One of the main goals of the Administration of President Ronald Reagan, who came into office on January 20, 1981, was to provide industry with relief from the burden of onerous government regulation. OSHA, which was considered a principal source of this burden, became a principal agent in the effort to reduce it. President Reagan set up a program of Regulatory Relief shortly after his inauguration and made it one of the main elements of his economic program.
The Regulatory Relief program exerted the strongest influence on OSHA's policies, but other factors affected them as well. OSHA already had an agenda of work begun during previous Administrations. In addition, it had a mandate stemming from the OSH Act accepted by virtually all parties concerned to protect workers on the job. New leadership at the Labor Department had new priorities and a distinctive administrative style that assimilated all of these factors and led OSHA on a controversial course between its critics at both ends of the regulatory spectrum.
The key decision affecting OSHA during any Administration is the choice of a person to head it. In February 1981 President Reagan announced that he would nominate Thorne G. Auchter for that post. Auchter was the 35 year old executive vice president of Auchter Co., a family owned construction firm based in Jacksonville, Florida. He had served in President Reagan's 1980 election campaign as special events director for Florida, after which newly elected Senator Paula Hawkins had recommended him for the OSHA post. After being cleared by the White House, Auchter came up to Washington to meet with Secretary of Labor designate Raymond J. Donovan and subsequently was offered and accepted the job.
Young and politically conservative, Auchter was a logical choice to head OSHA under the Reagan Administration. Secretary Donovan planned a sharp change in policy and direction at the Labor Department and needed people who were energetic and philosophically compatible with the President. Auchter did not bring great expertise to Washington either in workers' health or in government administration, but he was intelligent and motivated, as well as being an experienced corporate manager. Furthermore, he had a long acquaintance with OSHA and its operations. One of his roles at Auchter Co. was as chief officer of its safety and health programs. When OSHA began operations in 1971 Auchter had met with the local area director in Jacksonville, a veteran administrator named William Gordon. Auchter found Gordon to be cooperative and a good source of information. In later years, because of the generally favorable impression left on Auchter from his personal experience, he had difficulty understanding some of the harsh criticisms of the agency.
Shortly after OSHA's startup in 1971 Auchter had been appointed by the governor of Florida to help draft legislation for an OSHA approved state plan. Auchter wound up drafting most of the bill himself. It was subsequently enacted but the state never followed through to establish a program. However, later on he helped design Florida's OSHA funded program for consultations to employers.85
At Senate confirmation hearings on March 9, 1981, Auchter read a statement outlining some ideas he had for improving OSHA. Evolving to a large extent from his experience with OSHA in the construction industry, they were not intended as a comprehensive agenda for reforming the agency. The principal overall change that Auchter sought was the eradication of the "prevailing adversary spirit" among labor, management and government. Specifically, he intended to promote greater labor management cooperation and to involve both sides in the formulation of programs and policies at OSHA. Auchter also mentioned that he would carefully examine OSHA's current efforts to target inspections to the most hazardous workplaces. Another suggestion was to encourage the states to develop OSHA approved plans. Auchter's final point was that adoption of these and other measures would result both in more effective administration of the law and also in improvement of the management of the agency.86
Another goal with a higher priority quickly emerged, however: survival. It was dictated principally by critical attitudes in Congress toward OSHA. Like Morton Corn, Auchter had come to the agency at a time when its very existence seemed threatened. Auchter visited several congressman before his confirmation hearings, which were held by the Senate Labor Committee, Orrin Hatch (Utah Republican) chairman. In a private meeting Senator Hatch told Auchter he was ready to seek legislation to abolish OSHA. Several other congressmen told Auchter that they too favored such a move. However, he persuaded them to give him a grace period of one year to try to turn the agency around.87
Senator Hatch reflected in a concentrated form a widespread and long standing dissatisfaction with the agency in the conservative and business communities. They wanted OSHA to take a more cooperative and helpful approach and be less confrontational. A memorandum to Auchter from R. Heath Larry, former head of U.S. Steel Corp., expressed the kinds of changes businessmen and others were seeking. Larry expressed frustration with OSHA's combative attitude and disappointment that the high costs of compliance with OSHA rules over its first ten years had not yet produced substantial results. Larry recommended such things as elimination of duplicative federal monitoring of state plan operations, deemphasis of enforcement under the "general duty" clause and provision of more free advice to employers. Many of these suggestions were already on Auchter's agenda and several were eventually adopted in some form.88
The major factor that shaped OSHA's agenda during Thorne Auchter's administration was Regulatory Relief. Stemming originally from the "deregulation" movement of the mid 1970s, this Reagan Administration program sought to reform government regulations in order to encourage greater investment, production and employment. Its major elements were a 60 day suspension (effective January 29, 1981) of the last minute regulations issued or proposed by the Carter Administration just before the Inauguration, the establishment of a Task Force on Regulatory Relief chaired by Vice President George Bush, and the issuance of Executive Order 12291 strengthening the President's oversight and control of the regulatory process.
EO 12291 was the keystone of Regulatory Relief. Administered by OMB, it emphasized that regulatory actions should only be taken if cost/benefit analysis showed that the benefits to society, measured quantitatively or qualitatively, outweighed the costs. Agencies were also to find the most cost effective way of meeting the goal of a given regulation. They were required to prepare regulatory impact analyses summarizing their findings for each regulation. The Task Force supervised this process and OMB reviewed and evaluated the analyses.89
Under great pressure from the Administration to implement Regulatory Relief and from the Congress to show cause why OSHA should not be abolished, Thorne Auchter had to get off to as fast a start as possible after taking office on March 19, 1981. Three hours after he walked in the door he started making decisions on the fiscal 1982 budget. Regulatory Relief had already begun with a temporary "freeze" on the last minute Carter regulations. These included proposals to amend the hearing regulations and the cancer policy and to require the labeling of hazardous substances (the "right to know" proposal). To begin implementing the longer term aspects of Regulatory Relief, Auchter quickly appointed special "task groups" to study existing rules on lead, cotton dust and noise and to develop a new labeling proposal.
Heading a cadre of young political appointees that came into OSHA was Mark Cowan, a youthful but experienced government attorney who first acted as Auchter's chief special assistant. In August 1981 Cowan was appointed Auchter's Deputy Assistant Secretary, serving until February 1983 when he became a special assistant to the Secretary and was replaced as Deputy by OSHA career employee Patrick Tyson. The pace was hectic in the early days of Auchter's administration. He was often a work from six in the morning until eight or nine at night — "It was high speed around here."90
Auchter quickly got a taste of what it was like to operate in the "goldfish bowl" of official Washington his first week on the job. When he learned that the agency was about to publish separate booklets on the cotton dust hazard - one version for workers and another for employers - he temporarily withdrew them because he felt that having separate booklets was divisive. Five days later, a unified booklet was released that contained essentially the same information, but in the meantime organized labor leveled a barrage of criticism at Auchter - the first of many - over the withdrawal.91
At the same time that the new assistant secretary was beginning to grapple with the kinds of complex and controversial issues that have always dominated OSHA's history, he was also learning the structure and modus operandi of his agency, getting acquainted with its career staff, and developing his own agenda. Auchter recalled "I had no agenda when I came in here; I had a philosophy and a desire to serve." He began holding small briefings with the heads of OSHA's directorates and other officials. Larger, more formal meetings were held later in 1981. In all these contacts Auchter asked the career people about their jobs, about administrative problems and about their ideas for dealing with these problems. "From that process we began to pull together the collective concern and wisdom of the agency," Auchter said, and his program and approach began to evolve and develop.
Two things emerged from all of this. First, it seemed obvious to Auchter that there was no real management system at OSHA: the agency lacked direction and there was no system for taking into consideration the ideas and concerns of career staff. The inevitable result was that OSHA had developed a penchant and a reputation for being strictly reactive, with little planning or development of goals and objectives. The second thing that Auchter found was that the career staff had a great deal of collective wisdom and a strong desire to see the agency perform effectively. This meshed perfectly with Auchter's own desire, which he had expressed at his confirmation hearings, to improve the auditing and control of OSHA staff in order "to ensure that the organization is acting responsibly and in the national interest."92
The principal management reform Auchter undertook was the adoption of the Integrated Management System (IMS). This was a system most of which had been developed, but never utilized, by Eula Bingham. The IMS tracked programs, offices and high ranking officials and provided accountability by assigning goals and defining outcomes that could be measured. A set of program indicators was developed and prominently displayed in Auchter's office so that he and other top staff could tell at a glance how the agency was performing at any moment.
Auchter's management style was that he made the decisions, but only after seeking the ideas and views of his subordinates. In order to manage this process better he instituted the OSHA Management and Review Committee (OMRC) consisting of himself and four top staff members acting as a kind of "board of directors" to consider options developed by agency staff. He also made each of his special assistants responsible for a specific program area so that he would be able to focus quickly on problems as they cropped up.93
As Auchter's management system developed, a guiding substantive policy evolved from his interactions with the "collective mind" of the agency. He came to define the goal of the agency as a "balanced mix" of programs and activities defined and authorized by the OSH Act, including standards, enforcement, training efforts, state plans, consultations and so on. Stressing that the Act did not emphasize any one of these facets over the others, he sought equal development of all of them.94
Besides consulting OSHA staff, Auchter also sought the views of outside groups in developing particular policies. Once he determined an issue that he wanted to deal with, the agency staff would work on it internally, considering a wide range of options before developing specific recommendations. At that point Auchter discussed the recommendations with labor unions, management groups and others and sought their reactions and suggestions. One of the risks of these wide open internal deliberations was that occasionally word leaked out that an option that was anathema to a particular group was being discussed. This sometimes resulted in misunderstandings and temporary ill feelings toward the agency.95
After Auchter had instituted management reforms and developed an overall agency policy it became clear to him that the big organizational chart which he kept on a wall in his office no longer accurately reflected either OSHA's policies or its way of operating. Auchter felt when he came to OSHA that it was primarily an enforcement agency and that the organizational structure reflected this. Since he considered enforcement only one of a number of ways of achieving compliance under the OSH Act, the old structure was no longer appropriate. In 1982 he designed a new one which was instituted the following year. The reorganization was primarily a structural realignment of existing components and was intended to consolidate, relocate and streamline ongoing functions. The old directorates for safety standards, health standards, technical support and administrative programs were essentially unchanged, but the remaining offices were grouped into three new directorates: federal-state operations, policy, and field operations. The directorate of field operations consolidated all the programs, whether enforcement or advisory, that OSHA administered directly. The federal-state operations directorate grouped services OSHA provided jointly with the states. The directorate of policy encompassed various data collection and analysis functions, including preparation of regulatory impact analyses of proposed safety and health standards.96
The most important organizational relationship for OSHA outside of the Department of Labor was that with its sister agency NIOSH. There has always been a built in tension between the two agencies because they are in departments with divergent approaches to issues. In previous Administrations that relationship had often been difficult and unproductive. Auchter, however, maintained that his relations with NIOSH and its director Donald Millar were trouble free. At the same time Auchter recognized that the missions of the agencies were different - that NIOSH gathered scientific information and that OSHA had to take scientific data from NIOSH and elsewhere and add considerations of risk and of economic and technological feasibility. Auchter regularly had lunch with Millar to keep open the lines of communication between the agencies and minimize potential conflicts.97
Complicating Auchter's effort to change OSHA's direction and implement Regulatory Relief was another facet of the Reagan Administration's mission - to reduce the size and cost of government. The Labor Department took this goal very seriously and cut its staff and budget about as deeply as any department in the federal government. OSHA was not exempted from this effort and Auchter accepted moderate cuts in the budget and large cuts in the staff in his first full fiscal year (1982). However, he balked at further severe cuts which the Department sought in 1983, arguing that these cuts would cause a "possibly fatal disruption" in his attempts to implement Regulatory Relief and provide a balanced mix of OSHA activities. He managed to avert some cuts and, despite a sizeable drop in overall personnel in the agency, avoided any reductions in the 1200 person inspection staff he started with.98
Regulatory Relief worked out quite differently in the two broad areas of OSHA operations: enforcement/compliance and development of safety and health standards. While the pace of development of new standards was slowed considerably, existing standards proved practically immune to revision (see discussion on standards below). In the area of enforcement and compliance, however, the Auchter administration had much greater success in providing "relief." This was partly because OSHA could make changes in this area largely by internal administrative orders, rather than going through the time consuming public proceedings required in standards setting.
The changes in enforcement and compliance were of two main types: those instituting a less punitive approach to citations and penalties; and those strengthening voluntarism and increasing OSHA's assistance to workers and employers. Together they constituted a determined effort to provide relief from government regulation. Inspectors began to cite fewer "serious" violations and greatly reduced the size of penalties assessed. OSHA instituted a new system for exempting firms with good safety records from safety inspections and targeting those with poor records. "General Duty" clause citations were restricted and the requirement for walkaround pay was dropped. Inspectors were instructed to help employers find ways of complying instead of just issuing citations. On the other hand, like George Guenther ten years earlier, Auchter emphasized the development of state programs and, through a variety of means, encouraged voluntary abatement efforts by employers and workers. A number of actions on general standards (as opposed to regulations dealing with specific hazards) reflected the new policies. A prime example was the labeling or "right to know" proposal, which was promulgated as the "Hazard Communication" rule.
Some of these enforcement efforts were original programs of the Reagan Administration, while others were continuations or modifications of policies of previous administrations. Most of the changes were direct negations of Bingham's policies. However, the new targeting system was merely an intensification of her "Common Sense Priorities." An effort to require inspectors to present a friendlier, more helpful demeanor was reminiscent of Morton Corn's famous "couth lessons."
Those actions affecting inspections and enforcement directly were strongly supported by business but often aroused vehement labor opposition. Actions encouraging voluntarism, informational programs and state programs, on the other hand, were also applauded by business and even gained occasional support from labor. Regulatory Relief was much more difficult to apply to safety and health hazards, standards or issues. In June 1981 the Supreme Court upheld the cotton dust standard and made it clear that cost/benefit analysis, which the Reagan Administration had intended to be one of the principal tools of Regulatory Relief, was not an acceptable basis for determining how stringent to make a safety or health standard. Delays and red tape at OMB, which had to approve all federal regulations, impeded OSHA's regulatory actions. These factors helped assure that almost nothing would be accomplished in the way of revising existing standards, particularly those affecting health. It was easier to limit the issuance of new permanent standards or to block proposals designed to make existing standards more stringent. Auchter also avoided issuing emergency standards, arguing that they took too many resources from other activities and that the courts usually overturned them anyway. OSHA adopted a four step process for the review and promulgation of safety and health standards which was designed to ensure that these standards would be "sensible, effective and enforceable." The steps involved demonstrating both that a given hazard posed a significant risk and also that a proposed rule would lessen that risk, analyzing the economic impact on the affected industries, and deciding on the least costly way of attaining the needed standard.99 (For discussion of the development of new standards under Auchter see below.)
Auchter mobilized OSHA staff in a number of ways to apply Regulatory Relief to standards. In May 1981 he appointed separate internal task groups, composed of scientists, lawyers, economists and field personnel, to review existing standards on lead and on cotton dust and proposals on hearing conservation and on labeling of dangerous substances. In a period of staff cutbacks, he obtained special permission to hire extra economists to prepare regulatory impact analyses. In April 1982 Auchter filled the key and long vacant post of head of the directorate of health standards by appointing Leonard R. Vance, assistant attorney general of Virginia. Besides his legal expertise, Vance had a Ph.D. in chemistry and had served as the commonwealth's chief environmental lawyer, drafting laws and regulations on OSHA and environmental matters. Vance had been, at times, an outspoken critic of OSHA and Auchter brought him in to see that present and future regulations were as efficient and cost effective as possible.100
The four principal targets of Regulatory Relief in the standards area were rules for cotton dust, lead and noise, and the policy on carcinogens. Outside of this "big four", there was a number of deregulatory actions involving health issues. One of the most controversial began in February 1983 when OSHA announced that it would review its longstanding policy requiring the use of engineering controls wherever possible, rather than personal protective devices (PPD), to control air contaminants. About nine months earlier, in May 1982, OSHA had sought comments on the more narrow issue of regulating the use of PPD's in the workplace. Now it began considering the broader issue of PPD's versus engineering controls to protect worker's lungs from contamination, along with two specific matters: first, the revision of regulations from the consensus rules adopted in 1971 prescribing exposure limits for 400 airborne substances; and second, formulation of general requirements to protect workers from any airborne contaminant. The agency wanted public comments on such matters as: relative merits of engineering controls versus PPD, factors affecting a decision to use one or the other, the costs of each method, and the possibility of combining the two approaches in certain situations.
OSHA's decision to open up the whole question to discussion and look at all options drew praise from industry, though not from labor. A spokesman for the Chemical Manufacturers Association said that, in the light of technological advances over the previous 12 years, it was appropriate for OSHA to reexamine the policy. He stressed that there were situations where respirators were more practical than PPD's, such as areas of a plant where concentrations might be exceptionally high. Labor contended that companies were often lax in seeing that employees had appropriate protective devices or used them properly. A Chemical Workers Union spokesman objected that until then, no one heading OSHA had ever publicly questioned the agency's policy on engineering controls.101
In September 1983 the Washington Post described a report it had obtained by an internal OSHA task force conducting a "Dormant Standards Project." The paper said that the group was developing recommendations to have the agency drop efforts to set exposure standards for 116 hazardous substances, some of which had been under study for years. The task force allegedly reported that, in effect, work on most of these substances had already ceased because of staff shortages, litigation, and scientific disagreements. The substances included 12 known to cause cancer in laboratory animals, such as beryllium, cadmium, certain chromium compounds and nickel. The story quoted Auchter as saying that he had not seen the report but that the purpose of the task force, which he had established two years before, was to decide what to do about inactive projects.
The AFL-CIO reacted quickly and vehemently to the story, terming the OSHA report "absolutely tragic." Sheldon Samuels, job safety and health expert with the labor body, charged that all 116 substances were known to be highly toxic and that OSHA had decided it was "cheaper to let workers die." The labor body also disagreed with the task force's apparent allegation that these had been "low priority" substances at OSHA, noting that nine of them had reached the final stages of the rule making process at the end of the Carter Administration.
OSHA also responded quickly to the story. Auchter wrote a letter to the editor pointing out that the document which the Post obtained was the first draft of a low level report, each page of which carried an official disclaimer. He denied that OSHA had been deliberating actively on the substances for years. In fact, he said, of the 116 actions, only 23 had ever reached the point of a proposed rule (the latest published in 1975) and only eight had been the subject of any public action since 1976. Secretary Donovan, in a letter to Cong. James Scheuer of New York, assured him that the Department had no intention of letting the project continue unless NIOSH certified that this would pose no threat to workers' health.102
Early in Auchter's tenure at OSHA his deregulatory impulses, lack of occupational health expertise, and inexperience in dealing with Congress and the bureaucracy combined to result in a tangled and controversial series of events involving the potential dangers of formaldehyde. During the Carter Administration, OSHA and NIOSH, in response to a chemical industry study, had jointly issued a warning bulletin on formaldehyde as a possible carcinogen. Shortly after Auchter took office, the Formaldehyde Institute, an industry group, tried to convince him that the scientific evidence on the substance was not clear. The bulletin was then out of print and Auchter did not reprint it. In fact, he had decided to cease issuing OSHA-NIOSH warning bulletins for toxic substances altogether because he felt they implied that OSHA would or should formally regulate these substances. In the meantime, a scientist on Auchter's staff, Peter Infante, wrote a letter to an international scientific body on OSHA letterhead, arguing that formaldehyde was indeed a carcinogen. An official of that body complained to Auchter that Infante's letter could be interpreted as an improper attempt by OSHA to influence the organization. The Institute also complained that Infante was acting improperly in his zeal to make a case for regulating formaldehyde. Infante's supervisor, Bailus Walker, determined that he was being insubordinate and initiated dismissal procedures against him. However, Congressman Albert Gore, Tennessee Democrat and a vocal critic of the Reagan Administration, held hearings on the formaldehyde question in July 1981. At those hearings he accused Auchter of attempting to fire Infante and of caving in to industry in regard to the bulletin. Auchter said that he had simply concluded that the scientific evidence on the carcinogenic dangers of the substance was too ambiguous. Republican Robert Walker from Pennsylvania spoke up for Auchter at the hearing, which he called a "witch hunt", and agreed with OSHA that Infante was being insubordinate.103
The result of all this was that the bulletins stayed banned and Infante was reinstated. This was not the end of the formaldehyde question, however. In August 1983 the United Auto Workers and the American Public Health Association filed suit in federal court to force OSHA to set a new standard for the substance. The suit charged that OSHA had ignored several of its own scientific studies warning of increased cancer risk from the substance.104
Implementation of Regulatory Relief in the safety standards area was less controversial and more successful than it was in the health area. Among the changes in safety standards OSHA instituted or proposed were these: burdensome diving rules were amended to exclude scientific operations; shipyard standards were consolidated to reduce their volume by 60 percent; after careful review, a Carter Administration proposal to simplify electrical safety rules was adopted; revisions in construction safety rules affecting electricity and underground work were proposed. In addition, OSHA called for public comments on such matters as ways to simplify and improve existing concrete construction safety rules and less expensive ways to meet the goal of the current window washers safety rule.
In a move that Auchter termed "a prime example of what President Reagan means when he says we should 'reduce the unnecessary regulatory burden,'" OSHA rescinded its ban on the use of latch-open devices on pump nozzles at self service gas stations. The rule had been included in the National Fire Protection Association's code that OSHA adopted in 1971. Since then the Association had determined that the latches posed no threat to fire safety and dropped their voluntary ban on them in 1981. OSHA followed suit and dropped its requirement in September 1982. This was a popular move. OSHA's news clipping files were loaded with laudatory editorials from around the country with such headlines as "Hands Off" and "Look Ma, No Hands." Auchter's deputy, Mark Cowan, suggested that Secretary Donovan play the action up in his speeches as an example of removing regulatory burdens.105
While Regulatory Relief dominated OSHA's whole agenda during Thorne Auchter's tenure, accomplishments under the program did not meet expectations. By May 1982 the OMB and Vice President Bush had become concerned about the lagging pace of action at OSHA and other Department of Labor agencies on regulations targeted for attention. Secretary Donovan told Auchter that the Vice President wanted proposals issued on all targeted regulations by that September. When these were not even forthcoming by the end of 1982, Donovan told Auchter that OSHA had too many items on its agenda and that he feared regulatory reform had "begun to wane."106 At about the same time, new regulatory efforts by OSHA were waxing. By 1983 a number of new proposals had come out. Coinciding with these developments, EPA was undergoing intense congressional and public criticism for its efforts to ease enforcement of environmental standards.
A perception rooted in these circumstances began to grow in the news media and elsewhere that OSHA, allegedly out of a desire to avoid emulating EPA, had shifted to a pro regulatory policy.107 Disagreeing with this view, Auchter said that "some members of the press added two and two and got six and three quarters." He maintained that OSHA was right on the course he charted for it when he first became its head: internal management and behind the scenes regulatory work were to be emphasized first, and only later would regulation setting activity become publicly visible through press releases, announcements in the Federal Register, and so on.108
Auchter's policy may not have changed, but the fact remained that, after about a four year lull that extended well back into the Carter Administration, OSHA resumed significant, visible efforts to regulate hazards in the workplace. It worked on standards for a number of health and safety hazards, including asbestos and benzene, two chemicals known as "EDB" and "ETO", grain dust explosions, and dangers associated with well drilling rigs. It should be noted that much of the new regulatory activity was court ordered, such as work on a farm workers' field sanitation rule and on the ETO standard. In these PRO-regulatory efforts, as in its DE-regulatory efforts, OSHA frequently ran afoul of OMB, the watchdog of Regulatory Relief. The result was frequent, usually lengthy delays as the two agencies tried to reconcile their views of what was consistent with Administration policy. In addition to attempting to develop standards, the Auchter administration began a new safety program for federal workers and took a number of informational and other non regulatory actions against various hazards.
In April 1983 Ethylene Oxide (ETO) became the first chemical since 1978 for which OSHA proposed to lower allowable exposure levels. ETO is a gas used primarily as a sterilizer in hospitals and was one of the substances regulated in OSHA's old consensus standards. In August 1981 the Health Research Group and several unions petitioned OSHA to set an emergency standard for ETO to protect an estimated 100,000 workers in hospitals and elsewhere from possible damage to chromosomes. When OSHA refused their petition, they sued in a federal court. While the suit was pending, OSHA voluntarily began work on a new permanent rule, calling for background information in January 1982. One year later a federal judge ruled in favor of the plaintiffs and ordered OSHA to set an emergency standard immediately. A Court of Appeals overturned the ruling in March 1983 on the grounds that an emergency standard was not called for. But the court agreed that there was a grave danger from ETO and ordered OSHA instead to issue its new permanent standard within a year. Exactly one month later OSHA formally proposed to reduce its average permissible exposure level from 50 to one ppm, a level that it argued would greatly reduce reproductive and other threats posed by the substance. OSHA decided whether or not to set a ceiling for short duration exposures after a brief "memo war" between Peter Infante, who thought a short term level was needed, and Leonard Vance, who did not. Infante lost and the short duration maximum was omitted from the proposal, much to organized labor's disappointment. Hearings were held in July 1983.109
Ethylene dibromide (EDB) is a pesticide that became controversial when it was used extensively during a Mediterranean fruit fly infestation in California. In the fall of 1981, unions representing workers exposed to EDB petitioned OSHA to set an emergency temporary standard that would reduce the allowable airborne level far below that of the existing consensus standard. They cited animal studies showing that workers who handled food fumigated with EDB might risk contracting cancer or becoming sterile. Auchter refused to heed their petition directly. However, he did announce two alternative steps by OSHA: the commencement of work on a new permanent standard and the immediate issuance of voluntary guidelines for workers and employers to follow in order to reduce exposure. Even though the guidelines were strictly voluntary, the Farm Bureau objected strongly to Auchter for issuing them without public notice or hearings and charged OSHA with practicing "ivory tower' government." While OSHA was still developing a proposal, California set a state standard for EDB at 0.13 ppm, far below the existing federal one of 20 ppm, and OSHA approved it.110
On October 5, 1983, just after the EPA announced it planned to regulate EDB, OSHA issued its proposal for a new permanent standard. However, OSHA's action was preceded by a minor "snafu" with OMB. The week before, OSHA had been about to announce the proposal but it turned out that OMB had not officially cleared it and OSHA had to hold off. This was unimportant in itself but it symbolized the often difficult relationship OSHA has had with OMB throughout the era of Regulatory Relief. There had been some disagreement between the two agencies on the substance of the proposal, but this had already been ironed over. A few days after the snafu, OMB did clear the EDB proposal and OSHA published it in the Federal Register. The proposal lowered the 20 ppm permissible level to 0.1 ppm for the exposed 56,000 workers and it prescribed protective actions an employer would have to take if exposure got up to a trigger level of 0.05 ppm.111
In March 1984 OSHA proposed a rule requiring that farm workers be provided with field sanitation facilities, such as portable toilets, hand washing facilities and drinking water. Under Morton Corn, OSHA had originally proposed such a rule in 1976, in response to a suit by a farm worker organization, but Corn withdrew it under intense criticism and ridicule from rural opponents. The revival of the proposal was also the result of court action, by which OSHA agreed either to set a permanent standard by February 1985 or else to decide against setting any standard at all.112
One of the most significant non regulatory actions that OSHA took under Thorne Auchter was a conference it held in October 1982 on the question "What is a good health program?" Called at Auchter's initiative, the conference included 48 invited participants from labor, management and state governments who worked to define the basic elements which should comprise a company's health program. They came up with a general model that included such elements as employee training, implementation by safety and health professionals, exposure monitoring and medical surveillance, and compliance with health standards. OSHA prepared a report on the results of the conference which it circulated to the participants for their comments and then developed a comprehensive proposed policy which it published in the Federal Register in December 1983. In carrying out this policy, OSHA planned to formulate a set of program criteria for use by the compliance and consultation staffs, to steer New Directions grants toward groups which were trying to improve workplace health protection systems, and most importantly, to develop education and training materials. Auchter said that the "bottom line of all this" would ultimately be that a company seeking help in improving its occupational health program could go to an OSHA office and be given a pamphlet for their type of business that would tell them how to do it.113
Auchter maintained close communication and cooperation with EPA throughout his tenure. In June 1983 EPA director William Ruckelshaus invited OSHA to join with him in considering rule making for "MDA", a suspected carcinogen used in the manufacture of plastics. OSHA agreed to join the agency in publishing an advance notice of proposed rule making on the substance, after which it would undertake its own cancer risk assessment to decide whether to proceed further. Later that year Ruckelshaus invited Secretary Donovan to join him and other agency heads to improve cooperation on managing risks to the public. He suggested for a starter that the heads of agencies involved in industrial risks meet to design a risk management strategy. Donovan designated Auchter to help plan the first meeting of this group.114
Efforts to develop a dust standard to prevent grain elevator explosions begun under Eula Bingham were revived by Thorne Auchter. The need for such a standard was emphasized by regularly occurring, spectacular explosions: 14 in 1982 alone, killing 12 workers and injuring 35 more. An early draft proposal which OSHA circulated to labor and industry in the fall of 1982 focused on controlling ignition sources and did not include a maximum level of accumulated dust. The AFL-CIO, which had played an active part in developing the proposal, argued that dust on surfaces was a key factor in grain elevator explosions. After reviewing the scientific data, OSHA revised the draft to include a 1/8 inch dust maximum, although the unionists would have preferred a 1/64 inch maximum. This made the proposal too expensive for the grain elevator industry, which argued that little benefit would result from the estimated $100 million compliance cost. As an interim measure while the proposal was under discussion, Auchter began in March 1983 a "special emphasis" program to increase inspections of grain elevators. Under this program, each area office inspected at least ten percent of the elevators in its territory.115
About the time that the special inspection program began, OSHA completed its proposal, which was now ready to be sent to OMB. After a mysterious delay of two months during which, according to Auchter, the proposal had been mislaid in the Solicitor's Office at the Labor Department, in May 1983 the document went over to OMB, which then had 60 days to review it. In July the Office said that it had a number of questions about the proposal and would need more time. OMB's main problem was with the 1/8 inch dust level maximum, for which it, like the grain elevator industry, saw no justification. A stalemate developed between the two agencies, resulting in an unusual alliance between OSHA and AFL-CIO president Lane Kirkland. He sought to break the stalemate by asking his long time friend, Vice President George Bush, to intervene in favor of OSHA's proposal. However, the status quo persisted well into the fall. The issue became a major one between Auchter, who felt strongly that a rule was needed, and OMB, which had serious doubts that it would provide significant benefits. Finally in December 1983 the agencies reached a compromise on the crucial issue of dust levels. OMB agreed to allow the 1/8 inch maximum, but only as one of three options available to grain elevators for controlling dust. However, resisting OMB pressure, OSHA held firm on including small as well as large elevators under the proposal. In January 1984 OSHA published it in the Federal Register.116
OSHA worked to improve several other safety standards and guidelines. In June 1983 it issued its final standard for workers engaged in onshore marine cargo handling. This rule, originally proposed in 1980 and revised since then, consolidated relevant provisions in OSHA's long shoring and general industry standards.117 To replace the limited protections provided workers employed on well drilling rigs by OSHA's general industry rules and its use of "general duty" clause enforcement, in December 1983 it proposed a new safety standard for this highly hazardous work. The culmination of an effort that began in the previous administration, the proposal was designed primarily to prevent falls from elevated drilling platforms, to protect workers from becoming entangled in rotating and other drilling equipment, and to shield them from injury in the event of well blowouts. Hearings were scheduled for March 1984.118 In November 1982 OSHA proposed to go beyond the coverage of a 1980 rule protecting workers servicing multi piece rim truck wheels by issuing a separate rule covering single piece rims. The danger was in mounting tires on the rims under air pressure of more than 100 pounds per square inch. Air released at that pressure could hurl a man across a room. Not heavily used in 1980, single piece rims were becoming more popular and it was projected that they would be found on half of all long haul trucks by 1990. In February 1984 OSHA issued a new rule requiring barriers and other protections for workers servicing these rims.119 In response to a construction accident in March 1983 in which four workers were killed while being hoisted by a crane, Auchter immediately ordered revision of applicable OSHA rules to prevent such accidents in the future. In February 1984 OSHA proposed new rules on hoisting workers with cranes or derricks.120
The problems Thorne Auchter faced in trying to strike a balance between applying Regulatory Relief and providing needed protections for working people were augmented by the pressures of the public opinion arena in which OSHA had to operate. As it had generally tried to do throughout its history, OSHA sought to steer a pragmatic course between policies advocated by businessmen and conservative critics, on the one hand, and those advocated by pro regulatory activists, labor unionists and liberal critics, on the other. While businessmen and their supporters were much more pleased with Auchter's policies than were organized labor and its allies, OSHA, like Homer's Ulysses, was generally successful in avoiding both Scylla and Charybdis.
Auchter started out "under the gun" from conservatives like Senator Hatch, but the administrative changes he implemented quickly defused their anti-OSHA ammunition. Edifying editorials came out in newspapers all across the country with titles like "The administration's new and nicer OSHA" and "Rose among thorns" (pun probably intentional). Conservative columnist James Kilpatrick praised Auchter for bringing a new moderation and "common sense" to the agency. A special study commissioned by the NAM praised Auchter for successfully initiating implementation of the Administration's deregulatory policies and for moderating OSHA's "policeman" image. In an amusing, somewhat anachronistic sour note, a firm in California began marketing a video game in 1983 called "Hard Hat Mack" in which OSHA was portrayed as one of the hazards on a construction worksite that could gobble up the blue collar protagonist. After objections from federal OSHA and Cal-OSHA, some stores voluntarily stopped merchandising the game. On a more positive note, a construction executive from Houston, Texas, wrote to Secretary Donovan praising local OSHA staff for the competence and compassion with which they handled an investigation of his company after one of his employees was killed in an accident.121
Labor unions were publicly critical of almost every move Auchter made. The pressure started early as a coalition of labor and environmental groups held vigils by the Capitol in April 1981 to protest budget cuts at OSHA.122 In August of that year the UAW charged that OSHA was developing "secret plans" discussed at an OSHA managers' conference in July that would "dismantle" enforcement by such measures as reducing complaint inspections and giving employers advance notice of them, exempting small firms from regular safety inspections, and exempting employers with good safety records from regular inspections.123 On a television interview Auchter responded that the documents containing these proposals were full of errors and that at that stage they were just ideas for discussion (though some were subsequently adopted).124 At a national occupational safety and health conference held by the AFL-CIO in Washington, D.C., in May 1982, organized labor demanded a halt in what they termed the Reagan Administration's "assault" on worker protection rules and launched a nationwide "OSHA Watch" to monitor OSHA. Ill will between Auchter and labor increased after the 1982 conference when he launched a campaign of his own against AFL-CIO safety and health expert George Taylor, who was serving on NACOSH. Auchter charged in letters to several union officials that Taylor was responsible for obstructions, misstatements and groundless accusations while serving as a member of the advisory committee. Taylor was not reappointed when his term expired in 1983.125 The public war between labor and OSHA intensified still further in September 1983 when a Philadelphia area coalition of unions called on Auchter to resign from office because of the "systematic and insidious dismantling of OSHA."126
This state of affairs was galling, in a sense, to Auchter because he had had largely positive dealings with organized labor over the years as an official of his family's company. Auchter felt that he "grew up with organized labor." While learning various phases of the business he worked as an apprentice for and "chewed Red Man (tobacco)" with union people whom years later he had to face across a bargaining table. He has pointed out that since coming to OSHA he attended the annual AFL-CIO convention regularly as an invited guest who would go there and "tell it like it is." He observed a duality, which seemed to be dictated to a large extent by politics, in labor's relations with him as head of OSHA. While labor made frequent public statements opposing his policies, he reported that privately various union leaders told him they thought he was doing a good job in particular areas.127
Environmental, consumer and other "watchdog" groups were both publicly and privately hard on Auchter. The fall of 1982 produced a bumper crop of criticism. At its annual convention in November 1982, the American Public Health Association, led by Anthony Robbins, who had headed NIOSH during the Carter Administration, charged Auchter with flagrant violation of OSHA's legal mandate and listed 25 reasons why he should resign.128 A month earlier the Sierra Club released a report titled "Poisons on the Job: the Reagan Administration and American Workers" which castigated the Administration for dragging its feet on enforcement of health and safety rules.129 About that same time the Health Research Group issued a detailed study comparing OSHA enforcement under Auchter with that under Eula Bingham. The study charged, among other things, that the number of workers covered by OSHA inspections fell by over 40 percent and that the number of "serious" violations charged fell by 50 percent. The HRG concluded that Auchter had made "a shambles" of OSHA programs.130
Almost a year later another Nader group, the Center for the Study of Responsive Law, issued a study similar to the HRG report accusing OSHA of "bureaucratic surrender" to corporate interests. Auchter retorted that this study was "a collection of lies, distortions and generalizations" and publicly issued a letter which he sent to Ralph Nader refuting in detail some 47 incorrect or misleading statements. In that letter, he also scolded Nader for betraying the public's trust in him as a government watchdog and urged him to issue corrections of at least the major errors contained in the study.131
Congressmen of a pro regulatory bent monitored OSHA closely to see whether it was living up to its legal mandate. At House hearings in March 1983 Cong. David Obey (Democrat, Wisconsin) leveled a number of charges at Auchter, ranging from suggestions of improper industry contacts regarding regulation of formaldehyde to the alleged suppression of an internal OSHA study that raised questions about the adequacy of the asbestos standard. Auchter later remarked that Obey and he "disagree...on what direction the sun's going to come up." He found Obey equally difficult in a private meeting in which at one point the Congressman threatened to cut funds from OSHA's budget for contracts for studies needed in setting standards. Auchter told him if that happened, standards work would come "to a screeching halt."132
Earlier that year a group of Senators, mostly Democrats, wrote to Auchter to express their concern over a number of proposed actions which had been reported in the media and which they feared would weaken OSHA. These included restrictions in the records access rule, reductions in penalties for safety and health violations, and changes in the carcinogen policy that could reduce OSHA's ability to protect workers from cancer. This letter prompted an explanatory note from Secretary Donovan but no promises to change OSHA's plans. In 1982, however, letters like one from Senator Arlen Specter (Republican, Pennsylvania) protesting the closing down of the Allentown OSHA area office were undoubtedly a factor in OSHA's decision to reopen that office and several others.133
Data on workplace injuries and illnesses reported by the Bureau of Labor Statistics from 1981 through 1983 provided a strong rebuttal both to liberal critics of Thorne Auchter and to conservative critics of OSHA itself. The 1981 BLS report, released in November, showed declines in all major indicators of occupational injuries and illnesses, ending a trend of increases since 1975. The rate of injuries and illnesses per 100 workers fell from 9.5 to 8.7. BLS reports issued in 1982 and 1983 continued the trend, with the rate declining to 8.3 and then 7.7, amounting to a 19 percent drop since 1979.
Reactions to the numbers were predictable. Commenting on the 1982 report, Secretary Donovan pointed out that the Administration wanted to be measured by the yardstick of results and said he was "happy to report results that are good news." Auchter portrayed the decline as a vindication of the Reagan Administration's "cooperative, non adversary approach." Labor critics were not impressed. They noted that much of the decline took place during the Carter Administration or at least while Carter era policies were still in effect and that a good part of it was also attributable to the Reagan era recession and to shifts in employment to less hazardous industries. As the Washington Post's New Year's poem saluting Washington personalities of 1983 summed it up: "Thorne Auchter's OSHA, e'er alert,/Sees fewer workers getting hurt./Critics, though were heard to whine,/'It's 'cause they're in the jobless line." The BLS put its statistics in more sober perspective by pointing out that they did not reflect long term, chronic illnesses (such as cancer, brown lung, asbestosis, and so on). Nevertheless, the numbers that began coming out in 1981 greatly eased the pressure on OSHA from conservative critics who questioned the need for and value of the agency. They also won praise for Auchter from such hard to please institutions as the Post, which editorialized in November 1983 (in a more serious vein) that the BLS statistics showed that he had "effectively managed the injury reduction program."
In highlighting the continuity of progress by OSHA during two Administrations, the statistics underlined the existence of strands of continuity in policy as well. Auchter implicitly acknowledged this in comments on the 1981 BLS data, which he said "clearly reinforce our recently adopted (Carter Administration) policy of targeting...inspections." 134 Indeed, as Auchter indicated in a series of historical interviews (see endnote no. 85), he was well aware of the need for continuity of programs and policies. He said he did not think of particular ongoing activities as Ford, Carter or Reagan programs because he believed that everyone who occupied his position at OSHA left something positive behind.
In March 1984 Auchter left OSHA to become president of a private corporation.135 After three years with the agency, he felt "My job is really done." His main accomplishment, he believed, was the instilling of accountability into the agency, so that individual staff members would feel responsible for the work they did and would feel also that they were making a real contribution to protecting workers on the job. He also believed that he had helped restore confidence in an agency that had been discredited in the eyes of the business community as a tool of big labor. One regret Auchter had was that, having discovered that it takes constant communication to affect public opinion, he had not worked harder at "getting our message out." Another was that he did not realize when he came into the agency just how important a role special interest groups played in making policy. He started out looking at OSHA as though it were a private company in which some, though not all, decisions could be made in total privacy. He soon found that, unless the interest groups were kept fully informed regarding every decision making process, they felt excluded. Looking to the future, Auchter said that the complex area of occupational health was a subject that OSHA would really have to come to grips with. In his view:
"The agency is a growing and learning thing and really is an experiment. Nobody has all the answers in occupational safety and health, and, you know, we got a ways to go, yet."
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