Yes, friends, like the Clint Eastwood movie, there are indeed three OSHAs. The good OSHA is the one that brings us wonderful things like the Web site. The bad OSHA is the one that enforces regulations that are 30 or more years out of date, and the ugly OSHA is the one whose behavior is, on occasion, reprehensible.
THE GOOD OSHA
OSHA certainly deserves recognition and praise for the good things it does, and it does many things very well. Without the threat posed by OSHA, some employers would do precious little to protect the lives of their workers. OSHA has also implemented dozens of innovative and helpful programs. While space does not permit me to elaborate on all of the good things the agency has accomplished, I'd like to point out four that I think are illustrative.
The Web Site
Anyone who's been to OSHA's Web site knows that, in the words of Virgil's Aeneas, "It is a sight wondrous to behold." The site is exceptionally easy to navigate and is a veritable gold mine of occupational safety and health information. Some of the site's attractive features:
- The most up-to-date edition of the regulations, including hundreds of letters of interpretation related to enforcement policy.
- The Field Inspection Reference Manual, which describes the agency's inspection procedures.
- The OSHA Technical Manual, which is a treasure trove of information on topics such as air sampling, noise monitoring, indoor air quality, laser safety and heat stress.
- Preambles to standards that provide an explanation and commentary on the regulatory requirements.
- A subject index covering topics that range from asbestos to zinc with thousands of links to other useful safety and health resources.
Whenever I hear people complain about the standards that OSHA has written, I challenge them to tell me exactly what it is about the standards they do not like. This is because, in my opinion, these standards are truly state-of-the-art. I have to qualify that, however. When I'm talking about the standards that OSHA has written, I do not mean the ones like machine guarding, fire protection, walking and working surfaces, and all the other standards that OSHA adapted from 1960s-vintage national consensus standards.
The standards I respect are those such as confined spaces, bloodborne pathogens, lockout/tagout or the revised respiratory protection, fall protection, trenching and scaffolding standards. These new or revised standards are flexible and performance-based rather than rigid and prescriptive. They provide employers with an infinite variety of compliance options that can be tailored to site-specific conditions.
I've read the preamble to almost every standard OSHA has issued over the last 20 years, and I never cease to be amazed at the thoughtfulness and well-reasoning of many of the standards' provisions. It also seems pretty clear that OSHA carefully weighs and considers the public comments it receives. Even the casual reader can see that, for the most part, the agency really tries to be evenhanded and fair-minded in its rulemaking process.
The new standards also precipitate change and force technology. In other words, they get people to do things that they probably would not do otherwise and create opportunities for manufacturers to develop solutions to safety problems that have been with us for eons.
Take a quick look at the ads in any of the major safety and health magazines and you will see a dazzling array of lockout/tagout hardware, full-body harnesses, movable anchor points, engineered horizontal lifeline systems, bloodborne pathogen spill cleanup kits, signs, posters, labels and placards that can be used to convey hazard information, instrumentation for real-time analysis of airborne chemicals, and a host of other products that most likely would not have been created if not for the promulgation of an OSHA regulation. Many of these products have clearly improved workplace safety.
Susan Harwood Grants
Susan Harwood was an outstanding figure in the safety and health community who, before her death in 1996, spent eight years as director of OSHA's Office of Risk Assessment. In this capacity, she took a lead role in developing and implementing standards for bloodborne pathogens, cotton dust, benzene, formaldehyde, asbestos and lead in construction, all of which have had a lasting effect on worker protection.
Through a grant program commemorating Harwood's work, OSHA annually makes $5 million available to nonprofit organizations and higher education institutions. The purpose of these grants, which average between $150,000 and $200,000, is to provide educational opportunities to traditionally underserved and at-risk populations such as immigrants, small-business employees and workers in high-risk construction jobs.
Voluntary Protection Programs
The Voluntary Protection Programs (VPP) recognizes that good safety management programs that go beyond OSHA standards can protect workers more effectively than simple compliance. Participation in OSHA's VPP requires facilities to be committed to excellence and to focus on more than mere regulatory compliance. VPP sites are expected to establish comprehensive safety management systems that strive to establish a process of continuous improvement aimed at identifying and controlling workplace hazards. Recognizing that VPP sites are truly best-in-class, OSHA exempts them from routine inspections; however, the agency reserves the right to respond to mishaps and employee complaints.
THE BAD OSHA
The bad OSHA might be best characterized as the one whose actions actually undermine worker safety. Here are a few examples of how OSHA does that.
Dangerously Outdated Standards
As noted above, OSHA's new and revised standards may be state-of-the-art, but most of its other standards are woefully outdated. Many OSHA standards are based on 1960s-vintage national consensus standards, many of which have been revised dozens of times since being adopted by the agency in 1972. Permissible exposure limits (PELs) are perhaps the best-known example.
OSHA's PELs are based on the 1968 edition of the American Conference of Governmental Industrial Hygienists' (ACGIH) Threshold Limit Values (TLVs). While ACGIH has revised its limits annually since 1968, the OSHA standards remain frozen in time. This results in a bizarre incongruity in which employees can be exposed to atmospheres that can cause adverse health effects, yet are not violations of the OSHA standards.
For example, the PEL for toluene is 200 parts per million (ppm) expressed as an eight-hour, time-weighted average. Toluene also has a 10-minute, short-term exposure limit of 300 ppm and a ceiling of 500 ppm. The TLV for toluene is 50 ppm, and the National Institute for Occupational Safety and Health's IDLH (immediately dangerous to life and health) is 500 ppm. In other words, the OSHA PEL is four times greater than that allowed by ACGIH. More alarmingly, an employer could expose an employee to 500 ppm -- an IDLH level -- and that exposure would not be a violation of the OSHA standards!
There are many other OSHA standards that are decades old. For example, the standards for derricks and hoists is based on the 1943 edition of ANSI B30.2, and the standard for woodworking machinery dates to the 1954 edition of ANSI O 1.1.
Similarly, OSHA standards for flammable liquids and spray finishing are based on the National Fire Protection Association's (NFPA) 1969 editions of NFPA-30 and NFPA-33. The fact that many state and local jurisdictions have adopted more recent editions of NFPA standards than those adopted by OSHA leads to another anomaly. Due to changes that have occurred in fire codes over the past 40 years, an employer who complies with OSHA regulations may be violating the local fire code. Conversely, in some cases, compliance with state-of-the-art fire codes adopted by local jurisdictions violates OSHA standards.
I often get phone calls from clients who have been cited by OSHA and are looking for guidance as to what they have to do to come into compliance. I'll arrange for a site visit and conduct a walk-through survey. To quote Yogi Berra, many of these surveys are deja vu all over again.
What I almost always find are situations where an employer was cited for things that are not even violations or, at most, would be considered to be de minimis conditions, while at the same time I look around and see dozens of serious hazards such as unguarded equipment, exposed energized components and blocked emergency equipment. I'll ask about administrative issues such as forklift operator training or crane inspections and learn that they have not been done. I'll look at written programs such as lockout/tagout, confined spaces or hazard communication and note that they are woefully inadequate.
I'll discuss my concerns with the employers, who invariably have the same response: "Well, the OSHA man didn't say anything," they say. "Yes, that may be," I'll respond, "but your employees are exposed to serious hazards, you have not done the required training, and your written programs are abysmal." Their rebuttal is predictable. "Well, how serious could it be?" they say. "The OSHA man wasn't concerned about it."
I could understand OSHA's apparent oversight if the inspections were limited in scope such as accident or complaint investigations, but in all of the cases where I've observed what might charitably be called inspection ineptitude, they were general-schedule inspections where the inspector is supposed to perform a comprehensive workplace assessment.
I could recount case after case where I observed serious hazards and, in a few situations, imminent danger situations, which employers freely admitted existed at the time of the inspection and about which the OSHA inspector said nothing. In spite of my admonitions, many of these employers are reluctant to do anything to abate the hazards because "the OSHA man didn't say anything about it."
By the way, my experience is not unique. Some of my associates who hold corporate safety and heath positions are exasperated by the same concerns. They will point out serious hazards during their audits only to be told "well, the OSHA man looked at it during an inspection last year, and he didn't say anything."
These shoddy OSHA inspections actually undermine worker protection because most employers who are not cited conclude that there are no hazards. In a way, their logic makes perfect sense. They expect inspectors to tell them about hazards. The inspectors do not report hazards; therefore, no hazards exist.
Frankly, this obvious ineptitude at hazard recognition makes me angry. I see the hazards, I see employees at risk, I hear employers tell me that the inspector saw the same conditions that I've observed, and I can't convince the employer that it needs to correct these hazards simply because "the OSHA man didn't say anything about it."
OSHA Authorized Trainer
One of the biggest shams in the field of occupational safety and health is the OSHA Authorized Trainer program. The basic concept behind this program is to provide a cadre of instructors who can explain the requirements of OSHA standards to workers and other interested parties. Sounds great! The more people know about the standards, the greater the likelihood of compliance.
The problem is, OSHA-authorized trainers do not have to possess any technical knowledge, demonstrate any teaching ability or have any knowledge of OSHA policies, procedures or practices. All they have to do is sit in an OSHA-sponsored class for a week. A colleague once quipped that his 8-year-old son could become an "OSHA authorized trainer." When I thought about it, I realized that he was right.
Another problem with the courses is that participants do not have to demonstrate that they learned anything. There are no tests to evaluate cognitive knowledge and no skills demonstrations required to show proficiency. Participants do not even have to stay awake; all they have to do is show up every day. If they do, they get an "official" wallet card with an OSHA logo on it that suggests they are now trained.
OSHA's published guidelines clearly state that "neither the trainer, the students nor the curriculum are certified or accredited." The trainer is authorized, the students receive course completion cards, and the OSHA-produced curriculum is approved.
Nevertheless, the fact that a course is taught by an "OSHA authorized trainer" leads many people to conclude that it somehow carries OSHA's imprimatur. My experience suggests that some "authorized trainers" are charlatans who have no business teaching safety and health courses. Other "authorized trainers" are an embarrassment to the safety and health profession. In short, their incompetence make us all look bad. Yet, they have the aura of being anointed by OSHA, so regardless of whether the information they provide is technically accurate or their explanations of OSHA policy are true, course participants believe them simply because they are authorized by OSHA to teach.
THE UGLY OSHA
There is a truly ugly side of OSHA that, fortunately, most people never see. I don't mean the occasionally rude inspector or the area director who stands up at a meeting and exclaims "I'm the law around here." I mean the truly dark side of OSHA, the side of OSHA you'll only get to see if you dig deeply enough through the dirt.
Death at Film Recovery
The first example of the ugly OSHA that I became aware of was the case of Film Recovery Systems. Film Recovery was a small company in Elk Grove Village, Ill., that was in the business of recovering silver from X-ray film negatives. An illiterate Polish worker by the name of Stefan Goulab died from exposure to cyanide used in the silver recovery process. Goulab's death made national headlines because it was the first time that an employer was charged with murder (not by OSHA, but by the Cook County District Attorney's office).
Years after the incident, I was casually chatting with an OSHA official who was familiar with the case. My companion gave an exasperated sigh and told me that OSHA had inspected the plant shortly before Goulab's death and found the facility to be in compliance.
Years later, I did an establishment search on OSHA's Web site and -- lo and behold -- it showed two inspections for Film Recovery Systems. The first case was opened Nov. 24, 1982. It was simply a records check and was closed five working days later, on Dec. 2. As my companion indicated, the company was found in compliance.
On Feb. 22, 1983, just three months later, OSHA opened a second case in the wake of Goulab's death. At that time, it found 20 violations largely involving machine guarding, open surface tanks and respirators, and fined the company a whopping $4,765.
We'll never know for sure, but I've often wondered if Goulab's death could have been prevented had OSHA conducted a more thorough initial investigation the first time around.
Death in Grain Bin
On the morning of Oct. 22, 1993, 19-year-old Patrick Hayes and two other workers entered a grain silo at Showell Farms plant in De Funiak Springs, Fla. Their job was to "walk down the corn," a process that involved removing grain that was stuck to the silo's side walls. Suddenly, 60 tons of corn broke loose, burying Patrick beneath it.
OSHA investigated and cited Showell Farms for six willful violations totaling $530,000, but later reduced the fine to $42,000. When Patrick's father, Ron Hayes, learned about the reduced fines, he requested information concerning the case from OSHA under the Freedom of Information Act. According to Hayes, OSHA officials were not cooperative and released few documents. After arguing with OSHA officials over the paltry number of documents he received, Hayes waited a few weeks and filed a second request in the name of his dog. Curiously, his dog received a thick package of OSHA documents, the same documents that OSHA officials refused to give to him!
Hayes pressed to find out more information about how the case was conducted, and OSHA officials stonewalled him every inch of the way. Hayes was incensed with the shabby way OSHA was treating him and concluded that his experience was likely not unique. He inferred that OSHA was probably treating the loved ones of other deceased workers with the same degree of contempt.
Hayes subsequently quit his job as an X-ray technician and embarked on a one-man crusade whose objective was to make OSHA more responsive to inquiries posed by the families of workers who had been killed on the job. The group, Families in Grief Hold Together (FIGHT), not only helps families who have encountered similar problems with an unresponsive OSHA, but also renders aid and comfort to families as they try to deal with the death of a loved one. According to Hayes, FIGHT has helped more than 300 families in 45 states.
In 1995, then-Secretary of Labor Robert Reich and then-OSHA Administrator Joseph Dear met with Hayes and his wife, Dot, and offered their personal apologies for the way OSHA investigated Patrick's death and for the insensitive manner in which the agency responded to his inquiry.
Death On Bridge Pier
Bill Alcarese is a former OSHA compliance officer who, in April 1999, testified before the Senate Labor Committee concerning OSHA's mishandling of another fatality investigation.
As Alcarese explains it, he and his family were driving back from a vacation on Maryland's Eastern Shore. As they passed a bridge construction project, Alcarese noticed an imminent danger situation. Specifically, he saw construction workers working without the benefit of fall protection on pier caps that rose about 50 feet above a river. On closer study, he saw that other workers were jumping from the pier caps onto a crane-suspended personnel platform.
Needing authorization to conduct an inspection, he pulled over at the next pay telephone. Because it was a federal holiday, he attempted to call his area director at home to see if the director wanted him to conduct an inspection right then and there. He was not able to contact his director until later that evening. When he finally did, his area director assured him that he'd take care of the matter.
Upon Alcarese's arrival in the office the next day, he asked his immediate supervisor who had been assigned to investigate the imminent danger referral he had made the night before. His supervisor indicated that he was aware of the referral and that it would be addressed.
Two days later, Alcarese followed up with the area director to find out what action was being taken and was again assured that the matter would be addressed. A week later, a 27-year-old construction worker fell to his death while attempting to climb from a pier cap into a crane-suspended personnel platform (one of the very conditions that prompted Alcarese to make his initial referral). He was subsequently assigned to conduct the accident investigation.
During the course of his investigation, Alcarese was startled to learn that six months prior to the fatal fall, a crane operator on the job filed a written complaint with OSHA alleging the same hazard that he had observed. An inspection was initiated in response to that complaint. In talking with the investigating compliance officer, Alcarese leaned that the inspector had been denied entry to the job site.
When he reviewed the case file, Alcarese noticed that the report forms had been altered. The box on the form that indicated that access had been denied was scratched through and another box indicating that the inspection site was not active had been checked. Neither of the changes was initialed, and there was no indication in the case file why it had been altered.
During his investigation, Alcarese videotaped the same conditions that prompted his initial referral. When he pointed the hazard out during the walk-around, the company's safety director became angry and assaulted him. Alcarese completed his investigation, and citations were issued. By then, however, the project was completed. In the course of an informal conference, penalties against the company were reduced by 80 percent. The company's safety director claimed that the worker who was killed had committed suicide.
Only after an appeal to a government employees union did OSHA management take action on the assault. The U.S. Attorney's Office eventually looked into the assault charge and determined that, while the allegations had merit, the Justice Department simply did not have the resources to pursue the matter. OSHA's then-deputy assistant secretary refused to answer any of Alcarese's questions concerning OSHA's handling of the case. The contractor was publicly recognized for completing the job ahead of schedule. The area director and others involved in the case were promoted.
For Want of a Signature
Some time back, an attorney in the Solicitor's Office in a region I won't name called me about serving as an expert witness in a case in which she was working. We had generally discussed the facts of the case, but I had a number of questions that remained unanswered.
Time was running out and I was leaving to teach a course in Germany, so I called the solicitor. I explained that if I didn't have the case file in my hands by noon the next day, I would not be able to testify because I had not reviewed the facts and had no opinions on the matter. The solicitor called me back about 20 minutes later and said that she could not get the two signatures needed to overnight the package to me, so the agency decided not to move forward.
Admittedly, the case may have had some technical flaws, but not moving forward because two signatures could not be obtained for an air bill seemed like a pretty lame excuse to me.
OSHA does many things right, and working people are surely better off with it than without it. The national office has also undertaken a number of helpful initiatives, such as the Web site, that have made the agency accessible to anyone with a computer.
The agency clearly has problems, however, and the biggest one that I and other safety and health professionals see is the whole inspection process. Quite simply, more inspectors and better training are needed so that sites can be inspected in a timely manner and hazards will not go unnoticed during those inspections.
The bad and ugly aspects of OSHA highlighted in this article can be controlled through better management and internal controls. The agency owes it to the workers of America to address these issues. Until that happens, the good will always be overshadowed by the bad and the ugly.
Contributing Editor John F. Rekus, PE, MS, CIH, CSP, is an independent consultant and author of the Complete Confined Spaces Handbook. With more than 20 years of regulatory experience, he lives in Baltimore and may be reached at (410) 583-7954, or you may visit his Web site at www.jfrekus.com.