spectacular and tragic accidents. but they did not propose wholesale changes in the hazard communication How do you view this situation? The chemical industry itself has a rela- standard. Specifically, with respect to material tively good illness and injur)· rate. However, construction activity associated safety data sheets, everybody would like with the chemical industry is not as a simpler form that contains information good. At man\ sites, there is a continu- pertinent only to worker health and safeous presence of contractor employees in ty, but no one supported the creation of addition to the direct employees of the a new form to accomplish that. The site owner. You need to look at the chemical industry very much wants to whole picture. This continues to be a keep the material safety data sheet for major, important topic. The voluntary purposes that extend beyond just workprotection program looks to the overall er safety and health protection. But there are practical things we can exercise of safety and health leadership by the site owners as one of the ele- do. We can increase the availability of ments that determines the quality of the compliance assistance tools for small health and safety program. Nonetheless, business, commission those kinds of you're left with a situation where injury products. We can try to communicate and illness rates are relatively low, but more clearly what hazard communicathe remote potential for catastrophic ac- tion does apply to and does not apply to. And the committee recommended supcidents is ever present. porting the American National Standards You have said that the hazard com- Institute consensus standard for the for7 munication standard is one of OSHA's mat for the material safety data sheet, most important rules, but some con- which puts the most important worker fusion still exists on enforcement. health and safety information up front, at What are you doing to revise this the top of the material safety data sheet. rule? What about material safety data Those are just a few of the things the advisory committee developed. sheets? There is a lot of misinformation out I asked our National Advisor)' Committee on Occupational Safety & Health, there that has created the impression NACOSH, to look at the hazard commu- among some small businesses that everything the)7 use has to have a material safety data sheet, often because some manufacturers put one on just about every product to ensure they are complying with the law. But we are concerned about materials that pose a real threat to worker health and safety, and not about common household products. Getting just that fact into the small businesspersons mind would be useful. Care program that the chemical industry is promoting voluntarily. These fit together very well.
Are any changes being contemplated for the process safety standard that might affect chemical industry operations?
Yes, we will be proposing some modifications in 1997, primarily to harmonize to the extent possible the process safety management (PSM) standard of OSHA with the risk management program of the Environmental Protection Agency. This is an important area to try to minimize compliance costs that aren't associated with measurable improvements in the workplace and environmental health and safety. One of the steps we need to 26 DECEMBER 9, 1996 C&EN
do is add some chemicals to the list and bring the list into congruence with the ΗΡΑ list under its risk management pro gram. There are some other issues asso ciated with this; they all will be part of a reopening of the process safety manage ment rule. We also are beginning to conduct pro gram quality verification inspections to actually ascertain the status of the PSM compliance by chemical manufacturers. Before, we were coming in only after an accident or a catastrophe and a lot of the enforcement of PSM was associated with accident investigations. Our new pro gram quality verifications are designed to make the review more routine and not just prompted by an accident. That effort will be stepped up somewhat in the coming years. The other thing we can do with PSM is reduce some of the paperwork associ ated with the standard, so we are going to be working on a substantial reduction in paperwork associated with PSM in the coming year. The chemical industry certainly has not been accident-free, but there has been a real change in the trend from cat astrophic accidents occurring with some frequency to a period which, although not problem-free, has avoided some of the disasters that helped create the de mand for the PSM standard. I think those two things are not unrelated.
tant to address these health hazards. I think it's also vitally important to gener ate a sense of public confidence about Industry long ago controlled air expo the health and safety of these facilities sures to a greater extent than is re for their workers and, by implication, for quired in the current OSHA standards, their communities. Its important for the many of which date back to the early government to establish what the norms 1970s. Do you think there is still a need for acceptable behavior are and for the for new OSHA exposure limits? public to know there are consequences Absolutely. Standards have a vital role to for employers who fail to live up to those play in setting minimum thresholds and norms. I think standards are incredibly in marshaling the scientific and econom important. The frustration is that it takes ic data that demonstrate why it's impor so long to get them. One of the things would have a decent chance of actually being implemented.
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We are working on 20 substances, which is a greatly pared down list from the more than 400 that were the subject of the PEL process in the 1980s. That work will develop throughout 199". I think more interesting and potentially more important is the discussion that is begin ning among industry, government, and labor about a better way to address PELs. A better way seeks to find a streamlined process for setting permis sible exposure limits and a way of regu larly updating them that is not as cum bersome or as length)' a process as that currently required for specific OSHA health standards. Industry is interested in finding a solu tion, the labor community is certainly en gaged in that discussion, and, obviously, OSHA could help come up with a tripar tite approach to setting PELs. I think the goal here would be to see what could be done without legislation, since that
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government negotiated rule-making or facilitated rulemaking present a way7 that should enable standards to be adopted somewhat faster. The promise of the PEL project, if that develops, is that there will be a tripartite agreement on how to accelerate standard development and updating with respect to specific chemicals. What effort is OSHA making to harmonize its regulations with EPAfs regulations?
I'm hoping for as we look forward to the next couple of years is a way of increasing the speed at which these standards can be developed. Was the recent 1,3-butadiene standard part of the PEL process?
Butadiene is an example of the old single-substance rule-making. Work began on that more than 10 years ago. What was interesting in the end about butadiene was that industry and labor got together on their own, reviewed the current scientific literature, and agreed to a PEL that was half of what OSHA originally proposed in its rule-making. Thus, we had a signing, an adoption ceremony for a health standard, where all parties were present and pleased with the results. Usually when OSHA sets a health standard, one side is semi-pleased and the other side is rushing to the courthouse to sue. So this standard is an indication that industry and labor can look at data and at what is needed to move forward and come to an agreement, which is a definite improvement. And it's much speedier than the old way. Is a rule coming out soon on methylene chloride?
Very soon. We haven't quite finished it, so I can't tell you how it is going to look in the final version. We did everything we could to incorporate the most up-todate scientific information, including re28
DECEMBER 9 1996CS-EN
This is an area I had hoped to make more progress on, but it was interrupted by the survival battle we were forced to engage in during 1995 and 1996. I think there are opportunities for coordination between OSHA and EPA that will strengthen protections and at the same time reduce compliance costs. I am very7 interested in pursuing those. I think the way7 to do that is quite simple. We need to have high-level communication between EPA and OSHA on rules. The recent adoption of the final technical corrections on asbestos accomplished some harmonization between OSHA and EPA opening the record to receive some stud- and is an example of what is possible. There is a clear intent on the part of ies that industry wanted drawn to our attention. The record was reopened so both OSHA and EPA to have a seamless those studies could be reviewed and so integration of risk management plans, comments on them would be made part plus the safety management standard, that will take a number of years to work of the rule-making record. But the situation is quite different out. We are taking the first step with a from butadiene. Butadiene is used most- memorandum of understanding regardly by the rubber industry. so the number ing how the duties of the neverof parties that were engaged was rela- implemented Chemical Safety Hazard Intively- small. Thus, it was easy once they vestigation Board will be assumed by decided to work together to wrap it up. OSHA and EPA. The next step in that As a solvent, methylene chloride is used process is an accident investigation proin a number of diverse industries, includ- tocol. So I think we are working on a ing some with very small companies, and number of areas. There is already7 a staff-level committhis has made a negotiated outcome difficult to get. This rule-making also started tee of OSHA, NIOSH [National Institute way back in the mid-1980s, and rather for Occupational Safety & Health], and than start over with new negotiations, I EPA, the so-called ONE Committee, which makes recommendations primarithink we should conclude the work. ly with respect to the Toxic Substances Why does it take 10 years or more to Control Act and the Occupational Safety get to an OSHA health standard? EPA & Health Act. And I have had discussions takes only five or so, even on a tough with a number of EPA officials. But, again, this is one of the ironies of the asregulation. Interesting question. EPA often has had sault on the regulatory agencies. A numcongressional- or court-imposed dead- ber of efforts that could have been unlines for its standards. OSHA by and large dertaken to deal with real problems and has avoided that. But if s a difficult pro- opportunities never happened, because cess. Those who think that it's easy to the agencies were engaged in defense of assemble the economic and scientific in- their basic ability to operate. If that is beformation needed to determine the ap- hind us, then opportunities for some crepropriate exposure limit for a toxic ative collaboration exist. When you are chemical underestimate the difficulty just doing various iterations of reductions and effort OSHA puts forth to develop a in force to comply with deep budget standard. I do think the opportunities for cuts, your time to call up a fellow admin-
well have to see. If I am asked to stay, I d be happy to do that. Its not an easy7 job, that's for sure, but I enjoy7 the challenge. It's a job with vast opportunity7 to make a difference in the lives of working people and help employLabor Secretary Reich is leaving. What ers become more profitable and competitive. And as long as that challenge is there, are your plans? I would like to see the reinvention of then it's a job well worth doing. It takes a OSHA take hold in a way that demon- long time to accomplish a real change in strates clearly to opponents and skeptics the culture of an organization, and that is What standards do you want to get out that this truly is a better way. My job fate what I came here to do. If I get the chance in the next couple of years and how will is up to the new secretary7 of labor, so to keep at it awhile, I will.^ your relations with Congress be? Well at the end of the fiscal year, the results for OSHA for 1996 were pretty good. Productivity The budget went up ^%, the bad legislaTools for tion never passed, and I think there was Chemists a recognition that the reinvention program is a serious attempt to improve OSHA that is getting results. I'm an optimist by temperament, so I hope that the congressional leadership will see health and safety as an opportunity to forge some real common ground that makes a difference for workers and employers. Now. there are contentious issues, there are scarce resources, and there are interest groups that have been antagonistic. So whether we make a lot of progress on NOW -k that front is up to more than just OSHA. But I'm optimistic. WITH •-• In terms of the standards agenda, at LINKERS! the top of the list is to issue a proposal on safety and health management programs. For the chemical industry, I don't think this is going to have a great deal of impact, because the Responsible Care • High Loading Capacity ? | | Whether you are program already talks about the necessiplanning to adapt your ty of having an effective health and safety program. Employers who are serious chemistry to solid phase • Fast Reaction Kinetics about managing health and safety already or have been using other have programs, and a new OSHA stan• Monitor Reactions by polystyrene resins, dard isn't going to add anything new to NMR ArgoGel is your solution. that. But for industries where there is less understanding of the utility of safety Get the benefits of solid and health programs, or where they • Use Full Range of phase chemistry while would benefit from establishment of the Organic to Aqueous definition of what the minimum requiremaintaining the trusted Solvents ments are, I think there is a great deal of performance of solution potential there. phase with ArgoGel-OH, • Produce High Purity The PEL project is a priority that will ArgoGel-NH2, ArgoGel-Cl, unfold over a number of years. There are Products ArgoGel-Wang and ArgoGel some specific hazards we want to deal with, such as tuberculosis. Glycol ethers -Aryl Sulfonamide. and chromium are two other health standards we are working on. In addition, we are going to continue to look at existing «$$< ARGONAUT TECHNOLOGIES standards and see if they can be rendered into plain English to make compliance 887 Industrial Road, Suite C · San Carlos, CA 94070 · 888 598 1350 (USA) easier for employers, particularly smaller 415 598 1 350 · Fax 415 598 1359 · http://www.argotech.com companies. We will also be looking at new compliance assistance programs. CIRCLE 6 ON READER SERVICE CARD
istrator and talk about an opportunity in the upcoming year just doesn't exist. I think in the big picture sense that the reinvention initiative that Vice President Gore has established in the National Performance Review will drive the regulator}7 agencies to find better ways of regulating. Better in the ways they protect, but that do so in a way that is economically logical.
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